Page:Encyclopædia Britannica, Ninth Edition, v. 13.djvu/821

J U K Y 787 for the jury to say which side is to be believed, and the court will not interfere with the verdict. To upset a verdict on the ground that " there was no evidence to go to the jury " implies that the judge at the trial ought to have withdrawn the case-. The meaning of the phrase "evidence to go before the jury" is nowhere definitely ascertained, and a consideration of decided cases makes the difficulty more apparent. The question arises most frequently perhaps in cases involving an imputation of negligence e.g., in an action of damages against a railway company for injuries sustained in a collision. Juries are apt to infer negligence very easily, and the court has to say whether, on the facts proved, there was any evidence of the defendant s being guilty of negligence. This is by no means the same thing as saying whether, in the opinion of the court, they were so guilty. The court may be of opinion that on the facts they were not guilty, yet the facts themselves may be of such a nature as to be evidence of guilt to go before a jury. When tha facts proved are such that a reasonable man might have" come to the con clusion that there was negligence, then, although the court may wholly reject the conclusion in its own mind, it must admit that there is evidence to go before the jury. That perhaps is as near as we have yet got to an understanding of a phrase in daily use in the superior courts ; but it scarcely determines what relation between the facts proved and the conclusion to be established is necessary to make the facts evidence from which a jury may infer the conclusion. The true explanation is to be found in the principle of relevancy. Any fact which is relevant to the issue constitutes evidence to go before the jury, and any fact, roughly speaking, is relevant between which and the fact to be proved there may be a connexion as cause and effect. See EVIDENCE. When the question is what damages the plaintiff has sustained, the court openly undertakes to review their decision on its merits although this is as much a question of fact as any other. If the court deems the damages excessive, it will order a new trial to take place, generally adding the condition that the verdict may stand if the plaintiff will accept a reduced sum for damages, which in effect amounts to the court itself finding a verdict. The function of the jury in libel cases was in the last century the subject of a celebrated controversy which ended in the passing of Fox s Libel Act in 1792. Lord Mansfield and the judges held that the criminality or innocence of an act done, including any paper written, is matter of law and not matter of fact, an undeniable proposition then and since. They had also been in the habit of directing the jury to consider only the question of publication, telling them that its guilt or innocence was not for them to decide. Fox s Act declares and enacts that the jury may give a general verdict of guilty or not guilty in libel cases, and shall not be required or directed by the court or judge to find a verdict of guilty on proof of publication and of the sense ascribed to it by the prosecution. Of the merits of the institution little space is left to spaak. The present English jury has at least one con spicuous defect in the requirement of unanimity ; yet, so far as that is concerned, in practice it produces hardly any appreciable evil. All that Bentham and others have urged against it the application of a kind of torture to force conviction on the minds of jurors, the indifference to veracity which the concurrence of unconvinced minds must produce in the public mind, the probability that jurors will disagree and trials be rendered abortive, and the absence of any reasonable security in the unanimous verdict that would not exist in the verdict of a majority all this is undeniably true. Yet we rarely hear of juries disagreeing or of jurors agreeing under compulsion. When civil juries were established in Scotland, this was one of the arguments used against the experiment, but it has been stated by the judge, Mr Commissioner Adam, under whom the system was started, that he only knew of one instance of disagreement during a period of twenty years. English experience is much the same, and a reform which twenty or thirty years ago was pronounced absolutely necessary by conservative jurists is now hardly ever heard of. Practically juries have no difficulty in coming to a unanimous verdict ; and, if a guess may be hazarded on so wide a subject, they have probably less difficulty now than ever. One cause of that result may be the deference which juries invariably pay to the carefully suggested opinion of the judge arising no doubt from such perfect confidence in the bench as did not always exist, and would not always have been deserved if it had existed. But, apart from any incidental defects, it may be doubted whether, as an instrument for the investigation of truth, the jury deserves all the encomiums which have been passed upon it. In criminal cases, especially of the graver kind, ijj is perhaps the best tribunal that could be devised. There the element of moral doubt enters largely into the con sideration of the case, and that can best be measured by a popular tribunal. Opinion in England is unanimously against subjecting a man to serious punishment as a result of conviction before a judge sitting without a jury, and the judges themselves would be the first to deprecate so great a responsibility. But in civil causes, where the issue must be determined one way or the other on the balance of probabilities, a single judge would probably be a better tribunal than the present combination of judge and jury. Even if it be assumed that he would on the whole come to the same conclusion as a jury deliberating under his directions, he would come to it more quickly. Time would be saved in taking evidence, summing up would be unnecessary, and the addresses of counsel would inevitably be shortened and concentrated on the real points at issue. The Jury in Scotland. According to the Rcc/ia.m Mojcstatcm, which is identical with the treatise of Glanvill on the law of Eng land (but whether the original or only a copy of that work is a question which need not delay us), trial by jury existed in Scot land for civil and criminal cases from as early a date as in England, and there is reason to believe that at all events the system became established at a very early date. Its history was very different from that of the English jury system. In Scotland trial by jury survived for criminal trials, but became extinct in civil cases. In the criminal assize the jury has always consisted of fifteen persons chosen from the jury lists, general and special, drawn up by the sheriff, one-third of the jury being chosen from the special, and two-thirds from the general list. The verdict is to be that of the majority of the jury, and formerly it had to be expressed in writing, but may now be deliv ered viva, voce by the chancellor or foreman. Besides the " guilty " or "not guilty" to which the English jury is restricted, a Scotch jury may bring in a verdict of " not proven," which has legally the same effect as "not guilty" in releasing the accused from further charge, while it practically inflicts upon, him the stigma of moral guilt for the rest of his life. The civil jury was reintroduced in Scotland by the Act 55 Geo. III. c. 42, mainly on account of the difficulty which Scotch appeals turning on questions of fact presented to the House of Lords. Origin ally the juries were appointed to try issues sent from the Court of Session under the direction of three lords commissioners, but after wards the procedure by jury was united with the ordinary business of the court, and the special tribunal of commissioners was abolished. The jury was copied strictly from the English practice : the jurors are twelve in number, and their verdict must be unanimous. If they fail to agree within twelve (now six) hours, they must be discharged. This experiment was not at first popular, and it is doubtful if it has even now become assimilated to Scotch practice. United States. Trial by jury according to the English system has been incorporated into the constitution of the United^ States. There was at one time some controversy as to whether the civil jury was included or not. The three articles (III., V., and VI.) in which allusion to trial by jury is made refer to criminal proceed ings only, and, moreover, the supreme court is declared to have appellate jurisdiction both as to law and fact. It has accordingly been provided by one of the amendments to the constitution that, in suits at common law where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved ;