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XI.-ON TRIAL BY JURY.-SPEECH OF W. M. BEST, Esq.

[In Opening the Discussion on 16th May, 1859.]

TRIAL by jury is, unquestionably, one of the most marked and characteristic features of the common law of England. Having for ages attracted the attention of mankind, and protected the constitutional liberties of this land; having been the subject of the most fulsome and extravagant eulogy by its admirers, and the most virulent abuse and bitterest sarcasm by its opponents; having extended itself over a great part of the continent of Europe, and nearly the whole of that of North America; the trial by jury has, in our time, been brought to stand its own trial in the land of its birth. At the present moment in particular, certain discussions in the Legislature, and two pamphlets recently published-one by Mr. Rochfort Clarke, "Unanimity in Trial by Jury defended;" and the other by Mr. Joseph Brown, "The Dark Side of Trial by Jury"-have directed an unusual amount of attention to the subject, and rendered it one signally fit to be considered in this society. And as my object is to discuss the merits of the system itself, I wish to begin by disentangling the question from various collateral matters, which are merely fringes to it. Of this class are the origin and antiquity of the jury system; the questions whether the jury ought to consist of twelve or any other number; whether the verdict of the jury ought to be given by unanimity or by majority; whether jurymen are sufficiently paid, and such like; all of which I shall at once dismiss without further observation.

Much misconception has arisen from the expression "trial by jury," which, as applied to English law, is most certainly a misnomer. Trial by judge is where the judge decides both the law and the facts; and trial by jury is where the jury decide both the law and the facts. But no such tribunal as the latter is known to the law of England. Our commonlaw mode of trial is a trial by JUDGE and JURY. The judge, armed with the authority of the law, conducts the entire

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proceedings, decides all questions of law, and when the cause is ripe for decision, sums up the case to the jury, instructing them in the law respecting it, and commenting upon the evidence; while the jury on their part determine the facts, with the right, however, of applying the law to them by finding a general verdict, i.e., in criminal cases, "guilty" or "not guilty;" and in civil cases, "for the plaintiff," or "for the defendant." In civil cases a new trial is grantable ex debito justitiæ if an error in law is committed by the judge, or the jury find a perverse verdict, i.e., refuse to listen to the law as correctly laid down to them by the judge; and the Court above will also set aside a verdict if, in the exercise of a judicial, and not an arbitrary discretion, they see that it is so unequivocally against the weight of evidence that it ought not to be allowed to stand. In criminal cases points of law must be reserved by the judge; and new trials are not in general grantable.

Such is our celebrated common-law tribunal for the decision of disputed facts-a tribunal which, with all its faults, real or imaginary, is immeasurably superior to every other; and I firmly believe that evil will be the hour for the people of this land when, seduced by any theory however plausible, or deluded by any considerations of fancied expediency however tempting, they consent to part with it.

In order to come at the root of the question, it is to be observed, that all tribunals are either "fixed" or "casual." "Fixed" tribunals are composed of persons appointed to take cognisance of particular classes of causes, and most usually consist of persons learned in the law; while "casual" are those where the tribunal is called together for the occasion only, and usually consist of private individuals who have no peculiar legal knowledge. Now each of these has its advantages and disadvantages. For the decision of questions of law, the superiority of the fixed tribunal is obvious, but it is otherwise with questions of fact. Even as regards accuracy of decision, the advantage here is on the side of the casual tribunal. Its members are more numerous, and from their position in life are likely to know more

of the parties and witnesses, and, consequently, better able to enter into their views and motives; and, from the novelty of their situation, bring a freshness and earnestness to the inquiry which the constant habit of deciding, adjudicating, and punishing, fades and blunts more or less, in the mind of every judge. But the great danger of a fixed tribunal is methodical or artificial decision-a sort of decision by routine, arising out of the faculty of generalising, classifying, and distinguishing which is so valuable in the investigation of questions of law. This mischief was very observable under the civil and canon laws, and gave rise to the different degrees of proof-plena-probatio, semi-plena-probatio, semi-plena-probatio major, and semi-plena-probatio minor-which were so absurd in principle and so mischievous in practice. Nor is this merely an English notion. Beccaria ("Dei delitti e delle pene," s. 7), expresses himself thus :-" I deem that the best judicial system which associates with the principal judges assessors not selected, but chosen by lot; for in such matters ignorance, which judges by sense, is safer than science, which judges by opinion. Where the law is clear and precise, the duty of the tribunal is limited to ascertaining the existence of facts; and although, in seeking the proofs of crime, ability and dexterity are required, although in summing up the result of those proofs perspicuity and precision are indispensable, still, in order to draw a conclusion from them, nothing more is required than plain, ordinary good sense, less fallacious than the learning of a judge accustomed to seek the proofs of guilt, and who reduces every thing to an artificial system formed by study." Again, the consequences of the errors of casual tribunals are immensely less. Theirs are mostly

