TRIAL BY JURY. T HE attention which was directed last week
to the case of Augusta Mitchell, and which led the jury that tried the case to memorialize the Home Secretary in favour of the prisoner, has already, it is said, brought about the remission of the sentence passed upon her. For the sake of a poor woman whom we thought hardly treated, we may be glad of this speedy effect of popular indignation, but we must admit that it will be by no means favourable to a due regard for the administration of justice. Hasty and capricious sentences ought of course to be hastily remitted, and we can- not consent to keep up the dignity of the law at the expense of the meanest of its subjects. But if it be true, as a Middlesex juryman states, that with each recurrence of Sessions there is some similar outrage on public feeling ; if juries are called upon to take the law at the hands of the judge, and are thunderstruck at the punishment which ensues from their verdict, a more fatal blow will be dealt to our system of trials, than could be inflicted by any sneers at the incompetence of juries and the low intelligence of the common people. It is always painful to see the beginnings of decay in an institu- tion which has been a main prop of the strength of our country, and to which we owe so much of the liberty that we enjoy and others envy. But unless steps are taken to remedy that decay at the moment of its detection, no amount of panegyric on the past glory of the institution will blind men to its pre- sent failings. It does not follow that because other nations admire the theory of trial by jury we are bound to be content with our modern practice. It does not follow that because juries were true to the spirit of the Constitution at a time when the whole Constitution was at stake, a reform at the present day would endanger all our gains in that struggle. If we rightly apprehend the nature of those gains and mark the tendency of human efforts to defeat themselves by exaggerating their former successes, we shall not be so apt to fear that the removal of an excrescence will touch the heart of our judicial system. As it is, there are many points on which a change would be easy without in any way going to the root of the matter. One of these was treated by us a few weeks ago, when we analyzed the evidence presented to the Committee on Special and Com- mon Juries. Others have been touched upon incidentally while we were dealing with the functions of Judges, and their liability to error. But if we are to go to the root of the matter, let us do it systematically ; let us ask ourselves what is to be gained by the maintenance of the present system, and by what principle all the complaints which come from such very opposite quarters are to be disarmed.
Nothing is more difficult than to lay down an invariable rule by which the province of the judge may be distinguished from that of the jury. We have seen that the Middlesex jurors complain of their being made participators in what they consider unjust sentences. It often happens that a jury on finding a man guilty recommends him to mercy, and being asked for the motives of such a recommendation, is unable to assign any save a vague feeling of compassion. Judges constantly refuse to act on such a suggestion, and in the eye of the law they are perfectly right. The jury is empanelled in order to decide on a matter of fact which is put in issue by the indict- ment and the plea of not guilty. According to the legal view, a certain act committed with a certain intention consti- tutes a certain crime. All that the twelve jurors are called on to decide is whether that act was committed with that intention, and if they decide that it was, the law provides the punishment. It is evident that there would be an increased difficulty if the jury had to be consulted as to the sentence. There is no analogy between the verdict in a civil case, where the question what damage the plaintiff has sustained belongs to the region of fact, and the verdict in a criminal case, where the question is what offence has been committed against the peace of our Lady the Queen, and against the form of the Statutes. But just as some juries ask the judge what amount of damages will carry costs and some judges 1efuse to answer the question, there is sometimes a conflict between the offended majesty of the law and the sentiment of public safety. The Yorkshire jury which per- sisted in finding no other verdict than "Served him right is in some sense typical of the whole community. The twelve men who have decided that as a matter of fact Augusta Mitchell made use of another person's money without his authority, may think it a pity that she did not gouge out his eye into the bargain. They know that if she had done that Mr. Payne would have given her a light sentence, and in the absence of that they think she should have one which is still lighter. We confess that there is a justification for their method of reasoning in the caprice with which punishments are inflicted. Although the law resides in the breasts of the judges, common sense is often a better guide than tradition.
