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THE JURY SYSTEM.
No greater misfortune could well befall a founded their expectation of the prisoner's country than a distrust in the administration | fate, not on the merits of his case, but on the of justice, or a doubt as to the efficiency of composition of his jury — the Liberals arowthe institutions by which it is dispensed ; and ing, and the Conservatives well knowing, that it is not among the least of the evils which with one man on the jury to sympathize with have been occasioned by the revolutionary the prisoner, there should never be a convicfaction in this country, that in the legal pro- tion; and it was obvious to every one, that in ceedings which became necessary for their sup the conduct of the trials, the great, the anz. pression, the efficiency of our jury system ious, and, must we add it, the decisive strugcame to be questioned. When Mr. Smith gle, was in the selection of the jury. This O'Brien was put on his trial, in March last, was less so at Clonmel ; for the constitution for seditious speeches, ten of his jurors were of the panel, the superior class from which for conviction; two, however, refused to con the jurors were taken, left little or no ground cur in a verdict of guilty, and the jury, after for expectation that any partisan of rebellion being locked up for a night, were discharged could possibly find bis way into the jury-box; without agreeing to a verdict. Again, the but it prevailed universally in those trials day following, Mr. Meagher was put on his which were had in Dublin. trial, and with precisely a similar result That such a state of things is a serious two of his jurors refused to agree with the reproach to our jury system, it is impossible other ten, and, as in the preceding case, they to deny – equally impossible is it to conceal were imprisoned for a night, and discharged from ourselves, that the offence is a most fearthe following morning. Messrs. O'Brien and ful one in those jurors who allow their private Meagher stood out on their recognizances, feelings, or political bias, to control them in and the entire proceedings went for nothing. the discharge of their sworn duty. But let The event was hailed as a triumph by the no man say that it is a reproach to which Irish rebellious and the disaffected, and the clubs juries are alone exposed, or that it is restricted of Dublin marched in procession to celebrate to juries at all, and has not extended to the their victory. Loyal and good men, however, highest assembly in the country. Who can began to fear that our system of trial by jury forget the election committees in the House of was unequal to the difficulty to be encountered: Commons ? Were those tribunals not conof the treasonable character of the speeches trolled, and avowedly so, by political bias ? which were indicted, they could not possibly We take the judgment which was formed of entertain a doubt; and men naturally felt that them by the assembly from which they were it was a monstrous thing that the perverseness selected, and we appeal to the cheers of of a small minority of a jury should thus triumph which echoed within the walls of St. frustrate the ends of justice, and give a Stephen's as the names of the several memtriumph to sedition. In this country, as well bers of the committee were announced, all as in England, an opinion began to prevail parties feeling sure that the decision must that Irish juries were not to be depended on; be in accordance with the political sentiments and while some serupled not to avow that of the majority. Let it, moreover, be borne political offenders should either be tried by in mind, that political trials, especially those inilitary tribunals, or in county in for sedition, are cases precisely of that naEngland, very many were of opinion that the ture in which it is most easy for a juryman to Scotch system was a preferable one to ours, beguile himself into the exercise of a discre and that the verdict of a majority of the jury tion beyond that to which he is limited by bis ought to be received. Again, some short oath. He may persuade himself that the time afterwards, Mr. Mitchel was tried, and intentions of the party were for the public in his case the jury were unanimous, and he good — at any rate, that they were meant for was convicted. But forthwith a cry arose that the best; or that, even if criminal, very his conviction was obtained by a packed jury practical' evil had, in point of fact, resulted and a perjured sheriff, and the right of chal- from them. In some such way, we say, lenge, as it was exercised by the crown, was may be possible for a juror, whose political denounced as arbitrary and unconstitutional ; bias is strongly with the prisoner, to deceive and so it continued through all the succeeding himself into a violation of his oath. trials, almost without an exception - men But shall Irish jurors be condemned, and
