THE JURY SYSTEM. No greater misfortune could well befall 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 resulttwo 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 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 sympathize 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 strug gle, 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 announced, all parties feeling sure 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, 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 it 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 favor 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." would be impossible, within the limits to which we are circumscribed, to convey to the general reader. Neither 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 disec ver- 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 reason the 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 have, we apprehend, tended, in some respect, to an exaggerated notion of its occasional, perhaps its unavoidable And again, the commissioners themselves, defects. We are here, then, set upon the dein their report, say: 46 '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 other wise), that both in England and Ireland the juror's conscience 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 sanction 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 occur rences, it is one which we would have been most reluctant to enter on. The difficulties of the subject are excessive-many of them it fensive; 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 jury-system, 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 facts be 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 twentyfour hours, when the minority, in exhaustion, gave in, and handed down the following verdict: The jury concur in indicting the prisoner for manslaughter; 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 principles 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 imprisonment, 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 favor 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, 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 - 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." 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 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 judgments 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 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 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 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. It is impossible to render this, or any other human tribunal, perfect-this 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, moreover, naturally anxious to return as soon as possible to their homes, or places of business. Suppose, then, the majority of the jury were to determine 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 the other, which he has formed in the progress of the trial; unused to the 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 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 favor 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 : him to be innocent. We have spoken with | by long contemplation of the prisoner's fate. 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 favor 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 believe 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 nany 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 whatever 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; you, "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 one— '} the chances of error in such a case are in the proportion of one to four. I cannot go through all the calculations before 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 prob abilities. But let us admit that the jury's error may be as often in favor of the prisoner as against him, so that instead of the propor tion 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 probability of error is only as one to eight; and as the error may be as much in favor of the accused as against him, let us suppose |