учебный год 2023 / 753148

TRIAL BY JURY. 2II

tain matters of account. But the Act went no further (and this for reasons to be stated hereafter) than to provide for these two classes of actions, leaving trial by jury as the normal procedure. The introduction, however, of even these two exceptions was the first step in a line of development leading to far-reaching results, such results being in the main brought about through the agency of rules of procedure rather than through legislative enactments as such.

The next step is to be found in the Judicature Act of I873. By ss. 56 and 57 of that Act provision was made for the reference of matters for inquiry and report, and also of matters requiring prolonged examination of documents or accounts, or scientific or local

investigation. But still, nothing in this Act or in the rules scheduled to the Acts of 1873 or 1875 altered the main rule.

The critical change came with the Rules of the SupremeCourt, published in 1883 (rules 2-7 of OrderXXXVI). By rule 2 it was provided that either party should be entitled to a jury in actions for slander, libel, false imprisonment, malicious prosecution, seduction or breach of promise of marriage; by rule 3 that cases assigned to the Chancery Division should be tried by a judge sitting alone unless otherwise ordered; by rule 4 trial by a judge alone might be directed in cases which, previous to the passing of the Judicature Act, 1873, could be so tried without the consent of the parties; by rule 5 a similar method of trial was provided for cases within s. 57 of the Act of 1873; by rule 6 that in any other cause or matter

upon the application of any party for a trial with a jury an order should be made for a trial by a jury; and by rule 7, that unless rules 2 or 6 apply, the mode of trial should be by a judge alone.

When these rules are considered corporately it is clear that a complete reversal of the former position has been brought about. In the first place, the cases in which a party is entitled to a jury as of right and upon mere notice are limited to those enumerated in

rule 2, and, secondly, there is to be trial by a judge alone unless some special reason exists for a jury; in other words, trial by a judge alone is the rule, by a jury the exception.

A further limitation crept in during the redrafting of the rules from time to time. Rule 2 was abolished and a new rule substituted

by which, unless an application is made for a jury within the time

prescribed by (new) rule 6, the hearing will be by a judge alone. This means that even where a jury is still of right, that right will be lost unless an active step is taken for its exercise.

212 TRIAL BY JURY.

The matter was next dealt with by the Legislature in the Juries

Act of I918 (8 and 9 Geo. V, c. 23). This was a measure brought about by war conditions, and in consequence of the shortage of man power. It was enacted solely for the period of the war and six months after, and as a war measure is of no practical concern now. But it is of interest in tracing the growth of the restrictions on trial by jury, for it adopts the position as left by the rules and

It provided, that is to say, that trial should be by a judge alone save in those cases formerly covered by rule 2, to which it added cases in which fraud is alleged, and cases coming under s. 28 of the MatrimonialCausesAct of 1857, or probate actions to which an heir- at-law is party. It further saved the right to order a trial by two or more judges, a judge with assessors, an official or special referee with or without assessors or an officer of the Court. But of more

interest here is the implication in the provision (s. I (c)), which

gives power to a Court or judge to order a trial by jury on the application of one party, when in the discretion of the Court or judge it is a case more fit to be tried with a jury than without. It is unnecessary here to go into the provisions made for County

Courts, and other inferior Courts, since it is only the general principle which is under discussion. For a similar reason it is

unnecessary to treat of the Sex Disqualification (Removal) Act of I919, and the rules made thereunder in consequence of which

women became eligible and liable for jury service. Though this is unquestionably a striking innovation it does not affect the consideration of the position of a suitor as to trial by a jury or

by a judge alone.

The temporary Act of I918 was followed by s. 2 of the Adminis- tration of Justice Act 1920 (Io and II Geo. V, c. 8I). This at first

sight seems to restore some of the former liberty in that it confirmed the right to juries in the selected group of cases to which was

added, as in the Act of I918,those cases in which there is an allegation of fraud. But it does this as one of two exceptions to the main rule and that rule is that the Court or judge may on the application of either party order a trial without a jury in any case in which the Court or judge is satisfied that the case cannot as conveniently be tried with a jury as without (the second exception being again, as in the Act of I918, cases within s. 28 of the Matrimonial Causes

Act, and certain probate actions). It is further enacted by s. 2, ss. 2,

to reduce the number of cases to be tried by a jury until the total

tration of the law through the medium of the jury greatly increases the respect and reverence paid to the judges. Everyone thinks himself

competent to express an opinion upon a mere question of fact, and would be apt to comment freely upon the decision of a judge which on such a question happened to be at variance with his own. It is easy to conceive questions when much odium would be incurred if in the opinion of the public the judge miscarried in a matter which they thought themselves as well able to determine as himself. From this kind of attack

a judge is now sheltered by the intervention of the jury. He merely

expounds the law and declares its sentence, and in the performance of this duty, if he does not always escape criticism, he very seldom can incur censure." And again, "The tendency of judicial habits is to foster

an acuteness which is often unfavourable to the decision of a question on its merits. No mind feels the force of technicalities so strongly as

that of a lawyer. It is the mystery of his craft which he has taken much pains to learn, and which he is seldom averse to exercise. He is apt to become the slave of forms and to illustrate the truth of the old

maxim, qui haeretin litera haeretin cortice. Now a better corrective for this evil can hardly be devised than to bring to the consideration of

disputed facts the unsophisticated understandings of men fresh from the actual business of real life, imbued with no professional or class prejudices, and applying the whole power of their minds to the detection of mistakes or the disentanglement of artifice and fraud. The jury acts as a constant check upon and corrective of the narrow subtlety to which professional

lawyers are so prone and subjects the rules of rigid technicality to be construed by a vigorous common sense."

