Lords Sitting of 29 March 1859

MINUTES
PUBLIC BILLS.—1a Petitions of Right; Affidavits by Commission, &c.
JURIES IN CIVIL CAUSES BILL.

  SECOND READING.
  Order of the Day for the Second Reading read.
  LORD CAMPBELLrose to move that the Bill be now read a second time. The noble and learned Lord said it was clear from the thin state of the House, [many of their Lordships had gone to the other House to listen to the adjourned debate on the Representation Bill] that there was some attraction elsewhere; but though more stirring, he doubted whether it was more important than the question he had to bring under their Lordships' notice. He earnestly implored their Lordships who were present to give their patient attention to the reasons which had induced him to bring before them the Bill of which he was now about to move the second reading, the object of which was to render it unnecessary that there should be unanimity in juries when engaged in trying civil causes. He did not propose to interfere with crimi-

  1011
  nal causes. It had been a long established legal maxim in this country—and he hoped it would ever so remain—that no person should be held to be guilty till his guilt was found by the unanimous verdict of twelve honest men. That system had answered very well, and he hoped it would not be altered. But there was a great difference between civil and criminal jurisdiction. In criminal cases there was generally only one single issue to be tried, and unless the case was made out on clear evidence to the satisfaction of all the twelve jurors, the prisoner ought not to be convicted. But with regard to civil cases there might be many issues, some of them of a very complicated nature, and upon all of them, according to the present state of the law, the jury was required to be unanimous. The only disadvantage connected with requiring unanimity in criminal cases was that now and then a guilty man might escape; but it was better, according to the maxim of law, that nine guilty men should escape than that one innocent man should be condemned. But in civil cases requiring unanimity, it often delayed, and might amount to a denial of, justice. Thus, in the question of a disputed title to an estate which belonged either to A or B, it might happen that no determination could be arrived at, and jury after jury might be discharged without pronouncing a verdict. This state of things was not derived from our ancient laws. It was not till long after the reign of Richard I. that unanimity was required in civil cases. The law reports showed that in the reign of Henry III. a case to recover lands (that of "The Abbot of Kerslede v. D'Eynecourt") was tried by twelve jurymen, eleven of whom were for the plaintiff, and one for the defendant; and the Court adjudged, in accordance with the verdict of the eleven, that the lands should be held by the abbot and his successors for ever. Another civil case, that of "Tristram v. Semenel," occurred in the same reign, which was tried by eleven jurymen. Ten found for the plaintiff, and one for the defendant, and as the report stated, quia dicto majoris partis juratorum standum est, &c.—the majority being for the plaintiff, it was adjudged that the plaintiff recover the lands for which he sued, and damages. The first mention of unanimity being required in civil cases occurred in Fleta, temp. Edward I. There were two modes in those days of obtaining unanimity; either the sheriff was directed to keep the jurymen
  1012
  sine cibo et potu until they had agreed, or an addition was made to the number of the jurymen, in order that the assent of at least twelve might be obtained—just as now, as their Lordships well knew, the grand jury might consist of twenty-three, and it was enough if twelve of them found a true bill. The superstitious notion therefore, that the unanimity of twelve jurymen had been required from all time was wholly without foundation. In a treatise, the date of which was uncertain, the author said that "of late the number of jurors had been reduced to twelve," and the reasons which he gave for the adoption of that number were these:—"Like as the Prophets were twelve to foretell the truth, as the Apostles were twelve to preach the truth, the discoverers twelve sent into Canaan to seek and report the truth, and the stones twelve that the Heavenly Heirusalem is built on; and as the judges were twelve anciently to try and determine matters of law," to which Lord Coke added other duodecimals, "twelve tribes of Israel twelve months in the year, and twelve Cæsars!" There had been in the course of years many alterations in the law and practice with respect to juries, arising out of the circumstances of the times and the varying sentiments of mankind. Formerly it was thought that jurors should come from the part of the country where the cause of action arose; but experience showed that neighbours were apt to be partial, and after various changes it was at length determined that they should he taken from the body of the county. Again it had formerly been necessary that jurors should be freeholders; but that was altered now, and the last qualification, under Sir Robert Peel's Act, was that they should live in houses with seven windows. It certainly seemed very strange that in civil cases, the consideration of which admitted of such varied shades of opinion, the unanimity of twelve men should he required. There was no analogy for it in the case of any other tribunal, Among the Judges the decision of the majority was sufficient; and, in their Lordships' House, whether sitting in their legislative or judicial capacity the majority determined the question. Even in capital cases by bill of attainder or indictment, a simple majority sufficed. From a strict adherence to the rule of forced unanimity there arose the most serious evils and inconveniences. In the first place a single wrongheaded or corrupt juryman had it in his power to defeat jug-

  1013
  tice, and to compel his colleagues, as well as himself, to violate the oath which they had taken to find a verdict according to the evidence. Jurymen were summoned to a. distance from their avocations; they were obliged under heavy penalties to attend; they were liable to be fined if they did not do their duty; and after listening for hours, or it might be days, to the evidence, if they did not agree, they were locked up, and kept without meat, drink, or fire—candlelight excepted—be it summer or winter, no person being allowed to speak to them, except to ask whether they were agreed upon their verdict. In that state they undoubtedly might be confined until one at least of them was ready to die or was seriously ill. And Blackstone stated in his Commentaries that "at the assizes, if the jurors did not agree in their verdict before the judges left the town, the judges were not bound to wait for them, but they might order them to be put into a cart and carried round the circuit from town to town until they agreed." An oral tradition varied this dictum, and laid it down that the jury might not be carried out of their own county but must be carried to the confines of the county and there shot out into a ditch. This being the law, he appealed to his noble and learned Friends whether it was one which they considered ought to be longer maintained? He believed that it must be maintained if unanimity continued to be required, but surely unanimity could not be required if it was only to be obtained by such compulsion as this. If indeed this Bill should not pass, and unanimity should still be required, no doubt the system of compulsion must be enforced. He had already observed that unanimity was not required on the part of other tribunals. Not long ago the Lord Chancellor and the Lords Justices had to try a matter of fact in the Court of Chancery. They heard the evidence, but they were not locked up all night sine cibo et potu, nor were they carried in a cart to the confines of Middlesex and shot out into a ditch. They rode home in their carriages, ate good dinners, and slept in comfortable beds, and then, talking the mattor quietly over among themselves, afterwards delivered a very righteous judgment. In many many cases of disagreement between jurymen it was a struggle between nature and conscience which should prevail. Of course he did not know much of what passed in the jury-room after the jury
  1014
  had retired to consider their verdict, because it had been laid down as a law that no affidavit should be received from a juryman with regard to what took place in the jury-room, otherwise very strange revelations would be made. Bailiffs had overheard juries tossing up for their verdict, and the Courts were very frequently called on to set aside verdicts which were evidently the result of compromises, and represented the conscientious opinions of neither one side nor the other. Such cases had come before him again and again. In a late action tried before him against a railway company for damages sustained by an accident the jury returned a verdict for the plaintiff, with one farthing damages, whereas if he had any right to a verdict, he was entitled to some hundreds of pounds. Such a verdict of course he could not receive, and he told them to go back to reconsider it, because either the plaintiff was entitled to a verdict with very considerable damages, or else he was not entitled to a verdict at all. They said they had delivered that verdict because they could not agree. He tried to induce them to come to some agreement, as he very often tried to flatter juries into a verdict by insisting that they would certainly agree if they would only talk the matter over again; but ultimately he was obliged to lock them up all night sine cibo et potu, and without fire, except candle-light, though he had directed, stretching the law, perhaps, a little, that the supply of gaslight should be very liberal. In the morning, however, it was found that they still could not agree, and ultimately he was obliged to discharge them without giving a verdict at all. The consequences to the parties when juries could not agree wore often very serious. Sometimes, when a trial had lasted a whole week, and enormouse expenses had been incurred, the jury would be discharged without a verdict; and then there had to be a new trial, which was never so satisfactory for many reasons as a first trial. The late Mr. Hallam, in The Middle Ages, praising the old system of trial by jury, excepted "that preposterous relic of barbarism, the requirement of unanimity." Mr. Forsyth, also an eminent juridical writer, said—" Why should the perverseness or knavery of a single juryman be allowed to invalidate the verdict which eleven others are agreed to give? It remains to be seen whether the Legislature will much longer tolerate such an anomaly." Professor Christian said, "the unanimity of twelve men, so repugnant to all expe-

