deal with them. Under these heads may be classed: 1st. Cases where the question turns on the legal effect of evidence or of undisputed facts, and in which the verdict of the jury must depend on the direction of the judge; 2nd. Cases which, when brought before the jury, it is found necessary to withdraw from them and submit to arbitration, including all questions of detailed account, in which figures and Vouchers must be referred to.

While, however, we feel that there are cases in which a jury may advantageously be dispensed with, yet, being of opinion that trial by jury on the whole works well and enjoys the confidence of the public, we do not think ourselves warranted, except in cases of mere account, to recommend that trial by jury should be superseded, unless the parties themselves prefer that the case should be tried by a judge.

We propose, therefore, to continue trial by jury as the rule, but to make it competent to the parties, if both consent, to dispense with the jury, and to leave the decision of the issues of fact to the judge.

With regard to cases of mere account, we propose to make it lawful for the court or a judge, on the application of either party, at any time prior to the trial, or if the issue of fact be left to the judge, then to the judge at the time of the trial also, should it appear fitting to him, to direct that the matters in issue shall be referred to an officer of the court, or, in country causes, to the judge of any County Court, or, if the parties prefer it, to an arbitrator appointed by themselves, upon whose report judgment may be entered up as upon a verdict.

The necessity for this latter improvement was pointed out in the second report of the former Common Law Commissioners, pp. 25 to 27, and pp. 77 to 81.

Whatever plan may be adopted for carrying this recommendation as to references into effect ought to include provisions for securing, as far as practicable, a continuous process to the end of the arbitration, and an abolition of those frequent adjournments which are at present the bane of that mode of proceeding.

Constitution of Juries.

While, however, we are prepared to maintain trial by jury in all cases where facts of a more complicated nature are to be dealt with, we are not at all blind to the fact that in many instances juries are not so constituted as to ensure such an average amount of intelligence as might be desired. A jury of London or Liverpool merchants may be, as we believe them to be, an excellent tribunal to try a commercial cause, or a jury of country gentlemen to try a question relating to a watercourse on the boundaries of an estate; but it must be admitted that in the agricultural districts the common juries are sometimes composed of a class of persons whose intelligence by no means qualifies them for the due discharge of judicial functions. Such persons, unaccustomed to severe intellectual exercise or to protracted thought, and used to an active life and out-door employment, when shut up for hours in a jury box, bewildered by law terms, by conflicting evidence, and the disputations of contending advocates, who appeal to their prejudices, sometimes pronounce verdicts which bring the institution of juries into disrepute.

We are of opinion that the standard of qualification of jurymen in the country, which at present is as low as a rating on a value of 207., should be raised; and further, that on every trial there should be an

admixture of jurymen of the class from which the special juries are now taken. This is, indeed, now the law, though in practice the names of persons qualified to be special jurors are not placed on the common jury panel. There is every reason why jurors of the higher class should assist in the administration of justice to the same extent as those who constitute the common juries. We think the higher class of juries should bring the assistance of their more cultivated minds and superior intelligence to the decision of cases, which, though they may not admit of the general expense attendant, under the present system, on having a special jury, may not be the less important to the parties whose interests are involved. At the same time it should be understood that we do not propose to abolish the right which now exists of having a special jury as at present appointed. What we recommend is, that the general jury panel should be made up indiscriminately from all persons qualified to serve on either jury.

Unanimity of Jury.

A further question relating to trial by jury arises on the subject of the unanimity now required by the law.

As the law stands, no verdict can be received which is not concurred in by every member of the jury; and to secure unanimity a species of coercion is resorted to, by confining the jury without "meat, drink, or fire, candlelight only excepted,' till they have agreed on their verdict.

The propriety of requiring that all the jury shall agree, and the expediency of allowing the decision of the majority to suffice, has been much canvassed. It has been urged that, considering the difficulty of obtaining unanimity of opinion amongst mankind, it is unreasonable to expect unanimity in a jury of twelve persons; and that, as in all legislative and deliberative assemblies, even on matters of the highest moment, the decision of the majority is held to be binding, we ought to be satisfied with the opinion of a given majority of the jury, to be fixed by the law.

