No greater misfortune could well befal a country than a distrust in the administration of justice, or a doubt as to the efficiency of the institutions by which it is dispensed; and it is not among the least of the evils which have been occasioned by the revolutionary faction in this country, that in the legal proceedings which became necessary for their suppression, the efficiency of our jury system came to be questioned. When Mr. Smith O'Brien was put on his trial, in March last, for seditious speeches, ten of his jurors were for conviction; two, however, refused to concur in a verdict of guilty, and the jury, after being locked up for a night, were discharged without agreeing to a verdict. Again, the day following, Mr. Meagher was put on his trial, and with precisely a similar result-two of his jurors refused to agree with the other ten, and, as in the preceding case, they were imprisoned for a night, and discharged the following morning. Messrs. O'Brien and Meagher stood out on their recognizances, and the entire proceedings went for nothing. The event was hailed as a triumph by the rebellious and the disaffected, and the clubs of Dublin marched in procession to celebrate their victory. Loyal and good men, however, began to fear that our system of trial by jury was unequal to the difficulty to be encountered: of the treasonable character of the speeches which were indicted, they could not possibly entertain a doubt; and men naturally felt that it was

a

monstrous thing that the perverseness of a small minority of a jury should thus frustrate the ends of justice, and give a triumph to sedition. In this country, as well as in England, an opinion began to prevail that Irish juries were not to be depended on; and while some scrupled not to avow that political offenders should either be tried by military tribunals, or in some county in England, very many were of opinion that the Scotch system was a preferable one to ours, and that the verdict of a majority of the jury ought to be received. Again, some short

VOL. XXXII.-NO. CXCII.

time afterwards, Mr. Mitchel was tried, and in his case the jury were unanimous, and he was convicted. But forthwith a cry arose that his conviction was obtained by a packed jury and a perjured sheriff, and the right of challenge, as it was exercised by the crown, was denounced as arbitrary and unconstitutional; and so it continued through all the succeeding trials, almost without an exception - men founded their expectation of the prisoner's fate, not on the merits of his case, but on the composition of his jury the Liberals avowing, and the Conservatives well knowing, that with one man on the jury to sympathise with the prisoner, there should never be a conviction; and it was obvious to every one, that in the conduct of the trials, the great, the anxious, and, must we add it, the decisive struggle, was in the selection of the jury. This was less so at Clonmel; for the constitution of the panel, the superior class from which the jurors were taken, left little or no ground for expectation that any partisan of rebellion could possibly find his way into the jury-box; but it prevailed universally in those trials which were had in Dublin.

That such a state of things is a serious reproach to our jury system, it is impossible to deny-equally impossible is it to conceal from ourselves, that the offence is a most fearful one in those jurors who allow their private feelings, or political bias, to control them in the discharge of their sworn duty. But let no man say that it is a reproach to which Irish juries are alone exposed, or that it is restricted to juries at all, and has not extended to the highest assembly in the country. Who can forget the election committees in the House of Commons? Were those tribunals not controlled, and avowedly so, by political bias? We take the judgment which was formed of them by the assembly from which they were selected, and we appeal to the cheers of triumph which echoed within the walls of St. Stephen's as the names of the several members of the committee were an

3 E

nounced, all parties feeling confident that the decision must be in accordance with the political sentiments of the majority. Let it, moreover, be borne in mind, that political trials, especially those for sedition, are cases precisely of that nature in which it is most easy for a juryman to beguile himself into the exercise of a discretion beyond that to which he is limited by his oath. He may persuade himself that the intentions of the party were for the public good-at any rate, that they were meant for the best; or that, even if criminal, very little practical evil had, in point of fact, resulted from them. In some such way, we say, it may be possible for a juror, whose political bias is strongly with the prisoner, to deceive himself into a violation of his oath.

But shall Irish jurors be condemned, and justly we admit it, for this dereliction of duty; and shall English juries be justified, or at least extenuated, for conduct which is not a whit less flagrant? What has mainly contributed, of late years, to produce the mitigation in our penal code? Simply the failure of justice, occasioned by English juries refusing, though on their oaths, to convict of the crime, because they did not approve of the severity of the punishment. Alderman Harmer, in his evidence before the Commissioners of Criminal Law, thus speaks on this subject:

"The instances are innumerable, within my own observation, of jurymen giving verdicts in capital cases in favour of the prisoner, directly contrary to the evidence. I have seen acquittals in forgery, where the verdict has excited the astonishment of every one in court, because the guilt appeared unequivocal, and the acquittal could only be attributed to a strong feeling of sympathy and humanity in the jury to save a fellow-creature from death. It has frequently happened with myself, in my communications with old, professed thieves, that they have expressed a wish that they might be indicted capitally, because there was a greater chance of escape."