  1015
  rience of human conduct, could hardly in any age have been introduced into practice by a deliberate act of the Legislature." The Common Law Commission, of 1830, of which his noble and learned Friend Lord Wensleydale was a member, reported:—
  "Regularly the jury are not allowed to be discharged, unless by consent of the parties, until a unanimous verdict has been returned. It is difficult to defend the justice or the wisdom of this 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. It is obvious that the necessity of returning a unanimous verdict before they separate must frequently lead to improper compromise among the jurors of their respective opinions. There is reason also to apprehend that when any of them happen to be actuated by partial motives it must tend to produce a corrupt verdict. The interests of justice seem manifestly to require a change of the law upon this subject."
  They recommended that after a jury had been kept twelve hours in deliberation the verdict of nine should be accepted. The Commissioners of 1851, consisting of several Judges and some of the most eminent counsel of the day, strongly condemned the present system of compulsion, and recommended its abolition. They proposed that the jurors should be allowed every comfort while they were deliberating, and that at the end of a limited time if they could not agree they should be discharged. This meant that compulsion should be taken away, but that unanimity should still be required. Of this he disapproved at the time, and when a clause to that effect was introduced into the Common Law Procedure Bill, he induced their Lordships to adopt the recommendation of the Commissioners of 1830, and to make the verdict of nine good after twelve hours' deliberation. The clause was adopted by their Lordships, he believed without a division and without a dissentient voice. and the Bill so altered went down to the other House. The House of Commons, unfortunately, did not agree to it. Yet, in 1854, when Mr. Dunlop introduced a Bill relative to juries in civil causes, they agreed to a clause carrying that proposition ipsissimis verbis into effect in Scotland. The Act had worked most advantageously in Scotland, and he had no doubt this Bill would work equally well in England. He had received a letter on the subject from the learned Gentleman who was the noble Earl's Lord Advocate in 1852, and who had since been raised to the bench. Lord Colonsay wrote to him spon-
  1016
  taneously, and not in reply to any communication from him:—
  "73, Great King Street, Edinburgh,
  Dec. 23, 1858.
  "My dear Lord Chief Justice,—You are probably aware that in 1815, when jury trial in civil causes was about to be engrafted on our judicial procedure in Scotland, the question of unanimity was much discussed here. The feeling in Scotland generally was not favourable to the principle of unanimity. The people of this country did not relish the idea of a man from considerations of expediency surrendering or compromising his opinion on any matter, however trivial, against his honest conviction of the truth and justice of the case. But the practice in England was referred to as conclusive authority the other way. Whatever pertained to jury trial in England was held to be essential to the perfection of the system. Mr. Adam, who was to preside in the new tribunal, worshipped with becoming reverence the sacred element of unanimity which he had seen operating so beneficially in England. Thus unanimity was imported into Scotland as being an essential element of jury trial in civil causes. But though so authoritatively introduced, it was not cordially received, and I confess to having been one of those who never could be reconciled to it. The only argument in favour of it that ever appeared to me to be of value practically was, that in cases of difficulty, in which at first sight there was room for difference of opinion which might be cleared away, it compelled the jury to discuss the matter deliberately, and was thereby calculated to elicit truth and lead to a sound result, and prevent a hasty or ill-considered verdict by a majority, perhaps swayed by impulse or actuated by impatience. But it always appeared to me that this advantage could be obtained by requiring the jury (if they differed) to be enclosed for such time as would insure deliberate discussion, and after the lapse of that time receiving the verdict of such a majority as would show an overwhelming preponderance of opinion, and thereby give weight and authority to the verdict. In 1854 my Friend Mr. Dunlop, the Member for Greenock, entertaining similar views, introduced a Bill which passed both Houses of Parliament and received the Royal Assent. It enacts that after the jury have been kept in deliberation for six hours a verdict agreed to by nine of them may be received. That statute has been acted upon repeatedly. I can at present call to mind three instances in cases tried before myself. In all of them the trials occupied a great deal of time, and must have put the parties to much expense, which would have been unavailing if attended with no result. One of them was tried in the summer of 1853. It was a case of alleged fraud. There were two issues sent at the same time to the same jury. The trial occupied two days. The jury could not agree, and after deliberating for six hours they returned a verdict in favour of the defender by a majority of eleven to one on the first issue and nine to three on the second issue. Another of the cases was tried at Christmas sittings, 1855. It arose out of a contract for making a railway. The contractor was the pursuer. The trial lasted three days, and resulted in a verdict for the pursuer by a majority of ten to two, after six hours of deliberation. The third case was tried in spring, 1858. It was for infringement of a patent, and occupied four days.

