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proportion to be one in sixteen. Even with agreed of their verdict." There can surely the English system of unanimity, error may be no reason for continuing this absurd usage occur, but in that case the chances of error are at the present day; it ought certainly to be in infinitely smaller, for they are as one to eight the power of the judge, as well to order the thousand. I shall look with hope for the day jury refreshment, after they have retired to when that unanimity shall be imperatively re- consider their verdict, as he does all through quired by the laws of my country.'
the trial, in cases where they are not allowed
to separate. Beyond doubt he ought to have It is altogether idle to say that men will not a discretion in the matter, so as to guard be brought to agree on a subject where they against the indulgence being abused, as he bas have neither bias nor partialities to deceive now a discretion as to the time which he may them, when the necessity for investigation and keep the jury before they are discharged. But discussion is forced upon them. We remember this practice of keeping the jury without food having seen a case of bigamy tried in Dublin is wholly distinct from that of requiring them by Mr. Justice Ball. The jury retired in the to be unanimous in their verdict; the one may afternoon, and towards evening announced be altered, and we conceive it should be ; and that there was no probability of their agreeing: we may yet retain all the security for a careThe learned judge requested that they would ful investigation, for a just judgment, and for consider the subject further, and they with an administration of justice at once merciful drew. Late in the evening they were again and efficient, which is provided for us by the sent for, and they told the judge that so en other. tirely had they given up all hopes of agreeing, Juries, however, under no system will be that they had ceased to discuss the subject, and exempt from error, and there is, we confess, a were amusing themselves with other topics of great anomaly in our law, which if it be posconversation. The learned judge reminded sible we would gladly see removed. It must them that it was their solemn duty, so long as strike every one as being a monstrous thing, they were together, to discuss the subject of that in any civil case, no matter how small the issue which they were sworn to try, and in- may be the amount in dispute, either party troduce no other topics whatever into the jury- may move for a new trial, not only on quesroom, and they were then locked up for the tions of law reserved, but on matters of fact; night. In the morning they again announced on the grounds of the preceding verdict havthat they had not agreed, in the full expecta- ing been contrary to evidence, or because of tion of being discharged; but the learned fresh testimony having been subsequently disjudge once more bid them not to despair of covered, or for any other sufficient reason ; coming to an agreement-he told them that he nd yet that in a criminal case, where life and had frequently known juries to agree, after liberty are at stake, the prisoner shall have no having absolutely abandoned every hope of such privilege allowed him. We have said doing so, and once more begged of them to that we would most gladly see this changed, retire to their room. They did so, and at two if it be possible ; for although we know that o'clock in the day agreed to their verdict of several of our judges would most gladly see “ Not Guilty ”—resting their verdict upon a the alteration made, yet we are also aware that view of the case, which entirely satisfied every strong reasons and high authority may be urged one who heard it; and we never heard it against it. Lord Campbell, on a recent occabinted that such verdict was not the conscien- sion, in the House of Lords, when introductious conviction of every man in the jury- ing the bill which has given the judges power, box.
