TOPICS OF THE DAY.
MR. BARON MARTIN AS JURYMAN.
MR. BARON MARTIN tried hard at Bradford to convince himself and the public that because he was not disposed to be a juryman, and not trained to be a juryman, he was not fitted to be a juryman, and we need not say completely failed. The measure of his failure was the measure of his success in trying the difficult cases with which he had to deal at Bradford,—a success of which it is scarcely possible to speak with too much emphasis. We may, indeed, fairly say that no existing English institution works half so well as our English Judge, and that as regards every election petition yet tried, the verdict of the whole country has been heartily with the Judges' decision, while the feeling of the whole country has been one of gratitude and admiration for the soundness of judgment, the promptitude of intellect, the impartiality of purpose, and the power of exposition which they have displayed in dealing with these complicated cases,—which have been the despair, and, intellectually speaking, the disgrace of the unfortunate and incompetent Parliamentary tribunals hitherto set to the dreary task of sifting and judging them. We do not think that Mr. Disraeli has had sufficient credit for the Act which transferred this duty to the reluctant Judges,—an Act which will, we suspect, do more for the English electoral system than any other reform we have either conceived or carried out for years. We believe, too, that Mr. Disraeli proposed what he did with a clear understanding of its result, and a sincere desire to bring that result about,—a clear understanding which does no less credit to his intellect than the desire to effect it does to his political sincerity. As we have never shrunk from expressing our generally very low opinion of Mr. Disraeli's political morality, it is more than ever our duty to do the fullest justice to him on an achievement like this, which was unquestionably his achievement,—unquestionably effected with an intelligent conception of what he was about, and which has still more unquestionably stood the test of trial. It is worth while noting, however, how immeasurably more important the change of method has been, in trying the corrupt practices, than the change of penalty for those corrupt practices. In no case, we believe, as yet has the law of last Session been put in force for bribery. Almost all the legal questions of the various election trials have been legal questions under the old Acts, and not under the new. The great, and only great alteration, has been in the method of procedure, and that has been everything. Had the nolo episcopari of the Judges been listened to, and the old procedure left unchanged, no good would have been effected at all by the mere increased severity of penalty.
But Baron Martin's speech, in delivering the last Bradford judgment, implies that his personal objection, at least, was not that which was attributed to the Judges at the time and expressed in the published letter,—not the dislike to being mixed up in political and party questions in a manner which might diminish their generally high repute for impartiality, but one of a much more refined kind. Baron Martin has been accustomed to decide on questions of law, and to submit questions of fact, with his own comments, to a jury. He does not approve of acting as Juryman as well as Judge ; he does not like having to decide the questions of fact as well as the questions of law. His objection appears to be that in judging matters of fact the moral prepossessions and habits of individuals will introduce arbitrary variations of opinion which may seem capricious to the outside world, and which yet are inevitable. " There is no man, whether a lawyer or not a lawyer, who knows anything about mankind, who does not know that different men take most different views in regard to facts ; and I am confident that there are many men,—many men quite as competent as I am,—who might take a different view with regard to the facts proved in this case from what I take. And I believe that will of necessity occur. Within my own experience as a lawyer, I have known men,—one man particularly is in my mind, one of the ablest advocates I ever knew, who ultimately attained the highest office that can be held by any man connected with the law, and that man had in his mind the idea that every person against whom he had a brief was a fraudulent man. It was only necessary to deliver a brief to that man and his mind instinctively went in this way,— My opponent, whoever he may be, is a fraudulent man.' It was idle to say that the man acted apparently rightly and properly,—that there was nothing to put a finger on ; he only thought that this was merely a cloak for fraud. I have known others who took just the contrary view, who fancied that men were generally honest,—that their acts were generally honest acts,— that they did not commit fraudulent and dishonest acts unless there was some temptation to do it. Of course, if you put these two men, both equally desirous of doing what is right, but with different frames of mind, to judge of matters of fact, how can you expect them to arrive at the same conclusion ? And we suppose that Baron Martin intended to imply,—what he apparently did not say,—that he founds his liking for a jury partly on the fact that it takes the responsibility of a delicata discrimination off the judge, partly on the presumption that in taking the opinion of twelve men instead of one, we should get at something like an average of opinion, and eliminate the prepossessions due to individual temperament.. But the Baron's argument seems to as defective in one or two respects. He tells us how peculiarly a certain eminent barrister's mind was constituted so as always to attribute fraud to the party to whom he was opposed. But this unfortunate twist of judgment was obviously peculiar to his position as advocate for the other side. It is not stated that he believed fraud to be on his own side as well as on his opponent's. And even if he did, put him in the place of a judge, and there is no reason to suppose that he would have felt a stronger natural disposition to believe in the fraud of one of the parties pleading before him than in that of the other ; and even if he had believed in that of both, his judgment would still have been in equilibrium, and left him free to decide as to which of the two parties had, on the whole, most right on its side. Does the Baron mean that when this eminent barrister attained " the highest office that can be held by any man connected with the law," his judgments on questions of fact,—which must often come within the scope of a Chancellor's decisions,—were vitiated by this professed belief in the original sin of adversaries ? We do not see why it should be so, since he would in that position have no adversary. Indeed, the most remarkable phenomenon connected with the English judicial system is the extraordinary effect which the judicial office seems to have in transforming a keen-witted, one-sided, and often unscrupulous barrister, into the most impartial and equal-minded of judges.