  1017
  It resulted in a verdict in favour of the patentee by a majority of eleven to one after deliberation for six hours. Judging from my observation, I would say that a majority of nine to three is calculated both to obviate the mischief of obstructive-ness and to secure respect for the verdict. But I think that the period of six hours required for deliberation is unnecessarily long; half that time would probably be sufficient to induce even obstinate jurymen to listen to reason and to make reasonable concession in order to avoid being locked up for so long a time. It has occurred to me that practical information of this kind might perhaps be of use to you, or at least not unacceptable."
  The Faculty of Advocates had held a meeting, in which they had unanimously expressed an opinion that Mr. Dunlop's Bill had worked beneficially, and that it might be still further extended with advantage. The Bill now proposed required that the jury should be locked up for six hours, and that then, if they were not unanimous, the verdict of nine should be taken. He was told that all his learned brethren upon the bench were against him. However much he might regret that circumstance, if it were true, yet they might change their opinion, as they had done in respect to the Bill for permitting counsel to address the jury for prisoners who were indicted for felony. But it was a great mistake to say that his learned brethren were all against him upon this point. Mr. Justice Erle, a most distinguished Judge, told him he doubted the propriety of his Bill, but the very next day Justice Erle was obliged to discharge two juries consecutively because they could not agree upon an unanimous verdict. The result was that Mr. Justice Erle came to him and said that he had changed his opinion and urged him to proceed with his measure. About a month ago he had received a letter from Mr. Justice Crowder, giving his experience of the working of the present law requiring unanimity in juries. Mr. Justice Crowder said:—
  "You wished me to send you the names of any cases in which I have been obliged to discharge juries during the present sittings. On the 21st I discharged the jury in 'Webster v. Fenner,' after they had been locked up many hours. This case had been tried before my brother Byles, and he had been under the necessity of discharging his jury. So that after two long and expensive trials no results have been produced to the parties. Yesterday, in the case of 'Nathan v. Jacob before a special jury, I was obliged to discharge the jury after being locked up a considerable time. The trial occupied a whole day, and must have been attended with great expense. There was also a case of ' Chaplin v. Dodds,' tried before me a few days ago at these sittings, in which the parties consented to discharge the jury, aftey they had been locked up many hours without a chance of their agreeing."
  1018
  Here, then, were three cases at one sitting in which the juries were discharged without coming to a verdict. A Return had recently been moved for by a noble Lord opposite; but it did not affect the case at issue, because it was a return of the number of cases in which juries had been locked up all night; whereas what he complained of was the number of juries discharged without coming to a verdict. According to the strict letter of the law juries ought to be locked up all night; but the Chief Justice of the Common Pleas and the Chief Baron had never done so he had himself ordered juries to be locked up all night again and again; but, whenever he found there was no chance of their agreeing, he discharged them without locking them up. By this Bill juries would be allowed to have all needful accommodation and refreshment, and then, at the end of six hours, if nine of them had agreed, the verdict of these nine would be taken. He wished to remind their Lordships that juries were not so submissive now as formerly. They liked to think for themselves. He had no motive, except the due administration of justice, for bringing forward such a Bill; and he could assure their Lordships that the greatest hindrance and inconvenience to the administration of justice in the present day arose from the law which insisted upon the unanimity of juries.
  Moved, That the Bill be now read 2a.
  LORD LYNDHURST: My Lords, although it is my misfortune not to have heard all that my noble and learned Friend said in moving the second reading of the Bill under consideration, I conceive it my duty to state to your Lordships the opinion I entertain respecting this question. I speak most unfeignedly when I say I regret that my noble and learned Friend should have mooted this subject before your Lordships. The object of the Bill is to change one of the fundamental laws of the kingdom—one of the most important and fundamental laws of the kingdom—namely, that which relates to trial by jury, which has existed in its present form for 500 years, and during the whole of that time been admired and applauded by all the most eminent lawyers who at different periods have adorned the judicial tribunals of this country. I venture to think, my Lords, that a very clear, distinct, and satisfactory case ought to be made out before we proceed to make any alteration in that law; and it is because, after attending to the

  1019
  statement of my noble and learned Friend, and after having read a good deal on this subject, I am not satisfied that the alteration proposed will be a wise and beneficial alteration, that I feel it my duty to oppose the second reading of this Bill. My noble and learned Friend is a man of most singular energy and intellectual vigour, and sitting on the judicial bench, he has every opportunity of observing what necessity there may be for alterations in the law, which he afterwards endeavours to carry out in the Legislature. My noble and learned Friend, in his time, has been instrumental in effecting many important changes not only in the administration of the law, but even in the law of Parliament, and, if I am correctly informed, only so late as last evening he declared himself an advocate of election by ballot. The case under which this Bill has arisen has been adverted to by my noble and learned Friend. It arose in consequence of an accident on one of the railways. Ten persons had been injured by that accident.
  LORD CAMPBELL: My noble and learned Friend will pardon me for saying that in the last Session of Parliament, before that trial, I gave notice of this Bill.
  LORD LYNDHURST: I am not now stating anything with respect to the notice given by my noble and learned Friend. Ten actions were brought in consequence of that accident. Out of those ten actions five led to no result, and one was tried by my noble and learned Friend. It was a question of extreme difficulty. One of the jurymen differed from the rest; my noble and learned Friend was dissatisfied with his conduct, and expressed himself in strong terms. I do not find fault with him for that, but I say it was a question involved in great difficulty. Five juries tried the same question, and came to no result. Some difficulty may be experienced by my noble and learned Friend in such cases while unanimity is the law; but of this I am persuaded, that if you introduce the principle of a majority, juries will then be under the direct influence and almost under the control of my noble and learned Friend. My noble and learned Friend, as your Lordships are aware, is very fond of introducing a little pleasantry into the proceedings of courts of justice, with the view to relieve their dulness. Upon the occasion to which I allude the jury were brought into court in the morning; they were wretched, haggard, pale, and exhausted; and then it was my noble and learned
  1020
  Friend made a statement which he has in substance repeated this evening, and gave a history of the law with respect to the unanimity of juries. He told them that, according to ancient tradition, at assizes, if a jury differed, the Judge ordered them to be taken round the circuit in a cart, and then thrown into the next ditch. Of course my noble and learned Friend knew that would produce some laughter, in which, however, the jury so circumstanced could hardly be expected to join. But he assuaged their feelings with soft words; they had been confined all night, and he said, "You have suffered great inconvenience, and therefore I will discharge you." That was the result of the case in question. I have thought it necessary, my Lords, to examine a little into the accuracy of the statement made by my noble and learned Friend on that occasion; and I have to state that there is no instance to be found in the judicial history of this country in which a jury have been carried round a circuit in a cart, much less of their having been afterwards shot into a ditch. I will tell your Lordships how a contrary impression appears to have originated. Five hundred years ago, or nearly so, a case was brought before the Court of Common Pleas from the assizes, in which eleven jurymen had agreed and one had dissented. The person who reports what took place on that occasion—500 years ago, your Lordships will bear in mind—has a note, saying that in the course of the discussion the Judges said if the jury could not agree the Judges should have taken them with them in a "carr." until they agreed. I defy my noble and learned Friend to quote any authority for the statement he made, not an Act only, but a word in any book on the subject. The only authority is the note which I have quoted; and there is no instance of that having been acted on. My noble and learned Friend has cited Justice Black stone. Justice Blackstone refers to this very note. Allow me to say that my noble and learned Friend is wholly incorrect. You would suppose from his statement, and particularly from the manner in which he put it to the jury, that the Judges meant to inflict some indignity on the jury. The word mentioned is a French word abbreviated, which has been mistranslated by my noble and learned Friend. What, let me ask, was the mode of travelling in those days? On horseback, or, if not of horseback, in covered

