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Sorial Economy.

IS THE UNANIMITY REQUIRED IN JURIES CONDUCIVE TO THE ATTAINMENT OF JUSTICE?

AFFIRMATIVE ARTICLE.-II.

WE have been much interested in the perusal of the articles on this question by "Beta" and "Morfhaich," which display a knowledge of the subject of which they respectively treat, although, after a careful consideration of the matter, we are inclined to differ with the opinions entertained thereon by the latter writer.

England is renowned for her free institu-. tions, and there is nothing so characteristic of her greatness, her power, and her freedom, as the encouragement and support given thereto by her government and her subjects; and of all her institutions-free, noble, glorious as they are none bestow such extensive privileges, nor so effectually protect the interests of the nation, as does trial by jury.

It appears that this institution was strictly observed by the Normans, long before they landed on our shores; but from information which we have with difficulty been able to glean, it would seem that the original system was afterwards departed from, and another scheme, with which we are unacquainted, devised and adopted. In the reign of King Alfred, trial by jury was again revived, and it prevailed very generally until some time after his decease, when, we believe, in consequence of the perturbed state of the country, it again degenerated from its original purity. During the reign of Henry the Second, it made its reappearance, though, we are informed by some historians, the primitive system was, for a considerable time, subsequently but imperfectly understood, and consequently unsatisfactorily carried out. In course of time, however, and after repeated experiments had been performed, each in some respect differing from that which preceded it, this institution reached its present state of efficiency and purity.

Now, if we mistake not, one of these systems was actually such as that for which "Morfhaich" seems to have such an ardent affection, and which he so earnestly recommends

for adoption now in England;-we allude to taking verdicts by vote; his arguments in favour of which are, in our opinion, most successfully overturned by those advanced by "Beta." The system was tried, and it failed; and that very fact, independently of the weight which unanimous verdicts carry with them to the public mind, and of their being more calculated to impress the criminal with their justice, is, of itself, ample reason why it should not be renewed in this country.

But assuming, for a moment, that the English jury system was assimilated to the Scottish, and that fifteen of our "neighbours and equals" were appointed to sit in judgment on trials to be decided by their vote, and supposing that a criminal was arraigned before them for an offence, and a majority decided upon convicting him; would it not be nearly as difficult to secure unanimity in ten jurymen (the two-thirds who must agree to form a verdict of conviction in Scotland) as it would in twelve? and would not unanimity in twelve men be far preferable to all parties, and more conducive to the administration of justice?

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We are told also by "Morfhaich" that "the system in England, which requires total unanimity in the jurymen, must be a great nursery of falsehood and perjuryverdicts in opposition to the inward decisions of many must be given among the thousands that are yearly recorded. impossible but that some must perjure themselves in assenting to verdicts with which they do not conscientiously concur.” Now we do not think "Morfhaich" is justified-we speak respectfully-in questioning the integrity of our juries, impugning their motives, and charging them with the foul crime of perjury. Juries, as juries, are subject to no control or bias in the consideration of their verdicts, save, we hope and believe, by a praiseworthy desire to maintain truth, administer impartial justice, and defend the rights of individuals and society in general

No jurymen would, we trust, perjure them- | to the late changes in the Scotch jury law, selves by acquiescing in a verdict contrary says:-"These changes were at the same time to the dictates of their consciences and the sought to be introduced into the English oaths they have taken. We have too much trial by jury in civil cases, but ineffectually, confidence in their love of justice and their and the policy of the innovation is gravely respect for that institution which is "the questionable." And in his "Commentaries," glory of the English law," and, as Delolme the celebrated Blackstone remarks:-" It is observes, "that point of their liberty to the most transcendent privilege which any which the English are thoroughly and uni- subject can enjoy or wish for, that he cannot versally wedded." be effected in either his property, his liberty, or his person, but by the UNANIMOUS CONSENT OF TWELVE of his neighbours and equals. This is a constitution which I may venture to affirm has, under Providence, secured the liberties of this nation for a long succession of ages." These sentiments are certainly opposed to the arguments of " Morfhaich," to whose attention we would beg to call, in conclusion, the following observations by the same celebrated jurist:

The law, too, has granted to the prisoner the extensive right of challenging either the whole array or the separate polls, i. e., the whole jury panel or particular jurymen,* so that, virtually, the choice of men who compose the jury, and on whom his fate depends, is entirely in his own hands; and this great privilege, coupled with the fact of the verdict of these twelve men, in whom he has reposed confidence, being a unanimous one, would convince him, if he be found guilty, of the fairness of his trial, the justness of his punishment, and the wickedness of his crime.

