DIARY

FOR THE MONTH OF NOVEMBER.

- 2nd. Traits of character, national as well as personal, occasionally spring forth in a manner the most unsuspecting in the world. And it is often this very unconsciousness which renders the trait so piquant. There is a very amusing instance of this in a critique on a new vaudeville,—and, indeed, in the vaudeville itself,-entitled La Perle de Marienbourg,' which we have lately seen in a French journal. The unhappy pearl, who is the heroine of the piece, after undergoing all manner of the pains and penalties which poets have so constantly chosen to bestow upon the course of true love, but which have nothing to do with the point we have more immediately in view,-catches the small-pox, is seamed terrifically, and, in a word, becomes as hideous as she had previously been lovely. She has a lover, two or three we believe, but we allude to the loved lover. He is a French officer-she is a Prussian, and all the Prussians are dying for her" Mais elle a vu un officier Français, et un officier Français est toujours préferé:"doubtless at the theatres on the Boulevards at Paris. The gallant admirer is absent at the time the Pearl' becomes thus disfigured; and she is consequently in agony lest he should desert her when he beholds her in her altered state. But lo! he has had his misfortune too; he has been struck blind by a ball. The pearl has not heard a word of this, till he enters; when lo! her only feeling is of joy that he cannot see her disfigurement!

Ah! dumoins un bonheur me reste,

Mes traits n'ont pas changé pour lui !"

Now, we think that it is quite clear, in the first place, that this idea, in which every feeling of love is sacrificed, without a thought, to the selfishness of personal beauty, would never have been embodied by an English author;-secondly, that, supposing it had, no English audience would have tolerated it; and thirdly, that no English critic would have minutely criticised the piece, and never have taken up this part of the heroine's character on this score. The criticism we allude to blames the incidents of small-pox disfiguring the heroine, and a bullet blinding the hero, as exceedingly undramatic; and hints some disgust of "deux infirmes qui s'adorent et s'épousent;" but it never says a word of the revolting moral picture of the young lady being glad of her lover being struck blind, because it prevents his seeing that she is disfigured by the small-pox. We are the furthest in the world from wishing to attribute want of heart to the French in any circumstance of real life: on the contrary, we regard them, as a people, to be exceedingly kindly in manners, temper, and feeling; but this was a smart mot with reference to female vanity, and the idea of its containing a deep moral blot never, we are convinced, crossed the brain of any one of the parties concerned. Now to us, who do not in the least profess to be fantastically humane, the first thing that occurred was a

sensation of horror that a woman, represented as loving a man, should rejoice at blindness having befallen him in his youth, that he may not see that she is pitted with the small-pox! And we are quite convinced that when he was led upon the stage, and his mistress expressed the sentiment contained in the lines given above, there would have been, in any of our theatres, an universal We have in English no written mode of expressing the stronger exclamations, but our readers will know what we mean when we say we should represent it as the intonation of the Irish Och! spelled with an A*. Those who have heard that exclamation start simultaneously from the mouths of a crowded pit, will know full well what we mean.

And yet, notwithstanding all we have said, we believe that if such a thing were to occur in real life, the French would be every bit as much shocked as ourselves.

Upon reading over what we have said, we would " wager a plack" that the French would consider us the barbarians for not taking the two lines,

Ah! du moins un bonheur me reste,
Mes traits n'ont pas changé pour lui,

in the sense that she is happy because he will not suffer the pain of seeing how sadly she is changed. If the author really meant this, we should almost think worse of him than if he be guilty only of the etourderie we have before alluded to; for this would be sentimental affectation carried to an excess not short of disgusting.

13th. There have been one or two cases, within these few days, bearing very strongly upon the question of whether or not it is adviseable to insist upon juries being unanimous to give a verdict. It is a subject concerning which we have always been very strongly interested; and we, therefore, gladly seize this opportunity of speaking upon it, as we wish, in some slight degree, to qualify some of the observations which we made upon this topic in the first number of the series of our articles on the Reforms in the Law f. But of that anon,

At the late sittings at Guildhall a case was tried in which the jury were out all night, and the greater part of the next day, before they delivered their verdict, having come in at the sitting of the court in the morning of the second day, to say they believed it to be impossible that they should ever agree. They did, however, deliver a verdict towards the evening of the second day, for the defendant. Since that time, four of the jurymen have furnished the counsel for the plaintiff with affidavits that "it was bad health which compelled them to agree to the verdict." This cannot be received as legal evidence upon an application for a new trial (though we confess we scarcely see why not, for the members of a petit jury are not sworn to keep their own counsel

*We don't spell it with an A, as that would make the old-fashioned orthography

of ache.