And again, the commissioners themselves, in their report, say :

"We are able to state, from our own observation, that, in cases of rape,

juries, from apprehension of the fatal consequences of conviction, sometimes acquit on a charge of this nature, in the face of the most cogent proof of guilt."

But it is unnecessary to dwell upon this subject. The fact would seem to be (much as it were to be desired that it were otherwise), that both in England and Ireland the juror's consciente is coerced, not so much by the obligation of the oath itself, as by the opinion of society, which condemns its violation, and that the weight of this public censure, and consequently the sanc tion under which the juror acts, is much diminished, if not wholly removed, when the oath is neglected, in order to promote some of the objects of which society approves. And it is so universally. How often did Messrs. Smith O'Brien and Meagher take the oath of allegiance?

We confess that, if the subject of our jury system had not been opened by recent occurrences, it is one which we would have been most reluctant to enter on. The difficulties of the subject are excessive-many of them it would be impossible, within the limits to which we are circumscribed, to convey to the general reader. Nei ther would we willingly lend ourselves to the pernicious habit of testing every venerated institution of the country by abstract reasoning on its operations. We believe that in all such institutions which have pervaded the whole spirit of the nation, which have moulded and fashioned the mind and manners of the country, there are latent benefits which it is impossible to discover-benefits arising from being thus adapted to the people, interwoven with their habits, and supporting their other kindred institutions, and that all these can be best protected by the prejudices which have grown up along with them, and should never be needlessly stripped of this cloak of prejudice, and trusted to the defence of mere practical benefits which may suggest themselves to each man, may appear inconsiderable; many of them, as we have said, being latent; and there must often seem to be serious defects which he may want industry and opportunity to investigate. But the political trials of this year have, as we have said, drawn considerable attention to our present mode of trial by jury, and has, we apprehend, tended, in some respect,

reason: the

to an exaggerated notion of its occasional, perhaps its unavoidable defects. We are here, then, set upon the defensive; and it is not upon us that the reproach can be cast of shaking the authority of our most valued institution by needless discussion.

Now, one peculiarity in our jurysystem, which has been very seriously questioned, is the necessity that the jury shall be unanimous in their verdict. It is contended, and certainly not without some reason, in opposition to the present system, that it must ever be a most difficult thing to get twelve men who will agree in drawing the same inference from the same facts, if these factsbe at all complicated in their nature; that let them be ever so sincere in their desire to agree in their verdict, that this difficulty will obstruct them; that some of them must yield in opinion in deference to that of the others, and then, that it substantially ceases to be the unanimous verdict of the whole jury. And, it is further said, they will frequently not be sincere in their desire to agree; one or two self-willed, perverse men, will be on the jury, who, if they fail in leading the others, will, from doggedness, or obstinacy, hold out against the majority, and forthwith that a struggle ensues, not between the strength of the reasoning, but the strength of the constitutions of the two parties. Many of our readers, no doubt, saw a report of the verdict of a jury in the Isle of Man, about two months ago. Two of the jurors had been for finding the prisoner guilty of murder, the rest were for finding him guilty of manslaughter. They had been shut up for three nights, and were without food for twenty-four hours, when the minority, in exhaustion, gave in, and handed down the following verdict:“The jury concur in indicting the prisoner for

man

slaughter; but this unanimity has been obtained from the painful gnawings of hunger, and not from the conviction in the minds of all the jurors, that it is in accordance with the prin ciples of law, as laid down by the deemster." This is a case of the minority having succumbed to the majority; instances of the converse are, of course, less frequent, but they still do sometimes occur. When Lord Eldon was at the bar, he was, on one

occasion, counsel for the plaintiff, in a case of seduction-the story is told in "Twiss' Life of Eldon"-the case was by no means an aggravated one, and the defendant was of rather an humble condition of life, being merely the son of a farmer. Every one in court was, consequently, astonished when a verdict for £800 damages was announced; but the manner in which so large a sum was procured was, shortly afterwards explained, by one of the jurors telling Lord Eldon (then Mr. Scott) that he had a bottle of rum in the jury-room, on which he told the other eleven jurors, who were all opposed to him, that he would subsist, so long as a drop of it remained, and that he never would consent to a verdict, unless they concurred with him, and "Lawyer Scott's law" against their own convictions, and "the judge's law ;" and that the others, seeing him resolute in his determination, and likely to carry it out, after some hours they all yielded to him, and found a verdict for an amount which every one of them believed to be exorbitant. And it is further urged, in opposition to the present system, that not only is justice thus frustrated by disagreement, or perverted by coercion, but that trial by jury is brought into contempt, and verdicts deprived of all their moral weight, by the bickerings and accusations to which individual jurors are exposed, who resist the opinions of their fellows, and prevent an agreement to a verdict. In ancient times, indeed, a practice prevailed of obtaining an unanimous verdict, by a process known as that of "afforcing the assize," which consisted in adding others to the larger part of the jury, until twelve were found to be unanimous, and fining the dissenting jurors; but this practice has been abolished for centuries, and, since the reign of Edward III., the present practice, with all its inconveniences, has prevailed.

