Page images


civil war.

that a contract of life insurance (a contract of every-day occurrence) is nothing more than a contract of indemnity-a dogma which, after being looked on as law for nearly half a century, has recently been overruled in the Exchequer Chamber, Dalby v. The Indian Life Assurance Company (15 C. B. 365). One instance more, the most remarkable of all: the trial of Queen Caroline, before the House of Peers, in 1820 (2 Br. & B. 286—292)—a case affecting the honour of a Queen of England, and attended by an excitement threatening

On that occasion, in answer to questions put by the House, L. C. J. Abbott, answering for all the judges, said, that the well-known rule of evidence, which prohibits the proof of the contents of a written instrument by parol evidence, precluded the asking a witness on cross-examination whether he had made statements in any written document inconsistent with his evidence in chief, or even whether he had made representations to that effect two positions clearly erroneous, both on principle and authority. They were, however, established by those answers; and having embarrassed every one for upwards of a quarter of a century, received the condemnation of the legislature in the Common Law Procedure Act, 1854, s. 24.

There is a book by Professor Greenleaf (a copy may be seen in Lincoln’s-Inn Library) entitled, “ Collection of Overruled, Denied, and Doubted Decisions, both American and English.” Fourth edition, by Townsend, New York, 1856. This work amounts to 548 8vo pages, though it must in candour be acknowledged that many of the cases in it are questioned solely on account of supposed inaccuracy in the reports of them. Do not let me be misunderstood as suggesting the abolition of the judges for these or similar errors. I trust I should not be so stupidly unjust, even were our bench not, what it confessedly is, the best and most upright in the world. But such a suggestion would not be half so stupid or unjust as proposing the abolition of juries, because they occasionally fall into error, and to transfer their functions to the judges, who now commit errors in their own province. If the present question is ever brought into Parliament, I hope




some member will move for a return of the number of new trials granted in each court, specifying which were granted for misdirection and which for a verdict against evidence, together wth the fate of each rule. But in the mean time I make this offer to any gentleman-for every wrong verdict of a jury you produce me, I will produce you a wrong decision of a court or judge, and see whose list will be exhausted first. I venture to


it will not be mine. Another argument put forward by Mr. Brown (pp. 15—18) is, that juries are frequently swayed by prejudices, especially in particular sorts of cases. Thus, according to him, there is small justice to be got from a common jury by a gentleman defending an action on a tradesman's bill; by a railway company defending an action for an injury; or by an insurance company defending an action on a policy, &c. And he remarks in particular (p. 15), that “every one of the judicial murders and confiscations, committed under Charles II., was committed by means of a jury." Taking this argument at the strongest, it only proves that a common jury, summoned according to the existing law, is not the fit jury for those cases, and thus far it is entitled to some consideration; although, even as matters stand, I regret that Mr. Brown should hold so bad an opinion both of bis countrymen and of human nature, as to believe that the verdicts of juries in those cases are wrong systematically. But what should we gain in this respect by their abolition ? Are juries, common or special, the only class of the community swayed by prejudices? Did any gentleman present ever witness the trial of a suspected poacher at quarter-sessions, or hear medical testimony in a case where the character of the medical profession was involved, or of scientific witnesses where the merits of conflicting theories were in question ? and probably few prejudices are stronger than those which separate lawyers from laymen.

Did Mr. Brown ever read the charges of the judges in the cases in the time of Charles II. to which he refers, or the debates in parliament of the period; if so, did he ever consider whether the prejudices of other classes were not even stronger than those of the juries; and how many state prosecutions the necessity of summoning a jury may not have nipped in the bud? The abolishing the jury, and transferring its functions to some other body, would only be exchanging one class of prejudices for another. In the tribunal consisting of judge and jury, the prejudices of the one hold in check those of the other; remove either the judge or the jury, and the unfortunate litigants would be left to the unchecked violence of the prejudices of the component part that is allowed to remain. And this is in strict analogy with the other parts of our constitution. Each of the component parts of the legislative body has its prejudices—by vesting the supreme power in all conjointly, they control each other, and salutary legislation is the result; remove all but one, and the prejudices of that one would soon run wild riot over the community.