London Magazine, Third Series, Vol. I. pp. 322, et seq. We are lying upon oars, as regards these papers, till the reports of the commissioners, appointed last year in consequence of Mr. Brougham's motion, are given to the world. There are plenty of rumours on their score.

and that of their fellows, as is the case with grand jurymen)-but, undoubtedly, it is moral evidence with reference to the discussion of the principle. This was an action against the Marshal of the King's Bench prison for an escape—that is, to recover the amount of the debt of a prisoner, who, as it was stated, was seen out of the rules. (Smith and Perrin v. Jones.) It turned entirely upon a question of identity, as the defence was that the person really seen was a brother of the prisoner, who was exceedingly like him. There was a great deal of cross-swearing, and it is quite clear that some of it, on the one side or the other, must have been wilfully false. Now, if there ever was a case in which jurymen might conscientiously differ it was this. Some believed one set of witnesses, some the other; and there they staid, in the month of November, the whole night, and great part of the next day, without food, fire, or candle, till the weaker jurymen yield, as they since have declared, from physical weakness! And this is in England in the nineteenth century!

We have heard it said that Lord Tenterden observed to the jury, upon their return in the morning with the declaration that they never could agree, that, if they doubted whether the plaintiff had fully made out his case, they should find for the defendant, and we have heard this advice highly praised. We confess, we see nothing in it. If it had been addressed to one man, who had been long deliberating, it would have been sound and just; but the very fact of the length of time that a jury of twelve men had been in discussion without agreeing, in itself almost proved that there were no doubters among them— but that some were perfectly convinced one way, and some the other.

The next case is still more extraordinary. (Daniel v. Robertson.) It was tried at the last Gloucester Assizes, and the jury decided upon their verdict by drawing lots! There was one very ludicrous circumstance in this case, viz., that one of the jurymen, before the proposition to draw lots was made, suggested that they should toss up. But this was not considered proper!-The distinction is invaluable. Mr. Campbell accordingly moved yesterday for a rule to shew cause why the verdict should not be set aside, and a new trial granted. His motion was granted upon three grounds-the misdirection of the judge-the verdict being against evidence—and the jury having decided their verdict by lot. In this instance, fortunately, there is legal evidence of the conduct of these gentlemen;-for the officer of the court by whom they were locked into the jury-room, and another person, overheard every thing that the jury said. It appears it was on a Saturday night; it was growing late, and they feared that, if they did not deliver their verdict that night, they would be locked up till Monday morning. Upon Mr. Campbell stating this, Mr. Baron Hullock is reported to have said-" Then they did not know the law; I myself have taken a verdict on a Sunday *." That they did not know the law, we agree with Mr. Campbell in thinking there could not be a second opinion. There did seem, notwithstanding this most flagrant act, some little indisposition on the part of some of the learned barons to go into that part of the case which had reference to the con* In a civil case, a judge can take a verdict at home; in a criminal, it must be in open court,

duct of the jury. We shall look anxiously to cause being shewn against Mr. Campbell's rule.