The

disadvantages of the present system were deemed to be so considerable, that it was thus condemned in the third report of the Commissioners of Common Law, a report which is sanctioned by the names of some of the highest legal authorities in the kingdom :

"There seems to be no good reason," say these commissioners, "why, after a period of time sufficiently long for the

purposes of reasonable and ample discussion, the jury should not be excused from the necessity of giving a verdict, or why the present principle of keeping them together until unanimity be produced by a sort of duress of imprison

ment, should be retained; and the interests of justice seem manifestly to require a change of the law upon this subject. We propose, therefore, that the jury shall not be kept in deliberation longer than twelve hours, unless, at the expiration of that period, they unanimously concur to require further time, which in that case shall be granted; and that, at the expiration of the twelve hours, if any nine of them concur in giving a verdict, such verdict shall be entered on record, and shall entitle the party in whose favour it is given to judgment; and in failure of such concurrence, the cause shall be a remanet. It should be observed, that the first part of the provision is adopted from the statute of the 55th Geo. III., for extending the trial by jury to civil causes in Scotland; and we are induced to add to it the provision with respect to the concurrence of nine jurors, in order to guard against improper conduct on the part of any individual among the jury who might be disposed, from corrupt or partial motives, to hold out against the opinion of his brethren, during a period so limited as that of twelve hours.

"JOHN PATTESON,

" HENRY H. STEPHEN, "J. B. BOSANQUET. "E. H. ALDERSON."

Neither, we must admit, can it be urged by the upholders of the present system of unanimous verdicts, that it owes its origin to any consideration of its expediency. Like the origin of trial by jury itself, the original cause of this peculiarity of English juries is wrapt in considerable perplexity. The best authorities, those who refer the introduction of the jury to the Norman conquerors, attribute this present usage to the reverence which was paid by the ancient Scandinavians to the number twelve-the necessity that this number of persons at least should agree, in order to give the verdict its due weight, together with the circumstance, that it derived no increase of authority from the concurrence of any greater number combined, it is said, in fixing the number of jurors at twelve, and requiring them to be unanimous. On the whole, then, it will, we believe, be found impossible to deny that the present system did not owe its origin to any well-consi

dered reasons of utility-that it is, in practice, attended with many, and these not inconsiderable disadvantages—and that it has been deliberately condemned by very high authority.

We have felt it to be our duty to put this view of the case fully before our readers, because it is impossible to dispute its truth. Admitting, however, as we do, to the fullest extent, the force of the arguments and authorities which may be brought to bear against the present system, we do not hesitate to declare our firm conviction, that the necessity for unanimity is indispensable to the right administration of justice, and that upon it the efficacy of trial by jury mainly depends. We say, in the language of Lord Denman, "That all verdicts of juries ought to be unanimous."

It is impossible to render this, or any other human tribunal, perfectthis must be always borne in mind; and, consequently, it is unreasonable to argue against a system, merely because abuses exist in it. We must consider whether it does not protect us from greater evils than it subjects us to; or whether the disadvantages of the opposite system are not still greater and more numerous. While we have fallible materials to deal with, we will get no good unmixed with evil; and our duty and our policy plainly is, to select the system in which the greater good preponderates. Now one great evil to which all juries must naturally be prone, is the shunning of discussion. Every available precaution should be adopted to guard against this evil-everything which has a tendency to foster and encourage it should be most earnestly shunned. It is but by anxious, serious, and patient discussion and investigation that truth can be arrived at, and life, character, and property preserved. But the class of men from whom juries are for the most part composed, are not habituated to this patient and laborious investigation which is frequently required of them in courts of justice, when the testimony of conflicting witnesses is to be examined, and the intricacies of a complex state of facts to be unravelled. They are, more. over, naturally anxious to return as soon as possible to their homes, or places of business. Suppose, then, the majority of the jury were to deter