justly we admit it, for this dereliction of duty; / would be impossible, within the limits to which and shall English juries be justified, or at we are circumscribed, to convey to the general least extenuated, for conduct which is not a reader. Neither would we willingly lend ourwhit less flagrant? What has mainly contrib-selves to the pernicious habit of testing every uted, of late years, to produce the mitigation venerated institution of the country by abstract in our penal code ? Simply the failure of reasoning on its operations. We believe that justice, occasioned by English juries refusing, in all such institutions which have pervaded though on their oaths, to convict of the crime, the whole spirit of the nation, which have because they did not approve of the severity moulded and fashioned the mind and manners of the punishment. Alderman Harmer, in of the country, there are latent benefits which his evidence before the Commissioners of it is impossible to discover - benefits arising Criminal Law, thus speaks on this subject : from being thus adapted to the people, inter
woven with their habits, and supporting their “The instances are innumerable, within other kindred institutions, and that all these my own observation, of jurymen giving ver can be best protected by the prejudices which dicts in capital cases in favor of the prisoner, have grown up along with them, and should directly contrary to the evidence. I have never be needlessly stripped of this cloak of seen acquittals in forgery, where the verdict prejudice, and trusted to the defence of mere has excited the astonishment of every one in reason : the practical benefits which may sugcourt, because the guilt appeared unequivocal, gest themselves to each man, may appear inand the acquittal could only be attributed to a considerable ; many of them, as we have said, strong feeling of sympathy and humanity in being latent, and there must often seem to be the jury to save a fellow-creature from death. serious defects which he may want industry It has frequently happened with myself, in and opportunity to investigate. But the politmy communications with old, professed thieves, ical trials of this year have, as we have said, that they have expressed a wish that they drawn considerable attention to our present might be indicted capitally, because there was mode of trial by jury, and have, we apprehend, a greater chance of escape.”
tended, in some respect, to an exaggerated no
tion of its occasional, perhaps its unavoidable And again, the commissioners themselves, defects. We are here, then, set upon the dein their report, say:
fensive ; and it is not upon us that the re
proach can be cast of shaking the authority of “We are able to state, from our own obser- our most valued institution by needless disvation, that, in cases of rape, juries, from cussion. apprehension of the fatal consequences of con Now, one peculiarity in our jury-system, viction, sometimes acquit on a charge of this which has been very seriously questioned, is nature, in the face of the most cogent proof the necessity that the jury shall be unanimous of guilt.”
in their verdict. It is contended, and certain
ly not without some reason, in opposition to But it is unnecessary to dwell upon this the present system, that it must ever be a most subject. The fact would seem to be (much difficult thing to get twelve men who will as it were to be desired that it were other agree in drawing the same inference from the wise), that both in England and Ireland the same facts, if these facts be at all complicated juror's conscience is coerced, not so much by in their nature; that let them be ever so sinthe obligation of the oath itself, as by the cere in their desire to agree in their verdict, opinion of society, which condemns its viola- that this difficulty will obstruct them; that tion, and that the weight of this public cen some of them must yield in opinion in defersure, and consequently the sanction under ence to that of the others, and then, that it which the juror acts, is much diminished, if substantially ceases to be the unanimous vernot wholly removed, when the oath is dict of the whole jury. And, it is further neglected, in order to promote some of the said, they will frequently not be sincere in objects of wbich society approves. And it is their desire to agree ; one or two self-willed, so universally. How often did Messrs. Smith perverse men, will be on the jury, who, if they O'Brien and Meagher take the oath of allegi- fail in leading the others, will, from doggedance ?
ness, or obstinacy, hold out against the majorWe confess that, if the subject of our jury ity, and forthwith that a struggle ensues, not system had not been opened by recent occur- between the strength of the reasoning, but the rences, it is one which we would have been strength of the constitutions of the two parmost reluctant to enter on. The difficulties of ties. Many of our readers, no doubt, saw a the subject are excessive-many of them it report of the verdict of a jury in the Isle of
Man, about two months ago. Two of the ju- deemed to be so considerable, that it was thus rors had been for finding the prisoner guilty of condemned in the third report of the Commismurder, the rest were for finding him guilty of sioners of Common Law, a report which is manslaughter. They had been shut up for sanctioned by the names of some of the highthree nights, and were without food for twenty- est legal authorities in the kingdom : four hours, when the minority, in exhaustion, gave in, and handed down the following ver " There seems to be no good reason," say dict :-" The jury concur in indicting the these commissioners, “why, after a period of prisoner for manslaughter; but this unanimity time sufficiently long for the purposes of reashas been obtained from the painful gnawings onable and ample discussion, the jury should of hunger, and not from the conviction in the not be excused from the necessity of giving a minds of all the jurors, that it is in accordance verdict, or why the present principle of keepwith the principles of law, as laid down by the ing them together until unanimity be produced deemster.” This is a case of the minority by a sort of duress of imprisonment, should having succumbed to the majority; instances be retained ; and the interests of justice seemn of the converse are, of course, less frequent, manifestly to require a change of the law but they still do sometimes occur. When upon this subject. We propose, therefore, Lord Eldon was at the bar, he was, on one oc that the jury shall not be kept in deliberation casion, counsel for the plaintiff, in a case of longer than twelve hours, unless, at the expiraseduction the story is told in • Twiss' Life tion of that period, they unanimously concur of Eldon” the case was by no means an to require further time, which in that case aggravated one, and the defendant was of rath- shall be granted ; and that, at the expiration er an hunible condition of life, being merely of the twelve hours, if any nine of them corthe son of a farmer. Every one in court was, cur in giving a verdict, such verdict shall be consequently, astonished when a verdict for entered on record, and shall entitle the party £800 damages was announced; but the man in whose favor it is given to judgment; and in ner in which so large a sum was procured was failure of such concurrence, the cause shall be shortly afterwards explained, by one of the a remanet. It should be observed, that the jurors telling Lord Eldon (then Mr. Scott) first part of the provision is adopted from the that he had a bottle of rum in the jury-room, statute of the 55th Geo. III., for extending on which he told the other eleven jurors, who the trial by jury to civil causes in Scotland ; were all opposed to him, that he would subsist, and we are induced to add to it the provision so long as a drop of it remained, and that he with respect to the concurrence of nine jurors, never would consent to a verdict, unless they in order to guard against improper conduct on concurred with him, and "Lawyer Scott's law" the part of any individual among the jury who against their own convictions, and the judge's might be disposed, from corrupt or partial molaw;" and that the others, seeing him resolute tives, to hold out against the opinion of his in his determination, and likely to carry it out, brethren, during a period so limited as that of after some hours they all yielded to him, and twelve hours. found a verdict for an amount which every one
Join PATTESON, of them believed to be exorbitant. And it is
HENRY H. STEPHES, further urged, in opposition to the present sys
J. B. BOSANQUET, tem, that not only is justice thus frustrated by
E. H. Aldersox.” disagreement, or perverted by coercion, but that trial by jury is brought into contempt, and Neither, we must admit, can it be urged by verdicts deprived of all their moral weight, by the upholders of the present system of unanithe bickerings and accusations to which indi mous verdicts, that it owes its origin to any vidual jurors are exposed, who resist the opin- consideration of its expediency. Like the orions of their fellows, and prevent an agree- igin of trial by jury itself, the original cause ment to a verdict. In ancient times, indeed, of this peculiarity of English juries is wrapt a practice prevailed of obtaining an unanimous in considerable perplexity. The best authoriverdict, by a process known as that of “af- ties, those who refer the introduction of the forcing the assize," which consisted in adding jury to the Norman conquerors, attribute this others to the larger part of the jury, until present usage to the reverence which was twelve were found to be unanimous, and fining paid by the ancient Scandinavians to the the dissenting jurors; but this practice has number twelve — the necessity that this numbeen abolished for centuries, and, since the ber of persons at least should agree, in order reign of Elward III., the present practice, to give the verdict its due weight, together with all its inconveniences, has prevailed. The with the circumstance, that it derived no indisadvantages of the present system were crease of authority from the concurrence of any
