defendant, although his guilt has been ascertained by a verdict, is discharged. These consequences are avoided by a simple provision, which has been alluded to in the Introductory Report to the Code of Crimes and Punishments. In all cases, to avoid the delay arising from objections to form, whether made in the shape of motions to quash the indictment, to set aside the proceedings, or to arrest the judgment, a copy of the indictment is directed to be furnished to the defendant, and, at a convenient time before the trial, he is brought into court and informed, that if the indictment contains any defect of form (and what are deemed to be such are explained to him) he must specify them by a day designated; but if he fail to make them then, he will for ever be precluded. In the mean time he has counsel assigned to him, if he have employed none. After the period for deliberation has elapsed, he is again called on for his exceptions; if he make any, and they are such as are designated in the code to be those of form merely, they are amended immediately by the public prosecutor; if of substance, the indictment is sent back to the grand jury. But if no exception be then made, none will afterwards be heard, except the radical defect that the facts charged do not amount to an offence. In prosecutions for offences, founded on writings, the indictment is not required to give any denomination to the instrument; it is not called a note, a bill, or bond, but simply an "instrument in writing, of which a copy is annexed." By this means one fruitful source of error, uncertainty and delay is avoided. Another, to which, as has been said, this species of prosecution is par ticularly liable, is avoided by the proceeding just detailed: the indictment and the copy of the instrument being served on the defendant, when he is brought into court the original is submitted to his inspection and that of his counsel; time is given to compare it with the copy furnished; and, in addition to the notice given in other cases, he is apprised that if he means to make any exception to the correctness of the copy furnished, he must do it in the time limited by the rule before trial. If he make any such exception, and it is found to be well taken, the copy is immediately amended; and it is not until all difficulties of form are thus got rid of, that the defendant is called on to answer to the merits. This is done formally in open court, and the answer can only be a confession or denial of the charge; excepting only, the plea that the defendant has before been acquitted or convicted for the same offence. A refusal to answer, or any indirect or evasive answer, is considered and recorded as a denial of the charge. As but one mode of trial, consistently with this code, will be known to our law, the useless question, which implies an option, is no longer to be put. The trial by jury is established as the only one that can be resorted to. The reasons for this are so obvious and are so fully stated in the Report on the Plan of a Penal Code, made to your predecessors in 1822(a), that nothing need be added to show the importance of this institution, as well in a political as a judicial point of view. A striking exemplification of the views contained in that Report, has lately come to my knowledge, which I think it may be proper to offer in this. The island of Ceylon, inhabited in different

mitted it to the jury, with directions, if they found it to be the one (I forget which) to convict, if the other to acquit ; and to aid in the determination of this important question, he handed them his glass-the microscopic powers of which determined them in favour of the acquitting alternative—and the prisoner was discharged : if the judge's glass had not been brought into court, or had been of a lower power, he would have been hanged!!!

(a) Report on the Plan of a Penal Code, p. 10.

proportions by Hindoos, Mahometans, and descendants of emigrants from Siam, Ava, and other parts of the eastern continent and its adjacent islands, passed successively under the dominion of the Portuguese, Dutch and English, who have added to the heterogeneous mixture of inhabitants by a number of their descendants, springing from an intercourse with the native women. The English, having conquered this island in 1796, have ever since been in quiet possession of this valuable colony. For the administration of justice, the Dutch had introduced the civil law, by which the country was governed until the year 1811, when sir Alexander Johnston, chief-justice of the island, succeeded in the bold project of introducing the trial by jury into the criminal courts of the colony. Let those who doubt the political utility of this institution-who think it fitted only for the people of highly civilized and well-informed nationswho do not appreciate its power in spreading information and elevating the personal and national character; let those, and they are not few, who have considered the former report on this subject as an effusion of an enthusiastic veneration for a vain theory; let all those peruse the following authentic account, furnished from the highest authority, and confess the almost omnipotent power of this great institution in reforming and elevating the character, overcoming national prejudices, uniting the most discordant materials, diffusing useful knowledge, purifying the sources of justice, and demonstrating, by its effects, that no governments are so strong as those in which the people are suffered to participate. Let the enlightened author of this experiment himself explain its effects. In a letter, written by sir Alexander Johnston to the Board of Control in the year 1815, he says:

"I have the pleasure, at your request, to give you an account of the plan I adopted, while chief-justice and first member of his majesty's council in Ceylon, for introducing the trial by jury into that island, and for extending the right of sitting on juries to every half caste native, as well as to every other native of the country to whatever caste or religious persuasion he might belong. I shall explain to you the reasons which induced me to propose this plan, the mode in which it was carried into effect, and the consequences with which its adoption has been attended. The complaints against the former system for administering justice were, that it was dilatory, expensive and unpopu

lar.

