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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. So 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.)
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 ho 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 Westininster 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.
12. That the social uses of the jury are great, in bringing men to deliberate and act together for mutual and general purposes, giving them an interest in the administration of the laws, and knowledge of its operation, its advantages and defects.
13. This trial by jury is thoroughly English. Many of the above propositions and arguments, which we have endeavoured to collect from those who have considered the subject, need not here be dwelt upon. Many of our readers are familiar with the subject in its practical form, and all are acquainted with certain of the defects in the institution, and certain of the benefits derived from it. Nevertheless, members of the legal profession are doomed to hear frequent repetitions of commonplace fallacies on this topic; and this is a process which has more or less a deleterious effect upon most minds. Unless one actively contests the continual pressure of the multitudinous voice, and reiterated assertions which find free expression on a popular subject, one runs the danger of either passively acquiescing in, or at least being supposed to assent to, their validity. Besides which, many have necessarily had only the opportunity of taking a partial view, and profiting by a limited and local experience. One counsel may, from the beginning of his practice, have been lucky enough to have seen chiefly the working of special juries in the city of London---the best tribunal, without doubt, for deciding on mercantile cases, where the customs of merchants, the natural operation of business, and mixed law and fact, are in dispute. Another man may have had his professional career centred at some sessions presided over by an incompetent, weak, and prejudiced chairman, and who would endeavour to convict every prisoner indicted for sheep-stealing if he were suspected likewise of being a poacher. In this case, according as juries were wont to be swayed by the bench, or acted in defiance of the chairman's directions, would the practitioner found his opinion on their utility. He would naturally laud the institution which pro
tected the prisoners from class prejudice on the one hand; while - on the other, if it had been obvious that such was not the result, but that the judge generally induced his jury to incorporate his
prejudices into their verdict, thus relieving him of its responsibility, an opinion would have been naturally formed that juries were useless or mischievous. A third barrister may have been more accustomed to see, in one of not a few districts in our country, justice being continually prostrated by the stupidity or prejudice of the jurors, or their general prepossession in favour of the ranting of the prisoner's counsel, or by their natural sympathy with rogues in general. Here honest indignation will lead the observers to denounce the jury system as a curse to the land. We will therefore venture to point out generally what seems to us to be the real value of the points above raised in the discussion.
The first ground we noted, which might be taken a priori against the jury system, was, that it was theoretically absurd. The last reason referred to in favour of the form of trial, was, that it was thoroughly English. But these two propositions are by no means inconsistent. Our political constitution, and our social and legal institutions, are not the creation of the theorist, who, from metaphysical considerations, and on psychological grounds, has constructed what ought to suit the inhabitants. In other countries, perhaps the boot is first made, and the public's feet are subsequently thrust in. In England the boot is endeavoured to be made to fit the foot, and presents, therefore, the ungainly appearance of much patching, stretching, shrinking, and occasionally bursting-out. Apparent anomalies, or theoretical absurdities, are therefore by no means, in these matters, un-English in character.
In this case, the fact that the jury system is thoroughly English really has a meaning. It signifies that the institution has grown
to be what it is. If a recent statute had enacted that causes should for the first time and henceforth be tried before twelve men, collected as now, it would appear à priori (nay, it would be) a very absurd law. It is because, centuries ago, there was an institution different in many particulars, but which has developed into the present jury system, that it is thoroughly English, and one for which there is much real national affection. The original principles upon which juries were summoned were,
that “every trial should be out of such place, which by presumption of law can have the best and most certain knowledge of the fact," and that the jurors should therefore come into the box “prejudiced,” and ready to supply evidence rather than receive it. The jurors were in the nature of witnesses. The transition from this principle to that upon which the common jury system is now founded and approved, are so different that it might be deemed at first sight the result of violent revolution rather than natural development; but it is all the more natural for this very reason. There is, we all are aware, intrinsically a vast difference between the duties and the intention of juries during the last century and a half, and those of the preceding centuries. In 1679, Nathaniel Reading (7 State Trials), taking rather our modern view of the position and duties of a juror, desired when on his trial to challenge one Sir John Cutler, on the apparently rational ground that there was a close connection between him and the prosecutor. “I have,” he urged, "seen him in company with iv[r. Bedlow, mine accuser. I know that there is not a common intimacy and friendship between them ;” upon which Sir Francis North, C. J., exclaims—“Do you challenge a juryman because he is supposed to know something of the matter? For that reason the juries are culled from the neighbourhood, because they should not be wholly strangers to the fact. If you can show that he hath already given his verdict by his discourse, and that you are already condemned in his opinion, that
be some cause of challenge; but not that he hath discoursed with neighbours as others do. It may be he believes it, and may be he does not believe it, he is now to give his verdict upon what he hears
[Reading.] “My lord, I am very glad to see Sir John Cutler here, for I did intend to have his evidence for me." To which remark the judge returned—“That you may have, though he be sworn.”—(7 State Trials, 267.)
Such a dialogue as the above could not be heard, according to the present construction of juries, without shocking all notions of legal propriety. If, then, by the allegation of the jury system