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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 agree. ment-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 sense less 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 or dained “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.
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. We 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 princi. ple of expediency. Formerly prisoners indicted for felony were not allowed to produce any witnesses-then they
ling a character, that we cannot but lay it before our readers. He says
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 à 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 evi. dence 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 inno. cent, 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 sen. tence 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
“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 exer. tions, he saved several men from erecttion 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 or. dered (six persons had been capitally convicted, and left for execution); and I am persuaded, that, unless the prac. tical 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 fear. ful importance, recommendations coming from such high authority, and sup.
ported by such evidence, should have which it would be impossible to disbeen so long neglected.
miss the subject without briefly adThe only precaution which can now verting to—we allude to the exercise be taken against the evils which Sir F. of the right of challenge. This is the Pollock thus illustrates, consists in the subject which, of all others, on every selection of efficient and intelligent occasion of political trials in this jurors. « The great objection," says country, calls forth the fiercest party Lord Eldon, “ to trial by jury, appears animosity; and it must ever continue to be founded on the fact, that people to do so whilst the great bulk of the of low condition serve as jurors. No legally - qualified jurors sympathise one,” he adds, “ can have gone a cir- with sedition, for so long it is imperacuit, without seeing twelve men upon tively necessary that it shall be exera jury, who, if they did not implicitly cised. We will not say that the adfollow the directions of the judge, ministration of justice has been brought would be quite incompetent to form an into contempt by the extent to which opinion upon any case at all compli. this right has been exercised by the cated in the facts that constitute it." crown, for we are convinced that if it It is to guard against this evil, that were not so exercised, justice could the sheriff is entrusted with the enor never be administered in political mous power with which he is invested cases at all the very name would - that of selecting from the legally become a mockery, and the impannelqualified jurors of his bailiwick such as ling of jurors would be but a formal he deems to be bona fide competent to preliminary in the marshalling a discharge their duties efficiently-men triumph for the offenders. We canprobos et legales ; and it were greatly not, however, at the same time, but to be desired that the jurors who are admit that this is a most dangerous returned to try the most important in- power, which nothing but an impeterests which men can deal with-the rious necessity could justify the conlives and liberties of their fellows tinuance of; it is not only open to were not, as is too frequently the case, abuse, but it invites to it, and it can taken from the common jurors of the never be too rigorously watched in its county, but that they were selected exercise by the controlling vigilance from the better class of which the re- of public opinion. The state of the cord and special panels are composed. case is shortly this—both the prisoner But, notwithstanding every effort and the crown are allowed as many which may be made by the sheriff to challenges for cause as they can suprender the tribunal a competent one, port, and the prisoner is further alwe cannot but fear that our jury sys. lowed a limited number of challenges, tem never will be perfect, until the without any cause assigned; but our privilege of applying for a new trial in non-professional readers will be surcriminal cases be conceded. We con prised to hear that the crown has fess that we advocate this alteration in legally no power whatever of chalour law with considerable hesitation, lenging without cause. It is expressly because, notwithstanding the argu- enacted, by a statute as old as the ments and authorities by which it is reign of Edward I., that those who recommended, we are aware of the sue for the crown must assign for difficulties by wbich it is surrounded, their challenge a cause certain. A and the authority by which it is op- practice, however, grew up, of not reposed. We have felt it to be our duty quiring the law officers of the crown to lay both these before our readers; to assign the grounds of their chalbut for ourselves we never can allow lenge to the polls until the whole panel that any considerations of general ex. has been gone through, and therefore pediency, even supposing that they it is that the juror is only ordered to exist, can be allowed to weigh against “ stand by" on the part of the crown, the maxims by which all jurisprudence but that he is “challenged” by the should be directed to do justice, and prisoner. If the crown order the to love mercy.
whole of the panel, one after the other, There is yet another subject con- to “ stand by," without having selected nected with our jury system, to which their jury, then it is, and not until the political trials of this year has then, that they are asked to assign drawn considerable attention, and their cause of challenge; so that it is
perfectly plain that the whole spirit of the act is violated by this construction of it, for this practice has, in point of fact, given to the crown as many peremptory challenges as there are names on the panel, less only by twelve. This practice, which for cen turies depended on a mere rule of con. struction, arbitrarily adopted from an undue deference to the authority and influence of the crown, has, how ever, been legalised in Ireland, by an act passed in the reign of George IV. Now, it is impossible not to see the enormous power which is thus vested in the government. It is impossible to deny that the practical effect of this system is not only to give a power of rejection, but a power of selection; it enables the government not merely to lay aside the disaffected—as it is most fit they should—but to select their own partisans, as it would be most arbitrary, unconstitutional, and tyrannical of them to do. It never was intended to invest the government with such a fearful power as this, of naming their own jurors—the whole spirit of our laws is repugnant to it. Out of a panel of some hundred names, it is idle to say that the government could not select some twelve, who, from motives of interest, or bias, or prejudice, would find for the crown under any circumstances. In ordinary cases, no difficulty arises, because the crown, then merely representing the private prosecutor, can never have any undue desire to obtain a conviction, nor can it be suspected of it: but where the government itself is bona fide the prosecutor, when political offences are the subject of prosecution, when all the angry feelings of party are called forth when conscience it. self sinks beneath the intensity of poli. tical excitement-then, indeed, arises the necessity for exercising this power, and the danger of abusing it; then must the law-officers of the crown carefully but resolutely reject every juror whom they conscientiously believe to co-operate or to sympathise with traitors; then must they, at the same time, most scrupulously guard against admitting any whose judgments are unduly biassed in favour of the crown. Their duty is a most arduous one: Looking to the oath which the juror takes, they must allow none to pass upon the trial, who they are not in
their consciences convinced will fulfil its obligations, namely, “ that they will well and truly try, and true deliverance make between our sovereign lady the Queen and the prisoner at the bar, and a true verdict give according to the evidence." Most gladly, as we have already said, if it were possible, would we see this fearful amount of discretionary power taken from the crown, but it is impossible in a country where a great proportion of the jurors are leagued with the disaffected; its exercise must be confided to the honour, and justice, and right feeling of the law-officers of the crown, and to the control which is exercised by public opinion. Fortunately political trials are of rare occurrence : for, however fairly and necessarily this privilege may be used, it will surely be assailed by the partisans of the disaffected, and the prestige of absolute purity, of unimpassioned justice, which ought ever to invest the administration of the lawnot only beyond reproach, but beyond suspicion, will be materialy diminished; but there is no more possibility of apply. ing an abstract standard of perfection to the administration of the law, than to the principles of government_both must be adapted to the condition of the people ; and anxiously as we may hope for the time when this formidable power of challenge may with safety be abrogated or controlled, to abolish it now would be as ill suited to Ireland, in its present condition, as democracy would be to Egypt, or despotism to America.