Many experienced judges, and others proficient in legal science, have not been backward in expressing their great disapprobation of the Scottish system; and we presume it will not be denied, that none are more capable of judging of the merits or demerits of the practical operation of an institution to which they so constantly appeal and give their aid and counsel. One of our most talented authors† on jurisprudence, alluding

* Warren's "Blackstone's Commentaries,' p. 630. Samuel Warren, Esq., D.C.L., F.R.S., Q.C., in his abridged edition of "Blackstone's Com mentaries," p. 567.

"It is, therefore, upon the whole, a duty which every man owes to his country, his friends, his posterity, and himself, to maintain, to the utmost of his power, this valuable institution in all its rights; to restore it to its ancient dignity, if at all impaired by the different value of property, or if it have otherwise deviated from its first institution; to amend it wherever it is defective; and, above all, to guard with the most zealous circumspection against the introduction of new and arbitrary methods of trial, which, under a variety of plausible pretences, may in time imperceptibly undermine THIS BEST PRESERVATION OF ENGLISH LIBERTY.'

NEGATIVE ARTICLE.-II.

"OUR public progress is far behind our private progress," remarked Mr. Charles Dickens, in the course of a recent speech on administrative reform. Those two fair travellers on the uphill road to perfection-the strong, stalwart, handsome brother, and the confiding, yet determined and more than equally fair sister, started hand in hand. For awhile they walked in company, but ere long the brother turned aside to the roadside inns of Routine and Favour. A moment or so the sister waited for him, but then pressed on, expecting him to join her. Determined to reach the goal, she has hastened intently along the road, and though

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hindered here and there awhile, has made considerable progress. Now, at length, she discovers that her brother is not with herthat he lingers far behind. Ah! at those inns has he become intoxicated, and obstinately opposed to any further progress; and now he staggers, and looks as if he and the precious load he bears would be dashed into irretrievable ruin!

Thus have we attempted to wear the robe of allegory, which, has Rogers has said, "none but Bunyan could wear long and wear gracefully." Perhaps it may be well to follow the example of the unskilful draughtsman, who, fearful lest spectators

should mistake his drawing for an elephant, explained it by writing beneath, "This is a horse."-By the brother we would signify our public administration; by the sister, our private. Through adherence to routine and the present iniquitous system of favourpatronage, the former is far behind the latter, and appears as a drunken man, intoxicated with indulgence.

If, then, it be admitted that this groaning nation needs administrative reform, does it not also need judicial reform? Have we, with regard to the judicial power, kept pace with the quick march of humanity? Vast has been the track which man has travelled over; daily does his distance from superstition increase. Humanity, like a mighty wave resistless, rolls across the wide Time Ocean, increasing as it comes nigh the boundless eternal shore, whereon, ere long, it is to break. Man has advanced, but have institutions improved? Do those connected with the attainment of justice meet the requirements of the age? Let us see.

The age requires justice. The motto of every true man is, "Justice to all, favour to none."

We have now to discuss one branch of the subject:-Is the unanimity required in juries conducive to the attainment of that great requirement of the age-justice?

We are free men. Let prelates and their myrmidons, who desire to be lords over God's heritage-man's spiritual nature, say what they will; liberty of thought, belief, and action is our choicest possession, it is man's unalienable right. But is not the principle involved in the question under discussion opposed to this? To obtain unanimity, coercion of some sort must in most cases be resorted to; a man must either be forced into a belief, or he must perjure himself by saying he believes what he believes not. Our readers are doubtless aware of the mode of coercion. The jury, on withdrawment, are debarred from all foreign communication, and denied all refreshment, until they become unanimous in their opinion; *"" and in the case of the assizes, if they be not unanimous, the judges may carry them round the circuit, from town to town, in a cart." Thus, through the channel of the "Elements of the British Constitution," Schomberg, p. 129.

