positions of every kind are continually brought forward, sometimes even successfully, in Parliament, and we are encountering the reactionary wave of absolutism which has swept over so much of the continent of Europe! Others concede that the jury ought to be retained in cases where the liberty of the subject may come in question, and abolished in all others. Of this view are Bentham (see his works by Bowring, vol. ii. p. 119), and Mr. Brown, in the pamphlet already referred to (p. 33). But who could possibly define beforehand what those cases are? The most ordinary case, civil or criminal, may disclose in its progress a constitutional question, wholly imperceptible at its outset; and two of the most important of such questions ever raised presented themselves in Ashby v. White (2 L. Raym. 938.), and Stockdale v. Hansard (9 A. & E. 1), the first of which was an action on the case, and the second an action for libel.

I now proceed to consider the arguments with which the system of trial by judge and jury is assailed, and the tribunals which its adversaries prefer to it :

Mr. Brown, page 7, expresses himself thus:-"I arraign the trial by jury at the bar of public opinion. I accuse it of incapacity, of ignorance, of partiality, of cumbersomeness, of barbarism." His first argument is, that juries are deficient in capacity to decide on the matter brought before them. He says (pages 8, 9, 10), "It has certainly always struck my mind that there was a remarkable contrast between the mode of procedure adopted by our countrymen in relation to their legal disputes, and that which they follow in the ordinary affairs of life. If a man wants a pair of shoes made, nobody shall serve him but one who has undergone a regular apprenticeship to the trade, and has practised it for years. If a man breaks his leg, he never thinks of trusting his precious limb to the hands of any but an experienced surgeon, who has spent half a life in the exercise of his profession. If he happens to be involved in a difficult question of law, he will take the advice of none but one who has grown grey in the study of reports and statutes; and yet with all this, if his property, his reputation, his liberty, or his life is at stake on a

disputed question of fact, he will-nay, he must intrust it to the voice of twelve men, not one of whom may have ever entered a court before, not a creature of whom may have ever experienced the arts of debate or the subtleties of counsel, nor have balanced the doubtful evidence of opposite witnesses, nor have been called to the decision of any dispute more important than the quarrels of his children, or the discussions of the pothouse. As Numa was taken from the plough to the sceptre, so, at the summons of the law, our jurymen quit their shops for the courts of justice; they march straight from the weighing of candles to the weighing of testimony-from the measuring of tape to the measuring out of fate—from dealing in bacon and cheese to dealing with the lives, properties, and liberties of men! Verily, we are a wise people, whose commonalty possess by intuition the faculty which costs a lawyer many years to acquire-many long years of laborious study and practice-the faculty of hearing, without being deluded by sophistry and eloquence, of catching and connecting as it flies the broken and disjointed evidence of numerous and contradictory witnesses; of selecting what is material, and rejecting what is irrelevant; of sifting the wheat from the chaff, the substantial from the seeming, and extracting the kernel of truth from the mis-shapen husk of error in which it is enveloped. The Greeks fabled that the Goddess of Wisdom sprang fully armed and grown from the head of Zeus. The English seriously believe that judicial wisdom springs forth mature from every tradesman's head! This is a fit article of faith for a nation of shopkeepers."

No doubt all this would be very absurd if the men here described were intrusted with the decision of questions of law; but that is exactly the matter with which the constitution has not intrusted them. The argument, too, involves a popular fallacy, viz. that a judicial tribunal (however constituted) is charged to determine which of the two parties who litigate a case before them, is, philosophically speaking, in the right; whereas the question for them is, has the party on whom the burden of proof lies made out his case? For instance, in a criminal trial, the jury are not charged to

inquire into the innocence of the accused, but whether there is sufficient evidence to satisfy them to a moral certainty of his guilt? So, in civil cases, the jury who find for a defendant do not thereby assert that the plaintiff has no cause of complaint against him, but only that he has failed in making it out; and a jury who find against a defendant on a plea of payment or set off, do not thereby assert that the defendant has never paid the plaintiff, or has no set off against him, but simply that he has not proved it. Now, the circumstance that a man has no peculiar legal knowledge-that he has all his life been "weighing candles," "measuring tape," or "dealing in bacon and cheese"-is the very thing that qualifies him to decide the facts that arise in a court of justice. To every litigant who brings a cause into court the law says, "Before you call on us to interfere at your desire with the life, liberty, or property of any person subject to our rule, you must bring proof of the facts on which you rely, so clear as to satisfy a number of men taken at random from the body of the community, acting in the presence of a judge, and under his direction as to the law; if you do not, you shall fail." And he deserves to fail.

