bill-discounters, sheriffs' officers, and others, according to Mr. Brown, have very little prospect of getting a verdict; 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 scem 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 In the Superior Common-Law Courts at Westminster, there is a large proportion of cases withdrawn from the jury-box, and submitted to professional reference or that of the masters, and occasionally that of the judges.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 the 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 juror— justus 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.

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business of life, understand better than others transactions in the world, and especially those connected with matters about which litigation usually arises.

There is, however, another class of reasons not affecting the aptitude of the jury system for eliciting truth, but advanced on other grounds. Thus, it is said :—

8. The concurrence of the people in the administration of the law through the medium of the jury, greatly increases the popular respect for the law and judge. "In deciding upon facts, opinions will necessarily vary, and judges, like other men, are liable to be mistaken in estimating the effect of evidence. Every one thinks himself competent to express an opinion upon a mere question of fact, and would be apt to comment freely upon the decision of a judge, which on such a question happened to be at variance with his own. It is easy to conceive cases where much odium would be incurred if, in the opinion of the public, the judge miscarried in a matter which the public thought itself as well able to determine as the judge. From this kind of attack the judge is now shielded by the intervention of the jury. He merely expounds the law, and declares its sentence; and in the performance of this duty, if he does not always escape criticism, he very seldom can incur censure. that De Tocqueville is strictly right when he says—‘Le jury qui semble diminuer les droits de la magistrature, fonde réellement son empire: et il n'y a pas de pays où les juges soient aussi puissans que ceux où le peuple entre en partage de leurs priviléges.'"-(Forsyth, p. 444.)

So

9. That the jury-box is "where men are best instructed in the law." They learn to administer justice by administering it. "Even the people that stand by are receiving useful lessons," says Mr. Rochfort Clarke, "and all owing to this popular form of trial." He remarks, "The people take the deepest interest in our trials and arguments. They love their queen and country-they are peaceable and loyal-they like to listen to trial by jury;" and the learned author further deposes to their enjoying his and other learned counsels' " wit and repartee," and

to the flattering attention given to their most astute and learned arguments, "trying to understand even when they fail;" and finally, they pay "a grave attention to the summing up by the judge, and await, often with anxiety, the verdict of the jury;" and he declares, complimenting too highly the judges and counsel, as well as the tribunal which he is upholding, that this "is more ennobling than a pantomime, and quite as amusing!" We have inserted this argument simply because we have found it in Mr. Clarke's pamphlet; but as we never have been ennobled by a pantomime, and very seldom amused by listening to and arguing demurrers, we feel a difficulty in dealing with the statement. We have, however, in deference to Mr. Clarke's experience at pantomimes entered on the inquiry with some youthful friends, and we have failed to elicit the fact, that even their characters have been augmented in dignity, or their notions ennobled by the Christmas relaxation, which we further understand is abhorred by the really devout, although frequently indulged in by the frivolous, and connived at by the lukewarm. We have indeed arrived at the conclusion, upon universal concurrence of the testimony of those youthful witnesses, that they enjoyed a pantomime because it was "such fun!" This, no doubt, is the explanation of the enjoyment by the audience on some trials by the aid of a jury; but the plaintiff, or defendant, or both, have frequently appeared to us not to share in the general mirth, so dexterously aroused by the low comedy of the actors, nor did they appreciate the excellent opportunity they were affording for the legal instruction of the jury, and the elevation of the public mind. The Westminster and Guildhall pantomimes are, we will venture to suggest, too expensive, and played too exclusively at the cost of others to justify their continuance on this ground.

11. The intervention of a jury is the safeguard against property, liberty, and rights being abused by unjust and improperly appointed judges; in other words, it is a safeguard against judicial corruption, and forms, what Jeremy Bentham half a century ago called a check on judges.