errors of impulse, and their consequences almost entirely confined to the case in which they are committed. The errors of fixed tribunals, on the contrary, are the errors of system, and their effects lasting and general. Their decisions, proceeding from persons in authority, will, especially if ever so slightly involving a question of law, be reported, or, what is worse, remembered without being reported, and form precedents, by which future tribunals will be swayed. Nor is even this the

worst ; the judge to whom the precedent made by his predecessor is cited, is safe from censure if he follows it; while, on the other hand, being erroneous, he may without danger disregard it; so that, if corrupt or prejudiced, he may take as his guide either the true principles of law, or the previous wrong decision, and thus give judgment for plaintiff or defendant at pleasure. But the great objection to fixed tribunals exists in the difficulty, not to say impossibility, of keeping them pure. The judge's name being known to the world, indicates to the evil-disposed litigant the person to whom his bribe can be offered, or on whose mind influence may be brought to bear; and a frightful temptation is held out to the executive to secure the condemnation of political enemies, by placing on the bench of justice persons of complying morals or timorous dispositions. Where the component members of the tribunal are unknown until the moment of trial, the temptation does not exist.

Now, our common-law tribunal is of a compound nature, partly fixed and partly casual, and so constructed as to secure very nearly all the advantages of each of the opposing systems, while it avoids their dangers. By confiding to the judge the decision of all questions of law, it secures the law from being altered by any mistake, or even misconduct, of the jury; and by intrusting him with the general conduct of the proceedings and the duty of commenting on the evidence reaps the benefit of his knowledge and experience. But by taking out of his hands the actual decision on the facts, and the application of the law to them, it cuts up mechanical decision by the roots, prevents artificial systems of proof from forming, and secures the other advantages of a casual tribunal. With us, so soon as any trace of artificial proof or mechanical decision shows itself, a cleansing tide of fresh thought is poured in by the casual branch of the tribunal, which sweeps away the rising mischief, and restores the system to its health and purity. Besides, the difference between the judge and jury in station, acquirements, and mode of viewing things, not only enables them to exert on each other a mutual and a very salutary control, but adds an immense moral weight to their joint action. When,

for instance, the condemnation of a criminal is pronounced both by the representative of the law and a number of persons chosen indifferently from the body of the community, the blow descends on him and the other evil-disposed members of it with a force which it never could have if based solely on the reasoning of the one or the consultation of the other.

The constitutional protection which the "jury" affords to the subject is too well known to require explanation. Suffice it to say, that it rests on the great principle of leaving a portion of the judicial authority in the hands of the people, instead of vesting the whole in some exclusive or professional body. And this principle is by no means peculiar to England, but was fully established in the three greatest nations of antiquity, the Jews, Greeks, and Romans. It appears by many passages in Scripture that every Jew, at least in criminal cases, was tried at the gate of the city by several of its elders; and the practice of the Athenians, and of Rome before she lost her liberties, is well described by Gibbon, in the 44th chapter of his "Decline and Fall of the Roman Empire." Now one of the popular fallacies of the day, one which is frequently put forward, and still more frequently insinuated by the enemies of trial by jury, and too often incautiously admitted by its friends, is, that the constitutional protection is the sole advantage of this mode of trial, and that that protection is required in criminal cases only. But the law of England has established trial by judge and jury, in the conviction that it is the mode best calculated to ascertain the truth in the greatest majority of instances, as well as the best calculated to do justice, in every sense of the word—the constitutional protection afforded by it being only a collateral, though doubtless most important, consequence of the general arrangement.

Admitting, however, that it does afford that protection, it is amusing to observe the different courses adopted by its adversaries to evade the crushing force of the argument thereby supplied in its favour. Some of them say the liberties of the country are now so secure, that the protection is no longer required. This, at a time when we are constantly told that our free institutions are on their trial, when unconstitutional pro