  1021
  waggons. Coaches and carriages were not in use for 200 years afterwards. The proper translation of this word was, that it was the duty of the Judges to have carried those gentlemen with them in covered waggons until they came to an agreement. That is obviously the meaning of the passage to which reference has been made. I thought it my duty to make this explanation to your Lordships.
  LORD CAMPBELL: Blackstone's translation is "in a cart."
  LORD LYNDHURST: The word is carr. an abbreviation for carreo, which means a waggon going on four wheels, and covered with a cloth. My noble and learned Friend now proposes to change a fundamental law of this country which has existed 500 years without being questioned, and which has, during that time, received the sanction of the most eminent of our lawyers. Now, see how this system works. I have made some inquiry into the manner in which the law now operates. In nineteen cases out of twenty a jury never retires; it comes to a conclusion at once. When jurymen retire, what takes place? Each juryman, has, of course, some impression of the case; they discuss the subject between them; each man says what he thinks of the evidence; they deliberate, discuss, come to a conclusion, and agree on a verdict. My noble and learned Friend has said something about a compromise; it is not a compromise at all; it is a matter of discussion; each man states his opinion of the evidence of So-and-So; they think the matter over, after long discussion come to a conclusion, and with that conclusion come into Court. Is that unreasonable? Has it anything of the character or appearance of a compromise? A number of gentlemen go into a separate room, consider facts, and the conclusion to be drawn from those facts, and generally come to an agreement. What is the advantage of this system? Every man must feel it is of the utmost advantage to insure discussion that the jury should sift every point referred to them; no process can be more satisfactory. I admit there is a class of cases in which something approaching to conciliation and compromise may occur—I mean cases of damages in which no certain test exists, and the amount may be a matter of opinion; in such cases the jury may come to something like a compromise. But that will apply equally well to nine men as to twelve; no nine men can agree, without previous consultation, on what precise sum
  1022
  shall be awarded as damages. So your Lordships see at once you gain no advantage by going from twelve to nine. But the cases are very rare in which one or two persons hold out, and do not agree with the rest of the jury. And because cases of this kind occasionally occur will you, for that slight inconvenience, make an alteration in the fundamental law of the country, and the great system of trial by jury? What is the consequence if a jury disagrees and is discharged? Nothing more than this—that there is a new trial. And what proportion do the new trials ordered on this account bear to those that take place from other reasons, even from the Courts in London? Two or three a year is the very utmost. I was formerly one of the Judges of a common law court, the Chief Baron of the Exchequer. I sat in London, and I went on circuit; and during the whole time I held the office not one instance ever occurred of a jury being discharged for want of unanimity. I have presided as a Judge in Wales; I do not know if any noble Lord is present connected with that Principality; but its people are not very apt to abandon any opinion they have once formed. Yet even in Wales not one instance occurred, while I administered justice in that part of the world, of a juryman holding out. That is a pretty good experience. I practised many years at the bar, in the Court of Common Pleas, and in that period I recollect only one instance of it, but that was a remarkable instance; one juryman did bold out against the other eleven; it was a special jury, and the question was one of great importance. The person who held out was a merchant of eminence, named Barclay. I remember the whole case as if it occurred yesterday. The jury held out the whole night, and next morning was discharged. The case came on for trial again before another jury, and the result was a unanimous verdict in favour of the opinion entertained by Mr. Barclay, the dissentient juryman; and that verdict was never disturbed. Now, under what my noble and learned Friend contends for, gross injustice would have been done in this case; the eleven would have carried the first verdict, and it would have been a verdict contrary to law, and inconsistent with the facts. I believe that during the last ten years, with the exception of the case that is the foundation of this Bill, there has been no instance in the Courts of Queen's Bench, Common Pleas, or Exchequer, of any jury having remained out all night in conse-

  1023
  quence of disagreement. And not only so, but no case during those ten years has occurred on any of the circuits. But my noble and learned Friend says, this Bill only applies, not to the cases in which the jury is discharged, but those in which they are confined the whole night. A learned Gentleman (Mr. Best) has written a very able article on the subject; for the purpose of ascertaining what practical conclusion could be drawn from the fact, he has communicated with one of the most eminent Nisi Prius lawyers to ascertain what proportion the number of juries discharged in consequence of difference of opinion bears to the whole number of cases tried. He states that nineteen out of every twenty cases are decided without the juries leaving the court; and in those cases in which the jury retired, in not more than one case out of 500 was it discharged in consequence of non-agreement. In the cases of new trials the number is not so great. And this minimum of inconvenience is made the reason for putting an end to a great principle that has existed for 500 years! Then take the case of a special jury with a tales of common jurymen; on a motion for a new trial will not inferences be drawn in reference to the intelligence of one class and of the other? Take another instance, that of the Judge agreeing in opinion with the three and not with the nine; that will be a case for a new trial as a matter of course. If you adopt the system of the noble and learned Lord, mark what will be the result. The moment the jury get out of court they will look round and see what were the numbers, and if there is a majority of nine to three there will be no more discussion after that. Will the three hope to convert the nine? Will the nine give way to the three? Will it not be a decision by majority without discussion? And will you not take away the foundation upon which the whole system is built if you prevent discussion and inquiry? But suppose the jury are, under the proposed system, divided in the proportion of seven to five or eight to four, then the same inconvenience will exist as now exists. The public look with great earnestness and interest to verdicts reported in the newspapers; but will a verdict of nine to three be equally satisfactory to the public as verdicts now are? No verdict, of course, would be satisfactory to the party losing; but a verdict of nine will be infinitely more unsatisfactory to the party losing than a unanimous verdict; and when he finds
  1024
  that there are nine against him and three in his favour, he will, if possible, proceed to further litigation. Something has been said about the law of Scotland being similar to that proposed by my noble and learned Friend; but we have not had much experience of the operation of that system; and the fact is, that juries are not popular with lawyers in Scotland, who are indeed rather desirous of collecting the facts in some other way and taking the opinion of the Court upon them. We have had experience of the existing system in this country for 500 years; what is the experience in the United States? For 200 years our system has been the law in the United States, and there they do not com plain of it, but cherish it. Your Lordships must take not only the fact of our 500 years' experience, but add to it the 200 years' experience in the United States. In France, in 1791, it was decided that a majority of a jury should bind; but see how difficult it was when once there was departure from the principle of unanimity. That system lasted for a little while; then it came to nine to three, then to eight to four, and now they have gone back again to a majority. My noble and learned Friend said, that he does not intend to apply his system to the criminal law; but why not? What is the theory of trial by jury, but that it is thought that the jury is the best means of getting at the facts; and if a majority of nine to three are the best for that purpose, why should it not be applied to the criminal law? There are some cases which can be tried under an indictment or by an action at law. Take the case of libel. A man is brought into a criminal court to answer a libel; he is found guilty, and a penalty of £50 is imposed. There the verdict is unanimous. But if he is brought into a court of civil law for the very same libel and upon, the very same evidence, a verdict of nine to three will be sufficient to convict. I ought to beg your Lordships pardon for trespassing so long upon your time. I had no idea when I rose what I had to say. My noble and learned Friend has referred to the opinion of the Common Law Commissioners in 1831. That Commission was composed of most learned persons, for all of whom I have the greatest respect. They came to a conclusion correspondent with the opinion expressed by my noble and learned Friend; but let mo read a passage in their Report, which I think is of the utmost importance. They say:—

