The Sun.
London, England, 1859-03-30 00:00:00

IMPERIAL :PARLIAMENT.

HOUSE OF LORDS—(YESTERDAY).
The LORD CHANCELLOR took his seat on the woolsack
at five o'clock.
Lord CAM PBELL presented a petition from Haverford •
west, complaining of the exclusion of Dissenters from ad-
ministering trust funds of grammar schools:
The Duke of SOMERSET presented similar petitions.
SECOND READINGS.
On the motion of Lord REDESDALE the following bills
were read a second time :—Falmouth Docks and Harbour,
Much Wenlock and Severn Junction Railway, Norwich
(City) Water Works.

THIRD READINGS.
The following bills were read a third time and passed :
National Fire and Life Assurance ; Price's Patent Candle
Company; and Trinity House cf Leith.

THE ITALIAN QUESTION.
The Earl of 31ALMESBURY—My lords, I beg to offer
a short explanation on the subject of a report which appears
in some of the papers, of what I stated last night with re-
spect to the Congress. It is very seldom that any of your
lordships have cause to correct the reports which are made
of your lordships' speeches, for they are almost always ren-
dered with an accuracy that is most extraordinary. But,
my lords, it is reported that I. stated last night that on the
18th of this month, the Russian ambassador called on me
and gave me notice that his Government would propose a
congress of the Five Powers. Now what I said was, that
on the 18th inst. the French ambassador called on me and
informed me that the Russian Government intended to pro-
pose a congress ; and that upon this statement, made to me
by the French ambassador, we anticipated the intention of
Russia, and sent a proposal to St. Petersburg, on the basis
of which the proposal of Russia to us was formed. I think
it is right to make this statement, because it relates entirely
to a matter of fact. (Hear, hear.)
[This explanation has no reference to the report in
Ile Sun, which gave the noble lord's words correctly.]
JURIES IN CIVIL CASES BILL.
Lord CAMPBELL movd the second reading of this bill,
in a speech of great length, but as scarcely a single sentence
reached the gallery perfect, it is only possible to give a very
meagre outline. The noble lord commenced by alluding to
the smallness of the attendance, and admitted that there
was a very great attraction elsewhere (referring to the speech
which Mr. Gladstone was delivering in the other house)—
but he contended that the bill was one of great importance.
He did not propose to interfere with the unanimity of juries
in criminal cases, with regard to which the present prac-
tice undoubtedly worked well. At the worst it only led to
.the acquittal now anti than of a guilty person ; and it would
be far better that 10 guilty men should escape than that one
innocent one should be condemned. But with regard to
civil trials, the case was very different. In criminal in-
dictments there was seldom more than one issue sub-
mitted to the jury ; in civil suits there were often several ;
and their lordships must bear in mind that a wrong decision
involved not a mere failure of justice, but a positive wrong
to the party in whose favour it ought to have been. Now
the principle of unanimity was of comparatively recent in-
troduction. The common law went back to the reign of
Richard the First, and trial by jury went to the time of the
Anglo-Saxons; but in the reign of Henry the Third there
was a case in which a verdict found by 11 of the jury only
was received. There was a still more remarkable case in
which there were only 11 jurors, 10 of whom found a ver-
dict which was held to be good. In the reign of Edward
the First there were two modes of dealing with a refractory
jury. One was " compel/ere concordiam," by keeping the
jurors "sine cibo et potu" till they agreed. The other was
to add other persons to the jury so as to raise the number on
one side to 12 ; for at that time it was held with regard to
petit juries, as it was held with regard to grand juries, viz.,
that it was only necessary for 12 persons to concur in a ver-
dict. In later times the number of the jury was restricted
to 12; an arrangement for which the old writers gave some
rather singular reasons: They said that jurors were 12 be-
cause there had been 12 tribes of Israel, and 12 apostles;
because there had been 12 stones in the high priest's breast-
plate ; and because there were 12 judges ; to which Lord
Coke added, "Because there were 12 Caesars." (Laughter )
If the concurrence of a majority was only required of their
lordships even in their judicial capacity, he did not see why
unanimity should not be expected of jurors. The evils that
arose from the present system were very serious. A single
wrong-headed or corrupt man in a jury was often able to
defeat justice. (Hear.) The manner in which juries were
still treated was very remarkable in an age which had abo-
lished press-gangs and so many other abuses. They sum-
monedjurymen from their avocations and kept them for days
in the court, to their serious pecuniary loss. Then if they
did not agree they were locked up without meat or drink, or
fire ; and they were forced to endure all this until at least
one of them was in peril of his life. The old law with
respect to military flogging was that the culprit must be
flogged until he fainted before the surgeon could interfere ;
and in like manner jurors must be starved until some one of
their number was in dangerof his life, before the judge could
relieve them. At assizes the strict law, according to Black-
stone, was, that a jury who could not agree must be put
put into a cart and carried about the circuit with the judge
until they found a verdict. (A laugh.) Another authority
said they ought not to be carried out of their own county,
but that they were to be shot into a ditch on the confines of
the county. New, if unanimity were required, they must
have compulsion ; they could not obtain unanimity without,
and if this bill were not passed, he hoped that the old laws
to compel unanimity would remain untouched. Recently a
case came before Lord Justice Turner and Lord Justice
Knight Bruce—it was not a question of law but a question
of fact. They heard all the evidence, and when they had
done so they were—not locked up without food and without
fire, but they each went home, had an excellent dinner, and
slept in a soft bed, and ten days afterwards, whea.thay had.
