Page images
PDF
EPUB

mine the verdict, what would be the natural result? Why this-the jury retire to their room, each juror with a decided bias one way or other, which he has formed in the progress of the trial; unused to the labour of discussion and investigation, they will naturally shrink from it; anxious to return to their several occupations, they wish to get rid of their duty, and to hand in their verdict as quickly as possible. Is it to be supposed that they would stay there to discuss the matter with one or two dissentient jurors? No; the process of arriving at their verdict would simply consist in counting the majority. Under the present system, the necesssity for unanimity forces discussion on them, no matter how averse they may naturally be to it. What security could there possibly be that such deliberation would take place, when there was no motive to induce it. It is unquestionably, even at present, a defect in the trial by jury-perhaps an unavoidable defect, or one that is more than counterbalanced by its advantages, but a defect no less-that juries give their verdicts without being obliged to deliver the reasons on which they founded them. It is not so with the judgments of the judges. On any question that is determined by the judicial bench, the learned judges uniformly accompany their judg ments with the reasons on which they are based. This practice, besides settling the law, ensures attention on the part of the judges, and gives authority to their decision. It might be impossible to introduce this practice into juries; but if we abolish the necessity for unanimity, and take the verdict of the majority, we shall send the jury into their room without the slightest guarantee that they will thoroughly investigate the issue which is left to them to try. The security for deliberation that we require from the bench, by requiring the reasons of their judgments, we dispense with, or we cannot attain, in the jury-box; and we would abolish the only substitute which is left us, if, as we have already said, we sent the jury into their room, merely to count their majority, and hand down their issue-paper. And let it not be forgotten that if there be sometimes perverse or partisan jurors, who defeat justice by resisting the opinion of their fellows, that, on the

the other hand, an intelligent, resolute, conscientious juror may frequently be in the right, although not supported by the majority of the jury at first, until his views are opened to them, and his reasons discussed,

But not only is the system of receiving a verdict of a majority bad in its results, but it is most unjust and reprehensible in its very principle. In Scotland the jury consist of fifteen, and a majority convict. Now, what is the consequence of this system? what is the plain avowal made by this constitution of the jury? Why this, that a prisoner may be convicted and executed, although seven honest and intelligent jurors, on their oaths, believe him to be innocent. We have spoken with Scotchmen on this subject, and we have been met with the reply, that, in point of fact, such a thing never occurs-that in such a case the matter would be remitted to the secretary of state, and, by the favour of the crown, the prisoner's sentence would be commuted. Still, however, he would have been found guilty, and would undergo a commuted penalty, though seven of his jury believed that he never committed the offence for which he was indicted. We confess that this is most repugnant to all our notions of the administration of justice, trained up as we have been in the lesson, that in the prisoner's conviction there must be no doubt that if any reasonable construction of the evidence is found consistent with the supposition of his innocence, he is entitled to his acquittal. Moreover, this necessity for appeal is the very strongest argument against the system; it points out one defect, that which makes the appeal necessary, and generates many others. First, the prisoner's case is brought, by way of appeal, before the secretary of state, where it is virtually reheard behind the prisoner's back, without any one to represent him, without any security whatsoever that it receives a careful investigation. The executive is forced to undertake the judicial functions a most unseemly combination. The prisoner

is not tried by his peers, but by the ministers of the crown, who are virtually constituted into a secret court of appeal and revision, in all cases of dissenting juries; and, to crown the absurdity, suppose this

practice introduced into political trials, and that we had, for example, Lord Clarendon and the privy council sitting in review of the verdicts which were pronounced by ten jurors against two, in the cases of Messrs. O'Brien and Meagher, last March, the very prosecutors themselves determining on the propriety of the verdict. In the next place, the very consciousness that there did exist such a mode of revision would make juries less careful in investigating the case their responsibility, and, consequently, their anxiety to do right, would be so much diminished; for they would feel that if they erred, there was an opportunity for a review of their decision. And thirdly, these appeals to the executive must materially interfere with that certainty of punishment following on conviction, and following promptly, which is the great requisite to the suppression of crime; public indignation would have subsided against the criminal long before his crime would have been finally adjudicated on; very possibly indignation would have been converted into pity, or into that maudlin sentimentality which is so frequently indulged in; by long contemplation of the prisoner's fate, men would forget his guilt and his victims, and all sense of right and wrong would be greatly perverted. The executive under such circumstances would never have the support of public opinion in carrying out the extreme sentence, or even a severe one.

