HC Deb 16 February 1872 vol 209 cc548-60

, in rising to call attention to the defective state of the Law with regard to the summoning, attendance, and remuneration of Jurymen; and to move— That the Law relating to Juries ought to be dealt with as a whole in a Bill to be brought in by the Government at the earliest possible period, said, he brought the subject forward in the firm belief that the existing state of things was inconvenient and onerous to a large portion of Her Majesty's subjects, was unsatisfactory and distasteful to the litigants and suitors, and not at all in keeping with the desires and feelings of those who were concerned in the administration of the law. It might be very justly said that jurymen, and emphatically London jurymen, were the worst used individuals within the bills of mortality. Failing to appear when summoned—and often when late—they were fined without the opportunity of explanation. Called upon to discharge most important and responsible duties, they were regarded with unmitigated dissatisfaction if they failed to unravel and solve difficult matters of fact, which the most astute and subtle advocates were employed to mystify and confuse. Kept waiting day after day in the unhealthy precincts of a court, their health and private convenience were entirely ignored, and if they were merchants or traders their time was considered of no value. He feared, unless an adequate remedy was applied to the existing state of things, that before long jurymen would become such discontented beings that they would shirk their duties when they could, and that when they could not do so, would negligently discharge them. Theirs was not a "sensational" or sentimental grievance—the evils complained of had been recognized over and over again by Parliament, and had been descanted on by almost every Judge of the Superior Courts. In 1867 the subject was referred to a Select Committee; but being unable to complete its labours that Session, it was re-appointed in 1868. A number of most competent witnesses were examined, and a most elaborate Report was presented to Parliament, in which the Committee recognized all the grievances of which jurymen complained, and it recommended a speedy amendment of the law. Moreover, in 1869 the Judicature Commission in their Report recognized the defective state of the law, and in 1870 a Bill was brought in by the noble Lord the Member for Middlesex (Viscount Enfield). That Bill was referred to a Select Committee, when another elaborate Report was made, and in the end that Bill, with amendments, became law. That Act in itself was crude, insufficient, and inadequate, but it contained many valuable provisions, and he thought the public were much indebted to the noble Lord for paying so much attention to the subject. It provided for the remuneration of jurymen on a higher scale than before; but in consequence of the machinery for providing a fund out of which to pay them being found to be inadequate, that clause had to be repealed, and, in point of fact, the remuneration stood now precisely as it did before the passing of the Act of 1870. The root of the evil, however, was in the insufficient and inadequate compilation of the jury lists. Hon. Members might be aware that the jury lists were prepared by the overseers in September every year. They were afterwards submitted to the magistrates, who allowed them. But for the somewhat onerous duty thus cast upon overseers they received no remuneration; and he regretted to say that the result was this—that the jury lists of one year were frequently simply a copy of the jury lists of the year before, or, it might be, of the jury lists of 10 years before. And thus no notice was taken of removals, of deaths, or of those who, since the lists were originally prepared, had become qualified in the parish to serve as jurymen; and it came to this—that the duties of a juryman, instead of extending over a large number of the inhabitants, were confined to a comparatively few. Mr. Burchell, the Under Sheriff of Middlesex, stated, before the Committee of 1867 and 1868, that the number of special jurymen in Middlesex was nominally 1,800, but of that number only two-thirds were available, from the cause he had already stated; but under an improved system Mr. Burchell thought the number would be increased to between 6,000 and 8,000; and he attributed all the complaints that had arisen, not from any breakdown of the system, but from the careless manner in which the lists were prepared. Mr. Abbott, the Under Sheriff for Surrey, also spoke of the imperfect character of the lists, and expressed an opinion that if proper returns were made there need be no excuses of "gone away," "not known," or "dead," and that the number of available jurymen for Surrey would be increased four-fold under an improved system. The Judicature Commission, in their Report of 1868, expressed an opi- nion that the jury lists ought to be made out with greater care, and in their Report of 1869 they stated the complaints were well founded, but that they were chiefly attributable to the imperfect mode in which the jury lists were framed, and that it was manifest that the duties were not fairly distributed amongst those who ought to be called on to discharge them. He would not say whether it would be better that the jury lists should be made out by the clerks of the assessment committees, or, as some had suggested, that the lists should be revised annually by the revising barristers, when they revised the Parliamentary lists; but it was evident that if it was to be done properly it should be done by more competent persons than at present discharged the duty. The old qualification for special juryman was an esquire, or a person of higher degree, banker, or merchant; but the Act of 1870 introduced a rating qualification of £100 in towns containing a population of 20,000 and upwards, and of £50 elsewhere; but he thought a beneficial change might be made by introducing on the list persons who lived independent of trade and profession, and to whom a little wholesome occupation would be very acceptable. At the present moment it was left to each individual to determine for himself whether he should serve on a special or on a common jury. Suppose a person who ought to serve on a special jury thought a common jury had less to do, what happened? He was a banker and wrote himself down as a gentleman. Well, the result was he was called on the common jury. On the other hand, a rag merchant, if you liked, or some other person in a very low position, thought it might be better to serve on a special jury, and what did he do? He described himself as a merchant, and, therefore, he was called on a special jury. He (Mr. Lopes) submitted that it was a very great mistake to leave it to the discretion of individuals to determine on which of the juries they should serve. Again, why not assimilate the qualification of juries in cities and boroughs with those of the counties? The Committee to whom the Bill—which afterwards became the Juries Act, 1870—was referred, found that, owing to the large increase in the burgess roll, caused by the Representation of the People Act, 1867, and the number of persons qualified to serve as jurors under the freeman's qualification in certain cities and boroughs, the qualification in cities and boroughs was generally too low, and they were of opinion that a Bill should be brought in by the Government, containing provisions for the amendment of the law in that respect. There was another mode of relieving special jurors in civil cases. The number might be reduced to seven, who would form as good a tribunal as twelve, unless there was occult power in the latter numeral. If this reduction were made, the valuable time of merchants would be saved; causes would not so frequently go off for want of special jurymen, and there would not be so frequent a necessity for praying a tales. Moreover, each juryman would be urged by an increased responsibility to give increased attention to the evidence and verdict. He did not propose to interfere with the number of jurymen in criminal cases. With regard to the important question of remuneration, he maintained that there should be a reasonable and fair payment for the services of jurors, who ought to be adequately remunerated. The Judge, counsel, attornies, witnesses, and even the crier, who called for silence, were remunerated adequately, and the jurymen were the only persons amongst the performers whose claims were overlooked. In the Juries Act, 1870, provision was made for the payment of £1 1s. a-day for a special juror, and 10s. for a common one; and that, he held, was a fair remuneration, and a decided improvement upon the former scale, by which a special juror received £1 1s. for each cause, a common juror 8d., a sheriff's not less a sum than a groat; but unfortunately, as he before observed, the machinery of the Act failed in that respect at least, and that particular clause was repealed in the next Session. The question had been raised, by whom should the payment be made? He submitted that the State ought to do this, and not the parties in the case; and he knew no reason why, if the Judge who dispensed the law was paid by the Crown, the jury who tried the facts should not also be remunerated from the same source. He would propose, in order to meet any objection of the Chancellor of the Exchequer, that the State might reimburse itself by the imposition of a stamp on every process by which legal proceedings were originated—on a writ in the Superior Courts, and on a plaint in County Courts. In conclusion, he would express a hope that the Government were prepared to bring in a measure which might provide an adequate remedy for the present defective state of the law. He had already had some encouragement from the Attorney General to look for a step in that direction; and no doubt his hon and learned Friend's experience in the celebrated cause that had occupied upwards of 80 days in hearing would induce him to urge some remedial measures in regard to the remuneration of juries.