The defects of that system arose from the little value which the natives of the country attached to a character for veracity; from the total want of interest, which they manifested for a system in the administration of which they had no share; from the difficulty which Europeans, who were not only judges of law but also of fact, experienced in ascertaining the degree of credit which they ought to give to native testimony; and finally, from the delays in the proceedings of the court." The chief-justice then details the remedies he proposed for these evils, which could only be removed, as he thought, by the introduction of the trial by jury. He says, that he then consulted the chief priests of the Budha religion, and the Brahmins, as to the effect it would have on the followers of those religions; and having submitted his plan to the governor and council, who "thinking the adoption of the plan an object of great importance, and fearing lest objections might be urged against it in England on account of its novelty, no such rights as were proposed to grant to the natives of Ceylon ever having been granted to any native of India," sent him to urge its adoption, and he most fortunately succeeded. The chief-justice

then proceeds to explain the qualifications of jurors, the manner of selecting them, and of conducting the trial; all of which, though highly interesting, do not so immediately apply to my subject, as the account of the effects, which he thus details: "The native jurymen being now judges of fact, and the European judges the judges of law, one European judge only is necessary. The native jurymen, knowing the different degrees of weight which may safely be given to their countrymen, decide upon questions of fact with more promptitude. All the natives, who attend the courts as jurymen, obtain so much information during their attendance, relative to the modes of proceeding and the rules of evidence, that since the establishment of jury trials, government have been able to find among the half-caste and native jurymen, some of the most efficient and respectable magistrates in the country." After stating that the saving it produces to government is at least 10,000l. a year, he proceeds :-"No man whose character for honesty or veracity is impeached, can be enrolled on the list of jurymen. The circumstance of a man's name being upon the jury-roll, is a proof of his being a man of unexceptionable character, and is that to which he appeals, in case his character be attacked, or in case he solicits his government for promotion. As the rolls of jurymen are revised by the supreme court at every session, they operate as a most powerful engine in making the people of the country more attentive than they used to be in their adherence to truth. The right of sitting upon juries, has given to the natives of Ceylon a value for character which they never felt before, and has raised in a very remarkable manner the standard of their moral feelings. All the natives of Ceylon, who are enrolled as jurymen, conceive themselves as much a part, as the European judges themselves are, of the government of the country, and therefore feel, since they have possessed the right of sitting upon juries, an interest which they never felt before in upholding the British government of Ceylon." He then gives as a proof of this, their indifference in wars before this privilege, contrasted with their zeal in those after it was conferred. The writer of this interesting and highly instructive letter refers, as a proof of his assertions, to a charge delivered by his successor eight years after the experiment was tried, in which he ascribes a remarkable decrease of crimes, above all other causes, to the introduction of the trial by jury. To this happy system," he proceeds, "now deeply cherished in the affections of the people and revered as much as any of their own oldest and dearest institutions, I do confidently ascribe this pleasing alteration; and it may be boldly asserted, that while it continues to be administered with firmness and integrity, the British government will hold an interest in the hearts of its Singalee subjects, which the Portuguese and Dutch possessors of this island were never able to establish."

The statement of this case, tallying so exactly with the ideas I had expressed some years before the letter was written, is worth volumes of arguments, and every reflection I have given to the subject since, and they have neither been few nor cursory, has convinced me so much of the danger of tampering with so great a blessing, of injuring in the attempt to ameliorate what is so positively good, that I could not venture to propose any alterations, although some came recommended by the most plausible reasons as valuable improvements: among these was that of substituting for the unànimity now requisite to a decision, a bare

majority of votes, or some other number less than the whole. The absurdity, as well as cruelty, of enforcing that unanimity, under pain of starvation, and the injustice of making the fate of the accused depend on the ability of his judges to resist hunger and thirst, seem so apparent, that, if no other remedy could have been found for the evil, I should, perhaps, have abandoned this characteristic in the trial by jury, and adopted some of the proposed modifications, to avoid the evil. But a practice had been introduced, which, where it prevailed, in a great measure presented the remedy I sought. Courts in the exercise of the legislative power which they held, partly by assumption, partly by the negligent permission of the branch to which it of right belongs, had gradually introduced an important change in this branch of our jurisprudence: when jurors could not agree, instead of being starved, or in some cases carted into unanimity, they were discharged; and the contest became one of argument and reason, instead of physical force and ability to resist the cravings of nature. The objections to this improvement, for such experience has shown it to be, are, that being entirely without legislative sanction, it depends on the court to determine whether it shall be introduced at all, and when it is, what degree of suffering must be undergone by the jury before they are discharged.

