THE Evening Star. MONDAY, SEPTEMBER 13, 1869.

Evening Star, Volume VII, Issue 1983, 13 September 1869, Page 2

THE Evening Star. MONDAY, SEPTEMBER 13, 1869.

Trial by jury: “ An institution,” says Hume, “admirable in itself, and the “ best calculated for the preservation ** of liberty, and the administration of “ justice, that ever was devised by the " art of man.” “ This admirable con- “ trivance,” says Paxey, “ unites the “ wisdom of a fixed with the integrity “ of a casual judicature; and avoids, in “ a great measure, the inconvenience of “ both. The judge imparts to the jury “ the benefit of his erudition and ex- “ perience; the jury, by their disin- “ terestedness, check any corrupt par- “ tialities which previous applications « may have produced in the judge.” Paley, having pronounced this commendation, proceeds to say—“ Never- « theless, the trial by jury is sometimes u found inadequate to the administra-

“ tion of equal justice.” The enumeration that follows of the causes to which this shortcoming is attributable, specifies disputes in which popular passion or prejudice intervenes, “ as where e< a particular order of men advance t( claims upon the rest of the commu- “ nity,” or where “ an order of u men are obnoxious by their pro- “ fession, as are officers of the revenue, “ bailiffs, bailiffs’ followers, and other “ low ministars of the law.” After some further observations he concludes, “ instances, be rendered to the suitors, if the determination were left entirely “ to the judges, provided we could “ depend upon the same purity of “ conduct, when the powers of these “ magistrates was enlarged, which they “ have long manifested in the exercise “ of a mixed and restrained authority.” We could multiply ad infinitum the opinions of the learned in moral science, law, and history, in favor of the advantages of trial by jury, and of noble instances in which juries have shown themselves worthy of the trust reposed in them. Perhaps one of the most memorable was that of the jury impaneled to try William Penn, for preaching to what was called in the indictment, “ a riotous and seditious assemblyin reality, an open air meeting of Quakers expelled from their place of worship. The trial took place at the Old Bailey, in 1670, and the jury, in opposition to the direction of the Bench, and in defiance of threats, pronounced a verdict of acquittal. Our object in more particularly alluding to this trial is to bring under notice the injustice and ill-treatment to which jurors have ever been subjected, as it affords a striking instance. The jury were fined, and ordered to be imprisoned till the fines were paid. True, the Court of Common Pleas declared the proceedings illegal, and the jury obtained damages ; but the wisdom of our forefathers never figured so conspicuously darkly as in the methods pursued to compel juries to act conscientiously. We have inherited plenty of barbarous customs of thought and practice in ethics, theology, law, and political economy, but in none are we more persistent than in our determination to coerce jurors into unanimity. Old writers tell us that in times gone by they were punished for perjury if they gave a wilful false verdict, and for crassd ignorantia if they “ declared a “ falsehood, or hesitated about their “ verdict upon a matter of notoriety, “ which all of the country [de patrid) “ might and ought to have known.” That these barbarous customs were coeval with investigations by means of the rack and thumb-screw, and that all these practices have disappeared before the advancement of civilisation is matter for gratulation. But we must not flatter ourselves too complacently on our progress. There are other means of torture besides drawing the limbs from their sockets and letting them go back again with a sickening spring, equally torturing with the pain of the quivering tendons stretched to the utmost of their tension before breaking. The description given by those jurors who have had the courage to make public the treatment they are subjected to in Dunedin, tells of a system of coercion equally reprehensible. Locked up in a badly ventilated room for hours, without fire, food, or water —imprisoned in fact under most disagreeable circumstances, and subjected to influences calculated to irritate, annoy, and injure health twelve men are asked to decide upon a question that requires the cool exercise of the most deliberate judgment. It is quite annoyance enough that at great loss to themselves, they have to attend day after day in the Supreme Court, to the neglect of their own businesses, and in many cases at great pecuniary sacrifice. Of this few would complain. Free institutions require that those who enjoy the benefit of them should be prepared to give some part of their time to the public service. But, jf trial by jury as an institution is worth retaining, they who derive the benefit of it should render the sacrifice on the part of those compelled to attend, as little irksome as possible. Arrangements should be made to guard them against the evil effects of cold and hunger. There need be no fear that men now-a-days will remain one moment longer in deliberation than they can help. It is quite bad enough to be compelled to say whether a fellow man is, or is not, guilty of a crime alledged against him. Everybody would gladly be rid of the responsibility; but if it must be incurred, they on whom it is fixed should be treated as men worthy of respect, and ought not to be subjected to indignities, differing only in degree from those inflicted upon the unfortunate prisoners in the black hole in Calcutta. The explanation offered by the Sheriff confirms the statement that the juries were locked in a room which necessarily soon became unfit for healthy respiration, because unventilated. This he could not help, we presume, for we

suppose be did the best he could. He also explains that his words were misunderstood so for as the intended accommodation for the night was concerned. These explanations relieve him from any charge of neglect or inattention to the comfort of the jury. The other barbarities of inflicting hunger, thirst, and cold, are excused by reference to traditional ancestral wisdom. We have no objection to the adoption of English or Scotch customs in the Colonies that are good, or even if they are simply absurd. Judges and counsellors may disfigure their heads with horsehair wigs, indicative of the wisdom they are supposed to cover, and no harm can result beyond inconvenience to the wearers. But why barbarous practices should not have been left behind, when the colonists left their native land, is not easily justified or explained away. To import what is good, and reject the evil, would have made our starting point one of advance. To adopt the evil with the good is to encumber ourselves with pernicious follies that obstruct progress. _ The absurdity of the present custom in the treatment of juries is so manifest that the common sense of mankind intuitively condemns it. We are glad that three victims to it have had the courage to come forward and publish a statement of the way in which it operates. Our opinion as to the character of the verdicts remains unchanged. But that is not the present question. Society has now the matter in its hands, and must take the blame and responsibility of any future laches arising from neglect to provide a remedy for the sin and folly of striving to secure jurial unanimity through bodily suffering.