IS THE LAW AN ASS ? AND THE JURY ?
By AMBROSE HOOPINGTON
ALL comments, all illustrations, all funny stories showing the stupidity with which the law is adnainistered, as opposed to its own 'inherent asininity, are concerned somehow with juries. This furnishes an interesting lesson in. psychology. It might be supposed that the average man who finds himself or might find himSelf in a Court of law, whether as a litigant, a witness, or a mere spectator, would feel his natural Sympathies with the jury. After all, they are the representatives of the public, the only representatives of the public allowed to take part in the administration of justice ; they ought (if he really belieVed in the efficiency of business men) to be introducing a breath of common sense into theproceedings ;' at any rate, they are fellow men outside the charmed ring of persons in various coloured robes making recondite jokes at one another, and, stupid though they may be, they are no worse than the theo- raical average man would be in a jury-box.
But the temptation to identify oneself with the hounds overrides all these considerations, and we laugh at the ineptitude of juries much as in other types of funny stories we laugh at the comic foreigner, the henpecked husband, the unsuccessful lover, and so many other stock figures of fun in whose roles we might easily find ourselves. With this attitude there is nothing incon- sistent in the belief that the jury is our greatest safeguard, for in our hearty of hearts we know that if ever we find ourselves in the dock, it will not be on a false charge, and we shall want to be tried by judge and jury and not by a judge alone. Everybody who reads about crime has a vision of the ferret-like Mr. Justice Avory able to see through every subterfuge and expose the defendant for the scoundrel that he is. That may be all very well for Patrick Mahon, but it is not at all the kind of way we should want to be tried ourselves. What we want for ourselves is a nice sympathetic jury with enough strength of purpose to stand out against the strongest summing-up.
No •doubt this view explains the dictum of a famous Judge : " Let the plaintiff be a pretty widow and the defendant • a railway company, and I will tell you the result of the case without hearing what the evidence is." Juries are less satisfactory in civil cases where they can actually reward the undeserving with the defendant's money (or more likely the insurance company's money), and there has been little outcry against their restriction in civil cases. In criminal cases there is little doubt that, besides giving the benefit of-the doubt where little doubt exists, they often interfere to frustrate a- law which they think silly. Anyone who attends an assize and sees numerous persons charged with sexual offences, and triumphantly acquitted, will probably wonder how far the criminal statutes passed by parliament really repre- sent the views of the people from whom juries are drawn. On the other hand, those who have really defrauded honest. tradesmen are found guilty without any difficulty whatever. It is, of course, questionable how far one wants to sec juries inventing their own law. No one greatly minds them letting off offenders who have done no real harm to anyone, or enlarging the definition of insanity in criminal eases. In civil cases prejudice is more serious. Thus not everyone believes that anyone of the class whom we now regard as enemies of the human race—communists, anarchists, Indian agitators and so forth—really gets a fair trial from a jury if he brings a libel action. This has been shown in several big special jury actions. Still more extreme is the Olt-quoted instance of the Whitechapel plaintiff who was travelling upon a tram when he was injured in a collision. As it would be almost inevitable that some driver's negligence caused the accident, the judge was incredulous when the jury found for the defendants. " Do you not mean the plaintiff ? " he asked, knowing that Whitechapel juries do not always understand English. " No," replied the foreman. " We aren't going to give a penny to a Jewish man who rides upon a tram on the Day of Atonement."
County Court juries arc now virtually abolished. It cannot be said that during their existence they did much to increase the efficiency of justice ; and, of course, they reduced its speed. They were principally asked for IT the plaintiff in running-down actions which did not seem too certain of success. Judge Oiler was responsible (in both senses) for one of the best stories about County Court juries. Counsel in a ease before him insisted on a jury and, having secured one, he addressed it at such a length that the case was not finished by the end of the day. The Judge explained to them that under the then rules he could only appeal to their public spirit to attend the next day, as there was no machinery for compelling their attendance on the adjourned hearing. Only two of them turned up, and the case was by agreement concluded before the Judge alone. • More degraded even than the County Court jury is the coroner's jury, which can be picked from such persons as are standing round, no qualification being necessary, though the practice of keeping a permanent gang of unemployed men for the purpose has been condemned, Fortunately their verdict seldom has any : practical importance, though it has a certain nuisance value in causing people to be committed for trial for manslaughter by motor-car when there is no . chance of their being convicted by the real jury at assizes.
At the other end of the scale is the special jury which, since the abolition of the purely formal grand jury, is the noblest form of jury. Since a special jury generally has the task of trying libel actions in some of which artistic and literary questions are involved, while others are big city cases of involved fraud, it is not entirely satisfactory that the only qualification is a property one. It has been cynically observed that " common juries are greengrocers, whereas special juries are real grocers." But in London, especially, there is a considerable diver- gence of types ; it is true that one does not see the amazing smallholders with extraordinary whiskers and no collars who step into the box at some County assizes, but there arc to be seen even on Old Bailey juries along with the small tradesmen, accountants, authors, bankers :Aid occasionally artists. Possibly the least satisfactory of special jurors arc the elderly ladies who arc asked to listen to particulars of the underwriting of shares, simply because they own houses in Bayswater. The best are undoubtedly the City of London special. juries, genuine merchants and such like, who are occasionally empanelled in the Commercial Court.
With all its disadvantages, there is one prime advantage of a jury- in cases where human issues are involved— namely, that there is safety in numbers. Judges are always diffident in coming to •a decision which is really damaging to anyone—in particular anyone in a -well- known position—not of course that the judge is any respecter of persons, but because of a natural fear of making a mistake which probably involves the ruin of an important man. In such cases every juror has the other eleven to back him up, and he has the less hesitation in finding that a wealthy baronet is a liar and a swindler, or that a well-known actress is not chaste. Such cases are in their results and general characters halfway towards criminal cases, and no one has ever suggested that judges should try murder cases without juries. The respon- sibility would be intolerable.
That a jury can disagree while a judge cannot is less of a disadvantage than might appear. Obviously, there are eases in which for quite inadequate reasons one or more jurors stand out against the majority. But, generally, it must be true that, if the case is so doubtful that neither side can get a verdict, there is no fairer result than each side paying its own costs. The unfortu- nate result may he a second or even a third trial. But second trials by juries most frequently result where the Court of Appeal has set aside the first verdict, and, as that is usually due to some error in the summing-up, it would be almost true to say that the worst faults- of juries arc due to the mistakes of 'judges.
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