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ART. IV.-TRIAL BY JURY.
1. The Dark Side of Trial by Jury. By JOSEPH BROWN, Esq.,
of the Middle Temple. London: Maxwell, 1859. 2. Unanimity in Trial by Jury Defended. By G. ROCHFORT
CLARKE, Esq., of the Inner Temple. London: Stevens and
much in its favour!” Such is the gushing and enthusiastic exclamation of Mr. Rochfort Clarke. “I arraign trial by jury at the bar of public opinion. I accuse it of incapacity, of ignorance, of partiality, of cumbersomeness, of barbarism.” So writes Mr. Joseph Brown, at page seven of his pamphlet. Now each of these gentlemen practises at the common law bar—each has had long experience as a special pleader, and they both belong to the same circuit. They have had, therefore, and still enjoy, similar opportunities of forming a deliberate and careful judgment concerning the tribunal, the merits of which they have discussed in the pamphlets above mentioned. The result is, one learned lawyer pronounces an unmeasured eulogy on it in all its aspects and relations; the other condemns it absolutely as a monstrous folly, and a mischievous relic of barbarism.
When, of two intelligent, experienced, and honest men, the one can see nothing but good in an institution with which they are both familiar, and the other nothing but evil, the phenomenon is worth observing for its own sake. It serves, moreover, to illustrate the general character of that class of conflicts of opinion which concern social institutions, and on which the weight of authority and dogma is always brought to bear, and sometimes assumed to be conclusive.
The questions relating to the tribunal of trial by jury are about to undergo, as it seems to us, the process now termed “ ventilation;" and there will be exhibited, therefore, to the
public the spectacle of a certain number of learned (and still more of unlearned) men supporting opposite sides, drawing adverse conclusions from the same premises, or discarding one class of facts whilst they exaggerate the importance of others; and the discussion will naturally excite the usual amount of prejudice and bias on the one side, and temerity and experimental essay on the other. The excuse for this treatment of political and social topics, when under public discussion, appears to be that, in point of fact, no step in life, and no measure relating to human affairs, can be taken to which some objection cannot be raised, or the possibility of evil consequences ensuing not be foreseen. Rash innovation, again, produces persistent obstinacy; a bad reason for a good measure generates indifferent arguments for maintaining an imperfect system. Moreover, the logical weighing of advantages and disadvantages, the impartial watching of the balance of reason, even when self-interest does not come into play, is the result of an uncommon exercise of the rarest of all faculties—a sound judgment. As a general rule, differences of opinion create parties; and when once men have become partisans, persuasion is of course out of the question. Invective takes the place of reason-stubbornness is resorted to as a defence-blindness, hardness of heart, and a!l uncharitableness, flourish ; and the partisan then becomes a slave to a dogma, and a mere repetition machine of routine plausibilities. If the dispute on the jury system proceeds in a normal fashion, we believe Mr. G. Rochfort Clarke will be found soon prepared to die happy, upon his being convicted of a capital crime by a jury of twelve men; whilst Mr. Joseph Brown would surrender, in the pious ecstasy of martyrdom, the bar, and all its present profits and promises for the future, on the condiition of an educated, trained, and model bench of judices sentencing him to penal servitude for the term of his natural life. The disciples also of those excellent lawyers (independently of being their juniors, and willing to undertake th professional labours which would devolve upon the rest of the profession if the criminal law were put in force as above
suggested) would doubtless approve of such self-sacrificing magnanimity of the great leaders in the jury controversy, if not called upon to share to the full extent in their hypothetical fate.
We shall endeavour to put the subject on the real footing on which it seems to us it should be discussed. It is of no use merely to rail at juries—to point out that the present system produces frequent miscarriage of justice; nor, on the other hand, does it avail to reply that trained and skilled judges have been repeatedly known to take erroneous views of matters of fact, as well as to propound much false doctrine in law.
If any one thinks that he cannot laud and “ magnify” the institution of the jury too much, because it is absolutely perfect, we must take leave at once to differ from him ; first, because, as a matter of fact, no tribunal ever has been or can be perfect; and next, because general experience contradicts his declaration. The question which alone ought to be before us is this :—Is trial by jury, as now instituted, the best practicable mode of eliciting the truth, when disputed by litigants in Great Britain and Ireland? And this inquiry may be prosecuted both by induction and deduction.