There is yet another argument in favour of juries being unanimous, which we find in a speech of M. Arago, member of the late provisional government of France, and who, whatever may be our opinion of him as a statesman, certainly stands in the first rank as a man of science—the point of view in which we are now to regard him.

In 1835, a bill was proposed and adopted in France, for enabling juries to convict by a simple majority, instead of a majority of eight to four. M. Arago spoke against the bill, and the object of his speech was to prove, by mathematical inference, that the probabilities of a verdict being just, increased as the majority of the jury was larger, and that it became infinitely greater when they were unanimous. We quote from the Annual Register for 1845. He says—

"If a verdict is resolved on by ten men out of twelve, there is a greater probability that it will be a just verdict than if it had been pronounced by seven to twelve. The degree of certainty of a judgment is in direct proportion to the number of judges who have delivered it. If you take the hypothesis that the verdict of a jury be decided by a majority of seven against five, as this bill proposes, you will find the result of your calculation to be a fearful onethe chances of error, in such a case, are in the proportion of one to four. I cannot go through all the calculations before you, but I assure you they were formed in the most conscientious manner, on mathematical principles, and they are supported by the authority of Condorcet, Condillac, Laplace, and all who are versed in the science of calculating probabilities. But let us admit that the jury's error may be as often in favour of the prisoner as against him, so that instead of the proportion of one to four, let us suppose that the probability of error to his prejudice, if the absolute majority be seven against five, is one to eight, or even one to ten. We shall then have it rigorously and mathematically demonstrated, that

among the men led to execution, there is one in ten who is innocent. According to the present system, by which the verdict of a jury may be formed by a majority of eight to four, the proba bility of error is only as one to eight; and as the error may be as much in favour of the accused as against him, let us suppose the proportion to be one in sixteen. Even with the English system of unanimity, error may occur, but in that case the chances of error are infinitely smaller, for they are as one to eight thousand. I shall look with hope for the day when that unanimity shall be imperatively required by the laws of my country.'

It is altogether idle to say that men will not be brought to agree on a subject where they have neither bias nor partialities to deceive them, when the necessity for investigation and discussion is forced on them. We remember having seen a case of bigamy tried in Dublin by Mr. Justice Ball. The jury retired in the afternoon, and towards evening announced that there was no probability of their agreeing. The learned judge requested that they would consider the subject further, and they withdrew. Late in the evening they were again sent for, and they told the judge that so entirely had they given up all hopes of agreeing, that

they had ceased to discuss the subject, and were amusing themselves with other topics of conversation. The learned judge reminded them that it was their solemn duty, so long as they were together, to discuss the subject of the issue which they were sworn to try, and to introduce no other topics whatever into the jury-room, and they were then locked up for the night. In the morning they again announced that they had not agreed, in the full expectation of being discharged; but the learned judge once more bid them not to despair of coming to an agreement-he told them that he had frequently known juries to agree, after having absolutely abandoned every hope of doing so, and once more begged of them to retire to their room. They did so, and at two o'clock in the day agreed to their verdict of "Not Guilty"-resting their verdict upon a view of the case, which entirely satisfied every one who heard it; and we never heard it hinted that such verdict was not the conscientious conviction of every man in the jurybox.

We grant it to be an absurd and monstrous custom-a mere senseless relic of barbarism-to keep the jury, while thus in deliberation, without any reasonable degree of refreshment. It originated in a desire to keep the jury free from intemperance. Spelman tells us that the Council of Nice ordained that "Judices non nisi jejuni leges et judicia decernant ;" that Charlemagne ordained "let judices jejuni causas audiant et discernant ;""and from these ancient rites of the church and empire," he says, "is our law derived, which prohibiteth our jurors being judices de facto, to have meat, drink, fire, or candle-light, till they be agreed of their verdict." There can surely be no reason for continuing this absurd usage at the present day; it ought certainly to be in the power of the judge, as well to order the jury refreshment, after they have retired to consider their verdict, as he does all through the trial, in cases where they are not allowed to separate. Beyond doubt he ought to have a discretion in the matter, so as to guard against the indulgence being abused, as he has now a discretion as to the time which he may keep the jury before they are

discharged. But this practice of keeping the jury without food is wholly distinct from that of requiring them to be unanimous in their verdict; the one may be altered, and we conceive it should be; and we may yet retain all the security for a careful investigation, for a just judgment, and for an administration of justice at once merciful and efficient, which is provided for us by the other.