, in seconding the Motion, said, he could testify to the great dissatisfaction which prevailed in the mercantile constituency which he had the honour to represent at the operation of the present law. The same set of men were over and over again called to Westminster or to Guildhall to discharge the duties of jurymen, while others equally competent obtained a total exemption. It was no wonder, then, that so many suffered from a sense of injustice, seeing that their private affairs were neglected owing to the frequent calls upon their time. The evidence taken before the Committees of 1868 and 1870 bore out all the statements of his hon. and learned Friend (Mr. Lopes). The Committee of 1870 reported that the Bill of that year was quite unsatisfactory; but they felt that the question was so large and serious that it ought to be dealt with by the Government as a whole, and their Report contained a strong recommendation to that effect. The statement that there were only 1,800 persons in Middlesex who might be taken as special jurors would take most persons by surprise when the enormous population of the county and its vast interests were taken into account; and he thought the list of special jurors might be made considerably longer than it was at present. Then there might be an official revision of the lists. Nothing of the kind was done, for serving on juries was by no means popular, though the lists of voters were regularly examined. There was a special reason why the lists should be revised—namely, because the duties of jurors being irksome, almost every means was adopted by persons liable to serve to escape the ordeal altogether, and thus the duties fell unduly upon others. The suggestion of his hon. and learned Friend as to the reduction in the number of jurymen called for careful consideration from the Government. Trials in County Courts by a jury of five were successful enough; indeed, their verdicts were quite as satisfactory as those recorded by a larger number in the Superior Courts. Even in the great case now in course of trial, no disadvantage was experienced from there being a smaller number than 12 on the jury. If his hon. and learned Friend's proposition of seven were adopted, he believed there would be greater readiness in Middlesex and large towns throughout the kingdom to undertake duties which almost every liable person now sedulously avoided.

