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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 "a great right by doing a little wrong.'
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
rendered incapable by that which forms, according to the advocate of the jury system, the very essence of a juryman's excellencea practical acquaintance with men and life. There is no doubt but that a judge may be crotchety and wrongheaded, may be addicted to special theories, and invent invariable, or misapply general rules for solving particular difficulties. But, on the other hand, no one is so likely to be made aware, and if possible be cured, of a tendency to such bad habits as the judge; first, in his professional career when at the bar, and even when elevated to the bench, by his having continually his opinions and views subjected to the canvassing and opposition of counsel, the consideration of his colleagues, and the revision of superior courts.
The division of the judicial office between judges and juries, although theoretically clearly enough defined, is practically often lost sight of. Mr. Amos has referred to the inscription on the medal, struck upon the occasion of the acquittal of Lilborne when prosecuted by Oliver Cromwell. “John Lilborne, saved by the power of the Lord and the integrity of his jury, who are judges of law as well as of fact," or, as the same truth has been expressed in the oft-quoted lines :
“For Sir Philip well knows
That his innuendoes
Who are judges of Fact and judges of Laws." And so long as juries have the power of overstepping the limits of their duties, they will do so—especially when the addresses of counsel appeal to their vanity and prejudices; and the warnings of the judge only excite their jealousy of his and the law's interference with their right divine to answer wrong.
The opportunity which trial by jury affords for "summing up,” is practically its best feature, and the advantage here is to the judge himself; for indeed every day's experience shows that nothing elucidates facts, and tends to lead one to a just conclusion, so much as explaining to others the grounds, and expressing in words the reasons, which have conducted thereto. By this
means, moreover, if any misapprehension has arisen, it may be corrected, and the source of error and confusion be traced. But, even in the absence of a jury, a judge would accompany his verdict with his reasons in the form of summing up. There need be but little change in this respect. As a general rule, he is found to be the best judge who is best able to sum up in the clearest manner, and so to leave a case to the jury, that their verdict shall be simply the expression of the necessary inferences, astutely indicated by the bench. It would then follow that the judge who can sum up powerfully to a jury, could explain his own verdict without their presence. We view with very little veneration the jealousy affected in some quarters, of the judge trenching upon the functions of the jury. In almost every case where the latter repudiates the judicial opinion, they are giving a verdict either obviously perverse, or probably erroneous; the rare exceptions being, when the judge being by accident under an abnormal and false impression, to which all are occasionally liable, meets with an ordinarily obstinate or remarkably intelligent jury, by which his judgment is corrected.
The arguments founded on the social use of the jury, which heretofore has unquestionably been of great importance to the country, are those to which the advocates for retaining the tribunal in its present state had better adhere, although, as we have pointed out, they apply less strongly now than they did at an earlier period.
The most perfect administration of justice between man and man, and the strong confidence of the public in the justice of our tribunals, stand beyond all other social benefits, and should be purchased even by the sacrifice of those social advantages, however great, arising from men meeting together for the common purpose of aiding in the administration of justice. Unless, indeed, the main object of any machinery be effected in the best and most perfect manner, the ingenuity exhibited in construction, and the collateral merits of the machinery itself, will by no means justify its employment. The main object of legal tribunals
is the production of justice. Other social and political advantages are but collateral.
The political uses of the institution are admitted to be undeniably great. Juries have often stood between a tyrannical government and its hated victims. They have also, and this too in later times, protected miscreants who have been saved from the penalty due to their proved guilt, by confounding the guilt of cowardly assassination with the virtue of patriotism, and mistaking the rant and fustian of a vulgar speech for the defence, for the outburst of genuine oratory and real eloquence engaged in the cause of freedom. Nevertheless, the security and confidence which the right to trial by jury give to the subject are too great to be sacrificed.
The right to trial by jury we would maintain, therefore, both in criminal and civil causes. But, practically, in the latter we believe its employment should be (as in the county courts) the exception, and not the rule. If the law was amended by an enactment (as, indeed, was proposed many years since), that "all questions of fact in civil suits should be determined by the judge, unless either party shall require them to be determined by a jury," thus inverting the present order of choice existing in the procedure of the supreme courts, a large class of cases would fall naturally and properly to the decision of the judge, to the immense saving of public time and trouble. Such tribunal would of course be opposed by a few of the older Nisi Prius advocates, the level of whose power is that of the common jury, and some little prejudice would be felt at first.
There ought to be a fee attached to the summoning of a jury, each member of which ought to receive, as do the members of a special jury, a proper fee for their attendance. Such fee ought not to amount to a barrier in resorting to a jury, but should be a consideration. It is said the cost of a special jury is about twenty guineas (which is too high). That of a common jury should be, we would suggest, about one-third or one-fourth of this sum.
There should be also a much larger admixture of the class whence special jurors are drawn with the common jurors