them which resulted in their recommendation of a continuance

of the jury system. These, with one exception, are equally applicable to the discussion to-day, and may be summarized as follows:

It is alleged against the juryman (a) that he lacks legal training; to which it may be replied that the jury do not decide on their own unaided knowledge, but are assisted by the judge on all points of law. (b) That the division of responsibility amongst a number weakens the sense of responsibility, and that this is the more so in the case of jurymen, who, once discharged, sink into oblivion among their fellows, and thus escape condemnation. To this no direct reply is given. (c) That want of permanency precludes the adjournment of a case for further inquiry, and tends to cause a verdict to be given without such information and full knowledge of the circumstances as are necessary to a just conclusion. But there is a counteracting benefit in this lack of permanency; the temporary nature of the work enables the jury to come to it with fresh interest and to retain that interest throughout the proceedings. (d) That there has been an extension of the jurisdiction of courts of equity to try conclusions of fact by a judge alone; to which it may be replied that this is merelyto produce uniformity, and does not involve any admission as to the superiority of such

(e) That justices of the peace and commissioners have jurisdiction both in criminal and civil matters without the aid of a jury; to which it is replied that this is a matter of speed and convenience (the force of this reply being that supporters of the jury system must be held to regard it solely as an expedient which in the circumstances cannot be improved). (f) That in County Courts when suitors may demand a jury they do not in practice do so. The reply to this seems so relevant at the present day that it should be quoted at length:

" The practiceof the Courtswhich makes trial by a judge the rule

and trial by jury the exceptionand consequentlyimposesthe necessity of takingan activestep to obtaina trialby jury,togetherwith the appre- hensionof giving offenceto the judgeby so doing,has no doubt a considerableeffect in preventinglitigants frominsistingupon trial by jury in these cases."

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lawyer. jury trial?

These propositions, not of themselves of great consequence, are reinforcedin Mr. de Villiers' argument by four examples of in-

but even if they be given full weight it is submitted that not even the most enthusiastic supporter of the jury system but would acknowledge that a jury in theory may, and in practice does, from time to time produce astonishing verdicts. But what cause exists in any sphere of life against which no particular instances can be adduced ? How many verdicts are recorded each year that pass

without notice because they are fair and equitable ? It is submitted that this is not a case where argument from the particular to the general can be applied, and that the indignation aroused by an unfair verdict is in itself a tribute to their general level.

So far, then, it does not seem that sufficient valid reasons have

appeared to justify the abolition of the system. It is true that nothing has been said as to the great practical difficulties of the cost involved, the lengthening of the hearing of a case and the demands made upon the time of jurors. The primary consideration is, of course, the attainment of justice, and, this being so, other con- siderations must be subordinated if the main purpose be thus ful- filled. Is this so ? It may be urged that much that has been said

has been of a negative character. What more can be said as to the positive value of a jury ? for there can be no good purpose served in retaining a system which is merely harmless. It is obvious

that the question is largely a psychological one, both objectively and subjectively, and in the latter aspect men will be inclined to draw differing conclusions from the same considerations according

to their skill in analysing the complex factors of the situation is to be feared-according to their presuppositions.

A sharp line of cleavage is sometimes drawn between the jury in civil and the jury in criminal cases, but in fact the underlying

principles are the same. It surely cannot go for nothing, in con-

sidering the advisability of abolishing the jury in civil cases, that a serious proposal for such an abolition in criminal cases remains yet to be made. There are occasions of national emergency, as in

the recent war, when it is thought necessary to restrict the right, but there can be no question that the nation looks on such restrictions as necessary evils to be removed at the first opportunity.

its jury system. It may be said that this is pure conservatism- perhaps even sentimentalism. It is difficult to think that there is no more in it than that. The English colonists of America may, perhaps, have adopted the system for lack of a better expedient at the time, but that will not account for its deliberate adoption many years later as an integral part of the American Constitution, yet now the right to trial by jury is incorporated in the form of express guarantees in all the Constitutions both State and Federal.

Again, if the system be, as some would suggest, a pitting of the professional against the lay mind, it would be unnatural to expect to find the former among the system's protagonists; it is unlikely they would take part in belittling the abilities and power of their own class. This view is surely negatived by such opinions as those stated by Lords Justices Bankes, Scrutton, and Atkin in a recent case in the Court of Appeal, where they expressed themselves as greatly concerned at the inroads made into the right of trial by jury-a right of which Lord Justice Atkin spoke as an " essential principle of our law, a bulwark of liberty and a shield of the poor from the oppression of the rich and powerful." (And this of an institution in origin a creation of royal prerogative for royal

purposes !)

To conclude, this is not a question in which arguments can be marshalled with mathematical precision. Indeed, what one may regard as an argument for, another may rely on as an argument against the system. But it is submitted that, as no clear case can be made out on either side, the balance of advantage is heavily in favour of a continuance of the system. This indeed is all that can, or need be, said in favour of any part of any legal procedure -that in the main it secures justice and equity more than any other system would do.

If, then, trial by jury be desirable, it follows that it should be easily obtainable. This does not preclude, nor is it likely that any- one would wish to preclude,provisions being made for other methods of trial. These should be limited to special classes of cases, which cases should be clearly defined, and not left to the ambiguity inseparable from terms such as " convenience " and " discretion." Trial by jury would then once again become a right, for such a trial would be the norm, and other modes the exceptions.