talked the matter over, they gave their verdict. If they had
differed and had been subject to the jury law, they would
have been looked up all night, taken round the circuit and
shot into a ditch. He believed that by the present system
the consciences of men were forced. It was a struggle whe-
ther nature or conscience should give way. They did not
know what passed in a jury room after the jury had retired,
as they did not permit inquiry into that subject; but they
had heard of juries tossing up as to which way the verdict
should be,-and judges had been obliged again and again to
set aside verdicts which were evidently compromises be-
tween the different members of a jury. A cause came before
him lately in which the case for the plaintiff was that the
railway company had been guilty ofneg,ligence, and if neg-
ligence were proved he was entitled to some hundreds of
pounds as damages; but the jury/ found a verdict for the plain-
tiff, damages one farthing. He said to them that that was
a strange verdict, and that they must reconsider it. They
said they could not agree. He directed them to be locked
up, but at length he was obliged to discharge them. He
believed that where it was a question of damages cases had
been known in which each juror had put down the amount
he thought right, and then they had averaged the amounts
so put down.
A. NOBLE Lonn—That is the practice in Dublin.
(Laughter.)
Lord CAMPBELL proceeded—One great evil of the pre-
sent system was, that where juries could not agree, and
they were discharged, without coming to a verdict, all that
had taken place went for nothing. A trial might last for a
week, and after all the expense had been incurred the jury
may be discharged without having come to a verdict. On
one occasion there was a trial before him which was the
third trial of the same cause, and he was obliged to dis-
charge the jury without obtaining a verdict. He was afraid
he should have little assistance from his learned friends,
but he would quote some authorities which might perhaps
have some weight with their lordships. The first was Mr.
Hallam, the historian, who, discussing the system of trial
by jury, spoke of " the imposture of requiring unanimity."
The next authority he would name was Mr. Forsyth, who
asked " why should the perverseness or dishonesty of a
single juryman invalidate the verdict of the other eleven ?
It remains to be seen whether the Legislature will much
longer tolerate such an anomaly." He now came to a very
important authority, that of the Common Law Commis-
sioners, who were appointed by the Crown in 1831. They
said, " The jury are not allowed to be discharged unless by
consent of the parties until theirunanimous verdict has been
returned. It is difficult to defend the justice of this practice.
It seems absurd that in cases of a doubtful and complicated
nature the plaintiff's success should depend on his being
able to persuade 12 persons that one particular state of facts
is the true one." They went on to say, " The necessity of
delivering an unanimous verdict before they separate fre-
quently leads to an improper compromise between the
jurors. There is reason also to apprehendthat when any of
them has been actuated by improper motives it has led to
corrupt verdicts." And they recommended that after a jury
had been 12 hours in deliberation the verdict of nine might
be accepted. In 1831 there was another commission, consist-
ing of judges and eminent counsel. They condemned unani-
mously the existing law, but they did not recommend the
measure which he now recommended to their lordships.
