Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 41 (1996)

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Cite as: 518 U. S. 415 (1996)

Scalia, J., dissenting

B

Respondent's principal response to these cases, which is endorsed by Justice Stevens, see ante, at 443-445, is that our forebears were simply wrong about the English common law. The rules of the common-law practice incorporated in the Seventh Amendment, it is claimed, did not prevent judges sitting in an appellate capacity from granting a new trial on the ground that an award was contrary to the weight of the evidence. This claim simply does not withstand examination of the actual practices of the courts at common law. The weight of the historical record strongly supports the view of the common law taken in our early cases.

At common law, all major civil actions were initiated before panels of judges sitting at the courts of Westminster. Trial was not always held at the bar of the court, however. The inconvenience of having jurors and witnesses travel to Westminster had given rise to the practice of allowing trials to be held in the countryside, before a single itinerant judge. This nisi prius trial, as it was called, was limited to the jury's deciding a matter of fact in dispute; once that was accomplished, the verdict was entered on the record which— along with any exceptions to the instructions or rulings of the nisi prius judge—was then returned to the en banc court at Westminster. See generally 1 Holdsworth, History of English Law, at 223-224, 278-282; G. Radcliffe & G. Cross, The English Legal System 90-91, 183-186 (3d ed. 1954). Requests for new trials were made not to the nisi prius judge, but to the en banc court, prior to further proceedings and entry of judgment. See 1 Holdsworth, supra, at 282; Riddell, New Trial at the Common Law, 26 Yale L. J. 49, 53, 57 (1916). Such motions were altogether separate from appeal on writ of error, which followed the entry of judg-awarded by the jury were excessive or were inadequate" (footnotes omitted)).

455

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