in criminal cases, to have questions of law We grant it to be an absurd and monstrous placed on the record, in order to bring them custom a mere senseless relic of barbarism before the court of appeal, declared that he - to keep the jury, while thus in deliberation, was not prepared to propose that there should without any reasonable degree of refreshment. be a new trial on the facts in all criminal It originated in a desire to keep the jury free cases; that he knew of no machinery by which from intemperance. Spelman tells us that the that system could be established, and that it Council of Nice ordained that “ Judices non would be productive of that delay in the innisi jejuni leges et judicia decernant;” that fliction of punishment, which, as we have alCharlemagne ordained “let judices jejuni ready observed, must be a most serious evil. causas audiant et discernant ;
is “and from We cannot dispute the force of this argument, these ancient rites of the church and empire,” yet we cannot but feel that the present system he says, “is our law derived, which prohibit subsists rather as a remnant of the oppression eth our jurors being judices de facto, to have to which prisoners were formerly subjected, meat, drink, fire, or candle-light, till they be than as deriving its origin from any well-con
sidered principle of expediency. Formerly, chosen in 1827. During the seven months be prisoners indicted for felony were not allowed was in office, by his exertions, he saved several to produce any witnesses — then they were al men from execution - I think as many as lowed witnesses, but were not permitted to ex seven, but I am certain as to five. I had freamine them on oath. In the reign of Queen quent communication with him on those cases, Anne, they obtained this indulgence, but were as they proceeded. My impression is, that still debarred the advantage of having counsel several of those cases were cases of perfect and to speak for them; and it was not until the entire innocence ; and the others were cases reign of William the Fourth that they obtained of innocence with respect to the capital part of this privilege ;, and they are still precluded the charge. Sir Robert Peel, then secretary from having a new trial. And yet, every one of state, paid great attention to every recomwho has attended at courts of justice must mendation to mercy; and, having satisfied have occasionally heard verdicts of conviction himself in each case that the prerogative of the pronounced which dissatisfied him—very much crown ought to interfere, the lives of every one oftener, we would say, than M. Arago's calcu- of the individuals were spared. The result lation would lead us to expect. If the verdict satisfied me that the parties were, in several is startlingly opposed to the evidence, the judge instances, guiltless of any crime, and in all will recommend a pardon, which is granted, as cases were such as did not justify capital punof course.
Baron Lefroy, in a case of rape, ishment. It has always, since this occurred, where it was clear upon the evidence that the been impressed upon my mind as a very apwoman consented, recommended the prisoner palling fact, that in one year (nine months) so for a pardon, and he was at large in the town many persons were saved from public execubefore the assizes were over. This course im- tion, for which, I believe, most, if not all of poses a most unfair amount of responsibility them, had been actually ordered (six persons on the judge, and it invests him with a control had been capitally convicted, and left for ese over the verdict which it is in every way most cution); and I am persuaded, that, unless the injudicious he should frequently exercise. But practical difficulties be insuperable — which I it may often occur that the verdict will be do not apprehend would be the case - - some unjust, and one which might be rectified on a legal constitutional mode ought to be adopted, new trial, although not apparently at variance by which errors and mistakes should be corwith the evidence so as to warrant the interpo- rected in criminal trials, as well as they may sition of the judge. For example, two men now be in civil cases. were indicted before Mr. Justice Jackson, at Limerick, for stealing a gun; they were both We would but weaken the authority of this convicted, but one of them only was guilty, powerful statement of the Chief Baron's, by and he had acknowledged his guilt to his coun- anything which we could attempt to add to it
. sel. After the trial, his counsel obtained his Six innocent men ordered for execution within leave to show his brief to the learned judge, nine months. This in London—the centre of and the evidence fell in so entirely with the civilization and intelligence — the very temple prisoner's representation of the case, with the of trial by jury. And what is the dreadful assumption of the guilt of one and of the inno- suggestion this appalling fact must lead to, as cence of the other, that the learned judge to the numbers who may have been unjustly recommended the man, whom he could not executed when no such exertions as Mr. now doubt to be innocent, for a pardon, which Wilde’s were made? It is only astonishing was of course granted, and he was discharged. that on a subject such great — shall we say Yet here, but for the confession of guilt by his it? — of such fearful importance, recommendacomrade, and the exertion of counsel and the tions coming from such authority, and supconsideration of the judge, he would have suf- ported by such evidence, should have been so fered the sentence which was pronounced upon long neglected. him. The evidence of Sir Frederick Pollock, The only precaution which can now be taken the present Chief Baron of England, before against the evils which Sir F. Pollock thus the Commissioners of Criminal Law, in 1845, illustrates, consists in the selection of efficient is of so appalling a character, that we cannot and intelligent jurors. “The great objection,” but lay it before our readers. He says - says Lord Eldon, “to trial by jury, appears to
