appeals sometimes prevail against the clearly indicated opinion of the judge.

A somewhat different turn is sometimes given to the argument just discussed when used in special application to criminal justice. Thus Bluntschli' says that the "principle of the jury system"-in this application-is, that "no one shall suffer punishment for an offence unless his guilt has been made clear to the plain understanding and natural sense of justice of men taken from the people at large." This may either mean that the justice of the general rule applied, or that the cogency of the deduction by which it is applied, should be made generally intelligible. The latter demand should, I think, be satisfied as far as possible, though it may often be impossible to satisfy it fully; since, if the cogency of the judicial deduction cannot be made thus clear, the law is evidently wanting in "cognoscibility." But the former demand seems to be sometimes intended: and I certainly think that the power of the jury to give a "general verdict," -i.e. to declare an accused person guilty or not guilty, instead of merely declaring whether he has or has not committed certain acts, has been used in England to secure the satisfaction of this demand; the jury have more or less consciously applied not the actual law,-which they could hardly claim to know better than the judge-but what, in their opinion, the law ought to have been. Now it is no doubt to be wished that all penalties imposed by law should be, so far as possible, approved by the moral sentiments of the community. But where the legislature is adequately under the control of the citizens at large, an irregular rectification of law by a small casual selection of citizens is surely undesirable. If the law is to be nullified in any district in which it happens to be unpopular, it seems better that the right of nullification should be formally allowed to a local legislature than that it should be assumed by a jury. If, on the other hand, it is admitted to be necessary to repress by penal statutes conduct which some local majority-or even perhaps the common sense of persons who have not 1 Allgemeines Staatsrecht, Bk. V. chap. iv.

fully considered the matter-does not regard as gravely blameworthy, it seems more conducive to the realisation of the legislature's designs that the application of such laws should be entrusted to professional judges, rather than to "plain men" whose "natural sentiment of justice" will irresistibly incline them to dangerous indulgence.

The case is different where legislation is not effectively under popular control; here the jury-or some similar introduction of the lay element into the judiciary-may be useful in keeping the development of law in harmony with the changing needs of the community. But in such a government as we are now considering, I cannot but conclude that the intellect of an average judge is generally to be preferred to that of an ordinary jury, as an instrument for attaining right conclusions on questions of fact. At the same time I have already admitted that there are certain cases where the intervention of a jury of persons specially experienced in the affairs with which the trial is concerned may be of real value.

Another argument often used in favour of the jury relates to the moral qualification necessary for the administration of justice. It lays stress on the greater chance of incorruptibility in a judicial organ improvised ad hoc in each trial by casual selection from the community at large, as contrasted with a permanent professional organ. But if jurymen are personally corruptible, it will be hardly possible to prevent them from being bribed, at any rate if the case is important and prolonged; and, on the other hand, the inducements to refrain from bribery can easily be made more effective in the case of the judge. Indeed, the experience of modern England seems to show that if judges are adequately paid, the fear of social disgrace and professional ruin is sufficient practically to exclude the danger of bribery in their case.

And, on the other side, if both judge and jurymen are not corruptible, it may be presumed that the former is more likely to be free from unconscious bias than the latter as the performance of his daily duties will

tend to give him an exceptional habit of impartiality. Whereas jurymen will tend to be unduly influenced by popular dislikes and sympathies: and if they are mainly drawn from certain classes, they are likely in civil controversies to have a bias in favour of these classes as against others. It has been said, that in England "no insurer resisting a life policy, no great company resisting a claim for an accident, no lawyer or doctor suing for his bill, no gentleman contesting a tradesman's charges, no landlord suing for a forfeiture, no informer suing for penalties, no person in any way generally unpopular, can depend on the impartiality of common juries:" and though the statement is, I hope, too sweeping, it can hardly be doubted that there is a considerable danger of partiality in the directions indicated.

