THE TRUE DEFENCE FOR TRIAL BY JURY. T HE Scandinavian Jurists,
who have been lately holding a Congress at Christiania, appear to have thought Trial by Jury a much simpler kind of machinery than it really is. To them, it is only a means of deciding whether a piece of property belongs to this man or to that, whether a crime has been brought home to an accused person or not. That is the imme- diate object of Trial by Jury, as of all law and of every legal process. Regarded from this point of view, it seems to the Swedish and Norwegian lawyers a clumsy and antiquated curiosity, rather than an apparatus to be introduced for the first time into a civilised country. Englishmen must have sur- veyed very carelessly the administration of justice at home, and not at all its course in lands which have imported Trial by Jury from Great Britain, if they do not recognise the apparent element of truth in this account of the institution. When a man has to build a house for himself, if he live in the backwoods of America, he invites his neighbours to fell the timber and shape it. They and he together put the shanty together, as well as they may. If the rain come in here and there, and the draughts everywhere, he does not accuse himself of folly in constructing his dwelling by the help of men who were not born carpenters. In a region which has arrived at a habit of division of labour, any one needing a house would find he had long to wait, if he depended on the assistance of volunteer masons and brick- layers. He certainly would not accept their services, however freely tendered. He calls in a master builder, and perhaps an architect, and requires them to see that he has a weather- tight house. After he has engaged them, he does not wander about the neighbourhood, and summon a dozen of the nearest tailors and grocers and linendrapers to sit in council on the site. He does not ask men who could not build a dog-kennel to pronounce upon the best way to arrange the chimneys, and keep out wind and water, and leave them free to adopt or reject the advice of builder and architect, who sit expectantly by. But this is precisely what natives of lands in which the system does not prevail must think is done in Trial by Jury. Nothing is more natural than that foreign Jurists should fancy Englishmen obtain fair justice not through it, but in spite of it. To a certain extent, the truth of the charges brought against Juries at Christiania may be admitted. Few more haphazard processes can be conceived than to commit the determination of the right to an estate to twelve men who do not know good reasoning from bad. The system originated when Judges could not be trusted, and when, moreover, jurymen were witnesses. The continuance of the system is now excused rather than justified, on the ground that the Judge teaches the Jury not only how to apply the law to the facts, but how to arrange the facts, and sift the material from the immaterial. In reality, it is infinitely more difficult to present facts logically and intelligibly to another mind than to one's own. Training at the Bar affords English Judges much practice in this, but the utmost which can be expected is, not that the Jury shall have a definite opinion of its own on the whole case, but that it in the end shall agree with the Judge in laying more stress on the facts he thinks strong, and less on those he thinks weak. In almost all civil cases, the Judge and Jury concur in their conclusion. When they differ, it is rarely indeed that the public does not perceive that the Judge was in the right, and the Jury in-the wrong. Some means are commonly found for setting aside or modifying the verdict, with the result that one side considers it has been defrauded of justice, and that the other has had to undergo the terrible ordeal of a double trial. When the verdict has not actually been given in the teeth of judicial remonstrances, agreement has often been secured only through the application of extreme pressure by the Bench. Every legal year sees an advance in this direction, and Juries in civil cases seem gradually growing into mere machines for registering judicial conclusions. One advantage arises from the retention of the old form, and it is of the same nature as the advantage claimed for the requirement of an unanimous verdict. With a Jury to persuade into seeing facts in their rightful relation to each other, a Judge is obliged to review the whole case thoroughly and suspiciously. We must, however, decline to believe that a Common-Law Judge needs this safeguard for his diligence, unless it be held that Chancery Judges, who are generally with- out it, slur over the facts of suits, and accept what- ever account comes uppermost. Judges in Equity are Judges both of the law and the fact. So far from justice suffering, no Chancery suitor with right on his side would con- sent to be sent from the Judge to a Jury, or would prefer a verdict to a judgment. The case is reversed in a criminal trial. Foreign jurists, it is true, perceive no difference. A man accused of a crime, like a man accused of wrongful possession of property, must be right or wrong, guilty or innocent. The trained legal mind, according to foreign Jurists, can discern the truth far better than any dozen untrained minds. Where they differ the former is sure to be right, and the latter sure to have blundered. Were innocence less safe, or guilt more safe, in the hands of Trial by Jury than when the Judicial Bench administers criminal justice without a Jury, we should, however reluctantly, be ready to give up Trial by Jury, whatever its collateral benefits. The maxim that evil must not be done that good may come, applies to national institutions. But the issue in a criminal trial is not always, or perhaps in the majority of cases, to be reduced to the simple question whether the defendant did the act of which he is accused. If that were all, and if it were for the good of society that it should be discovered by what- ever means, the French preliminary process by the Jude d'Instruction ought to be introduced into English jurisprudence.