be founded on the fact, that people of low “I will endeavor to give to the commission-condition serve as jurors. No one,” he adds, ers some of the circumstances which occurred “can have gone a circuit, without seeing twelve during the shrievalty of one of the sheriffs of men upon a jury, who, if they did not imLondon, Mr. Wilde, an attorney. He was plicity follow the directions of the judge, would elected
the death of one of the sheriffs be quite incompetent to form an opinion upon |
any case at all complicated in the facts that only open to abuse, but it invites to it, and it constitute it.” It is to guard against this evil, can never be too rigorously watched in its exthat the sheriff is intrusted with the enormous ercise by the controlling vigilance of public power with which he is invested - that of opinion. The state of the case is shortly this selecting from the legally-qualified jurors of both the prisoner and the crown are allowed his bailiwick such as he deems to be bonâ fide as many challenges for cause as they can supcompetent to discharge their duties efficiently port, and the prisoner is further allowed a lim
men probos et legales y, and it were greatly ited number of challenges, without any cause to be desired that the jurors who are returned assigned; but our non-professional readers will to try the most important interests which men be surprised to hear that the crown has legally can deal with — the lives and liberties of their no power whatever of challenging without fellows — were not, as is too frequently the It is expressly enacted, by a statute as case, taken from the common jurors of the old as the reign of Edward I., that those who county, but that they were selected from the sue for the crown must assign for their chalbetter class of which the record and special lenge a cause certain. A practice, however, panels are composed. But, notwithstanding grew up, of not requiring the law-officers of every effort which may be made by the sheriff the crown to assign the grounds of their chalto render the tribunal a competent one, we can lenge to the polls until the whole panel has not but fear that our jury system never will be been gone through, and therefore it is that the perfect, until the privilege of applying for a juror is only ordered to "stand by new trial in criminal cases be conceded. We part of the crown, but that he is "challenged" confess that we advocate this alteration in our by the prisoner. If the crown order the whole law with considerable hesitation, because, not- of the panel, one after the other, to "stand by," withstanding the arguments and authorities by without having selected their jury, then it is, which it is recommended, we are aware of the and not until then, that they are asked to as difficulties by which it is surrounded, and the sign their cause of challenge; so that it is authority by which it is opposed. We have perfectly plain that the whole spirit of the act felt it to be our duty to lay both these before is violated by this construction of it, for this our readers ; but for ourselves we never can al- practice has, in point of fact, given to the low that any considerations of general expe- crown as many peremptory challenges as there diency, even supposing that they exist, can be are names on the panel, less only by twelve. allowed to weigh against the maxims by which This practice, which for centuries depended on all jurisprudence should be directed to do a mere rule of construction, arbitrarily adoptjustice, and to love mercy.
ed from an undue deference to the authority There is yet another subject connected with and' influence of the crown, has, however, been our jury system, to which the political trials of legalized in Ireland, by an act passed in the this year have drawn considerable attention, and reign of George IV. Now, it is impossible which it would be impossible to dismiss the not to see the enormous power which is thus subject without briefly adverting to — we al vested in the government. It is impossible to lude to the exercise of the right of challenge. deny that the practical effect of this system is This is the subject wbich, of all others, on not only to give a power of rejection, but a every occasion of political trials in this country, power of selection; it enables the government calls forth the fiercest party animosity; and it not merely to lay aside the disaffected — as it must ever continue to do so whilst the great is most fit they should — but to select their bulk of the legally-qualified jurors sympathize own partisans, as it would be most arbitrary, with sedition, for so long it is imperatively unconstitutional, and tyrannical of them to do. necessary that it shall be exercised. "We will It never was intended to invest the governnot say that the administration of justice has ment with such a fearful power as this, of been brought into contempt by the extent to naming their own jurors — the whole spirit of which this right has been exercised by the our laws is repugnant to it. Out of a panel crown, for we are convinced that if it were not of some hundred names, it is idle to say that so exercised, justice could never be adminis- the government could not select some twelve, tered in political cases at all — the very name who, from motives of interest, or bias, or prewould become a mockery, and the impannel- judice, would find for the crown under any ling of jurors would be but a formal prelimi- circumstances. In ordinary cases, no difficulnary in the marshalling a triumph for the ty arises, because the crown, then merely repoffenders. We cannot, however, at the same resenting the private prosecutor, can never time, but admit that this is a most dangerous have any undue desire to obtain a conviction, power, which nothing but an imperious neces- nor can it be suspected of it: but where the sity could justify the continuance of; it is not government itself is bonâ fide the prosecutor
