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Provided by the Author(S) and University College Dublin Library in Accordance with Publisher Policies Provided by the author(s) and University College Dublin Library in accordance with publisher policies. Please cite the published version when available. Title The Terror of Their Lives: Irish Jurors Experiences Authors(s) Howlin, Niamh Publication date 2011-08 Publication information Law and History Review, 29 (3): 703-761 Publisher Cambridge University Press Item record/more information http://hdl.handle.net/10197/4259 Publisher's version (DOI) 10.1017/S0738248011000319 Downloaded 2021-09-30T11:33:26Z The UCD community has made this article openly available. Please share how this access benefits you. Your story matters! (@ucd_oa) © Some rights reserved. For more information, please see the item record link above. “The Terror of their Lives”: Irish Jurors’ Experiences NÍAMH HOWLIN 1. Why Consider Jurors’ Experiences? A commentator noted in 1881 that Irishmen regarded jury service as “the greatest burden that can be inflicted upon them ...they would be delighted if trial by jury was suspended tomorrow.”1 He later added, “[o]f course an enormous outcry would be raised about it in the national press, and in pub- lic meetings; but jurors ... would give anything in the world not to serve ...because it is the terror of their lives.”2 Much has been written about the poor state of the nineteenth-century Irish jury system,3 and it is certainly true that for various social, economic and political reasons, in comparison 1. Report from the Select Committee of the House of Lords on Irish Jury Laws, House of Commons Parliamentary Papers 1881 (430), xi, 1, per James Hamilton QC, chairman of the County Sligo quarter sessions, para. 3282. 2. Ibid., para. 3308. 3. See David Johnson, “Trial By Jury In Ireland 1860–1914,” The Journal of Legal History 17 (1996): 270–93; David S. Johnson, “The Trials of Sam Gray: Monaghan Politics and Nineteenth Century Irish Criminal Procedure,” Irish Jurist 20 (1985): 109– 34; John F. McEldowney, “‘Stand By for the Crown’: An Historical Analysis,” Criminal Law Review (1979): 272–83; John F. McEldowney, “The Case of The Queen v McKenna and Jury Packing in Ireland,” Irish Jurist 12 (1977): 339–54; John D. Jackson, Katie Quinn, and Tom O’Malley, “The Jury System in Contemporary Ireland: in the Shadow of a Troubled Past,” Law and Contemporary Problems 62 (1999): 203–32; and Niamh Howlin, “Controlling Jury Composition in Nineteenth-Century Ireland,” The Journal of Legal History 30 (2009): 227–61. Níamh Howlin is a lecturer in the School of Law, Queen’s University Belfast, Northern Ireland <[email protected]>. She is grateful to the staff of the various archives and libraries consulted in the preparation of this article. She also thanks Dr. Heather Conway and the anonymous reviewers for their helpful comments. Law and History Review August 2011, Vol. 29, No. 3 © the American Society for Legal History, Inc. 2011 doi:10.1017/S0738248011000319 704 Law and History Review, August 2011 with that in England, the Irish system appears to have operated in a way that fell somewhat short of ideal.4 This article seeks to provide an understanding of the realities facing the jurors themselves, and will examine their experiences of the justice system before, during, and after the trial. There are several justifications for such an examination. First, it is hoped that adopting this unique perspective of the trial process will aid under- standing of how civil and criminal trials operated in Ireland, and deepen our understanding of the flaws and weaknesses of the justice system more generally. Second, it is hoped that by taking into account jurors’ experiences, it will be possible to make clearer the practical operation of Irish jury trials and their impact upon the lives of those in the community. Third, it is suggested that jurors’ experiences directly impacted upon their verdicts, and may be an important factor in interpreting conviction rates and verdict trends. Fourth, it is hoped that this article will contribute to 4. See the work done in this area by McEldowney and Johnson, above, and contempora- neous commentary such as Anon., “Our Jury System,” Dublin University Journal 32 (1848): 717; Arthur Houston, “Observations on Trial by Jury, with Suggestions for the Amendment of our Present System,” Journal of the Dublin Statistical Society 3 (1861): 100–109; Mark S. O’Shaughnessy, “The Venue for Trials, Civil and Criminal,” Journal of the Social and Statistical Inquiry Society of Ireland (hereinafter J.S.S.I.S.I.) 4 (1865):193–203; William H. Dodd, “Some Grievances of Jurors,” J.S.S.I.S.I. 8 (1879–85):223–27; and Albert Venn Dicey, “How is the Law to be Enforced in Ireland?” Fortnightly Review (ns) 3 (1881): 537–52. Pamphlets written in the late nineteenth century highlight some of the more political problems with the jury; examples include Roger O’Connor, A View of the System of Anglo-Irish Jurisprudence and of the Effects of Trial by Jury, when Individuals Consider