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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
And so long as juries have the power of overstepping the limits of their duties, they will do somespecially 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, 80 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
There should be also a much larger admixture of the class whence special jurors are drawn with the common jurors
perhaps not less than one-fourth of the former should be mingled with the latter. Again, the granting of trial by jury should not be a matter of
It should be by Rule, open to opposition by the other side, to be granted at the discretion of the court or judge, and the cost of summoning juries should be also made discretionary. The new system thus introduced would, we believe, work well ; and the greater number of cases would be appropriately adjudicated on by the judge.
We are, in fine, inclined strongly to concur with Mr. Brown when he says
“Let all ordinary cases be heard by a man of superior discernment and practised skill, whose natural powers have been sharpened by a life spent in forensic contests; who cannot be easily deceived by a witness, because he is conversant with every kind of testimony, nor by an advocate, because he has been an advocate himself; who is fit to hear, and to estimate at its true value, every species of evidence hitherto excluded, which may open an avenue to the truth ; whose attention is not to be exhausted by the length, nor his comprehension distracted by the complexity, of the evidence: give the suitor, I say, a man with these qualities, who performs his functions under the public eye, and who is in no hurry to get away to his shop or his farm; whose very trade and business it is to weigh, investigate, and decide on questions of doubt and difficulty ; in a word, let the facts be decided by the same experienced judges as the law, and the whole body of the law will feel renewed and invigorated by the change. A great part of its supposed uncertainty will vanish, new light will pour in from sources of evidence now shut up, the scales of justice will be held with even hands, the heavy grievance of new trials will be vastly diminished, the suitor will obtain his rights with greater speed, economy, and certainty, and the criminal will no longer find refuge in the sophistry of counsel or the weakness of juries.”
Where we differ from Mr. Brown in the above forcible passage we have already attempted to show; but we are much mistaken if the general truth of his views are not growing to be those of the most intelligent of the profession and public.
* Hearsay evidence is very valuable, but is now excludel, because a jury is incapable of attaching its proper value to it. If they could distinguish degrees of credibility, much truth would be exposed to view which now caunot be intrusted to meet their ears.
VOL. VII. NO. XIV.
AKT. V.-Selwyn's Abridgment of the Law of Nisi Prius. Twelfth Edition ; with considerable Alterations and Additions.
1 ; By DAVID POWER, Esq., Q.C. London : Stevens & Norton, 1859.
ELWYN'S Nisi Prius" is a curious example of illogical
abbreviation of titles in a book. Selwyn's " Law of Nisi Prius" is no better, while it is longer. It would require some patience to explain, to a foreign jurisprudent, the sequence of ideas by which the British lawyer has arrived at the comprehension of the phrase by which the popular work named at the head of this article is known; now, the first sentence of its preface thus explains the nature of the book :—“The object of the following work is to investigate and explain that branch of jurisprudence which teaches the nature and extent of the remedies prescribed by the law of England for the redress of private wrongs.". It being admitted that Nisi Prius means neither "jurisprudence" nor “remedies" nor "private wrongs," it would be curious further to point out to an inquiring stranger, that the proviso in the process, where the words Nisi Prius occur (which so curiously have been employed to denote a form of trial), has not even been in use since the Common Law Procedure Act, 1852; for by the 104th section of that statute, the distringas juratores is abolished. But the authority of the “judges of Nisi Prius” never was derived from the distringas, but by the commission of assize; and, indeed, the want of a distringas in older times would be aided by the verdict. Not so an "ILL distringas; e.g., Holt, C. J., remembered a case wherein Saunders, of counsel at the bar, dropped the distringas out of his hand that he might want a distringas, which would be aided, and not keep and shew an ill one, which would be naught.”—(Bullock v. Parsons, Salk, 454.) We shall always keep the term, nevertheless, of “Nisi Prius,"