  1025
  "The necessity for the unanimity of the jury carries with it one most valuable advantage. In the event of any difference of opinion it ensures a discussion. Any one dissentient person can compel the other eleven fully and calmly to reconsider their opinion."
  The subject has been agitated among the profession since the publication of that Report with the greatest interest. Many pamphlets have been written on the subject, and it has been discussed over and over again. Another Commission was appointed in 1855. That Commission had the advantage of the opinion stated by their predecessors, and of the grounds on which that opinion was founded; they had all the advantage of the intermediate discussions, and what is the conclusion to which they have come? Directly the reverse of the opinion of my noble and learned Friend. [Lord CAMPBELL dissented.] My noble and learned Friend shakes his head; but I will presently read to him what they do say. The chief of that Commission was the most eminent Judge who now presides in the Court of Common Pleas—Chief Justice Cock-burn. No man more intelligent ever sat on the bench.
  LORD WENSLEYDALE: Chief Justice Jervis was the chief of the Commission.
  LORD LYNDHURST: Well, everybody knows the eminence of Chief Justice Jervis and his character as a lawyer. Chief Justice Cockburn was the Attorney General at that time. He was a member of the Commission; so were Mr. Baron Martin and some other learned Judges. The Commissioners say:—
  "A verdict pronounced by a majority only would fail to give satisfaction to the public; while the consciousness that a portion of his 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 ensured. 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 from which their sense of duty makes them unwilling to be answerable. Hence arise full discussion and deliberation; and if the one section of the jury yields to the other, it is only because the prolonged discussion has led to altered convictions."
  1026
  I am not quite sure whether I distinctly heard all that fell from my noble and learned Friend; but if he referred to the first Commission and their Report, and read that to your Lordships as the foundation of the conclusion to which he wished to lead them, without referring to the second Commission, I think that he did not act the part of a fair arguer in a constitutional tribunal such as this.
  LORD CAMPBELL: I did refer to the second Commission.
  LORD LYNDHURST: Then I beg to apologise to my noble and learned Friend for the doubt I have entertained, and to follow that by a second apology, which I offer sincerely to your Lordships, for having taken up so much of your time upon this question, which I have done most reluctantly, because I really have not sufficient physical vigour to give distinct utterance to the opinions and arguments which I wish to urge upon your Lordships.
  EARL GRANVILLEtrusted that it would not be thought an act of great presumption on his part if he ventured to speak upon a question of this nature after the two noble and learned Lords who had addressed them; because he thought that it was just one of those subjects on which the common sense of an unlearned person might be brought to bear. The noble and learned Lord (Lord Lyndhurst) in his singularly able speech, evincing that vigour which, thank God, still distinguished him in so great a degree, alluded, in the first instance, to the source of this Bill, and insisted—somewhat unfairly, as he thought, and contrary to the allegation of his noble and learned Friend (Lord Campbell)—that the idea of the Bill arose in consequence of one trial. But his noble and learned Friend (Lord Campbell) had told them that some years ago he carried a similar provision through that House, and that last year he gave notice of this very Bill—
  LORD LYNDHURST: I said that the "Bill" originated in that trial. I did not say when or how the "idea" originated.
  LORD CAMPBELL: I gave notice of my intention to bring in this Bill before that trial was thought of.
  EARL GRANVILLE: He had never been able quite to understand why—seeing that in County Courts it was optional with the parties to dispense with the jury, and that the most important cases were decided in the Court of Chancery and in

  1027
  that House without the intervention of a jury—it was absolutely out of the question to dispense with juries in civil causes before the higher tribunals alone. But he would not enter upon that subject now; but would proceed to consider the merits of the present Bill. In arguing the propriety of these causes being tried by juries, one advantage which had been relied upon was, that it gave to all the parties who were concerned a certain amount of knowledge of the law. But, on the other hand, nothing could be worse for the practical education of those classes than to teach them by a compulsory method to give up their opinion—regardless, perhaps, of their oath—with the view of coming to a compromise and agreeing to a verdict. The noble and learned Lord (Lord Lyndhurst) bad shown how, when the jury were brought together, they arrived at unanimity; but he (Earl Granville) could not agree that that was always a wholesome unanimity. Day after day instances arose in which men, trained to the exercise of judicial functions, were unable to come to unanimity; and how could they expect jurymen to do so in all cases, except under a compulsion which was quite unfitted to the age in which we lived, he could not understand. The noble and learned Lord dwelt, with some pleasantry, upon the power which the Judge was supposed to have in dealing with juries. He (Earl Granville) doubted whether there was any power at common law to cart a jury from town to town, and put them into a ditch; but it was immaterial which of the noble and learned Lords was right in that respect, because it was a thing not likely to be done in these days. It was certain, however, that the Judges had a right, and that it was almost their duty, to shut up juries during the whole night, and until they agreed upon a verdict. Could it be denied that this was, as described by Hallam, a "preposterous relic of barbarism"? A story was told of a celebrated Judge, not long deceased, which bore rather upon this point, and showed how the strict letter of the law was sometimes evaded. Being applied to by a juryman, who said that he felt faint and wanted a little water, the Judge said, "the law is against you—it says that you shall have neither food nor drink;" but, after a little consideration, the Judge said, "Still, as I don't think water is meat, and as I am quite sure it isn't drink, you may have the water." In Scotland, the institution of trial by jury in civil cases
  1028
  was new, and it was so unpopular, that of late years the system had been modified, and since then there had been no complaints of its operation. In Van Diemen's Land and New South Wales this system of taking the verdict of a majority prevailed, and unless he was greatly mistaken, it was when the noble Earl at the head of the Government was Colonial Secretary that it was first introduced. The Commission for drawing up a code for India, on which Sir John Jervis sat along with the Master of the Rolls, Sir Edward Ryan, and other eminent persons, recommended that this system of taking the verdict of the majority should be established there. The noble and learned Lord opposite (Lord Lyndhurst) argued that nothing could be more undesirable than that a jury should retire from the box, just count the votes, ascertain the majority without taking the trouble to discuss the matter, and then rush out again with the verdict; but the Bill of the Lord Chief Justice provided that the verdict of the majority should not be taken until the jury had been in consultation six hours without arriving at a unanimous verdict. Therefore the Bill was not open to the charge of diminishing the opportunities of a free discussion by juries of the matter committed to them. On the whole, the alteration instead of weakening was much more likely to strengthen the ancient institution of trial by jury, and he should therefore support the Bill.
  THE LORD CHANCELLORsaid, it gave him sincere pleasure that the noble Earl (Earl Granville) had taken part in this discussion, and he believed it would be a practice attended with great advantage if noble Lords would show that they took an interest in matters which, though they were of a legal character and bearing, were yet of great public importance. His noble and learned Friend who introduced the Bill always addressed them with great authority on all matters connected with the administration of justice; yet he would venture, with great deference, to submit that on this particular subject his experience was only second to that of the noble and learned Lord Chief Justice. Perhaps he viewed the matter with the eye of an advocate. His noble and learned Friend, on the other hand, regarded it as it appeared from the height of the judicial bench, and with a very natural desire to make such on alteration in the law as would render juries what was called more