In the code presented to you, rules are prescribed for that purpose. The legislature speaks, and it is no longer imposed upon the court, as some decisions require, to watch, like the medical attendants on a victim of the inquisition, over the struggles between nature and famine, and to discharge the juror only when they are convinced that there is immediate danger that death will release him (a). The jurors are no longer to be kept without food; because it is not considered to be well established, that hunger will bring a man to a correct conclusion, though it may to a speedy one; and in the system I have adopted, justice is the first, and celerity only a secondary consideration. Jurors are treated like reasonable beings, and with the respect due to a co-ordinate branch with the judges in the administration of justice; subject, indeed, to their control for the maintenance of order and the advancement of justice but to a legal control, not an arbitary discretion; their deliberation must be free from the restraint of physical wants-their determination the result of reason and conviction. Perhaps, too, the concurrence of circumstances(b), that probably produced the extraordinary feature in this mode of trial, which requires unanimity for a verdict, has been more fortunate than design would probably have been, in adapting it to the ends of justice in criminal proceedings; for I am inclined to think, if a bare majority were sufficient to give a verdict, that in a secret consultation, where there is no excitement created by

(a) 7 Johnson's Cases, The People v. Olcot. Chief justice Kent says, "the power of discharging a jury, in a criminal case, is a highly important and delicate trust, yet it does exist in cases of extreme and obstinate necessity." See the other cases there cited.

(b) It has been conjectured (and I think with reason) that the unanimity afterwards required, formed no part of the primitive institution of juries, which originally, it is argued from the analogy of grand juries, the grand assize, and sheriffs' inquests, must have consisted, like them, of twenty-three, a majority of the whole number (twelve) being necessary for a decision; that afterwards, at some unknown period, probably when suits began to multiply and the attendance of so many jurors was found burthensome, the practice of summoning only twelve was introduced, but that the concurrence of the same majority of twelve continved to be required.

the presence of auditors or by the prospect of publicity, the decision would, for the most part, be made merely by ascertaining the number of members on each side, without that discussion which is so necessary to elicit truth. Indeed, I have been told by those who have served frequently on juries, and I have made the inquiry in different states, that the first thing generally done, after they retire, is, previous to any debate, to take a vote on the question, and a division of opinion always, under the present system, leads to a revisal of the testimony and a discussion of the arguments that have been offered; whereas, if a majority were to decide, the vote would have decided the cause. Another consideration, also, must have some weight in favour of the verdict by unanimity: the evidence that subjects a citizen to the serious consequences of conviction for an offence, ought to be so clear as to convince the understandings of all; if then it should fail to convince onefourth, or any other given proportion of the jury, the probability is, that its impression would be the same on the rest of the community; and the conviction of a man, whom one-fourth or one-tenth of his fellow-citizens believed to be innocent, could not but have effects upon the confidence which ought to be reposed in the administration of justice more injurious than his acquittal could be, if, although really guilty, he should be pronounced innocent by a unanimous verdict. Reverse the case, and suppose three, or two, or even a single one, of the jury so perfectly convinced, from the evidence, that the defendant has committed the crime, as to be ready to attest his conviction under the sanction of an oath, and consequently refusing to join in the verdict of acquittal, while the rest of the jury doubt his guilt or even believe him to be innocent: to acquit him under such circumstances, would neither restore him to society with the pure reputation that every man, who has been pronounced innocent by his fellow-citizens, ought to enjoy, nor will it remove the alarm which his enlargement will create in a community, a large proportion of which still believed him guilty, and, of course, encouraged by impunity, ready to repeat his former crime. Thus, whether we consider the effect of an acquittal or conviction by less than the whole number of the jury, upon the community, or the accused, upon the administration of justice, or its reputation, we find nearly the same objections to making any change. If the defendant is acquitted, he returns with a tarnished reputation, and the community is not relieved from their alarm. If he is convicted, the chance of his being innocent is increased in proportion to the number of the jury who believed him so; and the same proportion of his fellow-citizens participating in this belief, will arraign the justice of their country, and consider him upon whom it has been exercised as an innocent victim, not a guilty object of just punishment. In the actual administration of the laws, we have seen the effect it will produce, of a reliance upon first and cursory impressions, a neglect of due discussion and a careless decision by shifting the responsibility upon a majority, who act in secret, and whose names are not distinguished from those of their fellows. Where all convict, or all acquit, there is responsibility; upon a secret majority there is none; and to make them record their names and votes, or to give publicity to all their deliberations, would be attended with inconveniences too obvious to be detailed. However just in itself, no system of criminal procedure can be good which does not create in the mass of the people a belief that he who is acquitted