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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 upon 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 plaintiff—it may 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 life, 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 spavin. 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
effect the jury system has on the production and maintenance of the mere Nisi Prius advocates—that class of men we mean, who, destitute of law, and perhaps, in addition, shallow in understanding, vulgar and claptrap in address and language, but practised in the congenial task of talking down to a common jury, and with a natural capacity for blustering, bullying, browbeating, humbugging, and the use of those cunning arts calculated to mislead an ignorant body of men in a position novel to them but which are threadbare and transparent to those who, like the judge and counsel, are condemned now to be perpetually witnessing these contemptible “ tricks of the trade.” Degeneration is a process which quickly ensues among men of this order, who thus bring contempt upon the profession of law. The inferior specimens of those who thus thrive by the common jury system, would never hold another brief if a competent audience were to be addressed. We have heard that one of this latter division of the class in question has one story, which he invariably introduces to every fresh jury at his sessions and elsewhere, somewhat in this way :-Having tried to mis-state a piece of evidence, first in one way and then in another, and being as often checked by the counsel on the other side, this accomplished advocate invariably exclaimed, in his pure English and accomplished style, “Why, gennelmen ! my learned friend, gennelmen, is like the soldier, gennelmen- he don't like it any way. The soldier, gennelmen, you know, when he was being flogged, you know, kept complaining he was 'it too 'igh or too low, you know there was no pleasing him, gennelmen, you know. My learned friend is like the soldier, gennelmen,” &c. Doubtless it was to this counsel's arguments on one occasion, in banc, that his pert junior said he wished to add nothing but the H's. In the continual succession of fresh juries the stalest and poorest of jokes, the most superficial of arguments, and despicable appeals to prejudice, pass muster. There are, as we have just observed, ranks and degrees among the Nisi Prius lawyers, fostered by the jury system. Some, it is true, endowed with natural eloquence, are capable of better things, and can occasionally rise superior to the bad habits engen
dered by their successes in a limited and ignoble field of operations. Rapidity in apprehending facts, ingenuity in unfolding them, skill in evading legal questions, and in cloaking personal legal deficiencies, are valuable qualities, and will account for such success as they bring ; and these qualities may be, and doubtless are, occasionally conjoined with others, which together form the accomplished leading advocate. On the whole, however, forensic talent is debased by the necessity imposed on counsel of gaining their verdicts through the understandings and prejudices of imperfectly educated men, and these generally of a low intellectual standard.
There are yet other charges, founded on experience, which are brought against trial by jury, to which we must advert :-“No insurer resisting a life policy-no great company resisting a claim for an accident-no lawyer or doctor suing for his bill —no gentleman contesting the charges of a tradesman-no landlord suing for a forfeiture—no person who has rendered himself by any means unpopular, can safely depend on the impartiality of a jury. The fact is familiar to every lawyer, and calculated on beforehand. Nay, even a merchant of London suing a trader of a country town, is not safe in a disputed case with a jury of that town. In parts of Wales, a Welsh jury can hardly be got to do justice to an Englishman against a Welshman.”
What are the chances of a true verdict, it is again asked, " when national or religious prejudices envelope the case ? ” How would the case of Achilli v. Newman, have resulted if the jury had been constituted of Roman Catholics ? In Ireland proved assassins and conspirators are acquitted, and a verdict of wilful murder brought in against Lord John Russell, because a poor man had starved in the time of famine! Railway companies, and other wealthy defendants, have verdicts against them in defiance of all evidence. Compassion for the sufferer, and his right to compensation are often-times confused, and flagrant injustice is committed. Besides lawyers, apothecaries,
1 This fact, when noticed by that learned and able judge, B. Bramwell, was challenged on a recent occasion, and indignation thereat was affected in the House of Commons; but it is true, and the judge was right to say so.-(Ed.)