TRIALS BY JURIES.

New Zealand Mail, Issue 39, 21 October 1871, Page 9

TRIALS BY JURIES.

No human system is perfect. Every effort to administer justice must necessarily fall short of perfect correctness from defect of evidence, the infirmity of judges, errors in reasoning, ignorance, passion, prejudice, independently of all intentional wrong-doing. The great question is, what is the best means of administering justice, taking human nature as we find it, with all its infirmities ? The tribunal adopted by most civilized countries is of a mixed character, composed of judges learned in the law, and of jurors selected in an impartial manner, and the trial be had before the judges expounding the law, and the juries deciding the facts, the object being to protect the innocent and punish the guilty. No verdict can be received from a jury, under the existing system, which has not the assent of all the twelve, and yet there are no means of compelling assent. Most trials give rise to differences of opinion on several points, and these differences are more often upon inferences and conclusions from ascertained facts than upon the facts themselves, and more often upon doubts as to the proper application of the law to these facts, and* still more often upon mere collateral questions, where there is no common standard of measure, as in assessing damages. In criminal cases fewer difficulties ordinarily arise than in civil cases, because doubts weigh favorably for the accused, and often produce an acqnittal. If the jury continue to disagree they are discharged by the Court, and the cause must then be heard anew. The necessary unanimity of the English jury is supposed to be a relic of the ancient Saxon’s privilege to clear himself by the oaths of twelve compurgators, who believed him guiltless ; while the Scottish verdict by a majority bears the character of the old feudal Court of Peers, when each member gave his counsel and his vote. In short, the Scottish jury was feudal in its institution, while the English institution, though it may have been originally feudal, was impregnated with the Norman character after the Conquest. The Scottish jurists, it would appear, could not see a logical conformity in making twelve men swear that they would do justice, according to their consciences, and then coercing them by confinement and starvation, until they had agreed to be all of one mind. In 1854 the stringency of the risk of unanimity was accordingly relaxed by a provision that, after six hours’ deliberation, a verdict returned by nine of the twelve jurymen, should be effectual. This act of 1854 was the 17th and 18th Victoria, cap. 59. It is but fair, however, to state that this arrangement did not find favor in England, where, even according to English writers, not only an esteem, but an indiscriminate reverence for their jury system has obtained. It should be borne in mind that with the narrowest majority under the Scottish system there must be a verdict from eight jurymen, while from two-thirds—as proposed recently in the House of Representatives —we have a verdict from precisely the same number. In this way a safety valve is provided whereby the convictions of the minority may fly off without interfering with their opinions, or damaging their consciences. Besides, whilst inconvenience, privation, and injustice have often been complained of under the unanimity system, such complaints have not been made of the majority system. Different men have different minds. They have different views and apprehensions on almost every subject submitted to their notice, and men’s convictions cannot be forced. The unanimity system does not consist with the philosophy of the human mind. It is to be regretted that the Jury Amendment Act now before Parliament does not extend to criminal cases, in which, when the evidence is clear, full, and without a link wanting, any jury of ordinary calibre would bring in an unanimous verdict, and when any doubt existed, of course the accused would have the benefit. Juries were introduced in France soon after the first Revolution, in 1789, and were confined at first to criminal cases, which seems to confirm their applicability to such cases.