as they are in the Federal Courts and in the English Courts. As long, however, as we have such weak jurors as we have, with eighty-two classes of the responsible and most fit men of the community excused from jury duty, we need Trial Judges who will exercise full constitutional powers, and yet a minority of the Trial Judges, I believe, have not felt and do not feel at liberty to do what they think would assist, aid and advise the jury because of the precedents that I have called to your attention. I trust those precedents will not be extended; also that the Court of Appeals in time to come will reconsider, overrule and reverse them; so that this difficulty will no longer exist; but it is there and it makes jury trials much less effective than they are in the Federal Courts or than they were in the State Courts before the Flack case and the McDonald case.

Franklin Pierce, of New York:

Mr. President, I was interested in the paper of Judge Clearwater, but I was surprised from the title to see that his views were such that I concur in them. I had supposed I would hear much about the deterioration of the jury, and that there had been a deterioration. The jury system is still an institution of which we are most proud. Many abuses have crept into it and they have been brought in by lawyers who use their position in the examination of jurors to ask many questions which they ought not to ask, such questions as are of a nature that would disclose the action of a juror's mind under a certain state of facts. The English have the correct idea of the selection of jurors. No questions are asked of jurymen, scarcely ever is a juryman excused, the barristers having much pride in their profession will not stoop to affect the minds of jurors by improper questions, or by improper conduct in the presence of juries, or by appealing to their prejudice or their passion,

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and the result is fair jury trials. Their cases are tried with great rapidity. Appellate Courts never set aside a case on account of misconduct on the part of counsel. Another class of lawyers are those who ask questions to excite the passion of jurors, questions that they know are incompetent, simply for the purpose of bringing out an objection from the other side and prejudicing the jury. Such a question as Have you been arrested?" He knows nothing about the matter, but it is brought in for the purpose of creating a prejudice against the witness. Many tricks in the trade. of this kind are constantly practiced before jurors by famous lawyers in our country, but they are unknown in the Courts of other countries, and they should be done away with. The practical question here is to secure action from the Legislature removing these exemptions from jury duty, and, in my opinion, a committee should be appointed to take up the matter with the Legislature and repeal a large number of these exemptions from jury duty. There is no more practical question which an association like this. can consider than the selection of jurors.

Adelbert Moot, of Buffalo :

Mr. President, I know the hour is late, but I move that we print and distribute the paper of Judge Clearwater. I hold in my hand a paper prepared by Hon. William Renwick Riddell, Justice of the Supreme Court of Ontario, on the subject of “The Jury System in Ontario," which I would like to file with Judge Clearwater's report.

The President:

You make a motion that it be incorporated in the minutes? Mr. Moot:

I do.

The motion was duly seconded and carried.

The following is a copy of Justice Riddell's paper:

THE JURY SYSTEM IN ONTARIO

By the HONORable William RENWICK RIDDELL, Toronto, Justice of King's Bench Division, H. C. J., Ontario. When Canada was conquered and became part of the British Empire, the jury had no part in its jurisprudence, the law in force being the Coutume de Paris modified by local ordinances.

In 1763 the English law, civil and criminal, was expressly introduced by Royal Proclamation (October 7th, 1763), having been somewhat informally administered for the three preceding years by Courts presided over by British military officers.

The English law did not prove entirely satisfactory to the French-Canadian; and in 1774 the Act 14 George III, c. 83, sec. 8, provided that in "all matter of controversy relative to property and civil rights, resort shall be had to the laws of Canada as the rule for the decision * * * and * * be determined agreeably to the said Laws. and Customs of Canada.” Sec. II continues the English Criminal Law on account of its "certainty and brevity * * * and the benefits and advantages resulting from the use of it." Power was given to the Governor and Legislative Council to change either civil or criminal law.

There were no settlements in the territory afterwards Upper Canada at that time; but during and particularly after the Revolutionary War, settlers made their way across the Rivers St. Lawrence, Niagara and Detroit into the vacant British wilderness. These were chiefly from New York, New Jersey and Pennsylvania, but some came from other States, the Cavaliers of the new Revolution who preferred their old flag and their allegiance to anything the new Republic could offer.

They brought with them their traditional law and customs; and the foreign law imported from France they could not do away with. The detestation of the English Civil Law by the French Canadian, and the detestation of the French law by the British Canadian, had much to do with the new law of 1791, 31 George III, c. 31, which divided Canada into Upper and Lower Canada, gave each a legislature and left to each to select and make its own law.

In 1788 Lord Dorchester had divided into four districts the territory afterwards Upper Canada, and had erected Courts of Common Pleas with civil jurisdiction in each district. In the district furthest west, Hesse District, including Detroit, but one Judge was appointed, William Dummer Powell, a barrister of high standing, born in Boston, educated at the Inns of Court and who afterwards became Chief Justice of Upper Canada. In each of the other Courts three Judges were appointed, all laymen.

In these Courts all cases were tried without a jury. But the English Criminal Law was in force. Courts of Quarter Sessions were held for minor offences, and Oyer and Terminer and General Gaol Delivery for all criminal offences. In these Courts there was a jury.

The first Parliament of Upper Canada met at Niagara. Of the sixteen Members of the House of Assembly at least twelve were United Empire Loyalists, one was an English barrister sent out as Attorney-General, another a son of an English army officer (the British Commandant at Detroit), and only one a French Canadian.

*

The very first act passed by this Parliament provided that "the authority of the * * laws of Canada forming a rule of decision in

mat

ters of controversy relative to property and civil rights shall be annulled, made void and abolished." 32 George

III, c. I (U. C.), s. 1.

I.

Section 3 directed that resort should be had to the laws of England as the rule for the decision of the same.

Immediately thereafter was passed Chapter II of the same Statute: "From and after the 1st day of December 1792 all and every issue and issues of fact

*

*

* in any action real, personal or mixed and brought in any of His Majesty's Courts of Justice within this Province shall be tried and determined by the unanimous verdict of twelve jurors duly sworn for the trial of such issue or issues which Jurors shall be summoned and taken conformably to the Law and custom of England;" and the jury was empowered to bring in a special verdict.

In this way the English Jury System was introduced into Upper Canada in its entirety; with the exception of the Special Jury, this was introduced by the statute next to be mentioned.

A

In 1794 was passed 34 George III, c. 1, “An act for the Regulation of Juries," which provided for a list being delivered to the Sheriff by the Clerk of the Peace of the householders for the Sheriff to draw up his panel. penalty not less than 20 shillings ($4.00) nor more than £3 ($12.00) was imposed upon a juryman who neglected his summons; and each juryman was to receive one shilling (20 cents), increased to 25 cents in 1822, by 2 George IV, c. I, s. 30, from the plaintiff or his attorney for each case he was sworn in.

The complete English system of Common Law Courts was introducted by the Act 34 George III, c. 2, which instituted a Court of King's Bench for the whole Province, and abolished the Courts of Common Pleas which, as we have seen, were local Courts.