The Morning Chronicle has an article on this case, from one very material part of which we most thoroughly disagree. Now the Chronicle, which comes to our breakfast-table every morning, seldom causes our bile to rise with that most bile-raising of all inventions, gross false reasoning; but in this article it jumps to a conclusion which seems to us very preposterous, and we are the more annoyed at it, because the worthy Chronicle is, as usual, arguing on our side of the question. It cites this case, very properly, as a flagrant instance to prove the impropriety of the present system of exacting unanimity; but then it goes on to say that, as the law stands, jurors may just as well perjure themselves by deciding by lots, as in any other manner, supposing them finally to disagree. It seems very hard on jurors," says the Chronicle," that they should be obliged to perjure themselves in all cases where opposite convictions are entertained, by one part giving way to another, and that evidence should be received as to any of the various devices by which they determine among themselves which should give way. If it be urged that drawing lots may have the effect of making the minority give way to the majority, we answer, that the law considers it of no consequence whether the majority yield to the minority or the minority to the majority, otherwise it would have declared that the verdict should be determined by the majority. It not unfrequently happens that an obstinate fellow, who makes nothing of a long fast, will conquer the whole of his brother jurors, and, consequently, force them to perjure themselves. The law, by requiring unanimity, thereby declares itself indifferent to all but the fact of obtaining a verdict; and the quo modo, seeing that conviction is out of the question, seems really not necessary in any case to be known. In Ireland, we believe, it was long the approved practice to produce unanimity by boxing; and an obstinate fellow, under such circumstances, soon found it convenient to give in. Drawing lots is not only an improvement upon boxing, but in the opinion of many, we suspect, would be deemed an improvement if made universal in law-suits. The difference between the present mode of conducting a law-suit and having recourse at once to lots, is, that in the former there is the same uncertainty as to result, with great delay and a heavy expenditure superadded. At present it seems to be understood that there is in general no law applicable to the case when the law-suit is commenced, and that the object of the judicial inquiry is to enable the judge to make the law at the expense of parties. Drawing lots would at once put the belligerents out of pain. But because drawing lots might be advantageously resorted to in the very outset, it does not follow, when the jurors are enclosed, that they should not then have recourse to it. At all events, we should think it incumbent on those who object to jurors who disagree having recourse to the measure, to point out another more rational."

We accept the challenge. We are not, be it remembered, defending the law as it stands-we agree that it is abominable-but we are blaming the jurors for perjuring themselves (supposing the facts to be true)-while, even under the existing law, they need not to do any

such thing; and the mode which we consider it to be the imperative duty of all juries, placed in such circumstances, to adopt, would, beyond measure, furnish the reductio ad absurdum to this monstrous system; and necessitate the legislature, through very shame, to alter it. They should not give any verdict at all. They should say, "We don't agree, we can't agree, and we won't give a verdict without agreeing." They would be let go at last. The judge would not starve them to death. The thing happens occasionally, as it is. Nay, it is curious, it happened at the very same Gloucester Assises at which these more impatient gentlemen are stated to have drawn lots. It was in the case of Morris v. Davis; and to shew what the likelihood was of insuperable difference of opinion arising in that case, it may be as well to mention that this was the third time of its being triedand that, on the former trials, the verdicts had gone alternately once each way. It used to be the custom when a jury could not agree, to take them to the edge of the county" in a cart," the old books say, and there to discharge them. But this is now generally dispensed with, and was so in the individual case we have just mentioned, though the judge, as we are told, jocosely alluded to it.

We are aware that for juries to hold out in this way requires considerable firmness; but it is their sworn duty to do so, and every man who yields without being convinced, is perjured.

So.

We now come to the qualifications we stated that we were willing to make on some parts of what we said on this subject in a former number. We have had it represented to us that, in capital cases, the unanimity of twelve men should be necessary to convict-thus, if one man out of the twelve thought the man not guilty, he should be found This certainly appeared to us at first to be a very startling proposition, but the arguments adduced in its favour certainly have inclined us to go very far along with it, if not entirely to coincide in its justice. We confess, we can see no particular virtue in the number twelve-nor, we are sure, does the person on whose communication we are now commenting. But he agrees in the position, which is certainly a most wholesome one, that no man should be put to death except on evidence which can carry conviction to the minds of a considerable body of persons appointed to hear it for the purpose of decision. The principle of majority being the preferable mode of deciding the verdict in civil cases, our correspondent fully admits, and he thus answers the argument that once the best way of deciding an issue is discovered that ought to be adhered to in all cases, let the consequences of the decision be what they may-a penny-piece or a man's life. The best mode, he says, which it is possible to devise is avowedly imperfect. No mode of trial within the scope of human capability can amount to certainty. In civil cases, where there are two individual parties concerned, one against the other, it is right to take the best possible mode, and decide accordingly; for it will be great injustice if any favour be shown to one party or the other. But in criminal cases (we confess we are not yet quite avised that the principle should be extended beyond capital ones, though the same arguments may be applied with diminished force to all)-in criminal cases, there are not two parties pitted against one another. The one side is