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+"Commentaries on the Laws of England," Stephens, vol. iii., p. 619.

appetites, and of the sense of shame (both belonging to the lower nature of man, be it remarked), the will is influenced, and this, in its turn, influences the belief. To put any force upon a man's belief is unjust. Here a force is put upon the belief; therefore, the verdict obtained through coercion is obtained unjustly.

Moreover, justice is a hallowed thing. It is one, of the chief perfections of the Deity—"just and right is he." Then, is it needful to act unjustly to obtain justice? Can darkness bring forth light, or falsehood eliminate truth? Then how can injustice produce justice?

Let us not be misunderstood. We would not say that no verdict given by a jury which has been starved into unanimity has been a just one. This does not follow. But we would argue that, out of twelve men, if eight, upright and honest, form a contrary opinion to that of the other four, and they be taken as the verdict, that it is obtained justly-that those eight are, as a general rule, in the right. Extraordinary cases of delusion will of course occur; but, were we on our trial, we should be apt to consider the verdict of the majority a just one. Therefore, if, in such a case as the one mentioned, the four jurors were starved into compliance with the rest, we should not regard the verdict as necessarily unjust; but it would be far otherwise if, on account of these four having made a very hearty breakfast, or having secreted a supply of saveloys and bread, they were enabled to hold out, and the other eight were forced to agree with them, and gave the verdict accordingly. Then the commanding probability would be that it was unjust.

Moreover, we are forbidden to do evil that good may come. Now, in either coercing the belief of men, or in forcing them to commit perjury, we do evil, to promote, as we think, the ends of justice. This, under the Christian dispensation, we are strictly forbidden; and it is of no use to tell us that "the particular consequence appears to exceed the value of the general rule."* Can any think that this was intended by the apostle? "If he meant this, surely there was little truth in the declaration of the same apostle, that he used great plain

* Paley, "Moral and Political Philosophy."

ness of speech." speaking, a digression.

But this is, strictly for his client; but he was firm, and the others were anxious to go, and therefore he succeeded in having the verdict as he wished! When there is good opportunity for crime, is that opportunity usually untaken? Quis ignorat, maximam illecebram esse peccandi, impunitatis spem ?*

But how can a system be supposed conducive to the attainment of justice, when it allows men the opportunity of taking with them a quantity of food, so as to be able to starve out the rest of the jurors? How easy for a prisoner to manage to have some communication with a juryman! How easy to bribe one! And when you conceive it possible that there should be tampering, think of the temptation a handful of gold pieces presents to one who, though outwardly respectable, may be on the verge of bankruptcy, or has lost fortune, or is losing it, by one of the chances so well known in our land. How great must be the temptation to such a man—indocilis pauperiem pati! How many guilty secrets connected with our present system of judicature are there locked up in seared hearts, we cannot know; but there is One who seeth into all hearts. How many are registered in that awful book-his infinite mind! In saying this, let us not be accused of taking a jaundiced view of our fellow creatures. There have been such cases. In proof of this statement, I may quote the testimony of an experienced and accomplished lawyer, on whose friendship I pride myself, and of whose moral worth I have the highest opinion. In a town of Hampshire, a case was lately tried; the jury were chosen from the inhabitants, and, knowing plaintiff and defendant, of course could not help being biassed in favour of one or another. One of the jurors was notoriously so he stood out; a decision could not be come to, and therefore a new trial was decreed.

Again: a case was conducted at the assizes, where, the jurors being chosen out of the whole county, good faith might have been expected. The lawyer who conducted the case for the defendant, who was acquitted, heard afterwards that one only was at first

* Dymond.

+"Let it be understood, however, that if discovered to have eatables about them, jurors will be fined."-Stephens' "Commentaries," vol. iii., p. 618.

Blackstone himself, alluding to the privy verdict, calls it "a dangerous practice, allowing time for the parties to tamper with the jury." "On which account," adds he afterwards," it is now very seldom indulged in." - Blackstone's "Commentaries," vol. iii., p. 377.

Candid readers! we ask, Is this system likely to be conducive to the attainment of justice?

Were verdicts to be determined by the majority, how much more likely should we be to judge aright.† Then there would be no occasion for the Irishman to exclaim, "Och, yer Honour, there never was an obstinater pack of men than this here jury! Do what I will, yer Honour, I can't bring 'em over to my idea."

