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posal is, that a certain number of scientific men should under certain circumstances sit upon juries and hear the evidence as ordinary jurors do at present.

I need not enter into the difficulties of detail and practice which would be involved in the adoption of any such plan, because my strong conviction is, that upon the broadest and plainest grounds it would in any shape whatever be most injurious, and that it proceeds upon an entire misapprehension of the result to be reached, and the mode of reaching it. It appears to me that, given uprightness, patience, and such intelligence as most educated members of society may be presumed to possess, a jury constituted as our juries are, forms the very best tribunal which could be devised for the trial of complicated questions of fact, even if those questions involve delicate scientific considerations. The proposals to which reference has been made, appear to me to be founded on a timid anxiety to divide responsibility, and to avoid the necessity for subjecting any one to the disagreeable necessity of forming a decisive conclusion upon a momentous question.

The principle upon which the whole system of trial by jury proceeds is, that no one shall be punished, unless the proofs of his guilt are such as to remove all doubt upon the subject from the minds of twelve men, who represent the average intelligence of the country; and, familiar as this statement is, its bearings are not so fully and so generally understood as they ought to be, by those who undertake to criticise the application of the principle to particular classes of cases.

It must be observed, in the first place, that the question is not whether the man is guilty, but whether the jury have any reasonable doubt that he is guilty. The application of this, which is favourable to the prisoner, is familiar. Every one knows the common-places about the one innocent and the ten guilty men, and the exhortations which are constantly addressed to the jury to judge by the evidence, and not to supply by conjecture any missing links in the chain. It is, however, not so generally observed—though the conclusion is quite as sound and nearly as important as the more familiar one-that the maxim is capable of an unfavourable as well as of a favourable application to the prisoner. It may be that there can be no reasonable doubt of the guilt of a perfectly innocent man; and, if so, he must take the consequence of his bad fortune. This appears at first sight not only a startling but a paradoxical conclusion; but upon examination it will be found to be perfectly sound. It depends upon the question as to what sort of doubts are reasonable, and it frequently happens that it is unreasonable to doubt the truth of what is in fact untrue.

It is essential to a full comprehension of the subject of trial by jury to draw a broad distinction between the functions of a juror and those of a scientific inquirer. A juror is a judge, bound by oath to say whether or not certain evidence satisfies his mind. A scientific inquirer is not bound to any thing of the kind. He may pursue his subject as long as it suits his inclination, and may drop and resume it at pleasure as the interests of truth may appear to him to require. In short, it is his object to arrive at truth simply. It is the object of the juror to arrive—not at the truth itself, but at a true verdict, which is a very different thing. Thus, when he says, “Not guilty," he frequently means “I am in doubt ;” and when he says, “Guilty,” he only means “I am quite sure.” How, then, it may be asked, can an honest man be free from all reasonable doubt of the truth of a false proposition which has been discussed before him with all the care which practised skill can supply? The answer is, because every man brings to the investigation of every possible question a vast number of data which rest on mere authority, and several of which are false, but which he accepts, and must of necessity accept, as conclusively true in the transaction of all the common affairs of life, however momentous may be the conclusions which rest upon them; and because the only alternative is to shrink from framing any important decisions at all.

To use a logical illustration we always think, and for the purposes of action argue, not in syllogisms but in enthymemes, and the major premisses of almost all the arguments which influence our conduct are not only unexpressed, but are, for the most part, held quite unconsciously. Thus, in our own times it would probably be impossible, even if the

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law had not been altered, to obtain a conviction on a charge of witchcraft, because there is, in almost every man's mind, a tacit conviction-which he has derived, not from any train of argument, but merely from the influences to which he is subjected by the fact of living in the present day, and in this country—that witchcraft does not exist; and no detailed evidence, offered in support of any particular charge of the kind, could convince him of the contrary. Two centuries ago the unexpressed, and perhaps unconscious, belief of ordinary men lay in the other direction, and the consequence was, that perfectly upright judges, and perfectly honest jurors, were frequently parties to convictions for a crime which we now look upon as altogether imaginary and impossible. It is, however, clear that they could not have acted otherwise than they did, and that it would have been a very unreasonable proceeding on their parts to enter upon what was then regarded as the merely fanciful speculation which denied that witchcraft ever took place.