  1029
  manageable. His noble and learned Friend (Lord Lyndhurst), who was always listened to by their Lordships with so much delight, had been found fault with for attributing this Bill to the conduct of a jury in a particular case which the noble and learned Lord Chief Justice had recently tried. The noble and learned Lord (Lord Campbell) said, in reply, that his opinion had been formed long before this trial; but that his noble and learned Friend (Lord Lyndhurst's) statement was correct so far as this, that the measure had been introduced in consequence of the conduct of the jury in that case, was proved by the report of the trial. The report stated that the noble and learned Lord when the jury came into Court next morning—after the little pleasantry of which he was guilty—explained to the jury the present state of the law as to unanimity, and the account went on to say, "His Lordship added that it was his intention to bring in a Bill in the next Session of Parliament to alter the law requiring unanimity in civil cases at least, and to provide that the verdict of the majority or some portion of the jury should be taken." Now, he must really be permitted to say, with the greatest respect to his noble and learned Friend, that it was extremely desirable that a Judge sitting upon the judicial bench should confine himself to his judicial functions; because he was informed that since these remarks were made juries had become much more what Judges called "refractory," and on two or three different occasions they had sent to the presiding Judge to know whether the verdict of a majority could not be received. He wished to call their Lordships' attention to the case which had induced—he supposed he must not say provoked—his noble and learned Friend to introduce his Bill. It appeared that a crop of actions had sprung up out of an accident on the Great Northern Railway, under the fostering hand of one and the same attorney. There were ten of those actions altogether, and it was curious to know what became of them. In the first case there was no trial—the record was withdrawn. In the second, there was a verdict against the company; but a new trial was moved for. In the third, there was a verdict for the plaintiff; but Mr. Justice Erie, who tried the case, was dissatisfied with the verdict, and a new trial was granted. The fourth and fifth were both tried in the Court of Exchequer. Both lasted for two days and a
  1030
  half, and in both cases the jury were discharged without being able to agree in a verdict. The case which his noble and learned Friend the Lord Chief Justice tried was the sixth. The case in all of them was a confessedly difficult one—whether the railway company was chargeable with negligence which would have rendered them liable to considerable damages. It was quite clear that there was a total absence of general negligence on their part—such as the construction of the railway and the state of the carriages; the question whether there was any particular negligence, in driving their express train with considerable speed at night into a mass of rubbish which had accumulated from a landslip near Newark. The jury were unable to make up their minds whether there had been particular negligence or not; but they considered that the case was surrounded with so much doubt that they returned such a verdict as would make each party pay their own costs. The Lord Chief Justice refused to receive the verdict, and remanded the jury. Now, perhaps his noble and learned Friend was right so far. He was entitled to point out to the jury that it was a verdict which, if there were a motion for a new trial, could not possibly stand. The Lord Chief Justice, therefore, sent the jury back again; and just about the rising of the Court the jury returned, stating that they adhered to their verdict—that they could return no other. Now, he must say, with great deference to his noble and learned Friend, that he was bound to receive that verdict. The counsel on both sides were not likely to press for its reception, as it satisfied neither of them; but the Judge was bound to receive it. Instead of that, however, his noble and learned Friend sent back the jury again, and locked them up for the night. Now, he must say that if it had not been that the Judges of the superior Courts wore protected from responsibility with respect to their acts in Court, his noble and learned Friend would have been in great jeopardy of having twelve different actions for false imprisonment brought against him. The jury, however, were brought before his noble and learned Friend on the following morning, and as they were still unable to agree they were discharged; and this was the moving cause of the Bill that was now before their Lordships. Now, let them consider the position of this question. Tie was surprised to hear his noble and learned Friend say

  1031
  that the unanimity of juries did not rest on the common law of the country. It certainly did not rest upon statute law; and his noble and learned Friend admitted that it was established in 1368, so that it had an antiquity of nearly 500 years in its favour, for the unanimity of juries was then established by the decision of the Court of Common Pleas, overturning the bad precedents which had before that time crept in of receiving verdicts without the jury being unanimous. He thought that 500 years was quite sufficient to establish the permanence of any system, and this was a system which had been established 500 years without the slightest objection until very recent times. He believed that those who argued in favour of getting rid of unanimity looked only to the few cases where the juries were discharged without a verdict, while they never regarded the thousands of other cases in which justice flowed on in a smooth stream without any obstruction from juries. He had conversed with some of the Judges, and he found they were uniformly of opinion that the law ought to remain as it was; and one learned Judge, who had been eighteen years on the bench, stated that he only knew of two instances where the jury was discharged without a verdict. He could speak from an experience which went back for nearly forty years, and he had no clear recollection of more than one case where the jury was discharged without a verdict. It was an action against the General Steam Navigation Company; it was what was technically called a "running-down" case, and it was tried before his noble and learned Friend. In the first action the verdict was given against the company; but that verdict was set aside in consequence of a misdirection, or, let him say, a supposed misdirection on the part of the Judge. The second trial also took place before his noble and learned Friend. On this occasion there were five special and seven common jurymen, and the jury having retired for some time, returned into Court stating that they could not agree. His noble and learned Friend, being naturally anxious to secure a verdict, asked the counsel whether they were willing to take the verdict of the majority. He (the Lord Chancellor) being counsel for the company, declined, because he believed that the special jurymen were better qualified to form a correct judgment of the case than their neighbours, and he suspected they were the minority, as they formed the minority of the jury. He after-
  1032
  wards learned that he was correct in his suspicion, the jury being divided seven to five, and they were discharged. The third trial took place before Mr. Justice Erle, when a verdict was given for the company, and no one who heard the question could doubt that that was a fair and just verdict. He agreed with his noble and learned Friend, and here he thought his noble and learned Friend had given the House a glimpse of his motives in introducing the Bill—that juries were becoming more independent than they used to be, and that it was more difficult for a Judge to lead them. But he believed that independence was confined to the metropolis; it was not observed in the country. But while he admitted that the trial was not to be by the Jury alone, but by the Judge and the jury together, and that it was the duty of the Judge to guide the jury as far as he could in coming to a correct conclusion, yet he was afraid that if their Lordships agreed to alter the system of unanimity and allowed a majority of nine to three, or any other majority to determine cases, a Judge with a strong will would be very likely to possess more influence over a jury than it was at all desirable a Judge should have. There were difficulties on the subject, no doubt, and diversities of opinion. The noble and learned Lord Chief Justice had claimed the Report of the Commission of 1831 as in his favour; and though it was true that he had also referred to the Report of the Commission of 1853, and stated that it was against him, yet he did so in a very different tone, from that in which he pointed out all the parts that made in his favour. Now, he would at once say that he desired to do away with those absurd restrictions—absurd, because the oath was never administered to the bailiff without exciting laughter. He desired that juries should deliberate in a proper manner, and not be forced to give a verdict through weariness of the flesh, or exhaustion from thirst or hunger. There was another difficulty in this question. His noble and learned Friend did not propose to extend the Bill to criminal cases. But the Commissioners on the Criminal Law, who had issued several Reports, differed from him in this respect; for they said that they thought there should be some alteration of the law with regard to unanimity, at all events with respect to acquittals. Indeed, he (the Lord Chancellor) had heard objections taken to the Bill because it did not extend to criminal cases. And he now asked their Lordships

