perfectly plain that the whole spirit of the act is violated by this construction of it, for this practice has, in point of fact, given to the crown as many peremptory challenges as there are names on the panel, less only by twelve. This practice, which for centuries depended on a mere rule of construction, arbitrarily adopted from an undue deference to the authority and influence of the crown, has, however, been legalised in Ireland, by an act passed in the reign of George IV. Now, it is impossible not to see the enormous power which is thus vested in the government. It is impossible to deny that the practical effect of this system is not only to give a power of rejection, bút a power of selection; it enables the government not merely to lay aside the disaffected-as it is most fit they should-but to select their own partisans, as it would be most arbitrary, unconstitutional, and tyrannical of them to do. It never was intended to invest the government with such a fearful power as this, of naming their own jurors-the whole spirit of our laws is repugnant to it. Out of a panel of some hundred names, it is idle to say that the government could not select some twelve, who, from motives of interest, or bias, or prejudice, would find for the crown under any circumstances. In ordinary cases, no difficulty arises, because the crown, then merely representing the private prosecutor, can never have any undue desire to obtain a conviction, nor can it be suspected of it: but where the government itself is bona fide the prosecutor, when political offences are the subject of prosecution, when all the angry feelings of party are called forth-when conscience itself sinks beneath the intensity of political excitement-then, indeed, arises the necessity for exercising this power, and the danger of abusing it; then must the law-officers of the crown carefully but resolutely reject every juror whom they conscientiously believe to co-operate or to sympathise with traitors; then must they, at the same time, most scrupulously guard against admitting any whose judgments are unduly biassed in favour of the crown. Their duty is a most arduous one: Looking to the oath which the juror takes, they must allow none to pass upon the trial, who they are not in their consciences convinced will fulfil its obligations, namely, “that they will well and truly try, and true deliverance make between our sovereign lady the Queen and the prisoner at the bar, and a true verdict give according to the evidence." Most gladly, as we have already said, if it were possible, would we see this fearful amount of discretionary power taken from the crown, but it is impossible in a country where a great proportion of the jurors are leagued with the disaffected; its exercise must be confided to the honour, and justice, and right feeling of the law-officers of the crown, and to the control which is exercised by public opinion. Fortunately political trials are of rare occurrence: for, however fairly and necessarily this privilege may be used, it will surely be assailed by the partisans of the disaffected, and the prestige of absolute purity, of unimpassioned justice, which ought ever to invest the administration of the lawnot only beyond reproach, but beyond suspicion, will be materialy diminished; but there is no more possibility of applying an abstract standard of perfection to the administration of the law, than to the principles of government-both must be adapted to the condition of the people; and anxiously as we may hope for the time when this formidable power of challenge may with safety be abrogated or controlled, to abolish it now would be as ill suited to Ireland, in its present condition, as democracy would be to Egypt, or despotism to America. And as this power of challenge must be confided to the conscience of the law-officers of the crown, so is there another power committed to the jury, and entrusted to them solely on the faith that their conscience will control its exercise, that, namely, of their finding on the law of the case. The maxim of law is, that the jury have to deal with the facts alone, and the judges with the law, as it is laid down by Lord Coke, " Ad questionem facti respondent non judices, ad questionem legis respondent nonjuratores." Notwithstanding, almost every question which goes into the jury-box is a mixed question of law and fact, and it has been repeatedly contended, that, in criminal cases, where the prisoner pleads generally "not guilty," everything, whether of law or fact, which goes to constitute his guilt, is committed to the jury, and that there is no legal or constitutional ɔbligation on them to take the law from the judge. Unquestionably the power is vested in the jury of judging both of the law and of the fact, and hence the right is inferred; it is argued that this power never would have been entrusted to them, if it had not been intended that it should have been exercised, and that there is no means whatsoever provided by the constitution to guard against or to remedy its abuse. At the time when Messrs. O'Brien, and Meagher, and Mitchel were tried in Dublin, it was strongly urged by the liberal press, which circulated among the jurors of the city, that the law of the case was for them, and that they were under no obligation whatsoever to receive it from the judge; and we have heard Mr. Baron Pennefather censured for refusing the application of the jury on O'Dogherty's trial, that they should have a copy of the act of parliament under which the prisoner was indicted, that learned judge telling them that the law was for the court, and that they were to receive it as laid down by him. In the debate on Fox's libel bill, Lord Loughborough declared that "when the law and fact were blended, it was the undoubted right of the jury to decide;" and the Master of the Rolls (afterwards Lord Alvanley) declared in the same debate, that "Juries had gone in opposition to the direction of the judges, and perhaps we were indebted to their conduct on such occasions for some of the most inestimable blessings we enjoyed." It was however, in the progress of this same proceeding, that the doctrine received its most decisive condemnation. judges were consulted on the subject by the House of Lords, and pronounced this unanimous opinion: The "We conceive the law to be, that the judge is to declare to the jury what the law is, and that it is the duty of the jury, if they will find a general verdict upon the whole matter in issue, to compound that verdict of the fact, as it appears in evidence before them, and of the law as it is declared to them by the judge. The line marked out by the law, for the conduct of a jury giving a general verdict, has an universal appli cation to general issues in all cases, civil and criminal; for we cannot distinguish between the office and authority of a jury, in civil and criminal cases, whatever difference there may be in their responsibility." This authoritative declaration of the law of England ought to be conclusive on the subject, even if it were not supported by the plainest dictates of justice and common sense. Could a more monstrous proposition be maintained, or one more at variance with the whole spirit of the English constitution, and the English nature, than that an uninformed, secret, uncontrolled tribunal, is to take upon itself the office of administering the law, to adopt or reject at pleasure the enactments of the legislature, and to supersede the public exposition of that law as delivered by the learned judges, under the control of public censure, and liable to be made responsible to parliament and the sovereign. Their power of doing so only arises from the necessity of the case-right they have none. In almost every case, whether it be treason and sedition, or murder, manslaughter, or such like, considerations of law and fact are so intimately blended, that it is impossible to separate them; but the jury are bound by every moral obligation to take the law from its authorised expositor-the judge. In cases of difficulty, they can protect themselves by a special verdict, by finding the facts of the case specially, and submitting the law on such a state of facts to the consideration of the court, where it can be fully argued and investigated; but in no case should they encroach upon a province for which they are avowedly incompetent, and which was never intended for them; then, indeed, would trial by jury become a mockery and a snare. We have thus briefly adverted to some of the most prominent topics in connexion with our trial by jury. It is in vain to deny that it has many defects peculiar to itself, besides sharing in those to which all human tribunals are liable. In order to guard in some degree against these evils, we have ventured, notwithstanding the argument and authority which is opposed to us, to advocate for the accused the privilege of applying for (a new trial in cri minal cases. Subject to this suggestion, and bearing the circumstances of the country in mind, we are entirely convinced that the present system is that which is most efficient for the administration of justice. But it is impossible to contemplate the trial by jury without feeling convinced that its political disadvantages are inferior only to its judicial. On this we have no opportunity now to enter, nor is it immediately connected with our present purpose. But we may just close this article by observing that the juridical power of the people, through the medium of juries, has, more than any other institution, preserved the English Constitution-it identifies every member of the community with the administration of the law, and naturally attaches him to that law which he is called on to dispense, instead of setting him in hostility to the authority to which he is bound to submit. It prevents the possibility of collision between the people and the legislature, for it imposes on the latter the necessity of passing such laws as are adapted to the character and manners of the country, as such only will be vigorously enforced by the jury. It increases the intelligence and information of the people, and imbues them with a sense of right, a respect for property, for character, and for themselves. INDEX TO VOLUME XXXII. Elderstein, Lars, The Parricide, from Angel, the, of Toil, by D. F. M'Carthy, Barolf, Eric, Wreaths for the Non-liv- Black, C. I., Lines to the Religious Bought Bridegroom, the, a Story of Boyd, Percy, A Wreath of Student Bride, the, of the Fiord, 460. Bridge of the Bidassoa, Student Song, from the German, by Percy Boyd, 64. 190. Brown, Frances, Lyrics and Miscel- laneous Poems, reviewed, 154. Butler, the late Rev. William Archer, Castlereagh, Lord, Memoirs and Cor- Chenier, A., The Blind Old Man, an VOL. XXXII.-NO. CXCII. Chinese Jugglers, 581. Clive, Lord, Life of, by Gleig, reviewed, Contemporary Writers-Mr. Thacke- Daunt, W. J. O'N., Personal Recollec- Day, a, in the Hebrides, 467. De Gruenveldt, The Santon and the Demoniac Possessions in India and Ju- Devil, the, and the Wind, a Legend, 106. Digest of Evidence taken before Her Majesty's Commissioners of Inquiry Double Pain, the, from the Spanish, 649. Egypt and the Bible, 371. Fatal Gifts, 658. Feltus, B. B., Sonnets by, 485; Homer Forster, John, Life and Adventures of Gap, the, of Barnesmore, a Tale of the Gilvedras, Aloysius, The Death-Gar- Gleig, Rev. G. R., Life of Lord Clive, Goldsmith and his Biographers, 315. Hafiz, an Ode of, 539. 3 F Harold, the last of the Saxon Kings, Hebrides, a Day in the, 467. High Treason, the Trials for, 599. Horace, Book II., Ode 19—To Bacchus, 578. House, a, and its Three Tenants, 76, Hunt, Leigh, The Town-its Memo- India, British, History of, reviewed, Ireland in the Reign of Elizabeth, 587. Irish Proprietorship, 356. Italy, Recent Tourists in, 405. James, G. P. R., Sir Theodore Brough- Jugglers in China, Account of some of Kirwan, Dean-Our Portrait Gallery, La Chatelle, Fidelity, from the French, 110. Lameeyah, Elegy on the Death of Sul- Lays of Many Lands, No. V. Stavoo- ren-Wreaths for the Non-living- Lights and Shadows of German Student Love after Death, to, 518. Lytton, Sir E. B., Harold, the last of M'Carthy, D. F., Scenes and Stories Mary Mac Alister, a Tale of the Antrim Mill's History of British India, edited Natural History of Man, 49. O'Connell, Life and Times of, 338. Old Noah, Student Song from the Ger- Our Jury System, 717. Our Portrait Gallery, No. XLIX., Pape, The Bold Mariner, from the Ger- Philellenist, the, Chap. I., A Midnight Pim, Jonathan, The Condition and Poems, Poetry, and Poets, a few words |