We hear much of the absurdity of bringing before juries cases of disputed accounts, and others which ought to be made the subject of a reference; and it is sought to fix on the jury the mischief of this (Brown, p. 30). But the real objection is, that those are causes which are unfit to be tried by any regular judicial tribunal, no matter how constituted. Would the substituting twelve judges for the jury mend the matter? Would the four judges of the Queen's Bench, sitting in banc, be one whit a better tribunal for these purposes than a jury? Besides, the practice of arbitration was perfectly well known in the civil and canon laws, where there was but a single judge, and the detested jury had no place; and even in our own courts of equity, when a bill is filed for an account, does the Lord Chancellor take his place on the judgment-seat, take the complainant's account against the defendant in his hand, and go through it item by item? No such thing. It is referred to an officer of the court to take the account, and judgment is given according to his report. The founders of the common law were perfectly sensible of all this—for the trial of disputed accounts they provided the action of account, in which, when the liability of the defendant to account was established, a judgment quod computet was given, and the matter referred to auditors to take the account. This action


fell into disuse for various reasons, and principally from the infinitely better means of redress afforded by the very superior machinery of a bill in equity; and now by the Common Law Procedure Act, 1854, the court before trial, or the judge at nisi prius, is empowered to direct an arbitration in matters of account.

The last direct argument against trial by jury which I have to notice is, that jurymen are put to loss and inconvenience by being summoned from their homes or business to take part in judicial proceedings.—(Brown, pp. 18, 19.) It is with a feeling of humiliation that I allude to such an argument as this. Are there any Englishmen so degraded or so selfish as to grudge the time necessary to assist in the administration of justice, to aid in working a system whichpreserves their laws and their liberties? “Lex non favet delicatorum votis," 9 Co. 58, and I do not believe the maxim would lose its truth or force by the substitution of “sordidorum” or “impiorum."

The enemies of the jury system are by no means agreed among themselves as to the sort of tribunal by which it should be replaced. Let us examine a few of their proposals. Mr. Brown (pp. 20 and 30) rather inclines to a single judge-a system once established by the civil and canon law over all Europe, and the condemnation of which may be read in the judicial history of every country there. Would it be endured in England that a man should be hanged, or imprisoned, or deprived of his property, because a single judge thought some law applied to the case, and the facts were proved to his solitary satisfaction ? Bentham is of opinion that the true checks on judicial authority, acting without a jury, are1. Ample recordation of the evidence; 2. Appeal to a superior judge; and 3. Publicity of the proceedings. But the first of these would add enormously to the expense of trials, even supposing the notary infallible, both in point of ability and honesty-two points which would sometimes be questionable. As to the appeal, it is illusory. Many would be deterred from it by the expense; add to which, if the ground of objection were the improperly giving credit to, or withholding


it from evidence, an appeal would be most unjust to the judge of the court below, unless not only the evidence were recorded, but the demeanour of the witnesses when giving ita thing obviously impossible. And what is the value of a reversal of the judgment by the appellate judge when you have got it? It is only the opinion of Judge A. against that of Judge B., in which Judge B., whose decision is reversed, may after all be in the right. As to publicity, this check, standing alone, is not much more effective than the rest. The trials of Naboth, Socrates, Sir N. Throckmorton, Algernon Sydney, and many others of the same nature, were as public as could be -i. e., so far as the doors of the court being open to whosoever pleased to walk in. But the number of persons that do that must necessarily be very limited, so that publicity here must be understood to mean publicity through the agency of the press. We are all, 1 presume, agreed that a rational liberty of the press is a blessing ; but it is the fashion of our day to overrate its advantages; for it is frequently spoken of as the principal guardian of our liberties, ard this notion is evidently involved in the theory of Bentham which we are now considering. But the liberty of the press, I venture to affirm, would not last long, if the power of determining both the law and the facts in all causes, both criminal and civil—of passing sentence in case of conviction in the former, and assessing the damages for the successful plaintiff in the latter-were vested in judges, the nominees of the Crown ; and, as men, liable to all sorts of prejudice of class or station, political or personal. Let it be remembered that the liberty of the press in this country only dates from the latter end of the seventeenth century, and that the trial by jury protected the other liberties of the country long before it had any existence, and since that period has protected both it and them.

There are three other tribunals whose decisions on facts it is the fashion with many to laud to the skies, to the disparagement of the decisions of juries—I mean courts of equity, ecclesiastical courts, and police magistrates. This, however, is mere reckless assertion, as every person acquainted with those tribunals must be well aware, and the recent introduc

« EelmineJätka »