« PreviousContinue »
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 parti
_6 alities, 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 any 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-tête 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
independent bar and the public press as checks, there is little fear of the bench degenerating, or losing its lofty character.
The probabilities are, that judges are not, nor would be swayed by class prejudices, like those referred to above, as now obstructing the administration of justice through juries; yet it is sometimes said that the substitution of judges for juries would be attended with this sad consequence—that the former would administer the law strictly, while the latter often do rough justice by wresting its course.
It is actually thought advantageous that they should shut their eyes to the truth, and open their mouths to falsehood, lest the law of which they do not approve should be enforced, or lest it should be applied in an individual case where they consider it would work hardship. They therefore agree to do “ great right by doing a little wrong." We are all familiar with the doctrine being professed by those who are opposed to capital punishment, and regard on religious and moral grounds the perjury of a juror as a lighter offence than his being instrumental in depriving a human being of life. This we must, however, hold as monstrous in morals, and pernicious in practice. If the law is bad in any particular, let it be amended; but to prevent its application by a system of perjury-excused under the term of doing rough justice—is disgraceful to a civilized country, and
destructive to the integrity of those concerned in the administration of justice.
When one sees a sharp unscrupulous rogue employing the law as an engine of extortion, or using it as a cunningly devised means for enriching himself at the expense of the ignorant, unsuspicious, and innocent, one rejoices to see him frustrated in his object; but not if it is at the cost of a jury of twelve good men and true conspiring to commit perjury. Another point to be recollected is, that often what may have the appearance of hardship and cruelty (and is therefore endeavoured to be thus remedied by a corrupt verdict), might nevertheless, on full investigation, be held to be both legally and morally just and fair. The equitable powers of the judges at common law ought, doubtless, to be much enlarged in order to afford protection to those against
whom the law may be strained; and in those particulars where the law itself requires modification or restriction, these should be applied, instead of attempting a cure by the arbitrary infringement of the law. The same remark applies to another observation which is sometimes advanced in favour of the healthy action of juries on litigation ; namely, that mean and dirty claims-but good in law—are often kept out of court from fear that indignant juries would reject them. It is a matter of every day's experience that juries, however they may be assured that to award and proportion damages with reference to costs, is improper, insist upon taking this matter into their consideration, and not unfrequently thereby produce injustice. Much better would it be if the power of ordering costs in any event should be left with the legal tribunal before which the cause is tried; but it would be very doubtful if it should ever be left in the hands of the jury.
It should not be forgotten that, after all, trial by jury is trial by judge and jury—that if you were to pick up twelve men, who, without the assistance of a judge, were called on to try causes, the system would be a ludicrous farce. The judge not only acts as moderator during the trial, but gives his version of the evidence, and directs a verdict more or less strongly, according to the habit of the judge, or as the nature of the case may require ; and if the statement, that the habitual exercise of deciding on disputed facts unfits a man's mind for determining matters of fact be of any validity, then so far as an experienced judge exerts control over the verdict of juries, to that extent will his interference be mischievous. But we apprehend the most superstitious jury-worshipper would not desire to dispense with the aid of the judge. In point of fact, the habit of sifting testimony, and attaching the proper value to the various phenomena of evidence, does not unfit either judge or counsel for forensic duties. If this doctrine indeed were sound, then a jury should not be constituted of tradesmen who have some knowledge of life and experience of human veracity, but collected from the ignorance of Sunday schools, and the innocence of nunneries. A judge is surely not