Neither, if such examples
did exist, could your Committee allow them to apply directly and
necessarily, as a measure of reason, to the proceedings of a court
constituted so very differently from those in which the Common Law is
administered. In the trials below, the Judges decide on the competency
of the evidence before it goes to the jury, and (under the correctives,
in the use of their discretion, stated before in this Report) with great
propriety and wisdom. Juries are taken promiscuously from the mass of
the people. They are composed of men who, in many instances, in most
perhaps, never were concerned in any causes, judicially or otherwise,
before the time of their service. They have generally no previous
preparation, or possible knowledge of the matters to be tried, or what
is applicable or inapplicable to them; and they decide in a space of
time too short for any nice or critical disquisition. The Judges,
therefore, of necessity, must forestall the evidence, where there is a
doubt on its competence, and indeed observe much on its credibility, or
the most dreadful consequences might follow. The institution of juries,
if not thus qualified, could not exist. Lord Mansfield makes the same
observation with regard to another corrective of the short mode of
trial,--that of a _new trial_.
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