When Maule sentenced a man to a day's imprisonment for committing bigamy, and prefaced his sentence by a sketch of the process and expense of procuring a divorce, he followed the dictates of reason, but he disregarded all judicial pre- cedent. We remember the account given in one of Theodore Hook's novels of the judge settling the deferred sentences after dinner, and passing from extreme severity to abject leniency with a fresh bottle. If this is the extent of judicial infallibility the jury may well have a right to be heard. But difficult as it is to fix on a rigid line for sen- tences, it is almost impossible to allow opinion and sympathy a voice in the matter. It happens so often that the verdict of guilty with a recommendation to mercy is equivalent in law to a verdict of not guilty. Nor is it rare to find the case reversed, and a verdict of not guilty returned where the guilt of the accused is clear, but his fate is pitied. We can cite two instances in point which occurred at the last Lincolnshire assizes. A man who had set fire to a stack of hay, and who was- evidently weak-minded, was found " not guilty on the ground of insanity," though there was no evidence that the act was- intentional. Another, who had killed a man in a fight, was• acquitted of manslaughter because the jury thought that he did not mean to commit a murder. These are the cases which make men despair of the system of trial by jury, and which deter those who are the severest critics of judge-made law from extending the juryman's province.
Hitherto we have spoken of juries in criminal cases. We do not suppose any one who is conversant with our history would willingly abandon such a safeguard. But as far as civil cases are concerned, we think there might be a modification of ' the system. De Tocqueville argues, and with some reason, that if the Jury system was restricted to criminal cases the- people would see it in operation at intervals only, and would be accustomed to dispense with it in the common affairs of life.- Yet this implies a total restriction of juries to criminal cases, which few, we presume, would counsel. Under all circum- stances, a conflict of facts must be fought out before what repre- sents public opinion. If one man is ready to swear one thing and one another, there is nothing for it but to see which of them will be believed by twelve of his countrymen. No judge would undertake such a responsibility. The law does all it can by putting the burden of proof on one of the dis- putants, and asking the jury if the case is made out to the satisfaction of sensible and independent persons. But here, again, there are doubts as to the true functions of judge and jury, as to conflicts of fact and conflicts of law. In some involved and knotty cases, it is not easy to keep the jury from deciding as to the legal effect of the facts which are ascer- tained, instead of confining themselves to the facts which are in dispute. Wherever law and public opinion are at variance, there is a systematic attempt on the one side to obtain a decision from the judge, on the other, to ride off on the sympathies of the jury. The true remedy for this is, of course, to harmonize law and public opinion ; but this is the most difficult task of the Legislature, and, even if it were always attempted, is not sure to be successful. If we look at the swaying to and fro of the judicial tide, of the hard in- terpretations of the law which mark the rise of one view, and the still harder interpretations of interpretations by which that view is beaten back again, we must feel for the per- plexity of all who have a share in the lottery of justice. We are prepared to admit that a code would have great effect in simplifying the administration of the law, as well as in clearing up its principles. Many of our present blunders arise from want of comprehension as much as from want of system. Mr. Boyd Kinnear has good ground for his remark that half the abuses of our old law would be doomed as soon as they were put in clear language. Bat without waiting for that precision which seems so distant as regards a code, and so impossible as regards its diction, we might have some scheme by which law and fact would be separated, and judges and juries would be kept from clashing, by means of which guilt would no longer escape through pity, and the want of legal comprehension would no longer turn verdicts into speculations of rustic intelligence. One measure which was suggested before the Committee on Juries was that the distinction between Special and Common jurymen should be abolished for criminal trials. As things are, the fate of prisoners rests too much with one class of men, and is influenced by one stratum of opinion. A carrier who is tried at Quarter Sessions by a jury of his customers has a fair chance of being acquitted if they are all about on a level. Juries would be treated with more consideration if they were mixed than if they were uniformly selected. There would be more variety in their way of viewing things, less likelihood of their following a foreman who had gained a reputation in the county for experience and with the Bar for opacity. We do not think that the result of such a fusion of classes would be to leave the decision with those who were highest in station. Such a result would be dearly purchased by any of the advantages held out in exchange. But as a rule there is suffi- cient independence in the English character to make' men listen to their equals rather than to their superiors. Those who will not always accept the ruling of a judge would not be too readily biassed by the opinion of a gentleman. At the same time, the presence of one or two men of intelligence would often shorten the deliberations, which are apt to be too long, and would keep more clearly in view the points which are often passed over. It is by raising the standard of jury- men, by taking away from them extraneous duties, and giving them the vantage-ground of a clear insight into the principles which are involved in each trial, that we look forward to reliev- ing the system of the burdens which oppress it, and placing it on a solid basis for the work which it is called upon to dis- charge.
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