They proposed that the jury should have every comfort, and
at the end of a given time if they had not agreed to a ver-
dict they should be discharged. He brought in a bill by
which it was provided that the recommendations of the com-
mission of 1831 should be carried into effect. That bill passed
that house, but it was thrown out in the Commons, and yet
strange to say the Commons passed a measure ipsisstma
verbs for Scotland. Previous to that time unanimity was
required in civil cases in Scotland, but that bill, which was
introduced by Mr. Dunlop, had worked well in that coun-
try, and he had no doubt would work well in this country.
(His lordship here read a letter from a Scotch judge, whose
name the reporter did not hear, in which he spoke of the
great satisfaction which Mr. Dunlop's measure had given
in Scotland) That bill provided that juries should be dis-
charged at the end of six hours, but there was a bill now in
the House of Commons which reduced the six hours to
three. The Faculty of Advocates were convened to consider
the matter, and they were unanimously in favour of the
proposed change. They expressed the opinion that Mr.
Dunlop's bill had worked advantageously, but they thought
that the period of time might be advantageously reduced..
He was told that all his learned brethren on the bench were
against this alteration. He should be deeply grieved if
that were so. Some of them certainly were of that opinion.
There was his brother Erie, than whom a more distin-
guished judge never sat in iVestminster Hall, who ex-
pressed to him that opinion in conversation;" but it so hap-
pened that the following day, at nisi prius, Mr. Justice
Erle had to discharge two juries who had not given their
verdict, and that circumstance had somewhat changed his
views. (The noble lord then read a letter he had received
from a puisne judge, as the reporter understood, which was
to the effect that he had discharged a jury after they had been
locked up many hours, that the cause was tried at a former
assize by his learned colleague, and he had been under the
necessity of discharging his jury. In another, a special
jury case, the jury had also to be discharged.) His lordship
concluded by saying that by this bill no refreshment would
be allowed to the jury while they were deliberating, but if
at the end of six hours they had not agreed the verdict of
nine would be taken, and if nine were not agreed they
would then be discharged.
Lord LYNDHURST said the object of the bill was to
change one of the most important fundamental laws of the
kingdom—trial by jury. That law had existed in its pre-
sent form for nearly 500 years, and with ono or two excep-
tions, and during the whole of that period, had been admired
and applauded by the most eminent lawyers who had ad-
vised the legislature and the tribunals of the country, A
very clear, distinct, and satisfactory case, therefore, ought
to be made out to justify a change in that law; and it was
because no sufficiently satisfactory reason had been adduced
in favour of the proposed alteration that he felt it his duty
to oppose the second reading of the bill. (Hear, hear.) His
noble and learned friend had effected several changes in the
law, and had shown himself an advocate for an alteration of
the law of Parliament by advocating the ballot. Tho bill
had apparently been introduced in consequence of a trial

resulting out of a railway accident by which ten persons
had been injured.
Lord CAMPBELL remarked that he had given notice of
his intention to introduce the bill before that trial took place.
Lord LYNDHURST—The question for the jury on that
occasion was one of extreme difficulty. One of the jurymen
differed from the rest, and his noble and learned friend was
dissatisfied with that juryman's conduct, and said so in very
strong terms. He understood that five juries had tried the
same questio'n' and arrived at a final result. His noble and
learned friend had great influence with juries. He might
find some difficulty in cases where unanimity was the law;
but if the decision should be reduced to a majority, or to 9
against 3, juries would be almost directly under his influ-
ence and control. His noble and learned friend was fond of
introducing a little pleasantry, for the purpose of enlivening
the dulness which pervaded courts of justice. In the case
to which he (Lord Lyndhurst) was now referring the jury
were summoned into court in the moraine-, wretched, hag-
gard,
pale, exhausted; and then it was thatt his noble and
learned friend enlivened them with a little history of the law
with respect to the unanimity of juries, stating that accord-
ing to ancient tradition at assizes, if a jury differed the
judge ordered them to be taken round the circuit in a cart
and thrown into the next ditch. (Laughter.) That state-
ment, no doubt, afforded the spectators in the court some
amusement ; but it was not a laughing matter to the broken
down jury. (Hear, hear.) Now there was no instance to
be founqin the history of this country in which a jury had
been calmed round in a cart, much less shot into a ditch.