The Common Law Commissioners of 1831 reported on this subject as follows:

"It is essential to the validity of a verdict that the jury should be unanimous; and, regularly, they are not allowed to be discharged (unless by consent of the parties) until such unanimous verdict has been returned. It is difficult to defend the justice or wisdom of the latter principle. It seems absurd that the rights of a party, in questions of a doubtful and complicated nature, should depend upon his being able to satisfy twelve persons that one particular state of facts is the true one. As it is notorious that, upon such questions, a body of men so numerous are often found to differ irreconcileably in their views, it is obvious that the necessity of returning in every case a verdict, and an unanimous one, before they separate, must frequently lead to improper compromise among the jurors of their respective opinions.

"There is reason also to apprehend that, where any of them happen to be actuated by partial motives, it must tend to produce a corrupt verdict. Indeed no one can have been much conversant with courts of justice without having frequently heard the remarks (where the verdict has been very long in suspense), that one or other of the contending parties has a friend upon the jury.

"On the other hand, however, the necessity for the unanimity of the

jury carries with it one most valuable advantage; in the event of any difference of opinion it secures a discussion. It is not possible to poll the jury at once, and so, without further trouble or consideration, to come to the conclusion. Any one dissentient person can compel the other eleven fully and calmly to reconsider their opinions.

"But there seems to be no good reason why, after a certain period of time sufficiently long for the purpose of reasonable and ample discussion, the jury (if still in disagreement) should not be excused from the necessity of giving a verdict, or why the present principle of keeping them together until unanimity be produced through a sort of duress of imprisonment should be obtained. And the interests of justice seem manifestly to require a change of law upon this subject.

"We propose, therefore, that the jury shall not be kept in deliberation longer than twelve hours, unless at the end of that period they unanimously concur to apply for further time, which in that case shall be granted; and that, at the expiration of the twelve hours, or of such prolonged time for deliberation, if any nine of them concur in giving a verdict, such verdict shall be entered on record, and shall entitle the party, in whose favour it is given, to judgment; and in failure of such 'concurrence the cause shall be made a remanet.

The subject appears to us to resolve itself into two distinct questions:

1st. Whether unanimity should be required.

2nd. Whether an attempt should be made, as at present, to coerce it. As regards the necessity of unanimity, we do not, we must say, feel the force of the argument derived from the universally received principle that in deliberative bodies the decision of the majority must prevail. The analogy does not appear to us to hold, inasmuch as the questions submitted to councils, legislative bodies, and the like, involve matters of opinion rather than of fact. Where a question of fact is raised as the foundation of a judicial judgment, which is to interfere with individual rights, there appears nothing unreasonable in requiring that the party alleging the fact should establish it to the satisfaction of a limited number of judges. A verdict pronounced by a majority only would fail to give satisfaction to the public; while the consciousness that a portion of the judges were in his favour would only increase the dissatisfaction of the defeated party, and lead to fresh struggles and renewed litigation on his part. Every divided verdict would be urged on the courts as a ground for a new trial, and might not, unreasonably, be entertained as such. But perhaps the strongest argument in favour of the present system is that, by requiring unanimity in the verdict, full and complete discussion is insured. Under the present system the minority, instead of yielding too readily to the view of the majority,, and purchasing ease and release from further trouble (as would probably be in many instances the case if, by simply dissenting, all responsibility in respect of the verdict could be got rid of), are naturally led to resist conclusions from which they differ, and for which their sense of duty makes them unwilling to be answerable. Hence arises full discussion and deliberation; and if the one section of the jury yields to the other, it is (except under the circumstances to be presently referred to) only because the prolonged discussion has led to altered convictions.

We are therefore of opinion that the present rule, requiring the jury to be unanimous, should be maintained. But the very reasons which lead us to think unanimity desirable lead us also to think that that unanimity should be, not merely apparent, but real, and render us

altogether averse to any attempt to coerce it. The existing practice, which, upon a division of opinion in the jury, requires them to be shut up, often in an inconvenient room, without accommodation, without refreshment, for several hours, sometimes for a whole night, is discreditable to the administration of the law. No doubt unanimity is often thus brought about; but it is the unanimity, not of conviction, but of exhausted powers,-not of intelligence, but of incapacity of physical endurance. The juryman is tempted to escape from prolonged hunger and suffering by compromising his conscience and his oath, and the judge is compelled to receive such a verdict as unanimous.

We unhesitatingly recommend that this practice be done away with; that juries during their deliberations shall be furnished with every fitting accommodation, and with necessary refreshment; and we would suggest that cases in which complicated questions arise, should not be summed up late in the day (as sometimes happens), whereby the deliberations of jurors are often prolonged late into the night,-sometimes through the entire night, at a time when the powers are worn out, and the dangers of a submission against conscience and conviction becomes the greater.