  1033
  if it were possible for his noble and learned Friend to stop short? Whether, having introduced the law of a majority into civil cases, they could possibly say that it was good for civil cases, but that it should not be extended also to criminal? Let them remember that there were many civil cases which, in their consequences, were quite as serious, sometimes even more so, than criminal. He would take the case of an action for libel, in charging a man with having committed an infamous crime, with a plea of justification. The justification was proved in court, and the party was as much put upon his trial for the offence as if he were arraigned at the bar of a criminal court of justice, and the consequences to him were just as serious. Yet his noble and learned Friend said, "If the case is technically a criminal case, I protect and defend the man by requiring the unanimity of the jury; but in a case of this kind, with consequences just as fatal, I allow a verdict of nine." Again, take the case of a lady of rank who was recently charged with writing anonymous letters. To that also his noble and learned Friend's nine to three would apply. But in cases of this description, was it possible, he asked, to be satisfied with a majority of nine to three instead of unanimity, as was now proposed by his noble and learned Friend? Unanimity was not so absurd as his noble and learned Friend had endeavoured to show their Lordships; for, as had already been properly observed, the requiring of unanimity imposed upon each juryman a responsibility which made him careful in forming his opinion, and obliged him to reason with his brother jurors. But, under the noble and learned Lords' Bill, if there were three dissentients, the majority would cease to trouble themselves about the opinions of the minority; all they would have to do, would be to sit the appointed time, and then pronounce their vote. There was one striking illustration of what the consequences of the present proposal would be, to which his attention was directed a short time ago by a noble Friend who was then in the House. It was an action in which he (the Lord Chancellor) happened to be engaged, and which was brought against a schoolmaster for cruelty to a scholar. The jury who assembled to try that case were three special and nine common jurors. His noble Friend was one of the three special jurors on the occasion. A very strong appeal was made to the feelings and sympathies of the jury, and proof was given
  1034
  that, after the punishment was inflicted upon the boy, there were appearances upon his person which were the result of that punishment. Very eminent surgeons, however, were called, who proved that the marks upon the boy could not be ascribes to the punishment, and stated with regard to the nature of it that they should not object to its being inflicted on their own sons if they deserved it. When the jury retired to their room, the three special jurors were in favour of a verdict for the defendant, whilst the nine common jurymen were in favour of the plaintiff. His noble Friend informed him that he and the special jurymen reasoned calmly and patiently with the common jurymen, and at last brought them round to their opinion; and a verdict was therefore given for the defendant. Now, suppose that the measure of his noble and learned Friend had been the law at that time, what would have been the consequence? Did their Lordships suppose that the common jurymen would have listened to the reasonings of his noble Friend and his colleagues of the special jury. Not a bit of it. They would have felt that they were a majority. They would have refused to hear anything further; and the result would have been the ruin of the schoolmaster for the whole of his future existence. A Bill was now before the House of Commons to extend the operation of the Act of 1854 in Scotland, and to allow a majority of nine to three to decide after three hours' deliberation. His noble and learned Friend admired the Bill of 1854; but did he not mean also to reduce the time of deliberation from six hours to three? Their Lordships ought to understand how far they were to be asked to go, and how dangerous it was to take the first step in this direction. One thing had always struck him as an argument in favour of the unanimity of juries, and that was the confidence and security of the suitor. A person who lost a cause was never just, and always attributed his failure to some other reason than the badness of his cause. But if he had a unanimous verdict against him, of course he felt less ground for objection. Supposing, however, a losing suitor could say that three of the jury were in his favour, would he not have stronger grounds to question the propriety of an adverse decision? His noble and learned friend had referred to the subject of applications for new trials. He (the Lord Chancellor) had known many cases in which the Judges said—"Notwithstanding we feel that we

  1035
  should have been more satisfied if the verdict had been the other way; yet, inasmuch as it was a question of fact, and there was evidence on both sides, we cannot, and ought not, to disturb the verdict." But suppose a doubtful case of that kind, where the Court felt that the verdict ought to be different from that which had been pronounced by a majority of the jury, would any Judges feel that they ought not, under such circumstances, to grant the parties a new trial? and would not that produce quite as much litigation as those few cases—for they were only a few—in which the juries had been discharged for want of unanimity without returning a verdict? Was every case brought into a court of law to be so clear that juries were expected to be ready to decide one way or the other? This institution was rooted in the habits and affections of the English people, and it must not be disturbed, unless upon a very strong, he had almost said, an overruling necessity. He asked their Lordships, then, whether his noble and learned Friend had satisfied them by the few, and those recent, instances which he had brought before their notice, that there was any reason for trying this hazardous experiment—changing the whole system which had now endured for 500 years—and committing ourselves to an untried plan—untried so far as England was concerned—a plan which was foreign to our constitution, and foreign also to the feelings and opinions of the people. The present system had been so long established, and had worked so well and satisfactorily, and the grounds which had been laid by his noble and learned Friend, instigated by the feeling that juries had become too independent to enable Judges to direct their movements as they ought to do, were so utterly insufficient, that he hoped their Lordships would "stand upon the ancient ways," and not allow this noble institution to be tampered with in the manner now proposed.
  LORD CRANWORTH,whilst supporting the Bill, admitted that the subject was one of the greatest importance and difficulty. It bad been stated that his noble and learned Friend, the Lord Chief Justice, had introduced this measure in consequence of a certain trial. Whether that was the moving cause or not, he (Lord Cranworth) could not undertake to say. His noble and learned Friend said that he had given notice of the Bill last Session; but if he (Lord Cranworth) were not mistaken, his noble and learned Friend gave
  1036
  notice five years ago—as far hack as the year 1854—that in consequence of what then took place, he should, in a future session, propose an alteration of the law. The first Royal Commission, appointed in 1831, came to the conclusion that unanimity ought not to be supported, and recommended a quorum. The next Commission, appointed in 1851, differed from their predecessors on that head, though they concurred with them that the present system could not be supported; and they, therefore, recommended that if at the end of twelve hours a jury did not agree on a verdict, or were not unanimous, they should be discharged, and there should be a new trial; and it was on the failure of the consequent attempt to legislate in 1854 that his noble and learned Friend gave notice that he should introduce a measure on the subject in a future Session of Parliament. With regard to the recommendations made by the Commissioners, it could not be urged that they came from men who were too prone to suggest changes in the law. The objection, indeed, to the recommendation of lawyers was, not that they were too ready to propose changes, but rather that they were too little ready, and more inclined to act upon the maxim stare super vias antiquas; and when he found two successive Commissions, numbering among them the greatest lawers of the day, at an interval of twenty-five years, concurring in this, that some change mu3t be adopted, and that their Lordships had come to the conclusion that a change which put an end to compulsion, without exploding unanimity, was impossible; he thought that the time had arrived when some change or other was absolutely necessary; and, if a change was necessary, what other could be regarded as a final change if not that proposed by the Bill of his noble and learned Friend? It might be that the result of such a change as that proposed would be that ere long that change would he extended to criminal trials. It was a question with him whether that would he so great an evil as some seemed to anticipate. He believed it very often happened that on trials for capital offences one or two persons on the jury who were able to satisfy their consciences that they might do evil that good might come, frustrated the end of justice, by refusing to agree to a verdict of guilty, because they knew that such verdict would probably be followed by an execution, and they believed that executions were opposed

