SECOND REPORT OF HER MAJESTY'S COMMISSIONERS FOR INQUIRING INTO THE PROCESS, PRACTICE, AND SYSTEM OF PLEADING IN THE SUPERIOR COURTS OF COMMON LAW, &c. To the Queen's Most Excellent Majesty, in her High WE, your Majesty's Commissioners appointed to inquire into the Process, Practice, and System of Pleading of the Superior Courts of Law at Westminster, the manner of conducting suits and other proceedings in such courts, and on the circuits, and the costs, charges, and expenses, incidental thereto, the practice at the judges' chambers, and the duties of the several officers, clerks, and other persons of and connected with such courts, circuits, and judges' chambers, humbly certify to your Majesty that we have proceeded further to consider with the utmost attention the matters thus committed to our investigation, and submit to your Majesty this our further report. In our former report we went through the various stages of a suit at law, pointing out such improvements as appeared to us to be necessary; but we excepted therefrom, and reserved for subsequent consideration, the proceedings on the trial of questions of fact, as well as the important subject of evidence receivable on such trial. We propose to commence this our second report by a review of this portion of the procedure at Common Law. TRIAL OF ISSUES OF FACT, Issues of fact, evolved in the manner we have shown, by the pleadings of the parties, are tried, according to the old-established usage of the common law, by a jury of twelve men, presided over in cases of great importance by the court, and in ordinary cases by a single judge; it being the business of the court or judge to direct the proceedings at the trial, to decide on the admissibility of the evidence adduced, and to B direct the jury on the legal effect of the evidence, as well as on all matters of law involved in the questions of fact submitted to them-the duty of the jury being to receive the law from the judge; while, subject to such direction on matters of law, the decision of the issues of fact is their exclusive province. Trial by Jury. Trial by jury, long the peculiar feature of the law of England, has in recent times been much canvassed, and its excellence as a judicial institution questioned. It has been urged that twelve men, taken at hazard from the body of society, unused to judicial duties or forensic discussions, cannot possess the same aptitude for judicial investigation as a judge, in whom a professional education, the habit of considering the effect of evidence, a long course of training and experience, have developed all the faculties which are required for the judicial office. To this it is added, that the sense of responsibility is weakened by being divided among a number of persons, and that such is peculiarly the case with a jury, who, filling the judicial office only for the moment, merge again, as soon as the trial is over, into the body of society, and are lost sight of, and thus escape the condemnation, in case of an unjust judgment, to which the permanent judge is necessarily exposed. Further, it is urged that the want of permanency in the tribunals precludes the adjournments which sometimes, in the course of trials, become necessary to enable complete justice to be done. It is added, that in recent times trial by jury has been much dispensed with. The jurisdiction of courts of equity to try questions of fact without a jury, in certain cases where juries have been hitherto required, has been recently extended. Justices of the peace and commissioners of various kinds exercise jurisdiction in criminal and other matters without the assistance of a jury. And the experience of the County Courts, in which the suitors may, if they think proper, demand a jury, but in point of practice do not, is referred to, to show that cases may be left with perfect satisfaction to the suitor, to the decision of a judge, without the intervention of a jury. On the other side, it is urged that there is a fallacy in the argument which places trial by jury in abrupt antagonism, as it were, to the trial by a judge, inasmuch as it treats the jury as left entirely to their own unaided resources; whereas in fact, according to the practice of our law, the judge sums up the case to the jury, lays the evidence again before them, and makes such observations as his intelligence and experience suggest, to guide them to their decision. The trial is, in fact, a trial by a jury assisted by a judge. And if it be asked why, when the superior aptitude of the judge is acknowledged, the jury should be admitted to discharge functions which might better be left in his hands, it is answered, that if in many respects the superior knowledge and intelligence of the judge is admitted, the jury also bring with them a varied stock of information which the judge cannot be expected to possess, and which is of the most essential advantage in the administration of justice. The merchant, the man of business, the agriculturist, the man of the world, the man of science, bring each his peculiar knowledge and experience to assist in determining the varied questions which arise in judicial investigations. Moreover, being called upon to act on a temporary occasion only, the juryman enters on his duties with a freshness and an interest which the permanent judge, more accustomed to the daily routine of judicial duty, can hardly be expected to feel. No one familiar with our courts can have failed to be struck with the attention paid by juries to the cases they have to try, and their anxiety to arrive at a right conclusion. Again, the tendency, natural to the professional judge, to look only to the strict letter of the law, is corrected and tempered by the opposite tendency of the jury to take a more enlarged and liberal view, according to the morality and equity of the case. Each acts as a check upon the other, and the result is the administration of the law in a liberal and enlightened spirit. The knowledge of this tends to keep harsh and discreditable cases out of court. The presence of the jury operates also beneficially on the judge in another respect: the duty of summing up the case to them compels him to keep his attention unceasingly alive throughout the trial, and the necessity of making a complete exposition of his views is a security to the suitors and the public for impartiality and honesty on his part. Not the least, however, of the advantages of this institution is, that it familiarises the people with the law, and popularises the administration of it. The beaten suitor, who would be disposed to question the integrity of the single judge who had just decided against him, will not readily bring himself to believe that twelve of his fellow-citizens have unanimously pronounced a dishonest verdict, even though it had been adverse to his expectations. The result is a general reliance and confidence on the part of the public in the administration of justice. Cases, no doubt, occur where juries go wrong; but who will say that, on questions of fact, judges are not also liable to err? There is, besides, a corrective to the occasional mistakes of juries in the authority exercised by the courts, where the verdict is plainly against the weight of the evidence, and the judge is dissatisfied with the result, to send the case to another jury for further trial. With respect to Courts of Equity, their peculiar constitution, for reasons supposed to be generally inapplicable to the matters litigated in Courts of Common Law, referred questions of fact as well as of law to the judge; and recent legislation has done no more than produce uniformity; whilst as to the matters within the jurisdiction of justices of the peace and other functionaries of a similar character, necessity or extreme convenience requires more speedy and summary proceedings than are consistent with the intervention of a jury. As regards the argument derived from the experience of the County Courts, it is to be observed that in these courts, as a general rule, no cause, whether defended or undefended, is determined, except upon a hearing; whilst, as we have shown in our former report, ninety-seven per cent. of the actions commenced in the Superior Courts do not proceed to trial; from which, as also from the more extended jurisdiction of the Superior Courts, it results that the cases which are brought to trial in these courts are of a more important and difficult character than those which occur in the County Courts; and further, the practice of the County Courts, which makes trial by the judge the rule, and trial by jury the exception, and consequently imposes the necessity of taking an active step to obtain a trial by jury, together with the apprehension of giving offence to the judge by so doing, have, no doubt, a considerable effect in preventing litigants from insisting upon trial by jury in those courts. We are not insensible to the force of this reasoning; at the same time we think it cannot but be admitted that there is a large class of cases in which the intervention of a jury is unnecessary; and others, in which it is mischievous, from the inability of such a tribunal to |