They who attack the institution urge, that a priori to pick up casually twelve men not accustomed to weigh evidence, nor to continuous thought in any way, and to call
them to decide upon disputed facts or strange subjects, especially when the inquiry is accompanied with the drawbacks of technical difficulties, and encumbered with professional artifices, is simply absurd. It is assuming the preposterous proposition, that a common jury, uneducated to the duty, possesses by intuition “ the faculty of hearing without being deluded by sophistry and eloquence, of catching and connecting, as it flies, the broken and disjointed evidence of numerous and contradictory witnesses; of selecting what is material and rejecting what is irrelevant; of sifting the wheat from the chaff, the substantial from the seeming, and extracting the kernel of truth from the misshapen husk of errors in which it is enveloped."-(Dark Side of Trial by Jury, p. 9.) They further argue that, in point of subtlety and acuteness, the
jury is not on a level with the advocate, that professional sophistication and appeals to common or special prejudices, by his refined art and practised acuteness, are means not calculated to secure the ends of justice.
They allege that there is no responsibility felt when the onus of finding a verdict is divided among twelve men, who, extracted casually for the first time from a numerous public, are virtually anonymous, and are silently reabsorbed amongst the multitude. In the olden days the writ of Attincta lay against a jury for giving a false or perverse verdict, and grievous were the penalties attached to conviction of this crime—the liberty, property, and all legal rights of the false juryman were forfeited for ever ; but this contrivance for preventing or punishing perjury having been long obsolete, and being now abolished, each member, with his nominal one-twelfth of responsibility to bear, is practically free ; and when the foreman declares (as one did lately in the sheriff's court) that they found “ magnanimously" for the plain
be inferred that such is the verdict of some at least out of the twelve, but also that some have taken the responsibility of saying so, and the rest of allowing them so to say.
But, coming to the arguments founded on experience, we find the absurdities of opinion, and foolish and ignorant verdicts, insisted on. So, too, the scandals of the jury-room; the tossing up, balancing a poker, drawing lots, compromising differences, are all pointed out as significant facts. The frequency of new trials, moreover, and the general uncertainty of verdicts, are very striking circumstances in the history of our jurisprudence.
Again, observes Mr. Amos, “ A jury gives no reason for its decision ; and persons who casually, or upon inquiry, have become acquainted with the grounds on which a jury, or one or more jurors, have decided a case, will have often found that they were influenced by some reasons which totally escaped both the judge and counsel; and which, if they had been stated in court, could have easily been shown to have been founded on ignorance
1 In an able pamphlet which this learned lawyer and accomplished man published nine years ago, entitled “A Lecture on County Courts.”
of the rules of evidence, or some mistake of law or of fact, generally the former. Thus, clandestineness in judicial deliberations, and concealment of the grounds for decisions affecting lise, liberty, character, and property, make an inquest of twelve men bear a strong affinity to the celebrated Council of Ten. They occasion, moreover, a peculiar species of uncertainty in the verdicts of juries which I do not recollect to have seen noticed by our law-writers. Suppose that a plaintiff rests his claim upon three distinct grounds ; say the action is for the breach of the warranty of a horse, and the plaintiff contends that the horse has three faults—is spavined, broken-winded, and glandered. Four of the jury believe in the glanders, eight disbelieve; and the like as to the broken-wind and the spayin. Under these circumstances, if the question be proposed generally to a jury, ' Do you find for the plaintiff or for the defendant ?' They would find an unanimous verdict for the plaintiff, though they would have negatived by a large majority every ground upon which that verdict was claimed ; but if the jury were asked their decision separately upon the three breaches of warranty, the plaintiff would not be entitled to a verdict. A similar result, and one which is more difficult to be guarded against, is often obtained when a single ground of action is supported by distinct heads, or pieces of testimony, concerning the credibility of which respectively the jurymen differ in opinion. Thus, suppose a criminal charge, which rests entirely on the evidence of an accomplice and that of a confession, and six jurymen believe the accomplice, but do not give credit to the confession ; while the other six rely on the confession, but repudiate the evidence of the accomplice, the result is an unanimous verdict of guilty !!” The above learned writer may well ask whether this vicious accumulation of minorities may not in many cases, by simulating the character of majorities, have dealt much injustice !
To these enumerated objections we may add another, which, probably, delicacy on the part of Mr. Joseph Brown has prevented him from expressing, but which we have no hesitation in pressing upon the attention of the legal profession. We refer to the