Page images
PDF
EPUB

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 is 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

[ocr errors]

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 :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.)

[ocr errors]

bill-discounters, sheriffs officers, and others, according to Mr. Brown, have

very

little prospect of getting a rerdict; and generally before a common jury, no gentleman should attempt to resist a tradesman's bill, however exorbitant, nor any sane but injured inhabitant of a county sue a justice of the peace thereof, for acts of tyranny or illegality, before a special jury.

No remark is more common among lawyers, than “ In this case we must have a special, or common jury,” as the case may be; the object being to secure a tribunal, the known sympathies or prejudices of which may be favourable to the success of the client whose interests are being considered.

So far as we can collect them the above are the more common arguments brought against trial by jury. For that of the inconvenience to the jurors we do not regard as of great cogency, the present improper mode of summoning them, detaining and maltreating those in waiting, being matters relating to detail, and do not touch principles. In the clever lecture by Mr. Amos, already referred to, the reader will find some excellent and pertinent remarks

upon

the relation of the county courts to the trial by jury, as well as upon the unanimity of juries, which the author has so discussed as to have anticipated much which has since been said on the subject.

Let us now listen to the advocates for retaining trial by jury. They advance many well-known and substantial reasons on its behalf. Indeed, they seem to prove too much; for in the greater number of appeals to the law--civil or criminalthe intervention of a jury is already dispensed with. In the Courts of Chancery, Admiralty, Probate, Bankruptcy, and Insolvency, questions of fact as well as of law are left to the Bench. In the County Courts juries are the exceptions; in the Divorce Court their employment is in the discretion of the judge. In the Superior Common-Law Courts at Westminster, there is a large proportion of cases withdrawn from the jury-box, and submitted to professional reference or that of the masters, and occasionally that of the judges. Not unfrequently the counsel or solicitors on either side arrange” the dispute rather than trust

it to a jury, thus constituting themselves the arbitrators. So also many causes are turned into special cases. In the result, only a small part of our vast civil litigation is submitted to the adjudication of juries. In criminal cases the returns show that the magistracy disposes of by far the greater number of delinquents. Hence it is obvious that they who "magnify” with Mr. Clarke trial by jury, ought also to strive to “multiply" its application in many more instances than the present state of the law and its practice admits of. As their intention does not travel to this extent, it is a plain admission that the tribunal is not a suitable or necessary one in a large proportion of che litigation in this kingdom.

The grounds for maintaining the present jury system in its present state-we cannot call it integrity-appear to us to be as follows:

1. It has been handed down to us by our forefathers.

2. There is great difficulty in finding another which we know would work so well, and be as little mischievous as the present. The habitual and constant exercise of the office of weighing contradictory evidence, and balancing opposing probabilities, would exhaust the mind of a single judge bound to decide on facts as well as law, and listening to the rapid succession of causes tried at Nisi Prius. “Although it may sound paradoxical, it is true that the habitual and constant exercise of such an office tends to unfit a man for its discharge. Every one has a mode of drawing inferences in some degree peculiar to himself. He has certain theories with respect to the motives that influence conduct. Some are of a suspicious nature, and prone to deduce unfavourable conclusions from slight circumstances. Others again err in the opposite extreme. But each is glad to resort to some general rule by which, in cases of doubt and difficulty, he may be guided. And this is apt to tyrannize over the mind when frequent opportunity is given for applying it. But in the ever-varying transactions of human life, amidst the realities stranger than fictions that occur, where the springs of action are often so different from what they seem, it is very

unsafe to generalize, and assume that men will act according to a theory of conduct which exists in the mind of the judge.” -(Forsyth, pp. 443, 444.)

3. In political prosecutions the jury has stood, and is likely to stand, between the government and its intended victims; and if the institution be curtailed in civil suits, the thin end of the wedge has been inserted, and thus the protection of the subject from the law and its officers in future history will soon be lost.

4. A jury taken from the general public is likely to be entirely impartial. By this, we presume, is meant that twelve men, casually brought together out of a multitude, are not likely to have any personal relations with, or predilections for the plaintiff or defendant, and it has special reference to a densely populated district, and not to some localities, as in Wales, Scotland, and Ireland, where inhabitants are sparse, and clanship is prevalent. Nevertheless cases do occur where personal sinister influences do affect justice, as in the case of the pertinacious juror who stood out against his eleven brethren, notwithstanding palpable proofs of guilt, in a capital case. The majority, thinking that there must be some secret and powerful grounds for their colleague's adherence to his opinion, acquiesced therein, and found the verdict of Not Guilty. They unfortunately did not know that the prisoner at the bar was the sole surviving life in a copyhold estate in which the virtuous and steadfast jurorjustus et tenax-was interested.

5. A body so selected will give a fair average representation of the view which the public in general would take of the facts of the case when presented to them at large, and therefore will be perfectly satisfactory to the judgment of the community.

6. The “common-sense” view of a case (which is assumed to be that especially closely allied to truth) will be probably taken by twelve ordinary minds when an opportunity is given them, as now for discussion, and when those doubts and difficulties which arise may be compared and resolved in conclave.

7. That merchants, tradesmen, and others engaged in the VOL. VII. NO. XIV.

Z

« PreviousContinue »