in civil cases theestablishedpractice in England and Ireland is for most questions of disputed fact which are material to the case to be referred to the decision of a jury. It is the only regular mode of solving the dispute which the law provides. The necessity of a jury trial is arrived at after the parties have, by their mutuaYpleadings, come to an issue—i.e., ouc party distinctly asserts some fact which the other as distinctly denies, the fact being material to the cause. A jury is then summoned, and the rule is, that all causes of action are tried in the county in which the dispute arose. The jury consists of 12 persons. Juries are either common juries or Special juries; the former act com pulsorily, but are not paid for their loss of time; the latter also act compulsorily, but they are selected on the ground of their supposed superior intelligence, and they are paid a small sum for their services. In most cases, the plaintiff's counsel begins, and makes a speech to the jury; then calls his witnesses, who are examined, cross-examined, and re-examined on oath; after which, if the defendant's counsel do not intend to call wit nesses, the plaintiff's counsel sums up his ease, and makes a second speech; but if the defendant's counsel calls witnesses, then he first makes a speech to the jury, next calls his witnesses, and lastly sums up his case in a second speech to the jury, after which the plaintiff's counsel replies; so that it depends on whether the defendant's counsel calls witnesses, whether or not lie has the last word with the jury. The judge then sums up the evidence, and the jury must be unanimous in their verdict. if they do not agree after being shut up a reasonable time, they are discharged, as in criminal cases, and a new jury may be summoned. If there was any mistake of the judge, or any mistake and misconduct of the jury, the losing party may, in many cases, obtain leave to have a new trial, which is conducted in the same way before other jurors.
In both criminal and civil cases the functions of the judge and the jury are distinct.. The judge has no right to decide the fact, nor the jury to decide the law ; but in some cases, the jury cannot be prevented from practically deciding both. Thus, in the case of libel, it was at one time attempted by judges to confine juries to the decision of an unimportant fact; and the practice of lord Mansfield in so restricting the functions of juries was attacked by Junius and others, till finally Mr. Fox's act was passed, which restored the powers of juries iu those cases, and made them practically judges of the law also. In other cases, however, the separation of the functions of judge and jury requires very nice discrimination, and none but experienced lawyers and judges can readily recognize these technicalities. In practice, there can be no doubt that juries can with difficulty be controlled in their decisions on all questions affecting personal and political wrongs; and it is especially to their control over the issues of the latter class of cases, often most judiciously exercised, that the'great authority and permanent influence of juries are to bC traced. One great advantage of jury trial, over and above the essen tial fairness of the principle on which it is founded, is the experience and knowledge, as well as the love of fair-play, which are thereby acquired by the people who take part in it. On the other hand, it is often complained that in a great majority of cases, whether
caused by qualifications of jurors being too low, and the essential obtuseness of unedu cated minds, or the capricious and wayward humors which sway them, the result is little else than a lottery, and even indirect bribery is frequently suspected to operate in some of the cases, especially those which unscrupulous attorneys conduct. Probably the chief reason why jury trial has so long stood, and still stands, so high in public favor is, that notwithstanding all its glaring and familiar defects, no other machinery has ever been devised which is not open to similar or greater strictures.
In criminal trials in Scotland prisoners have the advantage of being by law entitled, before the day of trial, to have a copy of the indictment, also a list of the witnesses to be brought forward against them, and likewise a list of the jurors, of whom forty-five are summoned. As regards the order of procedure at a criminal trial, a different prac tice prevails: the evidence is first given on both sides, and then the prosecutor's counsel addresses the jury, after whom the prisoner's counsel addresses the jury; so that in all cases the prisoner has the last word, and he always knows the whole of the prosecutor's case before he requires to open his own. The judge then sums up the case, as in Eng land. From the forty-five jurors, fifteen are drawn by lot; these constitute the jury, and the verdict of a majority suffices. There is also a verdict of "not proven" allowed to be given, and which is often preferred by the jury in cases where there is little moral doubt, though the legal evidence is insufficient. In England such a verdict is equiva lent to, and treated as, a verdict of "not guilty;" and it is so far final in Scotland that the prisoner cannot a second time be put on his trial. The expediency of such a verdict has been objected to, as fixing a stigma on the accused person; but the answer has been made that it is most in conformity with time true result of the inquiry. In Scotland new trials are not allowed in criminal cases; and in case of pardons, the home secretary nets in the same way as he does in England.
A.s regards trial by jury in civil cases in Scotland the practice was introduced by a statute in 1815, which imported most of the forms then existing in the English practice As in England, the jury in civil cases consists of 12 persons. Unanimity is not now essential. By a recent statute, 22 and 23 Viet. c. 7. if after being kept 3 hours in deliberation, nine or more of the jury agree on a verdict, such verdict is to be taken as that of the jury; and if, after being inclosed nine hours, the jury, or nine of them, can not agree, the judge is entitled to discharge them, and generally does so. Moreover, the judge may allow the jury refreshment after they are locked up to deliberate. These latter modifications on the rigid rule have not been yet adopted in England.
A jury de medietate lingua! is a jury half composed of foreigners, and it is a privilege which may be demanded by foreigners, when indicted in Englandfor felony or mis demeanor, if so many foreigners are found in the place.