Should the numbers be equal, the judge might be empowered to give a casting vote, or, what is better, let the criminal have the benefit of the doubt, as in the Gothic nembda. Indeed, we see no reason for retaining juries at all, and would confide the power of determining to magistrates. Juries, certainly, are very ancient (being mentioned in the laws of Ethelred+), but so are many other absurdities yet to be noticed in our constitution. Their antiquity is no reason for retaining them. Judges, unfettered by juries, were appointed among the Israelites. This was with the direct sanction of Jehovah, and therefore the wisest system. "Moses chose able men out of all Israel, . . . . and they judged the people at all seasons.”

Were the judicial power entirely entrusted to magistrates, how much more expeditiously and safely would justice be obtained; for it is indeed true that no Englishman “would dream of throwing out even a suspicion that the magistrates of England were not only competent and disinterested, but the most competent and the most disinterested that could be appointed."§

* Cicero.

+ The Common Law Commissioners deprecated the evil of a required unanimity, and recommended that when unanimity was not to be had, the verdict of nine should be received.-Third Report, p. 70.

"Let there be gemots in every walpentace, and let twelve of the eldest theignes go out with the gerefa (sheriff), and swear, upon the relies which shall be given into their hands, that they will condemn no innocent man, nor screen any that is guilty."-The Laws of Ethelred.

2 Brougham, July 9, 1833.

But it appears that Englishmen must give up all hope of reform. It is, alas! always to be said of those in power in Britain

"Custom lies upon them with a weight Heavy as frost, and deep almost as life." THRELKELD.

The Essayist.

HINTS ON EXTEMPORANEOUS SPEAKING.

IN giving these hints, it is of course assumed, that the party receiving them has an earnest desire to become a good extemporaneous speaker, and is, therefore, willing and ready, as far as may be practicable, to follow them out in a spirit of zeal and perseverance. This is an indispensable preliminary to any sort of success in the matter; for no idle aspirations, no lazy wishes, unaccompanied by resolution and industry, can ever achieve a position worth occupying in the arena of public debate.

result will be the measure of his proficiency in the art; and, if rightly regarded, cannot fail, at every repetition of the exercise, to prove a healthful stimulus to renewed exertion.

The second rule is-Be in the constant habit of seeking the best possible language for the expression of your ideas, even in ordinary conversation.

As the best school of practical morals is the society of moral people, so the best exercise in oral expression is conversation with The first rule which we shall here lay refined and educated persons. The converse down, as conducive, if rightly followed, to of this statement is also painfully true. skill in the use of extemporaneous language," Evil communications corrupt good manis-Endeavour always to think clearly and methodically.

Thinking and speaking are things correlative. They stand in the relation of cause and effect. When, therefore, it is the settled habit of the mind to think in an orderly and perspicuous manner, it follows naturally that the tongue, which is under the guidance of the mind, should utter words in a corresponding style.

In order to the efficient application of this rule, let the young speaker often assume, as an intellectual gymnastic, some debatable subject for the exercise of his mental powers. Let him then deal with it as with a thing of reality, a question of real life. Let him acquire an interest, an enthusiasm, if possible, in its management. Let him survey it as a whole, study it in detail, detect its deficiencies, bring out its excellencies, and hold it up to the light in all possible aspects. Let him consider in how many ways the point which he wishes to make can be presented and defended, and, among these, which is the most likely to be fully understood, and fairly appreciated.

When all this is done in the mind, let him try the experiment of putting the whole process into extemporaneous language. The

ners," says the apostle; and some one has aptly added" and good language too!"

He, therefore, who aims to be a good deliberative orator, must be ever equally on the alert to catch what is choice and correct, and to avoid what is vulgar and inaccurate, in his daily intercourse with others. It is not enough to exercise particular care on particular occasions. It must be a thing of habit, growing out of a settled purpose to be superior in the power of speech.

The third rule is-Read often and carefully the best specimens of deliberative eloquence.

An intelligent application of this rule requires that the student should become familiar with many particulars bearing upon what he reads. What is the precise nature of the proposition which the speaker advocates or opposes? What are his own personal relations to it? What is the character or constitution of the body whom he addresses? What the time, the place, the circumstances, wherein the speech was delivered? All these and other kindred inquiries he should make, in order to put himself duly in sympathy with the parties originally and really interested in the case.

Then let him observe accurately the

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