Further, we recommend that the period during which the jury may be kept in deliberation should be fixed. We think it ought not to exceed twelve hours; and that, at the expiration of that time, unless the jury themselves desire further time for deliberation, they should be discharged; in which case it should be open to either of the litigant parties to summon a fresh jury, and to try the cause again.

Proceedings at the Trial.

We pass on to the proceedings at the trial. By a natural and convenient rule, the party upon whom the burden of making out the affirmative lies,-that is, the party against whom, if no evidence were adduced on either side, the verdict would pass,-or his counsel, states the case to the jury, and then adduces evidence in support of it. Next, the opposite party, or his counsel, addresses the jury, and if he has evidence to bring forward, produces it; after which the counsel for the party who commenced has the right of replying generally on the whole case. It is obvious that this course of proceeding affords a great advantage to the party who begins. He has the first word and the last; the opportunity of producing the first impression, and of renewing it in the last stage of the cause.

He has also this further, and perhaps still greater, advantage: the counsel for the party who comes second has only the right of being once heard, and that before his proofs have been produced. Now, it often happens that the evidence does not turn out as was anticipated; new facts are elicited on cross-examination, or witnesses whose testimony was supposed to be unexceptionable are damaged by cross-examination; yet the case may not be the less a good one; the witnesses may not be in the main less entitled to credit, if an opportunity were offered of explaining the bearings of the case, as really or apparently altered; but the counsel's mouth is closed, while his opponent, unchecked by the fear of a reply, takes advantage of every discrepancy between the statement and the proof, of every ground for assailing the character and veracity of the witnesses, and frequently produces an impression inconsistent with the true justice of the case, and which the observations of the judge, who is constrained to adopt a more measured tone, do not

always succeed in removing. So great is the advantage of the reply felt to be in practice, that, generally, one great object of a counsel for a defendant is, if possible, to avoid calling witnesses, even though conscious that otherwise his witnesses would improve his case. The exercise of a sound discretion on this point is one of the most difficult parts of the duty of an advocate; and many verdicts are doubtless lost, on the one hand, by exposing the case to the danger of a reply, and on the other by the fear of it operating to the keeping back of evidence which might have been decisive with the jury.

It is obvious that if the second party does not produce evidence, the same state of things applies to him who begins. The position of the parties is reversed.

The inconvenience and injustice of this system has long been felt and complained of (as appears from the observations of the former commissioners in their third report, pp. 68, 69, and their suggestions, p. 88); but the practice has become the more grievous, since, by the recent alteration of the law, the parties to a suit have been made admissible, and consequently in practice necessary, witnesses. The motives for attacking and reflecting upon the adverse party in the cause are so obvious that we cannot wonder that such a result should very frequently occur; and the injustice of leaving a plaintiff or defendant exposed, first, to a severe cross-examination, and then to hostile observations, without giving his counsel an opportunity of vindicating his conduct or character, has been very sensibly felt.

We think an alteration should be introduced into the practice: that the counsel for the second party should have the opportunity of addressing the jury twice; first, on opening his case, and again at the close of his evidence; and that the counsel who begins, in the event of his opponent not announcing his intention to adduce evidence, should, in like manner, have the opportunity of addressing the jury a second time at the close of his case.

It will, perhaps, be objected that this alteration would have the effect of increasing the length of the trial. We hope it would not do so materially. Conscious of having the right of a second speech, counsel would rarely do more than briefly open their case, and observations now made by way of anticipation would be spared. But even if a little extra time should be consumed, we think that such a consideration ought not to stand in the way of a change necessary to justice.

Power of Adjournment.

We have already adverted (as one of the drawbacks attendant on trial by jury) to the necessity, under the present practice, of proceeding with the trial, although circumstances may occur in the course of it which render an adjournment desirable. It occasionally happens that a party is taken by surprise by his adversary's case; that a witness or a document becomes unexpectedly necessary, and not forthcoming; that a document turns out to be attested, and the attesting witness is not present; or requires a stamp, but no stamp, or an insufficient one, has been affixed. In these and the like cases, miscarriage of justice must occur, unless time is afforded to enable the deficient matter to be supplied. If the tribunal be a permanent one, an adjournment may readily be made; but with a shifting tribunal, the members of which are drawn together from different and sometimes distant places, it is obviously difficult, if they are once allowed to disperse, to ensure their