(Laughter.) In the year 1368 a case was brought before
the Court of Common Pleas from the assizes, in which a
verdict had been given by 11 jurymen, one juryman dis-
senting. The person who reported that case appended a
note, from which it appeared that in the course of the dis-
cussion the judges said that, as the jury had not agreed, the
judge should have taken them with him in a cart until they
had agreed. With regard to shooting'the jury into a ditch,
he defied his noble and learned friend to quote any autho-
rity to justify that statement. The only authority with
respect to the other part of his noble and learned friend's
statement was the note to which he had just called the
attention of their lordships. Blackstone referred to that
very note. Any person would suppose from what his noble
and learned friend had said to the jury, that the judges
meant to inflict some indignity upon the jury. The ex-
pression was in French, and had been mistranslated by
his noble and learned friend and his predecessors. It meant
"on horseback, or if not on horseback, or when a person
was sick and could not travel on horseback in a covered
waggon." (Laughter.) In such cases the judge was to
take the jurymen along with him in a covered waggon until
they came to an agreement.
Lord CAMPBELL—In Blackstone the translation is
Lord LYNDHURST—The word was C-A-R-R—
-(laughter)—which meant a waggon .going on four wheels
and covered with a cloth. His noble an learned friend had
referred to a number of old cases. In the reign of Edward
the Third three of these cases were cited by counsel. And
what was the answer of the court ? Why it was this—that
all the cases had been disproved, and the courts had de-
cided directly the.contrary from that time down to the pre-
sent without any exception. (Hear, hear.) He had made
some inquiries into the manner in which the law now ope-
rated, and had found that in 19 cases out of 20 the jury never
retired, but came to a conclusion at once. And when they
did retire, what followed ? Each juror lefethe box with some
impression on his mind, and stated his opinion, and after dis-
cussion a conclusion was arrived at. His noble and learned
friend considered such conclusion somewhat in the nature of
a compromise. But such a course of proceeding had not the
appearance, character, or the nature of a compromise. No
doubt in a certain class of cases something approaching a
compromise took place—such as cases of damage, where no
certain test existed. But that objection would apply equally
as strongly to a verdict by nine jurors as to a verdict by
twelve. No nine men could agree at once as to the precise
amount of damage, so that no advantage would arise from a
reduction in the number of jurymen necessary to give a ver-
dict. (Hear, hear.) Now, what was the consequence in the
case of a jury disagreeing and being discharged ? Nothing
more than a new trial. And what proportion would such
cases bear to the number brought up from every circuit ?
Why they did not amount to more than two or three in the
course of a year. For a considerable period, as Lord Chief
Baron, he sat in London and Westminster, and went circuit ;
and during the whole of his experience in that capacity not
one instance had occurred of the discharge of a jury. (Hear,
hear.) He had presided in Wales? where the people were
not very apt to abandon any opinions they might have
formed—(a laugh)—but even in Wales he had known no in-
stance of a jury holding out and being discharged.. He remem-
bered one remarkable instancewhichcame before the Court of
Comradn. Pleas, where one juryman held out against eleven.
That was a special jury case and one of great importance.
over which Mr. Justice Dallas presided. It was brought
before another jury, and the result was an unanimous ver-
dict in favour of the opinion entertained by the dissentient
juryman, and that verdict was never disturbed. If his noble
and learned friend's measure had been in operation at that
time, great injustice would have been done. He believed
that during the last ten years there had been no instance
either in the Queen's Bench, the Common Pleas, or the Ex-
chequer, of any jury having remained out the whole
night in consequence of disagreement ; nor had any such
case occurred during that period on any of the circuits,
with one exception, and that was in the principality of
Wales. (Hear, hear.) An hon. and learned gentleman,
Mr. Best, who had written a very excellent article on the
subject, stated that he had communicated with one of the
most eminent nisi prius lawyers for the purpose of ascer-
taining what proportion of juries had been discharged in
consequence of differences of opinion to the whole number
tried, and he said, " I believe that nineteen out of twenty
are decided before the parties in court; and of those that
leave the court I am persuaded that in not more than one
in five hundred cases are juries discharged in consequence
of non-agreement. With reference to criminal trials the
proportion is about the same." His noble and learned
friend had mentioned two or three instances of new trials ;
but if the law should be so altered as to allow a majority
of 9to 3to secure a verdict applications for new trials
would be multiplied to an enormous extent. (Hear, hear.)
If the decision depended upon numbers there would be
an end to discussion among the jury, for should nine be of
one opinion and three of another the matter would' be at
once decided. No verdict was satisfactory to the losing
party, but it would be infinitely more unsatisfactory if only
nine decided againstliim and three were in his favour. Such
a decision would promote litigation to an enormous extent.