Amendment proposed, To leave out from the word "That" to the end of the Question, in order to add the words "the Law relating to Juries ought to be dealt with as a whole in a Bill to be brought in by the Government at the earliest possible period,"—(Mr. Lopes,) —instead thereof.

Question proposed, "That the words proposed to be left out stand part of the Question."


said, he rose for the purpose of calling attention to one point that had not been noticed by either of the hon. Gentlemen who preceded him. It had reference to the state of the law as affecting persons living in large towns, which had quarter sessions of their own. According to the law at present many persons whose qualifications rendered them liable to serve on a jury were in such a town exempt from serving on a quarter sessions jury, but not at the assizes. He believed that was the law. There was, however, no machinery by which they could be brought to serve at the assizes. The clerk of the peace in his own county had, after inquiries into the matter, come to the conclusion that it would be unsafe to enter such persons in the jury books, for supposing the law did not justify that course, wherever it was adopted criminals would be convicted by a jury improperly constituted. He therefore hoped that, while legislating on the subject, this uncertainty of the law would be satisfactorily cleared away, for he thought it was a matter which ought to receive the attention of the Government.


said, however the Act of 1870 might have failed—and it had not answered the expectation of its promoters, for want of a fund out of which jurymen could be adequately reimbursed—he did not think it would be practicable to provide remuneration for jurymen by means of stamps affixed to writs and plaints, as suggested by his hon. and learned Friend (Mr. Lopes), since he (Mr. Wheelhouse) feared that the country would be dissatisfied with that plan; and, indeed, it might operate, where the suitor was very poor, to close the door of justice against him; but he agreed with him in thinking that the number of jurors might with advantage be reduced. He had some experience of the jury system, and he had never heard any complaint that County Court juries had not done their work quite as well as juries consisting of 12 persons. What he would suggest would be that cases should be tried by juries of five or seven at the option of the parties to the suit. If some plan were devised by which anyone who had served on a jury should not be required in the jury box again for three years, great relief would be afforded. In small jurisdictions there might be some little difficulty in making this provision, though none which might not be got over; but in any of the counties of which he had experience there would be no difficulty whatever. He would also suggest that jurors, according to the old-fashioned system, should, as far as possible, be taken from the same neighbourhood, and not be brought from distances of perhaps 50 or 100 miles. As for the qualification, in his view any legislation on the subject ought to sweep away altogether the distinction between the special and common jury lists. If gentlemen had nothing to do, it would be well that they should be brought into the box to discharge the duties of common jurymen. He agreed with his hon. and learned Friend that jurymen should be paid by the State, as well as Judges. In these days, when men's time was of greater value than ever, the Treasury ought to provide sufficient funds for dealing with all questions of justice. On the whole matter generally, he thought that no one who knew the jury system could fail to perceive the neces- sity of dealing with the subject as early as possible.