when political offences are the subject of pros non juratores." Notwithstanding, almost every ecution, when all the angry feelings of party question which goes into the jury-box is a are called forth — when conscience itself sinks mixed question of law and fact, and it has beneath the intensity of political excitement - been repeatedly contended, that, in criminal then, indeed, arises the necessity for exercis- cases, where the prisoner pleads generally ing this power, and the danger of abusing it; “not guilty,” everything, whether of law or then must the law-officers of the crown care- fact, which goes to constitute his guilt, is com fully but resolutely reject every juror whommitted to the jury, and that there is no legal they conscientiously believe to coöperate or to or constitutional obligation on them to take sympathize with traitors ; then must they, at the law from the judge. Unquestionably the the same time, most scrupulously guard against power is vested in the jury of judging both of admitting any whose judgments are unduly the law and of the fact, and hence the right biased in favor of the crown. Their duty is is inferred; it is argued that this power never a most arduous one: looking to the oath which would have been entrusted to them, if it had the juror takes, they must allow none to pass not been intended that it should have been upon the trial, who they are not in their con- exercised, and that there is no means whatsasciences convinced will fulfil its obligations, ever provided by the constitution to guard namely, “ that they will well and truly try, against or to remedy its abuse. At the time and true deliverance make between our sove- when Messrs. O'Brien, and Meagher, and Mitreign lady, the Queen, and the prisoner at the chel were tried in Dublin, it was strongly bar, and a true verdict give according to the urged by the liberal press, which circulated evidence.” Most gladly, as we have already among the jurors of the city, that the law of said, if it were possible, would we see this the case was for them, and that they were fearful amount of discretionary power taken under no obligation whatsoever to receive it from the crown ; but it is impossible in a country from the judge; and we have heard Mr. Baron where a great proportion of the jurors are Pennefather censured for refusing the applicaleagued with the disaffected ; its exercise must tion of the jury on O'Dogherty's trial, that be confided to the honor, and justice, and right they should have a copy of the act of parliafeeling of the law-officers of the crown, and to ment under which the prisoner was indicted, the control which is exercised by public opin- that learned judge telling them that the law ion. Fortunately political trials are of rare was for the court, and that they were to receive occurrence; for, however fairly and necessari- it as laid down by him. In the debate on ly this privilege may be used, it will surely be Fox's libel bill, Lord Loughborough declared assailed by the partisans of the disaffected, and that “when the law and fact were blended, it the prestige of absolute purity, of unimpas- was the undoubted right of the jury to decide;" sioned justice, which ought ever to invest the and the Master of the Rolls (afterwards Lord administration of the law - not only beyond Alvanley) declared in the same debate, that reproach, but beyond suspicion, will be mate Juries had gone in opposition to the direction rially diminished; but there is no more possi- of the judges, and perhaps we were indebted bility of applying an abstract standard of per- to their conduct on such occasions for some of fection to the administration of the law, than the most inestimable blessings we enjoyed.” to the principles of government—both must be It was, however, in the progress of this adapted to the condition of the people ; and same proceeding, that the doctrine received its anxiously as we may hope for the time when most decisive condemnation. The judges were this formidable power of challenge may with consulted on the subject by the House of Lords, safety be abrogated or controlled, to abolish it and pronounced this unanimous opinion > now would be as ill suited to Ireland, in its " We conceive the law to be, that the judge present condition, as democracy would be to is to declare to the jury what the law is, and Egypt, or despotism to America.
that it is the duty of the jury, if they will find And as this power of challenge must be con a general verdict upon the whole matter in fided to the conscience of the law-officers of issue, to compound that verdict of the fact, as it the crown, so is there another power committed appears in evidence before them, and of the law to the jury, and entrusted to them solely on the as it is declared to them by the judge. The faith that their conscience will control its exer line marked out by the law, for the conduct of cise; that, namely, of their finding on the law a jury giving a general verdiet, has an univerof the case.