We

Juries, however, under no system will be exempt from error, and there is, we confess, a great anomaly in our law, which if it be possible we would gladly see removed. It must strike every one as being a monstrous thing, that in any civil case, no matter how small may be the amount in dispute, either party may move for a new trial, not only on questions of law reserved, but on matters of fact; on the grounds of the preceding verdict having been contrary to evidence, or because of fresh testimony having been subsequently discovered, or for any other sufficient reason; and yet that in a criminal case, where life and liberty are at stake, the prisoner shall have no such privilege allowed him. have said that we would most gladly see this changed, if it be possible; for although we know that several of our judges would most gladly see the alteration made, yet we are also aware that strong reasons and high authority may be urged against it. Lord Campbell, on a recent occasion, in the House of Lords, when introducing the bill which has given the judges power, in criminal cases, to have questions of law placed on the record, in order to bring them before the court of appeal, declared that he was not prepared to propose that there should be a new trial on the facts in all criminal cases; that he knew of no machinery by which that system could be established, and that it would be productive of that delay in the infliction of punishment, which, as we have already observed, must be a most serious evil. We cannot dispute the force of this argument, yet we cannot but feel that the present system subsists rather as a remnant of the oppression to which prisoners were formerly subjected, than as deriving its origin from any well-considered principle of expediency. Formerly prisoners indicted for felony were not allowed to produce any witnesses-then they

were allowed witnesses, but were not permitted to examine them on oath. In the reign of Queen Anne, they obtained this indulgence, but were still debarred the advantage of having counsel to speak for them; and it was not until the reign of William the Fourth that they obtained this privi. lege; and they still are precluded from having a new trial. And yet, every one who has attended at courts of justice must have occasionally heard verdicts of conviction pronounced which dissatisfied him very much oftener, we would say, than M. Arago's calculation would lead us to expect. If the verdict is startlingly opposed to the evidence, the judge will recommend a pardon, which is granted, as of course. Baron Lefroy, in a case of rape, where it was clear upon the evidence that the woman consented, recommended the prisoner for a pardon, and he was at large in the town before the assizes were over. This course imposes a most unfair amount of responsibility on the judge, and it invests him with a control over the verdict which it is in every way most injudicious that he should frequently exercise. But it may too often occur that the verdict will be unjust, and one which might be rectified on a new trial, although not apparently at variance with the evidence so as to warrant the interposition of the judge. For example, two men were indicted before Mr. Justice Jackson, at Limerick, for stealing a gun; they were both convicted, but one of them only was guilty, and he had acknowledged his guilt to his counsel. After the trial, his counsel obtained his leave to show his brief to the learned judge, and the evidence fell in so entirely with the prisoner's representation of the case, with the assumption of the guilt of one and of the innocence of the other, that the learned judge recommended the man, whom he could not now doubt to be innocent, for a pardon, which was of course granted, and he was discharged. Yet here, but for the confession of guilt by his comrade, and the exertion of counsel and the consideration of the judge, he would have suffered the sentence which was pronounced upon him. The evidence of Sir Frederick Pollock, the present Chief Baron of England, before the Commissioners of Criminal Law in, 1845, is of so appal

ling a character, that we cannot but lay it before our readers. He says

"I will endeavour to give to the commissioners some of the circumstances which occurred during the shrievalty of one of the sheriffs of London, Mr. Wilde, an attorney. He was elected upon the death of one of the sheriffs chosen in 1827. During the seven months he was in office, by his exertions, he saved several men from execu tion-I think as many as seven, but I am certain as to five. I had frequent communication with him on those cases, as they proceeded. My impression is, that several of those cases were cases of perfect and entire innocence; and that the others were cases of innocence with respect to the capital part of the charge. Sir Robert Peel, then secretary of state, paid great attention to every recommendation to mercy; and, having satisfied himself in each case that the prerogative of the crown ought to interfere, the lives of every one of the individuals were spared. The result satisfied me that the parties were, in several instances, guiltless of any crime; and in all cases were such as did not justify capital punishment. It has always, since this occurred, been impressed upon my mind as a very appalling fact, that in one year (nine months) so many persons were saved from public execution, for which, I believe, most, if not all of them, had been actually ordered (six persons had been capitally convicted, and left for execution); and I am persuaded, that, unless the practical difficulties be insuperable-which I do not apprehend would be the casesome legal constitutional mode ought to be adopted, by which errors and mistakes should be corrected in criminal trials, as well as they may now be in civil

cases."