said, a great deal was said about altering the law on this subject; but what he contended for was that juries should be got rid of altogether. They had got rid of them at County Courts, except where either party requested to have them. True, the Judges of the Superior Courts objected to the entire responsibility of deciding cases which would devolve upon themselves alone; but as they were paid officers of State, they ought not to shrink from any duties that Parliament deemed it right to impose upon them. The Judge of one of the Superior Courts had an objection to try Election Petitions; but that did not prevent Parliament from passing an Act throwing upon the Judges the responsibility of deciding cases of that description, in regard to which they now act as jury and Judge. What remained to be done was to settle the jury question by making the Superior Courts analogous in that matter to County Courts, and to limit the number of the jury, whenever either party desired to have their cause tried in that way. He was strongly opposed to the payment of jurors out of the public funds; and in that particular he sympathized with the right hon. Gentleman the Chancellor of the Exchequer. When parties went to law he thought both sides were, more or less, in the wrong; therefore they ought to be called upon to pay the cost of their own causes. That was the way to get out of the difficulty, so far as civil trials were concerned. In criminal causes, as between the Crown and the public, it was not unreasonable to call upon the public to pay the cost of the jury. With a view to the reduction of the expense, which would fall upon the parties in civil causes, it was also desirable to reduce the number on a jury to seven or five.


said, he was of opinion, as the result of a long experience in the trial of civil causes, that a jury of seven was sufficiently numerous to insure the due administration of justice; but he could not agree with the view of the hon. and learned Gentleman opposite (Mr. Collins), that it would be well that questions of fact should be taken out of the hands of juries and left for the decision of Judges only. If cases were tried in the Superior Courts without juries, it would soon become well known what views were held by certain Judges on particular classes of cases, and all sorts of trickery would be resorted to by suitors to get their causes tried by Judges who had shown a leaning to the view they themselves held. In his opinion, regard for law in this country was, in a great degree, kept up by the fact that the Judges were confined to questions of law, while all matters of fact were left to the decision of juries. The multitude of appeals arising in the Courts of Chancery on almost every day showed the evil of leaving single Judges to decide upon the facts as well as the law of cases coming before them; and the number of reversals by one or two Judges of the decisions of a single Judge tended to reduce the law to a state of most mischievous uncertainty. Again, in railway cases—in which, as he humbly conceived, Judges had gone too far in taking upon themselves the decisions of questions of fact, which were properly questions for a jury—when an appeal went to the Exchequer Chamber it was generally found that three Judges took one view and three the other. The same might be said of those cases in which the Judges had taken upon themselves to decide questions of reasonable and probable cause, which in their nature were properly questions of fact for the jury. The consequence of this was interminable litigation and enormous expense to the parties, which would continue unless Parliament stepped in and restored the decision of facts to the jury from whom it had been withdrawn. He therefore did not think it desirable to introduce the County Court system into the Superior Courts.