The maxim of law is, that the sal application to general issues in all cases, jury have to deal with the facts alone, and the civil and criminal; for we cannot distinguish judges with the law, as it is laid down by between the office and authority of a jury, in Lord Coke. " Ad questionem facti respondent civil and criminal cases, whatever difference non judices, ad questionem legis respondent there may be in their responsibility.'
This authoritative declaration of the law of it has many defects peculiar to itself, besides England ought to be conclusive on the subject, sharing in those to which all human tribunals even if it were not supported by the plainest are liable. In order to guard in some degree dictates of justice and common sense. Could against these evils, we have ventured, notwitha more monstrous proposition be maintained, standing the argument and authority which is or one more at variance with the whole spirit opposed to us, to advocate for the accused the of the English constitution, and the English privilege of applying for a new trial in criminnature, than that an uninformed, secret, uncon- al cases. Subject to this suggestion, and trolled tribunal is to take upon itself the office bearing the circumstances of the country in of administering the law, to adopt or reject at mind, we are entirely convinced that the pleasure the enactments of the legislature, and present system is that which is most efficient to supersede the public exposition of that law, for the administration of justice. as delivered by the learned judges, under the But it is impossible to contemplate the trial control of public censure, and liable to be by jury without feeling convinced that its made responsible to parliament and the sov- political disadvantages are inferior only to its ereign. Their power of doing so only arises judicial. On this we have no opportunity now from the necessity of the case-right they to enter, nor is it immediately connected with have none. In almost every case, whether it our present purpose. But we may just close be treason and sedition, or murder, man this article by observing that the juridislaughter, or such like, considerations of law cal power of the people, through the meand fact are so intimately blended, that it is dium of juries, has, more than any other impossible to separate them; but the jury are institution, preserved the English Constitubound by every moral obligation to take the tion—it identifies every member of the comlaw from its authorized expositor—the judge. munity with the administration of the law, and In cases of difficulty, they can protect them- naturally attaches him to that law which he is selves by a special verdict, by finding the called on to dispense, instead of setting him facts of the case specially, and submitting the in hostility to the authority to which he is law on such a state of facts to the considera- bound to submit. It prevents the possibility tion of the court, where it can be fully argued of collision between the people and the legislaand investigated; but in no case should they ture, for it imposes on the latter the necessity encroach upon a province for which they are of passing such laws as are adapted to the avowedly incompetent, and which was never in- character and manners of the country, as such tended for them; then, indeed, would trial by only will be vigorously enforced by the jury. jury become a mockery and a snare.
It increases the intelligence and information We have thus briefly adverted to some of of the people, and imbues them with a sense the most prominent topics in connection with of right, a respect for property, for character, our trial by jury. It is in vain to deny that and for themselves. — Dublin Univ. Mag.
ALLEGORICAL ORIGIN OF PRECIOUS STONES:
We feel great pleasure in presenting to our Unto our lips. Before us shone the sun. readers the following sublime passage, extracted Abe angel waved her hand ere she began, from the third edition of “Festus,” just pub- And the trees breathing, and the lake smoothed down lished. It appears to us to be quite unique in Each shining wrinkle, and the wind drew off.
Time leant him o'er his scythe, and listening, wept. the whole world of poetic creations :
The circling world reined in her lightning pace
A moment; Ocean hushed his snow-maned steeds; Of stories she hath told me of our world.
And a cloud hid the sun, as does the face
A meditative hand : then spake she thus:
Scarce had the sweet song of the morning stars-
Which rang through space at the first sign of life Thy talk is the sweet extract of all speech,
Our earth gave, springing from the lap of God And holds mine ear in blissful slavery.
On to her orbit-ended; when from heaven Festus. 'Twas on a lovely summer afternoon,
Came down a white-winged host, and in the east Close by the grassy marge of a deep tarn,
Where Eden's Pleasance was, first furled their wings, Nigh half way up a mountain, that we stood,
Alighting like to snow-flakes. There they built,
Out of the riches of the soil around,
A house to God. There were the ruby rocks,
And there, in blocks, the quarried diamonds lay ; Came crowding, dancing to the brook like thoughts
Opal and emerald mountain, amethyst,