(Hear, hear.) The English jury system was practised and
cherished in the United States, where the population was
now about equal to that of this country. His noble and
learned friend did not propose to extend this change to the
criminal law. And why ? What was the object of a jury ?
If a majority of 9 to 3 was sufficient for the civil, why not
for the criminal law ? Take the case of an indictment for
libel. To convict a man and impose a penalty, the verdict
must be unanimous. But if an action should be brought
in a civil court for the' very same libel, the verdict of 9 to
3 would be sufficient. (Hear, hear.) His noble and
learned friend had referred to the opinion expressed by the
Common Law Commissioners in 1831, who came to the
conclusion embodied in the present bill.—" The necessity
for the unanimity of the jury carries with it one most
valuable advantage. In the event of any difference of opi-
nion, it ensures a discussion. Any one dissenting person
can compel the other eleven fully and calmly to recon-
sider their opinion." The principle of discussion was
therefore the great principle acknowledged by the com-
missioner. Since 1831 the subject had been much agi-
tated among the profession, many pamphlets had been
written respecting it, and another commission, appointed
in 1855, had come to a directly opposite conclusion from
that of 1831. (Hear, hear.) The last commission was
presided over by Chief Justice Jervis, and amongst the
commissioners were the Attorney-General (Sir Alexander
Cockburn), Mr. Baron Martin, and two other learned
judges. The commissioners in that report expressed their
opinion that a verdict pronounced by a majority only
would not give satisfaction to the public, while the con-
sciousness that a portion of the jury were in his favour
would tend to increase the dissatisfaction felt by the de-
feated party. Every divided verdict would be urged on
the courts as a ground for a new trial, and would not un-
reasonably be entertained as such. But the strongest ar-
gument in favour of the present system, observed the com-
missioners, was that by requiring unanimity full and com-
plete discussion was ensured, the minority being naturally
led to resist a conclusion from which they differed, until
the prolonged discussion of the subject had led to altered
convictions, instead of yielding too readily to the views of
the majority, and so purchasing ease and relief from fur-
ther trouble, as would probably in many instances be
the case if, by the system now proposed, the whole re-
sponsibility of the verdict could be got rid of. After
a few concluding observations, the noble and learned lord,
who appeared much exhausted by the effort he had made to
speak so long, sat down amidst the cordial cheers of the
house.

Earl GRANVILLE supported the bill. He remarked
that in many civil cases a jury was dispensed with altoge-
ther; the innumerable small cases tried by the county
courts, and the most important cases decided in the Court of
Chancery and in their lordships' own house, were disposed of
ordinarily without the intervention of a jury. One advan-
tage of the jury system in civil cases, however, was that
it caused a great many persons who served as jurymen to
receive a kind of practical education, and obtain some know-
ledge of the law. But it could not be good that after having
sworn, so help them God, to give a verdict according to the
evidence, they should be forced to belie their own opinions
and agree to a compromise. It would be said they did,
nevertheless, in most instances, come to an unanimity, but he
could not believe it was a wholesome unanimity, seeing how
difficult it was even for men of trained intellects, and with
the best information, to agree in opinion. After having
formed opinions on the evidence they heard, and had their
opinions strengthened by the arguments of the counsel, they
could not become unanimous except on compulsion, which
was unsuited to the age in which wo live ; they were often
shut up during thewhole night, and their imprisonment was
aggravated by their being deprived of food and fire. This was,
as Mr. Hallam had justly said of it, a preposterous relic of
barbarism; the judges knew it, and tried to avoid such an
extremity. Not long ago there was a juror who said he'felt
faint, and wanted a little water; the judge said, " I am afraid
the law is against you : the law forbids you to be supplied
with meat or drink, but as I do not think water is meat, and
as lam quite sure it is not drink, you shall have it." (A
laugh.) Throughout all continental Europe, wherever juries
existed, they decided by the majority. In Scotland the
system of compulsory unanimity became so unpopular
that they were obliged to alter the law, and give the
verdict to the majority,. and it had since acted well. In
the colonies, especially in Van Diemen's Land and New
South Wales, the same system was going on with perfect
success. With the greatest deference for the sagacity and
experience of the noble and learned lord opposite (Lynd-
hurst), he could not think the effect of tho proposed change
would be such as had been described. It seemed to him
with regard to one point which had been raised, that dis!
cussion among the jurors would be sufficiently ensured by
that provisiou in the bill, which required that six hours
should elapse before any other than an unanimous verdict
could be given, for it was impossible to doubt that. if nine
were of one opinion, they would think it worth while to dis-
cuss the matter with their three fellows, in order to get an
unanimous verdict earlier, instead of idling their time away
in confinement for six hours. He believed this bill, so far
from being destructive of the ancient institution of the jury,
was likely to strengthen and preserve it.
