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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
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 80 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.”
Now, all we will affirm on this matter is, that there is no possible reason for abandoning trial by jury in any criminal case, least of all in political prosecutions, because we do not demand its invariable aid as a necessity in an intricate patent case, or on the issues of fact invoked in various suits at common law. An over-sensibility to danger is in itself highly inconvenient; and it appears to us an absurd jealousy to suppose that there is any conspiracy against the constitutional right of an Englishman being fairly tried by his peers, or an attempt to favour arbitrary power, in advocating a more extended right for litigants to have their causes tried by a judge, if it be believed that this is the most satisfactory mode of proceeding.
Whether the present jury system be theoretically absurd or thoroughly English, is of far less moment than the question, Does it work so well that it cannot be modified with advantage, and in certain classes of cases be exchanged as a general rule for trial by judge? Will the advantage of having a skilled judge to adjudicate, be outweighed by the loss of publicity supposed to be incurred when the jury-box is not filled—and twelve honest men do not receive their first lesson in jurispruderce by seeing business done in court, and experimentalizing on the fortunes of the parties whose action is being tried before them? For be it remembered the inexperienced jurors do not, like students of medicine, practise first upon the dead subject, but may have the duty, on his first essay, of amputating a living suitor's character, or removing his purse to his opponent's pocket. Now, we would suggest that shorthand-writing, steam-printing, cheap and accurate reporting and publishing, to a great extent supply the absence of jurors. It was well for men to come together in former times to see and hear what was doing, for they not only furnished the check which juries afford over judges; but locomotion being imperfect, and intercourse limited, except between near neighbours, the necessity which was imposed on yeomen coming together, insured an audience interested in the matter, who, on going home, were the means of distributing authentic information to divers districts, as to the uses and terrors of the
law. Now, the public is kept informed of the proceedings in courts of law by a cheap press, and the “check” which public opinion exercises is thus put in full force.
There is a large class of causes which are usually said to be of no interest to the public," arising out of contracts, &c., and depending on the particular value of certain evidence. But these, by general consent, might be better tried by the judge alone. In other cases, that influence which audience and reporting are supposed to produce, would be yielded in abundance in the common course of modern affairs, through the medium of general and professional newspapers. It cannot be denied, as it seems to us, that the intervention of a jury might be most useful as a check, where the law does not now admit of it, on the ground of inconvenience. We refer to petty sessions holden before certain county magistrates, whose ideas of responsibility would doubtless be much heightened by a knowledge that they were under the observation of a jury whose concurrence, moreover, was essential.
In the superior courts, an intelligent profession, an independent bar, the reporter's box, and a court of appeal, operate as a very powerful public opinion, far more than twelve select men, who are for the most part instructed and led to their verdict by the judicial judge, whilst they free him from the responsibility of giving it himself.
Closely connected with this portion of the discussion is the assertion, that the judges are more respected, and their impartiality more trusted, when the losing party has only the jury's stupidity and corruption to complain of. People are afraid of the press taking to criticise the judges; of seeing Sunday newspapers placarding “ Justice A.'s iniquitous verdict,” or “Baron B. at his blunders again,” and the like. But constituted as the bench is now, when even party politics are made subordinate to personal fitness for promotion to the bench, there is no probability of such scurrility being attempted. We do not find judicial decisions on points of law (when the success or failure of an action turn thereon) provoke such intemperate remarks: nor in
those courts which we have already enumerated, where no jury is engaged, do we find these threatened consequences ensue. No doubt any judge is liable to the imputation of partiality; but if it be not founded in fact, the idle rumour of the day does no harm, and need not be dreaded. If we should do more substantial justice by substituting one tribunal for another, the public would, notwithstanding occasional grumbles, be better satisfied, and genuine contentment with legal institutions would be increased. Lord Mansfield was subjected at one time to like suspicion, and Bentham has a characteristic note in one of his essays on this subject. He says :-"I remember hearing partialities, and even the habit of partiality, imputed by many to Lord Mansfield. I cannot take upon me to say with what truth; partly by situation, partly by disposition exposed to party enmity, so he accordingly was to calumny. •Lord Mansfield' (said his everlasting rival and adversary, Lord Camden, once)— Lord Mansfield has a way of saying, It is a rule with me--an inviolable rule—never to hear a syllable said out of court about any cause that either is, or is in the smallest degree likely to come, before me.' "Now I, for my part,' observed Lord Camden— I could hear as many people as choose to talk to me about their causes; it would never make
the slightest impression upon me.'
Such was the anecdote whispered to me (Lord Camden himself at no great distance), by a noble friend of his, by whom I was bid to receive it as conclusive evidence of heroic purity. In the days of chivalry, when it happened to the knight and his princess to find himself tête-à-téte upon their travels, and the place of repose offered but one bed, a drawn sword, placed in a proper direction, sufficed to preserve whatever was proper to be preserved. This was in the days of yore, when pigs were swine, and so forth. In these degenerate days the security afforded by a brick wall would, in the minds of the censorious multitude, be apt to command more confidence.” The reputations of Lord Mansfield and Lord Camden have survived such suspicion suggested against them; and with an