greater number combined, it is said, in fixing | labor of discussion and investigation, they will the number of jurors at twelve, and requiring naturally shrink from it; anxious to return to them to be unanimous. On the whole, then, their several occupations, they wish to get rid it will, we believe, be found impossible to deny of their duty, and to hand in their verdict as that the present system did not owe its origin quickly as possible. Is it to be supposed that to any well-considered reasons of utilty— that they would stay there to discuss the matter it is, in practice, attended with many, and with one or two dissentient jurors ? No; the these not inconsiderable disadvantages — and process of arriving at their verdict would simthat it has been deliberately condemned by ply consist in counting the majority. Under very high authority
the present system, the necessity for unanimiWe have felt it to be our duty to put this ty forces discussion on them, no matter view of the case fully before our readers, be- how averse they may naturally be to it. cause it is impossible to dispute its truth. Ad- What security could there possibly be that mitting, however, as we do, to the fullest ex- such deliberation would take place, when there tent, the force of the arguments and authori was no motive to induce it? It is
unquesties which may be brought to bear against the tionably, even at present, a defect in the trial present system, we do not hesitate to declare by jury-perhaps an unavoidable defect, or our firm conviction, that the necessity for unan one that is more than counterbalanced by its imity is indispensable to the right adminis- advantages, but a defect no less — that juries tration of justice, and that upon it the efficacy give their verdicts without being obliged to deof trial by jury mainly depends. We say, in liver the reasons on which they founded them. the language of Lord Denman, “ That all ver- It is not so with the judgments of the judges. dicts of juries ought to be unanimous.” On any question that is determined by the ju
It is impossible to render this, or any other dicial bench, the learned judges uniformly achuman tribunal, perfect—this must be always company their judgments with the reasons on borne in mind; and, consequently, it is unrea- which they are based. This practice, besides sonable to argue against a system, merely be settling the law, ensures attention on the part of cause abuses exist in it. We must consider the judges, and gives authority to their decision. whether it does not protect us from greater It might be impossible to introduce this pracevils than it subjects us to; or whether the tice into juries; but if we abolish the necessidisadvantages of the opposite system are not ty for unanimity, and take the verdict of the still greater and more numerous. While we majority, we shall send the jury into their have fallible materials to deal with, we will get room without the slightest guarantee that they no good unmixed with evil; and our duty and will thoroughly investigate the issue which is our policy plainly is, to select the system in left them to try. The security for deliberation which the greater good preponderates. Now that we require from the bench, by requiring one great evil to which all juries must natural- the reasons of their judgments, we dispense ly be prone, is the shunning of discussion. with, or we cannot attain, in the jury box; Évery available precaution should be adopted and would abolish the only substitute which is to guard against this evil — everything which left us, if, as we have already said, we sent bas a tendency to foster and encourage it the jury into their room, merely to count their should be most earnestly shunned. It is but majority, and hand down their issue-paper. by anxious, serious, and patient discussion and And let it not be forgotten that if there be investigation that truth can be arrived at, and sometimes perverse or partisan jurors, who delife, character, and property preserved. But feat justice by resisting the opinion of their the class of men from whom juries are for the fellows, that, on the other hand, an intelligent, most part composed, are not habituated to this resolute, conscientious juror may frequently patient and laborious investigation which is be in the right, although not supported by the frequently required of them in courts of jus- majority of the jury at first, until his views tice, when the testimony of conflicting witness- are opened to them, and his reasons discussed. es is to be examined, and the intricacies of a But not only is the system of receiving a complex state of facts to be unravelled. They verdict of a majority bad in its results, but it are, moreover, naturally anxious to return as is most unjust and reprehensible in its very soon as possible to their homes, or places of principle. In Scotland the jury consist of business. Suppose, then, the majority of the fifteen, and a majority convict. Now what is jury were to determine the verdict, what would the consequence of this system? What is the be the natural result? Why this — the jury plain avowal made by this constitution of the retire to their room, each juror with a decided jury? Why this, that a prisoner may be conbias one way or the other, which he has formed victed and executed, although seven honest in the progress of the trial; unused to the and intelligent jurors, on their oaths, believe
