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

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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 cues, 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 we 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 I am quite sure it is not drink, you shall have it:'
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 epp°site
(Lyad-
hurst), he could not think the effect of the proposed change
would be such as had been described. It to hint,
with regard to one point which had been raised, that dis-
cussion among the jurors would be sufficiently ensured by
that provision 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 ancientinstitution 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 veryhigh 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 bench,
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 (Lordlyndhurst) 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, ate; the

little soleasantry he was guilty of, explained 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 thou ht 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 informed 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
the judge to know whether 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 Rails's/IT—OA
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 Erle, who tried the cas
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` ras tried in the Court of Exchequer, mad lasted two
days and a half, but the jury could not come to any agree-
ment, and were discharged. The fifth case was also tried,
bat the jury could not come to a verdict, and were dis-
charged. The case which was tried by the noble and learned
lord, the Lord Chief Justice, was the sixth of those actions.
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 remon-
strated with the jury upon that verdict. Perhaps he was
right so flee; 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 two
cases in which the jury was discharged ; and he himself (the
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 tied 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 jurymen ought 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 -
nifty in juries, at any rate as regarded acquittals. Was it
possible for his noble and 'mined 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 a cit-
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
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
more 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 July in Scotland, and it allowed that, after three hours'
deliberation, thessernight 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 iras of course always
dissatisfied, was able to say thatl 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 Verdicts. 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 were
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
people of this country, and ought not to be lightly distitthede
and he would ask the house whether his noble and learned
friend had shown sufficient reasons for changing a s" 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 atmot%reegent trial. That
in cause ; but his
might have been the immediate
noble and learned friend
hn
tgleenlanwot.icellien (ILBso4rdthCarat
alterationho
-
ttention to what had been done by
Cran-
worth) wished to
call la had inquired into the criminal and
the commissions
common law. Twhigecfirsth was appointedtheun nim tiynolfB
j3ul;.i
sando
uthey
came to the conclusion
ion was appointed, and they came to a
supported, the recommended accordingly. In
snost
conclusion
system could not be supported,
• different to their predecessors, but they concurred
in saying that the present
oallnother commission
jury ee change t,htahteyif
sahftoetardl2ihmoura
deliberation a
aid they recommended oulasd
a change
dis-
charged. The Government in 1854, when he (Lord Cran-
worth) was on the woolsack, introduced a bill to improve
bill the common law procedure, and adopted the recommenda-
tion of the commissioners. Thel 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 altogethet. Then it was
that his noble and learned friend said he should introduce
a measure on the subject in a future session. Ile (Lard
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 easel
would be an unmixed evil ; but in some cases he thought it
might be an advantage. It often happened that jeur ors it:
capital cases found persons not guilty because th y
opposed to the
remedy that evil. He did not deny that there might be
punishment of death. This alteration m. igahnt
namely, that
where in capital cases juries were not unanimous,
sentences would
evil in criminal cases of an opposite character,
thepres-
sure
on the Home-office for remission o
be so great as not to be resisted. It way a (potion of