  1037
  to the law of God, and ought not to be sanctioned by man. Many acquittals were now the consequence of this feeling, and this evil might perhaps be remedied by legalizing the verdict of the majority. He did not, however, attempt to conceal from himself that an evil might arise in the opposite direction. In the case of a man being convicted of a capital offence, and there being one, two, or three jurymen opposed to the conviction, the pressure on the Home Secretary would probably be so great as to prevent the execution taking place. He was aware that the scheme of the Lord Chief Justice was open to objections; but every scheme was open to objections; and he did not think that the mere fact that under the Bill the jury would be released in six hours, would necessarily, or even probably, result in a determination that they would not discuss the question before them. Two successive Commissions had recommended the change proposed. This change seemed to be in harmony with the general feeling of the country; and he should therefore support the second reading. It had been said that jurors at the present day thought for themselves more than they used to do. No doubt of it; but this was not confined to jurors; it was the consequence of the general extension of education and consequent intelligence; and now that every man thought for himself, it was not possible that they should be directed by the Judges so much as once used to be the case, when, perhaps, there was only one or two of the jury with any pretension to education or general intelligence. Men were now more nearly on an equality than formerly, and it was not in human nature to yield so readily to the opinion of one or two men, as when society was more divided in point of education and intelligence into classes. The true way of preserving trial by jury was not to adhere rigidly to the letter of the law, but to adapt it to the greater intelligence and altered wants of the age. He did not yield to his noble and learned Friend the Lord Chancellor in his wish to retain the institution of trial by jury—not, however, because he thought it the best means in all cases of ascertaining the truth, but because he believed it to be one of the most essential pillars of the constitution; by means of the trial by jury every member of the community was, as it were, made to regard himself as forming part of the social edifice; he was led to feel that he had an interest in the administration of justice; he was conscious that he had high and important social duties to
  1038
  discharge, and he thus was likely to become a better citizen and subject. He went the Northern Circuit as Judge on nine several occasions while he was a common law Judge, and he was much struck by one circumstance. At York and Liverpool the assizes occupied about a fortnight, and two sets of jurors were summoned to give their services a week each. And the circumstance to which he alluded was this—when the jurors left the court at the end of the week they decidedly possessed an aspect of intelligence which was not seen when they entered the jury box. He would therefore never consent to any alteration that would tend to do away with trial by jury; but this proposal had no such tendency, and he would therefore support it.
  LORD WENSLEYDALEwas opposed to the Bill, for which there was no pressing necessity. The noble and learned Lord read several returns showing how seldom juries disagreed to a verdict, either in London or upon circuit. He thought that at common law the Judges had no authority to discharge juries without a verdict, and he would be glad to see the law amended in this respect. There was no want for the measure, and why should they alter the ancient law and practice of the realm?
  Amendment moved, To leave out ("now,") and insert ("this day six months.")
  LORD KINGSDOWNsaid, he entertained a strong feeling in favour of the proposition of the noble and learned Lord Chief Justice. The main, if not the sole, argument against it was that it would be tampering with an ancient institution of the country, which had existed for 500 years. The question was, however, whether the proposed measure was not calculated rather to improve than impair, and by removing the blemishes which disfigured it, to maintain the institution of trial by jury for a long period to come? There was at least this argument open to the supporters of the alteration, that it would indeed be singular, when every other institution required to be improved as time progressed, if one so peculiar in its nature as this required no amendment. To the authorities which had already been quoted in support of the Bill he would add that of Paley, who stated that there were a few peculiarities in the constitution of the country which did not carry with them that evidence of their propriety which recommended almost every other part of the system, and that the first of these was the rule which required juries to be unanimous

  1039
  in their verdicts, and which he described as rather the "conceit of a barbarous age," than an institution worthy of modern civilization. The only thing bearing the semblance of authority which had been cited against the Bill was the opinion of the Commissioners of 1851; but when the terms of that opinion were considered, he thought that it would be found to bear rather in favour of the measure than against it, for they stated that the very reasons which induced them to think that unanimity was desirable, led them also to think that that unanimity should be not merely apparent but real, and rendered them averse to any attempt at coercion. But when the Commissioners described unanimity as so desirable, he wished that they had shown how it was to be obtained. The Judges differed among themselves; their Lordships even, sitting in their judicial capacity, did not always agree, although they had to assist these men whose minds were trained by practice and experience to weigh evidence and to sift the truth. They had to decide upon matters of evidence—nice inferences and distinctions had to be drawn from facts of a conflicting character, and in practice they did not and could not find unanimity; and yet they expected to see it among twelve men taken at haphazard from the community who had never been accustomed to investigate evidence or to weigh it, and unable, very often, properly to comprehend the question submitted to them. In what way then was this unanimity to be obtained? He contended that there were in fact no means of obtaining anything but a false unanimity; and the evil of this was that one perverse, corrupt, or obstinate juryman, if he were stronger or more stubborn than the rest, might starve the whole eleven into a verdict. The Bill would not in the slightest degree affect the free discussion and consideration by juries of the matter in hand, which he admitted were essential to the delivery of a true verdict. There was no assurance that what now was called a unanimous verdict was in truth unanimous, for, under the present system, the weak in constitution must infallibly yield to the strong and obstinate. It should be remembered that there were many persons with very peculiar views. Some men, for instance, were of opinion that all atrocious criminals were lunatics; others could never bring their minds to the conclusion that offences could be committed under the game laws, and a strong stubborn minority might overbear the good sense of a weak majority. Upon the whole, the arguments
  1040
  and reasons in favour of the Bill were overpowering, and looking to the experience of the Colonies, and particularly of Scotland, he had no hesitation in giving his cordial support to the measure.
  LORD CAMPBELL LORD CAMPBELL, in reply, defended himself against the imputation of having been induced to bring in this Bill by the case so frequently alluded to. Long before this case he had given notice of his intention to bring in a Bill of this description. Certainly, to reject a Bill which it was admitted contained much that was good, and which might be well amended in Committee, was utterly at variance with the principle for which the friends of noble Lords opposite had contended so vigorously during the week in "another place." He contended that notwithstanding the able speeches that had been made against the Bill no answer had been given to the arguments in favour of the measure. Whatever the result of the division might be he considered it his duty to take the sense of their Lordships on the second reading.
  On Question that ("now,") stand part of the Motion, their Lordships divided—Contents 7; Not-Contents 23: Majority 16.

  CONTENTS.

  Amherst, E.

  Campbell, L. [Teller.]

  Ellenborough, E.

  Cranworth, L.

  Granville, E. [Teller.]

  Kingsdown, L.

  Grey, E.

  NOT-CONTENTS.

  Chelmsford, L. (L. Chancellor.)

  Hutchinson, V. (E. Donoughmore.)

  Bath, M. [Teller.]

  Strathallan, V.

  Exeter, M.

  Boston, L.

  Salisbury, M.

  Churston, L.

  Colville of Culross, L. [Teller.]

  Carnarvon, E.

  Derby, E.

  Congleton L.

  Hardwicke, E

  Denman, L.

  Malmesbury, E.

  Dinevor, L.

  Romney, E.

  Northwick, L.

  Rosslyn, E.

  Skelmemersdale, L.

  Verulam, E

  Wynford, L.

  Dungannon, V.

  Resolved in the negative.
  Bill to be read 2a on this day Six months.
  House adjourned at half-past Nine o'clock, to Thursday next, half past Ten o'clock.