As connected with this subject, Mr. Brown asserts that to the incapacity of jurymen to decide with correctness, is owing the necessity for the rules of evidence, which formerly rejected so many witnesses as incompetent, and still rejects hearsay evidence, &c.; and the same argument is to be found in some of our books: (1 Stark. Ev. 37, note n; Tayl. Ev. Part. c. 7, 3 ed.; and per Mansfield, C. J., in the Berkeley Peerage case, 4 Campb. 415.) But the rejection of witnesses for incompetency was known to the ancient Romans, and well understood both in the civil and canon laws, whose rules of incompetency were much more numerous than ours (Dig. lib. 22, tit. 5; Decret. Greg. 9 lib. 2, tit. 20); and, indeed, where a single judge determined both law and facts, they supplied a check which is not required before a jury. The inferiority of hearsay evidence was also well known to the civilians and canonists, although they did not always reject it (see Mascard. de Prob. Concl. 104, 151, or any other good treatise

on the subject); thereby leaving a most dangerous discretion to the judge.

It is further objected to juries by Mr. Brown (pp. 27, 28, 10-13) and others, that they sometimes misbehave by deciding by lot, or in other corrupt ways, and that they frequently give erroneous verdicts. Unquestionably they sometimes do, but then it is not possible to construct an infallible tribunal; besides which I must protest, in the strongest manner, against the practice which assumes every verdict to be erroneous, which is either dissatisfactory to the losing party or denounced by the public press. I, and doubtless others also, have seen the soundest decisions of judges, the most honest and sensible verdicts of juries, and the most upright decisions of police magistrates, attacked in those organs with fiendish fury. I put it to any person who has had any fair amount of experience in the matter, whether the decisions of judges on law, and of juries on facts, are not in general correct, corruption and misdecision being the comparatively rare exceptions. Now, the most unphilosophical, unjuristical, and utterly absurd act of which any man can be guilty is, the framing laws to meet rare and unusual cases; for it is a wellknown principle of jurisprudence and legislation, that they should be made to meet what usually and ordinarily takes place. "Ad ea quæ frequentius accidunt jura adaptantur" (2 Inst. 137) is the maxim of English law; while the Roman law distinctly laid down, "Jura constitui oportet in his quæ ἐπὶ τὸ πλεῖστον, i. e., ut plurimum accidunt, non quæ ἐκ παραλίγου, i.e., ex inopinato" (Dig. lib. 1, tit. 3, 1. 3; see also id. 1. 10, and lib. 50, tit. 17, 1. 64); and the violation of this principle is one of the besetting sins of the legislative projects, and occasionally of the legislation itself of the present day.

But if the opponents of juries deem it right to reason from extreme cases, I am willing to meet them on their own ground. Allow me to bring before you a few instances of misdecision by judges-not instances of mere judicial error, but decisions and dicta displaying an ignorance of elementary principles; for it is only such that present a fair analogy to the verdicts of juries when palpably or absurdly wrong. In Webb v. Bell

(1 Sid. 440, also reported 2 Keb. 596), Kelynge, C. J., laid down in the Court of Queen's Bench, that a horse with a man upon him may be distrained damage feasant, and led to the pound with the man upon him; a dictum which imposed even on C. B. Gilbert (Gilb. Dist. 45, ed. 1757), and was overruled in Storey v. Robinson (6 T. R. 138);-a dictum at variance with the well-known principle of law, that things in actual use are not to be distrained, as well as with a current of authorities from the time of Edward III. (see Fitzh. Atr. Avowry, pl. 199.) Again, in Newton v. Trigg (1 Show. 268), Eyres, J., laid down that an innkeeper has a lien on the person of his guest for his food-in other words, that if a man cannot pay his tavern bill, he may, without any process of law, be imprisoned for life by his creditor, an absurdity overruled in my own day and in my own hearing (Sunbolf v. Alford, 3 M. and W. 248.) But let us come to more modern times. In Byran v. Lewis (R. and M. 386, A.D., 1826), Lord Tenterden said, "I have always thought, and shall continue to think until I am told by the House of Lords that I am wrong, that if a man sells goods to be delivered at a future day, and neither has the goods at the time, nor has entered into any prior contract to buy them, nor has any reasonable hope of receiving them by consignment, but means to go into the market. to buy the goods which he has contracted to deliver, he cannot maintain an action upon such a contract. Such contract amounts, on the part of the vendor, to a wager on the price of the commodity, and is attended with the most mischievous consequences." Specific and dogmatical this! and yet we seldom meet a decision more grossly wrong. What? A doctrine like this predicated of the contract of sale!-a contract of natural law, and known to the laws of every nation, civilized or uncivilized. As was observed in Hibblewhite v. M'Morine (5 M. and W. 462), where this case was overruled, "Such a doctrine would put an end to half the contracts made in the course of trade; and would render void all contracts to supply the army and navy and workhouses, and almost every public institution." We are surely all acquainted with Godsall v. Boldero (9 East. 72), where the Court of King's Bench held