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facts given by a Judge. Though Judges are not dependent directly on the Executive authority, still there are now, and may be still more hereafter, cases of a partly social or political character, on which the decision of a professional Judge, originally appointed by the Crown, and in constant correspondence with the Home Secretary, as well as in assiduous social intercourse with the more elevated classes of society, would never be removed from a suspicion of partiality. Such cases are those of treason, treason-felony, conspiracy, malicious or blasphemous libels, and all offences in which some important class of society is interested, adversely to some other class or classes. As it is, the opportunity afforded to the Judge of summing up is usually employed, rightly or wrongly, as a medium by which the Judge intimates what he thinks the verdict ought to be. Thus the jury has all the opportunity of the best professional assistance in evaluating the evidence, without being absolutely bound by the conclusion as intimated to them.
Of course, this presupposes that the jury, as now chosen in England, and as required to be unanimous, is in itself a sufficiently satisfactory tribunal as a substitute for the Judge. The requirement of unanimity is pretty well confessed on all hands to be irrational, if not illogical. It is the traditional inheritance of a time when the public interest was sharply opposed, or believed to be opposed, to the interest of the Crown, the Crown requiring convictions, and the public interest acquittals. Thus the requirement of unanimity in the jury marked the highest point of the victory over the Crown, or, rather, marked a point in the natural development of the jury from which the Crown has never suc
Unanimity of Juries.
ceeded in forcing it back. No conviction could be obtained unless every member of a jury was in favour of conviction; but an acquittal, for the moment at least, could be obtained if a single member of the jury persisted in being in favour of it. In the present day, when this class of constitutional jealousies has long vanished, the requirement of unanimity is a mere fossil and pernicious avachronism. It may be well that, in favour of life and liberty, the majority necessary for conviction should be large, perhaps overwhelming; but common sense demands that there should always be an opening for prejudice, partiality, excessive ignorance, or even corruption, to have its play without bringing public justice to a stand-still. To enlarge the jury, in all cases only triable at the Assizes or at Quarter Sessions, to such a number as would make twelve a majority of twothirds, and to require the agreement of twelve jurymen at least for a conviction, would carry out all that is needed in the way of reform in a spirit literally conformable to the traditions and practice of the Constitution.
Another topic which has of late years been constantly engaging the attention of Criminal Law reformers, and in the proper treatment of which the liberty of the subject is seriously involved, is that of the oral examination of a prisoner under trial for a criminal offence. From causes, some of which have been adverted to above, connected with the development of popular liberty in this country, a prisoner under trial has been habitually treated with a tenderness and considerate indulgence which has, even in his own interests, somewhat overreached the mark. It was a popular doctrine in the last century,—at a time when every sort of impediment was thrown in the way of a prisoner being defended by counsel, or otherwise having an equal chance with those who represented the prosecutor and the Crown in the sort of hazardous game which the form of the proceedings in a way dramatised, -that the Judge was counsel for the prisoner, and that he needed no other help but the presumption of innocence in bis favour, and the acuteness of the Judge to detect errors in the conduct of the prosecution. In the present day, however, when the public ends in the administration of criminal justice are better understood and more calmly appreciated, the object of getting at the truth is beginning to rank at least as highly as that of affording a certain number of chances of escape to a person who has found his way into the prisoner's dock. The fact is, that after a committal by a magistrate on a careful consideration of the evidence which affords grounds for suspicion, and after a true bill has been found by the Grand Jury, or after committal on a coroner's warrant, the logical presumption of guilt is against the prisoner. It is true that all the circumstances have to be examined afresh at the trial; and for the purposes of this examination, and in order to ensure its thoroughness, a formal presumption of innocence is always raised. But this last-mentioned presumption cannot do more than enforce the necessity on the part of the prosecution of an affirmative proof of guilt being made out. There must be all along in the minds both of Judge and of jury another presumption, over which mere legal rules can have no hold, that a serious case has already been made out against the prisoner, and that the real purpose of the trial is, to determine whether he can meet it. Thus, whatever may be the formal legal proceedings, the real question at issue is, what explanation the prisoner can Oral Statements of Prisoners.
give of the facts which appear against him. It is thus a startling anomaly to find that, for the purpose of making a statement or explanation during the crisis of the trial, the prisoner's mouth is closed. Where the prisoner is undefended by counsel, and conducts his own case, he usually contrives, whether he is expert or whether he merely follows a natural instinct, to interpolate in his defence a variety of exculpatory statements of fact. Such statements are, of course, not made on oath, nor subject to cross-examination ; and though they are often checked and interrupted by the Judge on the ground of their glaring irregularity, they are also frequently allowed, or even encouraged, by some of the best criminal Judges, from a mere sense of humanity and desire to get at the truth. The only other way in which a prisoner's own explanation of the case can come before the Court is by reading the depositions made by him in the course of a previous magisterial investigation. The objection that is usually alleged to granting facilities for oral statements made by prisoners is, that a statement made by a witness, whether continuous or in reply to a friendly examination, is good for nothing, or worse than good for nothing, as being misleading,unless subjected to another process, that of cross-examination, which has for its purpose the clearing up of what is ambiguous and the further investigation of the grounds on which the statement is made. It is said that this process of cross-examination is essentially of an adversative and somewhat hostile kind, and that it would imply a breach in the familiar attitude of the law to an accused person, if he could be put in a position in which either a prosecuting counsel, or even the Judge, would be entitled and compelled to expose bim
to the possible tortures of a set of rallying and inquisitorial questions. The precedents of continental methods of procedure are most unpopular in this country; and even confessions are looked upon with much suspicion and dislike, although every precaution may have been taken to ensure voluntariness and to remove every element of pressure. Nevertheless, there is a multitude of cases in which great light could be thrown on dark places by simply allowing the prisoner to make any statement he pleases, perhaps with the assistance of the Judge to draw his attention to what are the material and relevant facts on which information possibly in his possession is demanded. In Criminal Courts it will always happen, from the nature of the case, that the person mainly implicated belongs to the least educated classes of society, and therefore no parallel applicable to their case can be drawn from the success or ill-success of the changes which have recently taken place in the direction of admitting in other Courts the evidence of parties to suits. The danger is, that where persons are very ignorant, very dependent, and proportionately fearful of that unknown and mysterious world of law and order which encircles them, and yet from which in their daily lives they are often so far removed, so soon as they are forcibly brought within so unfamiliar a region, their utterances may be only the dictation of their hopes, their fears, or their wildest imagination, and either have no relation to fact, or have that perilous sort of relation to it which is sufficient to confound and mislead the enquirer, rather than of use to advance his researches. On the whole, the advantage here, as elsewhere, is in favour of not excluding possible evidence; but perhaps more here than anywhere else is