So far I have been considering the institution of the jury as an instrument for obtaining right judicial decisions; but it may also be considered in another aspect-which may be called in a special sense political-i.e. in respect of its influence on the relations between the citizens and their government. From this point of view it must be admitted to have important advantages: but in a varying degree according to the subject matter of the judicial procedure in which it is used. In ordinary civil cases its main recommendation is that a wide diffusion of the experience of actually taking a part in governmental work of some kind has a valuable educative effect on the citizens: it tends to keep alive their political consciousness, and make them regard the business of government, not as a mystery beyond their comprehension and concern, but as their own public business, the management of which they ought to understand sufficiently to be able from time to time to take a part in it. But though this is an argument for giving some public functions if possiblebesides the function of voting periodically for members of parliament to some members of the class from which jurymen are drawn, it is not an argument for giving them judicial functions especially.

1 Brown, Dark Side of Trial by Jury, 1859.

There is, however, a further argument in the case of criminal justice: viz. that the function of condemning to punishment especially capital punishment is liable to involve the functionary in more or less odium, which from time to time may reach an intense degree of unpopularity, if for any reason the sympathy of the people in general is enlisted on the side of the criminal. If, then, this odium is entirely borne by a professional judge, it may accumulate until it generates a dangerous amount of discontent against the administration of the law. Whereas if the responsibility of pronouncing the verdict is thrown on a court formed of a casual combination of private citizens, which is resolved again into its elements when the verdict is once given, their judgment is likely in the first instance to cause less discontent even when it jars on popular sympathies; and any discontent that it may cause is likely to be shortlived, and can hardly be a source of public danger.

There is a special kind of criminal trials in which the jury system has been regarded with approval even by thinkers who were fully alive to its defects as an instrument for the ordinary administration of justice: viz. trials for "political" offences,-i.e. for acts, whether otherwise criminal or not, of which the alleged design is to overthrow or weaken the authority of the existing government with a view to the forcible substitution of some other government. It is obviously of special importance for security of impartial justice that the court which decides these cases should be independent of the influence of the executive; and we have seen it to be difficult to secure this completely in the case of the legal expert to whom the function of declaring the law must be entrusted, without sacrificing the best mode of appointing such experts. It seems, however, doubtful whether there is a better chance of impartiality if the application of the law is left to a jury, in a community in which the executive is directly or indirectly under popular control: since, in such a community, party feeling is likely to run high, and it will be almost impossible

to find a jury that is not strongly biassed either for or against the government.1

To sum up it seems to me that the weight of argument is on the whole against the use of a jury in civil trials:except in certain cases, in which it should be composed of persons possessing some kind of special experience. As regards criminal trials of importance-especially for capital offences the balance of argument seems to me at present the other way: but I think that if civilisation continues to progress, the arguments on the negative side will be ultimately found to be decidedly the stronger.

I may observe that the distinction above drawn between the use of the jury in civil, and its use in criminal, cases corresponds to the historical development of the institution: since the civil jury remains almost2 peculiar to England and her colonies, while the criminal jury has spread from England to several other European countries.

For the requirement of unanimity in the verdict of a jury it is hard to find even plausible grounds in civil cases. It is commonly defended in criminal cases as a protection of innocence and it is doubtless better that a guilty man should escape than that an innocent man should suffer unmerited punishment: but jurymen generally are likely to feel adequately the force of this argument for giving the accused the benefit of the doubt: there is no reason, therefore, to suppose that where a minority refuses to condemn it will more often than not be right in so refusing. To require more than a bare majority for condemnation is the utmost that seems defensible.

§ 6. We may now proceed to notice briefly certain other important differences in the machinery for realising civil and criminal justice respectively, corresponding to the difference of aims in the two cases. As we have seen,3 in

1 I observe that this view of the inevitable partiality of juries, in political trials, appears to be generally accepted by both political parties in England at the present crisis (1888-90), though its application by each party is different.

2 It finds a place in the constitution of Portugal; and it has been introduced from England into Scotland; where, however, it is not so largely used as in England, and is not thought to work so well. 3 See chap. viii. p. 115.