The LORD CHANCELLOR observed that the noble and
learned Lord Chief Justice, who had introduced this bill, was
of course a very high authority ; but he thought that on this
particular subject his (the Lord Chancellor's) experience was
only second to that of the noble and learned lord, who
naturally regarded it from the height of the judicial bepch,
and desired any alteration which would render juries more
tractable, whereas he (the Lord Chancellor) regarded it from
his long experience as an advocate. His noble and learned
friend (Lord Lyndhurst) was correct in attributing the origin
of this bill to the trial alluded to, at which the Lord Chief
Justice presided ; for when the jury, miserable and dejected;
as they had been so graphically described, came up weary of
the night's confinement, the noble and learned lord, after the

-----
little pleasantry he was guilty of, exp--- lained to them the pre.
sent law as to unanimity, and added that it was his inten-
tion to bring in a bill in the next session to alter the law on
the subject, for he thought in civil cases the verdict might
be given either by a majority or by a certain number of the
jury, and he should submit some such measure to the
legislature. He (the Lord Chancellor) thought it would be
extremely desirable that a judge on the bench should not
make, such observations, for he was infinaned that in conse-
quence of the observations made by the noble and learned
lord on that occasion, jurors had become very refractory,
and they had since on two or three occasions sent down to
the judge to know wheth.er the verdict of a majority could
be received. The circumstances under which that action
originated were peculiar. A crop of actions had sprung up
out of an accident on the Great Northern Railway—ten
actions were brought against the company. In,the first no
trial took place, and the record was withdrawn; in the
second there was a verdict for the plaintiff, but a new trial
was moved for; in the third case there was also a verdict
for the plaintiff, but Mr. Justice Erie, who tried the case,
was dissatisfied with the trial, and a motion for a new trial
was made; a new trial was granted, and the next case was •
ordered to abide the event of that new trial. The fourth
case was tried in the Court of Exchequer, and lasted two
days and a half, but the jury could not come to any agree-
ment, end were discharged. The fifth case was also tried,
but the jury could not come to a verdict and were dis-
charged. The case which was tried by thenoble and learned
lord, the Lord Chief Justice, was the sixth of those action".
The question was confessedly a most difficult one ; it was
whether the company, which had clearly not been guilty of
any general negligence as to the construction of the railway
or of the carriages, could be charged with any particular
negligence in driving an express train, which, going at a
very considerable speed, at night, came upon a mass of
rubbish that had accumulated in consequence of a landslip
caused by a flood, near Newark. In that case the jury
were unable to decide whether there was negligence or not
on the part of the company. According to his experience
a public company generally appeared in court with a
considerable weight of prejudice against them. The jury,
however, could not make up their minds satisfactorily, but
they considered that it was a case in which there was so
much doubt that they were entitled to give a verdict which
would make each party pay his own costs. This verdict was
brought into court to the Lord Chief Justice, and he remonstrated with the jury upon that verdict. Perhaps he was
right so far; he might be entitled to point out to the
jury that it was a verdict which, if a motion for a new
trial should be made, could not stand. He sent the jury
back again, but just at the rising of the court the jury came
again into court; they then said that they adhered to their
verdict, and could come to no other verdict. Now he (the
Lord Chancellor) must say, with great deference to his noble
and learned friend, that he was bound to receive that ver•
diet. The counsel on each side could not insist on that
verdict being received, but his noble and learned friend was
bound to receive it ; and when he sent that jury back to their
room, and locked them up for the night, if there had not
been a decision of the courts by which the judges of the
superior courts were protected from responsibility in respect
of their proceedings in court, he was in very considerable
jeopardy of having twelve actions brought against him for
false imprisonment. , however, the jury remained there till
the morning, and were then discharged; and that was the
moving cause of the introduction of this bill. Now, the
noble and learned lord had said that the unanimity of
juries was not established by the -common law of the coun-
try. It certainly was not by the statute law, and it had
existed nearly 500 years, when it was established by a deci-
sion of the Court of Common Pleas overturning the bad
precedents which had' been going on for some time pre-
viously. Some deference ought to be shown to such an an-
tiquity as this, and strong reasons were required to justify
an alteration. He had conversed with some of the judges
on this subject, and found them uniformly of opinion that the
law ought to remain as it was. One judge told him that hav-
ing been eighteen years on the bench he had only known i wo
cases in which the jury was discharged ; and he himself (tee
Lord Chancellor), speaking from an experience of nearly
40 years, had no clear recollection of more than one case in
which the jury was discharged. That was a case tried be-
fore the noble and learned lord himself, and one to which his
bill would not apply. It was an action brought against the
General Steam Navigation Company for running down. A
verdict, was given against the company, and set aside for
misdirection. On the second trial there were five special and
seven common jurymen. The jury retired, and said they
could not agree. The noble and learned lord, anxious, as he
always was, to obtain a verdict, asked the counsel to consent
to take the verdict of the seven; but he (the Lord Chancel-
lor), knowing that the five special jurymen were more
likely to take a correct view of the case, declined to that
verdict, and the result showed that he was perfectly right,
for the case was tried a third time before Mr. Justice Erle,
and a verdict was then given for the company, which no
one who understood the matter could doubt was a fair and
just verdict. The noble and learned lord had shown a
glimpse of his motives when he complained that jurors were
now more independent than they used to be, and more diffi-
cult to deal with ; but if the system of unanimity were to
be altered, it was to be feared that the judges of strong will
would obtain more influence over juries than was desirable.
He (the Lord Chancellor) was not for continuing the bar-
barous restrictions which had been talked of. He thought
that the juryinen aught not to be deprived of proper refresh-
ment, or restricted in the absurd manner that was now pre-
scribed, because everybody must know that the oath was
never administered to the bailiff in open court without ex-
citing laughter. There were, no doubt, great difficulties
and diversities of opinion about this matter. Then they
had the opinion of the commissioners of 1853 opposed to that
of the commission of 1831. His noble and learned friend
did not propose to extend his bill to criminal cases. The
commissioners on criminal law differed with his noble and
learned friend, for they said that they thought that there
should be some alteration in the law which required unani-
mity in juries, at any rate as regarded acquittals. Was it
possible for his noble and learned friend to stop short and
say that his principle was a good one for civil cases, and
could not be extended to criminal cases ? Many civil cases
were quite as serious in their consequences as criminal cases.
Take a case of libel for accusing a man of an infamous crime,
and a justification pleaded ; that man was as much on his
trial for the offence of which he was accused as if he was
indicted in a criminal court. Take also the recent case of a
lady of rank, against whom an action was brought for writ-
ing anonymous letters. In that case the trial differed little
from one on a criminal charge. In these cases his noble
and learned friend's plan of 9 to 3 instead of unanimity in a
jury would apply. 'Unanimity imposed on each juryman a
responsibility which made him careful in forming his
opinion ; and more, it made him important and respectable
to his fellow jurymen who did not number him, but were
obliged to reason with him in order to bring him to their
opinion. It was said that unanimity implied compulsion,
but it was only the compulsion of listening to reason. If a
jury went out to consider their verdict and there were three
dissentients they would refuse to trouble themselves any
snore and would give their verdict at once. A striking
illustration of what this proposal would lead to had been
called to his attention by a noble lord. An action was
brought against a schoolmaster for an alleged cruel as-
sault on one of his scholars. On the jury were three
special jurors, of whom his noble friend was one, and nine
common jurymen. A strong appeal was made to the feelings
of the jury, and surgeons were called to speak to marks on
the boy's body, which, however, they said could not be
ascribed to the punishment he had received ; and they said
they should not have objected to their own sons receiving
such a punishment if they deserved it. When the jury re-
tired, the three special jurors were for a verdict for the defen-
dant, and the nine common jurymen were in favour of the
plaintiff. The special jurors reasoned calmly with the
others, and brought them to their own opinion, and a ver-
dict was returned for the defendant. Suppose that his
noble and learned friend's bill had been law, they would not
have listened to the reasoning of his noble friend and the
other special jurors, and the result would have been ruin
to the defendant. His noble and learned friend was rather
apt to look to Scotland for his law, and he seemed to have
built his case on an act relating to juries in Scotland passed
in 1854. Now juries in civil cases were not indigenous in
Scotland, and they were not introduced until 1815. Sir
Archibald Alison had, however, stated that they were con-
sidered a curse in Scotland, and jury cases had dwindled
down to twenty or thirty a year. The act of 1854 was
passed to get rid of an uncertainty which existed in trial
by jury in Scotland, and it allowed that, after three hours'
deliberation, they might return a verdict by a majority.