Themselves Belonging to a Faction, Rather than to a Community (London, 1811); Henry Holmes Joy, On Peremptory Challenges of Jurors, with the Judgment of the Queen’s Bench in The Queen v. Gray (Dublin: Andrew Milliken, 1844); Edward Patrick Sarsfield Counsel, Jury Packing 2nd ed. (Dublin: M.H. Gill and Son, 1887); Daniel Crilly, Jury Packing in Ireland (Dublin 1887); and United Irish League, “Stand Aside,” Trial by Jury in Ireland in the Twentieth Century (Dublin: United Irish League, 1903). A number of par- liamentary committees appointed to inquire into the state of Ireland more generally examined some of the difficulties associated with Irish juries: see, for example, Report of the Select Committee Appointed to Inquire into the Disturbances in Ireland House of Commons Parliamentary Papers 1825 (20), vii, 5; Report from the Select Committee of the House of Lords Appointed to Enquire into the State of Ireland in Respect of Crime, Part 1, H.L. 1839 (486), xi, 1; Report from the Select Committee on Outrages (Ireland), House of Commons Parliamentary Papers 1852, (10), xiv, 438. Parliamentary committees established specifically to examine the working of the Irish jury system had no English counterpart: see Report from the Select Committee appointed to inquire into the working of the Irish jury sys- tem, House of Commons Parliamentary Papers 1873 (283), xv, 389; Report from the Select Committee on the working of the Irish jury system, House of Commons Parliamentary Papers 1874 (244), ix, 557; and Report of the Select Committee of the House of Lords on the Operation of Irish Jury Laws as regards Trials by Jury in Criminal Cases, H.L. 1881 (430), xi, 1. The Terror of their Lives 705 the debate as to why the Irish jury system appears to have been held in such low esteem during the nineteenth century. Fifth, this should, by extension, shed light on the difficulties experienced when jury trial was extended to other countries. Finally, jurors’ experiences have not traditionally attracted a great deal of scholarship, in the sense that most works examining juries5 have tended to take a more institutional approach, examining the operation and functioning of the jury trial in the wider context of the justice system as a whole.6 One reason for this, largely attributable to the traditional secrecy surrounding jury deliberations, is the relative paucity of sources providing insight into the experiences of the jurors themselves. Furthermore, as King notes about the internal dynamics of jury decision making, contemporaries tended to note the exceptional rather than the typical,7 and this may also be true of descriptions of jurors’ experiences.8 However, there are various sources, generally anecdotal, which have not hitherto been synthesized, 5. See for example, William Robert Cornish, The Jury (London: Allen Lane, 1968); David Bentley, English Criminal Justice in the Nineteenth Century (London: Hambledon Press, 1998), 89–96; John W. Cairns and Grant McLeod, eds., “The Dearest Birth Right Of The People Of England” The Jury in The History of the Common Law (Oxford: Hart Publishing, 2002); James Swanston Cockburn A History of English Assizes (Cambridge: Cambridge University Press, 1972); Neal Garnham The Courts, Crime and Criminal Law In Ireland, 1692–1760 (Dublin: Irish Academic Press, 1996), 133–48; Thomas A. Green, Verdict According to Conscience: Perspectives on the English Criminal Trial Jury 1200– 1800 (Chicago: University of Chicago Press, 1984); James Oldham, Trial By Jury: The Seventh Amendment and Anglo-American Special Juries (New York: New York University Press, 2006); Antonio Schioppa, ed., The Trial Jury in England, France, Germany 1700–1900 (Berlin: Duncker and Humblot, 1987); and Conor Hanly, “The Decline of Civil Jury Trial in Nineteenth-Century England,” The Journal of Legal History 26 (2005): 253–78. 6. Some notable exceptions here are Peter King, “Illiterate Plebeians, Easily Misled, Jury Composition, Experience and Behaviour in Essex, 1735–1815,” in Twelve Good Men and True: The Criminal Trial Jury in England, 1200–1800, ed. James Swanston Cockburn and Thomas A. Green (Princeton: Princeton University Press, 1988); Peter Lawson, “Lawless Juries? The Composition and Behaviour of Hertfordshire Juries, 1573–1624,” in Cockburn and Green, Twelve Good Men; James Swanston Cockburn, “Twelve Silly Men? The Trial Jury at Assizes, 1560–1670,” in Cockburn and Green, Twelve Good Men;A. Browne, The Juryman’s Handbook (London: Harvill Press, 1951); Richard Ireland, “Putting Oneself on Whose County? Carmarthenshire Juries in the Mid-Nineteenth Century,” in Legal Wales: Its Past, Its Future, ed. Thomas Watkin (Cardiff: Welsh Legal History Society, 2001); and David Seipp, “Jurors, Evidences and the Tempest of 1499” in Cairns and McLeod, The Dearest Birth Right. 7. King, “Illiterate Plebeians,” 292. 8. Seipp, “Jurors, Evidences,” 75, notes that jurors are “the unsung heroes of the common law ...Jurors were always just off-stage in the pages of the Year Books, a silent unseen pres- ence ..
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