456
Scalia, J., dissenting
ment. 1 Holdsworth, supra, at 213-214; Radcliffe & Cross, supra, at 210-212.4
Nonetheless, respondent argues, the role of the en banc court at Westminster was essentially that of an appellate body, reviewing the proceedings below; and those appellate judges were capable of examining the evidence, and of granting a new trial when, in their view, the verdict was contrary to the weight of the evidence. See Blume, Review of Facts in Jury Cases—The Seventh Amendment, 20 J. Am. Jud. Soc. 130, 131 (1936); Riddell, supra, at 55-57, 60. There are two difficulties with this argument. The first is the characterization of the court at Westminster as an appellate body. The court's role with respect to the initiation of the action, the entertaining of motions for new trial, and the entry of judgment was the same in all cases—whether the cause was tried at the bar or at nisi prius. To regard its actions in deciding a motion for a new trial as "appellate" in the latter instance supposes a functional distinction where none existed. The second difficulty is that when the trial had been held at nisi prius, the judges of the en banc court apparently would order a new trial only if the nisi prius judge certified that he was dissatisfied with the verdict. To be sure, there are many cases where no mention is made of the judge's certificate, but there are many indications that it was a required predicate to setting aside a verdict rendered at nisi prius, and respondent has been unable to identify a single case where a new trial was granted in the absence of such certification. In short, it would seem that a new trial could not
4 The grounds for granting a new trial were "want of notice of trial; or any flagrant misbehavior of the party prevailing towards the jury, which may have influenced their verdict; or any gross misbehavior of the jury among themselves: also if it appears by the judge's report, certified to the court, that the jury have brought in a verdict without or contrary to evidence, so that he is reasonably dissatisfied therewith; or if they have given exorbitant damages; or if the judge himself has misdirected the jury, so that they found an unjustifiable verdict." 3 W. Blackstone, Commentaries on the Laws of England 387 (1768) (footnotes omitted; emphases deleted).
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