No more efficacious method can be devised for eliciting whether the man have done or have not done the deed. English opinion, however, requires inquiry into the intention as well as the act. It scarcely needs argument that a dozen men of something like the same condition as the prisoner are more likely, regarded even as mere witnesses, to appreciate the intention, than a Judge re- moved from them and him alike by station, by education, by prejudices, and by sympathies. A test of the degree of cer- tainty which would be the consequence of withdrawing the Jury from criminal trials is afforded by the mode in which Judges apportion sentences in which they have a discretion. Where one Judge thinks two years of imprisonment fit the crime, another is in the habit of imposing five. The different penalties imply commonly what, had the two Judges sat with- out Juries, would have been different judicial verdicts. Judge and Jury seldom differ, either in a criminal or in a civil trial. When they differ in a civil trial, the Judge may be presumed to be in the right. No such inference can be drawn with con- fidence in a criminal trial ; the Judge may be right in inferring from the evidence that the defendant did the guilty act, the Jury may possibly be right in not inferring a guilty intention. Much is made by persons arguing against Trial by Jury of the many cases in which Judges themselves declare that the guilty escape. In the tint place, many offenders escape by the fault, not of the Jury, but of legal technicalities. But let us assume that the Jury itself has gone wrong, and has re- turned a verdict of " Not guilty," when it should have said " Guilty." Such a verdict is the equivalent of a judgment by a Court of Equity which is reversed on appeal. Gauged by this standard, criminal trials entrusted to a Judge or Judges sitting alone would not more certainly result in a right verdict than at present. According to a return obtained last Session by Mr. Charles Lewis, the Member for Londonderry, Equity Judges of First Instance are commonly found by the Court of Appeal to have gone wrong. There is no ground for sup- posing that Common-Law Judges would have better fortune in criminal cases. If so, the proportion of right to wrong verdicts would remain about the same under both systems. The balance might even turn in favour of trial by Jury. But a wrong judgment, or one popularly supposed to be wrong, pronounced by a Judge sitting without a Jury in a criminal case would have far worse results than a wrong verdict by a Jury. Practically, it may be said, a Jury never brings in a verdict of " Guilty" when its verdict should have been " Not guilty." A Judge sitting without a Jury would err, if not oftener, as often in this direction as in an inclination to the side of mercy. Every instance in which a Judge condemned a man popularly regarded as innocent would light a flame of indignation in the country. There have been periods in English history when unjust verdicts have been returned. But except on the rare occasions when, for a time, prerogative has terrorised the country, the injustice has been the fruit of some burst of irrational popular sentiment. Instead of dividing law from public opinion, law has been forced into acting as public opinion's handmaid.
It is not likely that Englishmen, having developed among them so perfect an instrument for maintaining the harmony of law and public sentiment, will surrender the advantage. But the circumstances of England must be reproduced, to ensure that it acts elsewhere as here. The verdict of a Jury is not so much a decision that the defendant is innocent or guilty, as the independent assent of the country, which the Jury more or less fairly represents, to a decision which is really suggested by the Judge. The twelve Jurymen were, at the origin of the institution, a set of witnesses to the act alleged against the defendant. They have come to be witnesses that the Court has conducted the trial honestly, and that justice has been done. They may, in some circumstances, and under some Judges, fulfil more of the duties theoretically assigned to them, but the duty of witnessing to the honest conduct of the trial is one they always discharge. To fulfil it competently, a Jury must, however, represent the public opinion of the country ; otherwise, it merely registers the Judge's dictum, and its verdict carries corresponding weight ; or it systematically opposes whatever view of the law and the facts is the view of the State and the Court, and its verdict is, and is meant for, a simple defiance of both. Englishmen con- versant with criminal law would assert that any properly- selected Jury is able, with the Judge's assistance, to form a yet clearer view of a criminal case than a Judge without the Jury's assistance. They would, however, be very unwilling to pledge themselves to any such position as that the collateral advan- tages England derives from the system can be enjoyed either where there is no public opinion except that of the Govern- ment, or where public opinion and the State are opposed and hostile agencies.
Previous page