And as this power of challenge must be confided to the conscience of the law-officers of the crown, so is there another power committed to the jury, and entrusted to them solely on the faith that their conscience will control its exercise, that, namels, of their finding on the law of the case. The maxim of law is, that the jury have to deal with the facts alone, and the judges with the law, as it is laid down by Lord Coke, “ Ad questionem facti respondent non judices, ad ques. tionem legis respondent nonjuratores." Notwithstanding, almost every ques. tion which goes into the jury-box is a mixed question of law and fact, and it has been repeatedly contended, that, in criminal cases, where the prisoner pleads generally “not guilty," everything, whether of law or fact,
which goes to constitute his guilt, is committed to the jury, and that there is no legal or constitutional obligation on them to take the law
ve the law from the judge. Unquestionably the power is vested in the jury of judging both of the law and of the fact, and hence the right is inferred; it is argued that this power never would have been entrusted to them, if it had not been intended that it should have been exercised, and that there is no means whatsoever provided by the constitution to guard against or to remedy its abuse. At the time when Messrs. O'Brien, and Meagher, and Mitchel were tried in Dublin, it was strongly urged by the liberal press, which circulated among the jurors of the city, that the law of the case was for them, and that they were under no obligation whatsoever to receive it from the judge ; and we have heard Mr. Baron Pennefather censured for refusing the application of the jury on O'Dogherty's trial, that they should have a copy of the act of parliament under which the prisoner was indicted, that learned judge telling them that the law was for the court, and that they were to receive it as laid down by him. In the debate on Fox's libel bill, Lord Loughborough declared that “when the law and fact were blended, it was the undoubted right of the jury to decide ;" and the Master of the Rolls (afterwards Lord Alvanley) declared in the same debate, that “ Juries had gone in opposition to the direction of the judges, and perhaps we were indebted to their conduct on such occasions for some of the most inesti mable blessings we enjoyed.” It was however, in the progress of this same proceeding, that the doctrine received its most decisive condemnation. The judges were consulted on the subject by the House of Lords, and pronounced this unanimous opinion :
cation to general issues in all cases, civil and criminal; for we cannot distinguish between the office and authority of a jury, in civil and criminal cases, whatever difference there may be in their responsibility."
This authoritative declaration of the law of England ought to be conclusive on the subject, even if it were not supported by the plainest dictates of justice and common sense. Could a more monstrous proposition be maintained, or one more at variance with the whole spirit of the English constitution, and the English nature, than that an uninformed, secret, uncontrolled tribunal, is to take upon itself the office of administering the law, to adopt or reject at pleasure the enactments of the legislature, and to supersede the public exposition of that law as delivered by the learned judges, under the control of public censure, and liable to be made responsible to parliament and the sovereign. Their power of doing so only arises from the necessity of the case-right they have none. In almost every case, whether it be treason and sedition, or murder, manslaughter, or such like, considerations of law and fact are so intimately blended, that it is impossible to separate them ; but the jury are bound by every moral obligation to take the law from its authorised expositor--the judge. In cases of diffi. culty, they can protect themselves by a special verdict, by finding the facts of the case specially, and submitting the law on such a state of facts to the consideration of the court, where it can be fully argued and investigated; but in no case should they encroach upon a province for which they are avowedly incompetent, and which was never intended for them; then, indeed, would trial by jury become a mockery and a snare.
We have thus briefly adverted to some of the most prominent topics in connexion with our trial by jury. It is in vain to deny that it has many defects peculiar to itself, besides sharing in those to which all human tribunals are liable. In order to guard in some degree against these evils, we have ventured, notwithstanding the argument and authority which is opposed to us, to advocate for the accused the privi. lege of applying for a new trial in cri
“ We conceive the law to be, that the judge is to declare to the jury what the law is, and that it is the duty of the jury, if they will find a general verdict upon the whole matter in issue, to compound that verdict of the fact, as it appears in evidence before them, and of the law as it is declared to them by the judge. The line marked out by the law, for the conduct of a jury giving a general verdict, has an universal appli.