In criminal cases, in which a verdict was given by a
plurality, the number of jurymen was fifteen. His noble
and learned friend seemed to admire this system. There
was one thing in favour of the unanimity of juries, and
that was the confidence it gave to the suitor in their
decisions. If a losing suitor, who was of course always
dissatisOed, was able to say that perhaps three men on a
jury were in his favour, it would shake all confidence in
the administration of justice. His noble and learned friend
(Lord Lyndhurst) had alluded to the manner in which this
bill would operate in new trials. The courts were reluc-
tant to disturb verdicts on matters of fact, even where they
had doubts as to the propriety of Nerdicts. But suppose in
doubtful eases it was known that the verdicts were given
by majorities only of jurymen, the courts would always
grant new trials. With regard to the objection made to dis-
charging juries without their giving verdicts, all cases wore
not,so clear as that juries were able to decide them, and it
was no great hardship, when they did not agree, that a
suitor should be obliged to resort to another jury for a ver-
dict. The institution of juries was rooted in the habits of the
poopleof this country, and ought not to be lightly disturbed,
and he would ask the house whether his noble and learned
friend had shown sufficient reasons for changing a system
which had obtained for 500 years, and to induce the house
to commit itself to an untried plan foreign to the constitu-
tion and to the feelings of this country. He hoped the
house would not be persuaded by the endeavours of his noble
and learned friend, instigated as he was by a feeling that
juries had become too independent to allow judges to direct
them as they. wished, and he did hope that their lordships
would stand on the ancient ways, and not suffer an insti-
tution like this to be tampered with.
Lord CRANWORTH said he must admit that his opinion
on this subject had fluctuated for some time. It was said
that his noble and learned friend had introduced this bill on
account of what had occurred at a recent trial. That
might have been the immediate moving cause ; but his
noble and learned friend had given notice in 1854 that ho
would propose an alteration in the law. He (Lord Cran-
worth) wished to call attention to what had been done by
the commissions which had inquired into the criminal and
common law. The first was appointed in 1831, and they
came to the conclusion that the unanimity
accordingly. of juries oughtn
not to be supported, and they moon)
1851 another commission was appointed, theyand canie to a
concurred
conclusion different to their predtecleassors, but they
couldsupported,
in saying that the present ta ys
and they recommended as Bchaenge that if after 12 hours'
deliberation a jury could not agree, they should lie dis-
charged. i
The Government n 1854, when he (Lord Cran,
worth) was on the woolsack, introduced a bill to improve
the common law procedure, and adopted the recommenda-
tion of the commissioners. The bill was referred to a
select committee of their lordships' house, and in that com-
mittee a proposal was made not to act on the recommenda-
tion of the commissioners without extending it to something
like that which was proposed by the present bill. The
question in the committee was not as to the principle, but
whether the majority should be 9, 10, or 11. This was
adopted by their lordships' house, but it was altered in the
other house, and it came back in so objectionable a shape
that the provision was struck out altogether. Then it was
that his noble and learned friend said he should introduce
a measure on the subject in a future session. He (Lord
Cranworth) thought that the deduction from the recommen-
dation of two successive commissions at intervals of 20
years was that some change was necessary If such a
change was necessary, what
~,could be looked to as a final
change but that proposed by his noble friend ? With re-
gard to criminal cases, he could not help feeling that the
principle must be extended to them. -The question was
whether the doing away of unanimity of juries in such cases
would be an unmixed ova ; but in some cases he thought it
might be an advantage. It erten happened that jurors in
capital cases found persons not guilty because they were
oppcsed to the punishment of death. 'I his alteration might
remedy that evil. He did not deny that there might be an
evil in criminal cases of an opposite character, namely, that
where in capital cases juries were not unanimous, the pres-
sure on the Home-office for remission of sentences would
be so great as not to be resisted. It was a question of