him to be innocent. We have spoken with | by long contemplation of the prisoner's fate. Scotchmen on this subject, and we have been men would forget his guilt and his victims, and met with the reply, that, in point of fact, such all sense of right and wrong would be greatly a thing never occurs—that in such a case the perverted. The executive under such circummatter would be remitted to the secretary of stances would never have the support of public state, and, by the favor of the crown, the pris- opinion in carrying out the extreme sentence, oner's sentence would be commuted. Still, or even a severe one. however, he would have been found guilty, and There is yet another argument in favor of would undergo a commuted penalty, though juries being unanimous, which we find in a seven of his jury believe that he never com- speech of Ň. Arago, member of the late promitted the offence for which he was indicted. visional government of France, and who, whatWe confess that this is most repugnant to all ever may be our opinion of him as a states our notions of the administration of justice, man, certainly stands in the first rank as a trained up as we have been in the lesson, that man of science—the point of view in which in the prisoner's conviction there must be no we are now to regard him. doubt—that if any reasonable construction of In 1835, a bill was proposed and adopted the evidence is found consistent with the sup- in France, for enabling juries to convict by a position of his innocence, he is entitled to his simple majority, instead of a majority of eight acquittal. Moreover, this necessity for appeal to four. M. Arago spoke against the bill, and is the very strongest argument against the sys- the object of his speech was to prove, by mathtem; it points out one defect, that which ematical inference, that the probabilities of a makes the appeal necessary, and generates verdict being just, increased as the majority of many others. First, the prisoner's case is the jury was larger, and that it became inbrought, by way of appeal, before the secre- finitely greater when they were unanimous. tary of state, where it is virtually reheard be- We quote from the Annual Register for 1845. hind the prisoner's back, without any one to He says :represent him, without any security whatever that it receives a careful investigation. The “If a verdict is resolved on by ten men out executive is forced to undertake the judicial of twelve, there is a greater probability that functions—a most unseemly combination. The it will be a just verdict than if it had been proprisoner is not tried by his peers, but by the nounced by seven to twelve. The degree of ministers of the crown, who are virtually con- certainty of a judgment is in direct proportion stituted into a secret court of appeal and re- to the number of judges who have delivered it
. vision, in all cases of dissenting juries; and, If you take the hypothesis that the verdict of to crown the absurdity, suppose this practice a jury be decided by a majority of seven against introduced into political trials, and that we five, as this bill proposes, you will find the rehad, for example, Lord Clarendon and the sult of your calculation to be a fearful oneprivy council sitting in review of the verdicts the chances of error in such a case are in which were pronounced by ten jurors against the proportion of one to four. I cannot go two, in the cases of Messrs. O'Brien and through all the calculations before you, but I Meagher, last March, the very prosecutors assure you they were formed in the most con- ' themselves determining on the propriety of the scientious manner, on mathematical principles, verdict. In the next place, the very conscious and they are supported by the authority of ness that there did exist such a mode of re- Condorcet, Condillac, Laplace, and all who vision would make juries less careful in investi- are versed in the science of calculating probgating the case — their responsibility, and, abilities. But let us admit that the jury's consequently, their anxiety to do right, would error may be as often in favor of the prisoner be so much dirinished; for they would feel as against him, so that instead of the proporthat if they erred, there was an opportunity tion of one to four, let us suppose that the for a review of their decision. And thirdly, probability of error to his prejudice, if the abthese appeals to the executive must materially solute majority be seven against five, is one to interfere with that certainty of punishment foi- eight, or even one to ten. We shall then have lowing on conviction, and following promptly, it rigorously and mathematically demonstrated which is the great requisite to the suppression that, among the men led to execution, there is of crime; public indignation would have sub- one in ten who is innocent.
According to the sided against the criminal long before his present system, by which the verdict of a jury crime would have been finally adjudicated on; may be formed by a majority of eight to four, very possibly indignation would have been con- the probability of error is only as one to eight; verted into pity, or into that maudlin senti- and as the error may be as much in favor of mentality which is so frequently indulged in ; the accused as against him, let us suppose the