We would but weaken the authority of this powerful statement of the Chief Baron's, by anything which we could attempt to add to it. Six innocent men ordered for execution within nine months. This in London-the centre of civilisation and intelligence-the very temple of trial by jury. And what is the dreadful suggestion this appalling fact must lead to, as to the numbers who may have been unjustly executed when no such exertions as Mr. Wilde's were made. It is only astonishing that on a subject of such great-shall we say it ?—of such fearful importance, recommendations coming from such high authority, and sup

ported by such evidence, should have been so long neglected.

The only precaution which can now be taken against the evils which Sir F. Pollock thus illustrates, consists in the selection of efficient and intelligent jurors. "The great objection," says Lord Eldon, "to trial by jury, appears to be founded on the fact, that people of low condition serve as jurors. No one," he adds, "can have gone a circuit, without seeing twelve men upon a jury, who, if they did not implicitly follow the directions of the judge, would be quite incompetent to form an opinion upon any case at all complicated in the facts that constitute it." It is to guard against this evil, that the sheriff is entrusted with the enormous power with which he is invested -that of selecting from the legally qualified jurors of his bailiwick such as he deems to be bona fide competent to discharge their duties efficiently-men probos et legales; and it were greatly to be desired that the jurors who are returned to try the most important interests which men can deal with-the lives and liberties of their fellowswere not, as is too frequently the case, taken from the common jurors of the county, but that they were selected from the better class of which the record and special panels are composed. But, notwithstanding every effort which may be made by the sheriff to render the tribunal a competent one, we cannot but fear that our jury system never will be perfect, until the privilege of applying for a new trial in criminal cases be conceded. We confess that we advocate this alteration in our law with considerable hesitation, because, notwithstanding the arguments and authorities by which it is recommended, we are aware of the difficulties by which it is surrounded, and the authority by which it is opposed. We have felt it to be our duty to lay both these before our readers; but for ourselves we never can allow that any considerations of general expediency, even supposing that they exist, can be allowed to weigh against the maxims by which all jurisprudence should be directed-to do justice, and to love mercy.

There is yet another subject connected with our jury system, to which the political trials of this year has drawn considerable attention, and

which it would be impossible to dismiss the subject without briefly adverting to we allude to the exercise of the right of challenge. This is the subject which, of all others, on every occasion of political trials in this country, calls forth the fiercest party animosity; and it must ever continue to do so whilst the great bulk of the legally qualified jurors sympathise with sedition, for so long it is imperatively necessary that it shall be exercised. We will not say that the administration of justice has been brought into contempt by the extent to which this right has been exercised by the crown, for we are convinced that if it were not so exercised, justice could never be administered in political cases at all the very name would become a mockery, and the impannelling of jurors would be but a formal preliminary in the marshalling a triumph for the offenders. We can

not, however, at the same time, but admit that this is a most dangerous power, which nothing but an imperious necessity could justify the continuance of; it is not only open to abuse, but it invites to it, and it can never be too rigorously watched in its exercise by the controlling vigilance of public opinion. The state of the case is shortly this—both the prisoner and the crown are allowed as many challenges for cause as they can support, and the prisoner is further allowed a limited number of challenges, without any cause assigned; but our non-professional readers will be surprised to hear that the crown has legally no power whatever of challenging without cause. It is expressly enacted, by a statute as old as the reign of Edward I., that those who sue for the crown must assign for their challenge a cause certain. practice, however, grew up, of not requiring the law-officers of the crown to assign the grounds of their challenge to the polls until the whole panel has been gone through, and therefore it is that the juror is only ordered to "stand by" on the part of the crown, but that he is "challenged" by the prisoner. If the crown order the whole of the panel, one after the other, to "stand by," without having selected their jury, then it is, and not until then, that they are asked to assign their cause of challenge; so that it is

Α

« PreviousContinue »