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cause it tends to place jurymen in the dilemma there stated.

Having thus shewn the dangers and absurdities of the present practice, with the inconclusiveness and sophistry of the arguments supporting it, let us now see whether it is not possible, by a few alterations, to preserve the substantial good of this mode of trial, while we exterminate the defects which injure and disgrace it. I am not aware that the mode of impannelling the general list of jurors from which the particular Juries are drawn, admits of much improvement, except by the introduction of the better class of householders. The ballot in court for each distinct Jury is a late and great improvement. The number of twelve, as has been argued before, is exceptionable for two reasons: 1st, as being more than are generally wanted; and, 2dly, as being divisible into two equal parts. In all cases at the assizes and sessions, capital ones excepted, let the number be seven; in trials for capital offences, let it be thirteen. This difference will give a distinctive solemnity to those trials, highly impressive and beneficial. In inferior courts, where a Jury may be employed, five appear quite sufficient. '

I

By the late publication of the Rules of Criminal Process in the Code of Napoleon, where the trial by Jury is introduced, it appears, that in case of difference, the verdict is to be that of the majority. The number of Jurors is 12; an equal division acquits; and twothirds are required to condemn. These regulations are imperfect. An odd number should prevent an equal division; and a simple majority decide either way: otherwise the minority may give the verdict, as in the division of seven for convicting, and five for acquitting, where the five will be victorious. It must be remembered, that justice may be frustrated by acquittal, no less than by condemnation.

It appears, that one principal objection made by the Canadians to the introduction of Juries in their courts, was the required unanimity. VOL. V. 2 A

NO. X.

Pam.

Having heard the counsel and evidence, with the summing up and charge of the Judge, the Jury, if not almost immediately unanimous, may retire as at present, with fire and candle if necessary, but without victuals or drink, except expressly allowed by the court. As soon as they are unanimous, they return and tender their verdict. As long as they are not so, the minority, though but one, may prevent the delivery of the verdict for three hours from their enclosure. At the expiration of that time, the majority may call on the whole to return into court and deliver their verdict, which shall then be taken from each Juror individually; and the decision of the majority shall be the verdict in the cause. On application from a

Juror, or on the Judge's own opinion that the Jury have not sufficiently investigated the case, the court may remand them to reconsider it, for a time not exceeding two hours more; after which it is bound to receive and record the verdict of the majority, without farther delay.

Here it may be asked, how the verdict is to be taken in actions for damages, such as crim. con., false imprison

« They observed, that it was a strange thing, and a hard one, to force twelve persons, who really think differently upon a doubtful matter that is referred to their determination, to say, upon their oaths, that they are all of the same opinion; and to continue to be shut up together, without food or light, till they do say so. This, they said, was putting the decision of causes into the power of those jurymen who had the strongest constitutions, and could go longest without food. And it was also forcing some of them to break their oath, and commit a kind of necessary perjury, by acceding to the opinions of their brother Jurymen, when they really entertained a contrary opinion.". Extracted from "Additional Papers concerning the Province of Quebec, being an Appendix to the Book entitled An Account of the Proceedings of the British and other Protestant Inhabitants of the Province of Quebec in North America, in order to obtain a House of Assembly in that Province. London, 1776." P. 324.

ment, &c. where the Jury may be divided by more than two opinions as to their amount, but where the largest party is still less than a majority of the whole; as if, in a jury of seven, two jurors were for giving £5000, two £3000, and three £1000?

Answer. The verdict of the plaintiff having been established by an absolute majority of the whole,-where there are more than two opinions on the amount of the damages, it may be fixed by the relative majority, as by the three in the case above stated; and by the choice of the Judge among the various sums indicated, where there is no relative majority, as in the division of three, three, and one; or two, two, two, and one.

It would be a considerable improvement to enact, that the verdict shall always be given in writing, signed by the majority who adhere to it, and read aloud in court to the Jury immediately after the delivery, each Juryman who had signed it being then called on to acknowledge his signature and approbation of it. This would effectually cut off all questions, whether the words of the verdict had been correctly taken by the clerk in court; and if, on a special finding, there was reason to think the Jury had used words not sufficiently expressive of their meaning, a good opportunity would be afforded to the Court, of suggesting to them how the words might be altered so as to agree with and express the decision of their minds.

By these means, it appears, that instead of a forced and unreal unanimity, as at present, we shall obtain the true and fair sentiments of the majority of the Jurors. In cases of doubt, it is impossible there should not frequently be a difference of opinion. It is advancing the ends of justice and morality that such difference should be declared, and that each man should avow and be answerable for his own opinion, and for none but his own.

In

criminal cases, were a committee of veteran villains to sit to consider of the best means to prevent the arm of justice from reaching the fraternity, with power to alter the mode of trial to their wishes, I think one of their most promising plans would be, to increase the number of Jurors, retaining the necessity of unanimity. If so, a diminution, to a certain degree, of the number, at present unnecessarily large, and suffering the majority to decide, would promote justice in the same proportion that the reverse plan would hinder it.

It may be said, that this doctrine, pushed to its full extent, would shew that a single unexceptionable juror would form the best Jury possible. I answer, so he would, were he free from human infirmities, passions, and errors. The admission of a plurality of judges, legislators, &c. is justified by experience as a mean of correcting the possible mistakes of one, by the clearer perceptions of the others; at the risk, however, of sometimes introducing error and evil, instead of preventing them. We must endeavour, in this case, as in all others, to obtain the greatest chance of good, with the least of evil,-knowing that great, certain, and unmixed good, is hardly attainable by human wis dom.,

I cannot subscribe to the unlimited assertion sometimes brought forward to palliate the present practice, that it is better for ten guilty persons to escape judicial punishment, than for one innocent person to suffer by it. They are both great evils, and to be studiously avoided; but their respective demerits to the public cannot be weighed against each other in the lump, without distinction of particular cases. There may be such, in which the punishment of an innocent individual, of great virtue and talents, may be of far more detriment to the public than the escape of ten vulgar rogues; and there may be those, in which

the escape of a subtle, accomplished, and desperate villain, may be much more injurious to the public than the punishment of an ordinary character, though innocent. Let it not be understood that I mean to defend or excuse the latter. Injustice to an individual of any class is criminal and odious; but it is the business of legislators to modify the laws, and to direct their execution so as, on the whole, to admit as little of it as possible; and by no process or mode of trial to open the door of evasion so wide for the sake of the innocent, as that the guilty may easily and commonly calculate on slipping through it.

In effecting a change of long-established practices and customs, I am aware that various difficulties may arise to prevent the benefits proposed by the alteration from following it, at least immediately. I have tasked my fancy to anticipate them in this case; but in vain. By the improvements suggested, every person concerned in the administration of justice would receive advantage; the parties, the jurors, the advocates, the judges, and the public. But should real difficulties appear, they must be formidable, and indeed insuperable, to set aside the powerful claims for protection of individual morality and public jus

tice.

I appeal to our legislature, unfettered as they are with the Juryman's cath, to the judges, and to the other magistrates, whether a compulsive unanimity in their decisions would not be a most oppressive and intolerable burden; whether it would not palsy their deliberations, frustrate their endeavours for the public good, and essentially impede the administration of justice. Jurors are men of like passions and feelings with themselves; not perhaps so well instructed, and therefore less likely to weigh accurately the opposite reasons in a doubtful case, and to be unanimous in favor of a small preponderance. Let them

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