In the same way if, in the early part of the sixteenth century, it had been in some way material to the proof of the guilt of an accused person to show that the sun moved round the earth, the jury ought to have convicted the prisoner, inasmuch as the incipient rumours, and unsystematic conjectures to the contrary which were then current, were not of sufficient weight to raise a reasonable doubt in the minds of ordinary men. Such men would have said, and with great

the doctrine that the sun moves round the world is the recognized established opinion of the men who, by the common consent of their contemporaries, are entitled to credit on these matters. That being so, we must act upon that view. We should adopt it if necessary in weighty affairs of our own ; and, therefore, without pretending to enter deeply into the controversy on which it is founded, we must act upon it in this case, although there is some evidence the other way; and we are specially confirmed in this, by the reflection, that those who maintained the established view were able, upon cross-examination, to give ready, and apparently consistent answers to the questions put to them upon the subject, whilst


reason :


the witness by whom that view was contested, was only in possession of disjointed and fragmentary conjectures."

It would be easy to accumulate illustrations upon this point, but those which have just been given appear to establish, with sufficient plainness, the conclusion, that the reasonable certainty at which a jury are bound to arrive on the guilt of an accused person, differs essentially from the scientific certainty which is possessed by that small number of persons who may devote themselves exclusively to the study of scientific questions, with the object, not of arriving at a conclusion for a specific practical purpose, but with that of investigating the truth of the matter itself. The stock of knowledge existing in the world is increased by examining and questioning established opinions. The common business of life is transacted, by applying them as they are, to such circumstances as arise; and the province of juries is not speculative, but active.

Applying this principle to the particular case of trials for murder, like Palmer's or Dr. Smethurst's, it is connected by the following series of propositions, with the conclusion, that juries are the best judges of complicated questions of fact, even if those questions involve delicate scientific considerations.

1. Confidence in the general trustworthiness of the results obtained by the application of established scientific processes, is one of the tacit convictions of society as it exists at present. 2. Men of ordinary intelligence are able, with the assistance provided for jurors by our system of criminal procedure, to form an opinion upon the question whether a given result has been reached by the application of established scientific pro

3. Such men are more likely to arrive at a true and unprejudiced conclusion upon that subject, than a jury of experts.

The first proposition is one which it is hardly necessary either to amplify or to illustrate; and, indeed, it would be difficult to do so without running into common-place compliments to a set of studies, which, it is the special temptation of the present day not only to appreciate, but almost to idolize. A few observations, however, may be risked upon


the subject.

Confidence in the power of predicting the results of particular combinations of circumstances by the use of certain formulas (usually called by a most unfortunate metaphor, laws of nature), is perhaps the strongest conviction which education produces, and is received by those who have no education with a more implicit faith than almost any other doctrine, human or divine ; nor can it be denied that the truth of this opinion is confirmed by evidence so wide, so constant, and applicable to so rast a variety of subjects, that to doubt it would be to fly in the face of all experience. Science, indeed, is little more than the aggregate of a great number of rules for producing, or predicting, or classifying results of various kinds. Of these rules, some are thoroughly well ascertained, and are acted on constantly with unfailing results. Others are mere conjectures, which may or may not be true, but which have not as yet taken the position of ascertained and recognized truth; whilst others are in a sort of intermediate state, hotly disputed by one party, and as hotly maintained by another. The formulas which enable people to predict the motion of heavy bodies, belong to the first class ; the speculations, still in their infancy, about tides and storms furnish specimens of the second; whilst the rival theories as to the vibration or emission of light, belong to the third or intermediate class.

Now, if it were once proved to the satisfaction of an ordinary man, that the truth of a particular result depended upon the truth of one of the recognized authenticated scientific principles which belong to the first class of scientific rules, he ought to have no reasonable doubt about it. Thus, if he were satisfied that a likeness of any object placed in front of a camera, containing a plate which has undergone certain processes, will be impressed upon that plate ; and if it were proved that this had taken place in regard of a certain plate produced before him, he would be as sure as the best chemist in the world, that the figure impressed on the plate was a likeness of the object, and this conviction would be perfectly consistent with the most absolute ignorance of chemistry.

This introduces the second of the three propositions laid down above, which is, that men of ordinary intelligence are

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