said, he entirely concurred with many of the remarks which had been made by his hon. and learned Friend opposite (Mr. Lopes); but there were some observations with which he could not agree, and some points upon which he could not, without consultation with his Colleagues, speak with any degree of authority. One of the points coming under the last remark was that relating to the payment of jurymen by the State. He could not, of course, say anything upon this point without consultation with the Chancellor of the Exchequer. Another question upon which a great deal might be said on either side was that anomaly of the adequacy of the remuneration now given to jurymen in payment of their services. It might be said that under the existing law the jurymen were as much a part of the tribunal as the Judge, and ought to be paid as the Judge was, out of the coffers of the State; but the cases did not quite run on all fours, for duties of State had been thrown on other persons, and honourably discharged, for which no compensation was given, and, indeed, for which it would be inexpedient that any remuneration should be offered. Then, again, the juror was only occasionally called upon to discharge his functions, while the Judge had to devote his whole life to the study of the law which it was his duty to administer. He could not agree with the view that it would be well, even in cases where the parties did not desire one, for the assistance of a jury to be dispensed with. His reason for taking that view was this—they lived in a country the institutions of which were mixed up in a vast and complicated system, the working of which was not to be measured by its direct and immediate effects, but by the indirect and consequent effects it had upon other portions of the social and political machine. Therefore, he should exceedingly dislike to see the time when the general public were divorced from all interest or concern in the administration of justice. He regarded juries as a most useful institution, because they interested the general public in the administration of justice, and afforded them an education which hardly anything else could give. Still less would it be desirable to dispense with juries in the trial of cases where passion, or party, or class interests were concerned. It was a great safeguard not only to the parties interested, but to the character of the Bench itself, that there should be in the jury a bulwark, as it were, between the decisions arrived at and the Bench, which would otherwise have to decide both upon the facts and the law of cases. A wise man once expressed an opinion in which he (the Attorney General) entirely concurred, that a jury was an institution of great value, because it compelled the Judge to state his opinion upon cases in a manner intelligible to 12 ordinary men. With regard to the broad general question, however, he entirely agreed in the view that the state of the English law with reference to juries was little less than a scandal. He had long considered the question, and came to the conclusion that it was because jurors were a class with no means of combination that their interests were so very little regarded by persons who ought to take care of them. When on circuit he had frequently remarked the hardship inflicted upon small farmers by being dragged away from their farms at a critical period of the year, and compelled to live for perhaps a week or more in a crowded assize town, where lodgings and other accommodation had for the time run up to famine prices; and looking at the imperious way in which they were treated, if he were not a barrister, he certainly would not wish to be a juryman. But that state of things was not altogether the fault of the existing law, bad as that was. His hon. and learned Friend was right in complaining of the inadequate and unfair way in which the jury lists were frequently compiled, and he had often thought, by seeing the same old familiar faces over and over again in the jury-box, that there must be thousands, if not tens of thousands, in the country who, somehow or other, never came under that great system of education, and never did succeed in getting into a jury-box at all. But the grievance did not arise only from the preparation of those lists. It arose chiefly from the execution of those lists. It was probable that some influence was at work which probably it was not desirable to describe. He remembered very well some time ago stating to a man of wealth and position that he never had the honour of addressing him as a special juror either at Guildhall or Westminster. The man replied—"I don't suppose you ever did; I always get off." He (the Attorney General) asked—"How do you get off?" The man replied that was an easy matter, and he (the Attorney General) found out from this man, who was candid enough to state the truth, that there was some method by which he managed not to serve as a juryman. All this showed that the compilation of the list and the power of summoning required amendment. The law itself was really not to blame, but those who administered it; and he, for one, should like to see the necessary steps taken with a view to amend that state of things. It had been said by one hon. and learned Member (Mr. Wheelhouse) that he should like to see the same class of men serving on special and common juries, and the class of persons from which special juries were drawn serving on the juries in criminal courts. The reason why the hon. and learned Member did not see that at the present moment, was that the administrators of the law on the subject violated both the text and the spirit of it. The Jury Act intended that all persons competent to serve on juries should do duty in their turn both as common and special jurors; and it would be gross injustice if that were not the case, so that the practical injustice which was done arose, as he had said, from a violation of the law. Some years ago Sir Robert Peel informed a friend of his that the result of the proper carrying out of the law in the county of Lancaster was a diminution of the number of causes tried at Liverpool by special juries, and the empannelling of a very superior class of persons on the ordinary juries in that county. With regard to the number of persons who should form a jury, he knew no magic in the number "twelve," and quite agreed that in all ordinary trials, both civil and criminal, a jury of seven would be amply sufficient. The only distinction he would make was in trials for murder, and there he would adhere to the present number, for he should not like any man's life to be taken away by the consent of a less number than 12 of his fellow men. In conclusion, he could not undertake to say when it would be possible to undertake legislation on the subject, but the subject was one which had honestly engaged his attention for some years; and at the earliest possible moment he would bring in a Bill in accordance with the statement he had just made, and which, he hoped, would satisfy his hon. and learned Friend who had brought the question before the House. With that assurance, he hoped his hon. and learned Friend would be content, and withdraw his Motion.


said, that after the statement of his hon. and learned Friend the Attorney General, he should not press his Motion.

Amendment, by leave, withdrawn.