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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 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
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 protected 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
a 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
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 ivsr. 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
may 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 upon oath."
[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
being English, it is meant to defend it on the sentimental and antiquarian ground, that it has been handed down to us in its present form, and therefore we are bound to retain it, and transmit it to posterity, then the assertion is valueless. Our idea of a jury is that of twelve impartial men, who, independently of all extraneous information, are to decide on the facts brought before them in evidence. And this was what our ancestors' idea was not.
The jury has shifted its character and use. It was not what it is; and there is no valid reason why we should not, as our forefathers have done, review and modify its character and application to suits at law. The present inviolability should depend solely upon its present merits for the particular purposes of those who have now to appeal to the law for their protection and support. We know that we are warned to preserve great respect for posterity, as well as worship for our ancestry. It is indeed a difficult task to effect any reform, or remove any inconvenience which presses upon ourselves, because of these twofold and overwhelming obligations to our ancestors and our descendants. The embarrassments imposed by these considerations of the past and the future, involving equally the uncertainties of history and prophecy, make the duty of looking after our own generation particularly onerous.
We would by no means urge that we should sacrifice, either for ourselves or our descendants, the right to any constitutional privilege; but, without doing this, we may surely remove proved inconveniences to ourselves, which we daily feel, in the sure and perfect hope that our posterity will not be therefore powerless to abrogate what we hand down to them if they desire it, nor so unwise as not to perceive for themselves what is requisite for their welfare, without respect of our previous dealings. Every age, in fact, must legislate for itself.
We believe the supposed danger really pointed at by those who dread innovation in the practice of summoning juries to decide in civil cases, is that it will lead to like proceedings on criminal prosecutions, and that arbitrary governments will abuse a power which they may then seize. In a debate in the last session on the Indictable Offence (Metropolitan District) Bill, which related to an alteration of the laws relating to grand juries, Lord Lyndhurst took the opportunity of addressing himself to the class of arguments we are now adverting to. He said :
“In the first place, I would suggest to your lordships that when any measure is brought forward, changing the fundamental laws of the country, particularly the important laws relating to trial by jury, you ought not to consider only the present state of things, but that which may hereafter arise, and you ought to proceed with the greatest circumspection and caution. At present we are not at all aware of what arbitrary government means; we now pursue the directly opposite system. Prosecutions for political offences are never heard of; the administration of justice is mild in the extreme; and we have no grounds of complaint whatever on any of the points I have referred to. We may be perfectly satisfied with our present position; but, unfortunately, I have lived in times of a different character. I have seen the time when the government was carried on upon arbitrary and even tyrannical principles—when political prosecutions were of constant occurrence, and were conducted with extreme harshness, and punishments of great severity were inflicted for political offences. I have been myself, to a certain extent, not merely a witness of, but an actor in, those times. The growing prosperity of the country, producing a greater amount of content, has caused a change from the feelings that then prevailed; but, my lords, we must not so far delude ourselves as to suppose that such a state of things can never again arise. Violent political feelings may again be excited, and who can venture to say that a similar state of things may not again occur? At all events, let us not, acting under such a delusion, take any steps towards destroying the bars and fences the constitution has given against the exercise of arbitrary power.”
And, again, the noble lord urged, with respect to the particular measure then before the House, what may be said of any measure affecting an institution like that of juries :
“It is harmless at the present moment, but will it always be harmless ? It is our duty to provide againt all contingencies, and not to suppose that the present harmony and the present smoothness of the government will always continue. Statesmen should look forward to contingencies of various kinds, to guard against them. Our ancestors guarded against them in the provisions to which I have referred.”