We have no doubt, however, that Baron Martin is right in attaching a high value to the habit of referring matters of fact in general to a jury. In the first place, it compels the judge to draw the distinction broadly and clearly between matters of law and matters of fact,—a habit of the first importance in clearing up the case, and a habit not likely to be formed without a necessity for distinguishing constantly between the province of the jury and the province of the judge. If one and the same man decided both law and fact, he would be too much in danger of lumping together the obscurities of the law and the deficiences of the evidence, not forming a clear opinion on each separately, but allowing the complexity or obscurity of the law so to influence him unconsciously, as to come to no clear opinion as to the net result of the evidence. That is one advantage of the clear division of provinces caused by the institution of juries to decide questions of fact. Another clear advantage we see in the superiority in one respect of the Common Law Courts over the Courts of Equity. In the latter, weak judges, as is well known, not unfrequently go into captivity to particular members of the Bar who have always led in their Court, who have " taken the measure " of their intellect, and perfectly well know its foibles and its strength. There is very little of this sort in the Circuit Courts. The barrister makes his appeal to an unknown jury, not to a known judge. The judge is not made a study, and if he is, the familiarity with his habits of mind is not of the same consequence. There can be no doubt, then, that Baron Martin is right in attaching the highest value to the habit of acting with juries, and to the institution of the jury for judging questions of fact.
But the very fact that the senior judges in the Common Law Courts have had this advantage for so many years in ordinary cases, and have formed the habits of mind to which this separation of provinces between questions of law and questions of fact has led, seems to us to render them pecu liarly fit for discharging exceptionally the function of juries as well as judges in this peculiarly difficult and delicate class of cases, where we clearly want the acquired momentum of long judicial habit to protect us from the infectious violence of party prejudice and local opinion. Who can imagine for a moment that the verdicts of a Bradford jury would have carried the weight and inspired the confidence of Baron Martin's verdict,—accompanied as it was by that
weighty and clear statement of reasons, which we earnestly deprecate his hall-formed intention of omitting for the future. When the Baron tells us that juries give no reasons, and that, therefore, the judge, acting as jury, need give none, he forgets, we think, that he is proposing to deprive us not merely of an explanation of the jury's reasons for their opinion, but of that charge' of the judge's which is so often the most material of the causes which decide the jury's verdict. But, dismissing that question, who can doubt that Baron Martin's opinion on the three matters of fact, on which he gave his verdict in deciding on the election petition against Mr. Forster, was a much more trustworthy opinion in every way than that of twelve men got together in Bradford, where Mr. Forster is apparently most deservedly loved, could have been ? Even supposing that all the jury had been neutral men, if that had been possible,—or that half the jury had been political supporters of Mr. Ripley, and the other half of Mr. Miall, how could any jury have been decently independent of such spring-tides of political feeling as were evidently flowing in Bradford ? What were the questions of fact which Baron Martin had to decide First, whether the gift by a canvasser of half-a-crown to one of the children of a wretched family whose head had been eight weeks out of work, and was sick as well,—so that it was probable they were on the point of starvation, was an act of bribery, the most scrupulous and systematic pains having been taken throughout to prohibit it in all cases ? Well, that was a matter any impartial man, -woman, or child in the three kingdoms could have decided as well as Baron Martin,—the only essential point being real impartiality, the absence of any wish to acquit, the absence of any wish not to acquit, and the absence of any morbid fear lest an acquittal or non-acquittal should be due to a wrong motive. The next point was whether the opening of publichouses,—taken as committee-rooms, but opened only and paid for only for the time,—a few hours in the week,—for which they were actually wanted for meetings, and not open for drinking at all, could be called evidence of treating. On that matter of fact, taken alone doubtless, as Baron Martin says, different opinions might have been framed by persons with a different cast of prepossession,—by cynical and suspicious persons, by trustful and simple-minded persons, and by average men of the world. It was a question of judgment likely to be materially affected by the whole run of the evidence, especially by the character of the evidence given by the candidate himself and his agent. But it is precisely because Baron Martin is so much better trained for the purpose of forming an opinion of the whole run of the evidence, that his verdict in this matter is worth half-a-dozen concurrent juries' verdicts ; nor can there be any sort of doubt on the minds of persons of ordinary acuteness that his verdict was very strongly supported by Mr. Wade's and Mr. Forster's straightforward, simple, and impressive answers. Lastly, there was the question of fact as to whether a certain butcher's —Lockwood Stephenson's—unauthorized offer of beer to some persons at a particular public-house to keep quiet people who were crying out that they got nothing from Miall and Forster, while Ripley's people were well entertained, was an act of treating,—Lockwood Stephenson being a vice-chairman of one of the local committees; and third-hand agency, or as some one called it, the cube-root of agency, havingbeen proved against him. Well, that was the only matter which really troubled the baronial juryman at all. But he believed that if Lockwood Stephenson himself had been prosecuted under the Act for treating, there would have been no sufficient case to go to a jury, whence of course it followed that a very doubtful and questionable kind of treating, utterly forbidden by the candidate himself and his agent,—committed, if at all, by a single subordinate of highly derivative agency, could not be held to be treating in a practical sense, so as to vitiate the election. On the whole, we think we may congratulate Baron Martin on the completeness and efficiency with which he confuted by nine-tenths of his charge and judgment, the objections to the Act which he stated so clearly in the other tenth.
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