STARVING JURIES.

Colonist, Issue 26, 19 January 1858, Page 3

STARVING JURIES.

(From the Times.) We have certainly no right to declaim in the present day against the immobility of lawyers, for if ever a jurisprudence was in a state of transition it is that of England. Without referring to the great principles which have been overthrown or established within the last 30 years, we may call to mind how many curiosities and eccentricities of procedure have passed away within that time. Butchers now sit on Juries, and felons no longer hold up their hands at the bar. Deodands are to the rising generation a mediaeval superstition. John Doe and Richard Roe have ceased from their immemorial feud. But there is one relic of the dark ages which still maintains its ground— the starvation of Juries. There may, indeed, be something agreeable to the archaeological mind in this rough practice of ' our ancestors. It has evidently come down from those good old Saxon times' when the twelve could not be trusted with ale and mead during their deliberations, for fear of injury to their powers of discernment. But now-a-days the usage is nothing but a hardship to the juror and an injustice to the litigant. By the law of England the twelve men who are charged with the determination of a case, when they retire from court to consider their verdict, are committed to the care of an usher, who is bound to let no one speak to them himself, and to deprive them of meat, drink, and fire until they shall have given their verdict.

The results of this system are sometimes ludicrous, but more often painful. We will not say that prisoners are often convicted through the unwillingness of jurymen to brave a night of hunger and discomfort, for, as the judge has charged them to give the prisoner the benefit of any doubt, the worst that can happen is that a reprobate is once more Jet loosW ; b^ society. But in civil causes it is very different?' There the question is not between the community and an individual, but between one individual and another. The conscientious juryman cannot venture to compromise matters by leaning towards plaintiff or defendant; if he favours the one he injures the other, and unless he would lay perjury on his soul he must hold out to the last tor the opinion which he has formed. Now, though it is manifestly the duty of every' citizen to serve when called upon as an arbitrator in his neighbour's disputes, and to give his verdict with the same honesty as he would expect from another, it is somewhat too much to demand that he should endanger health and even life in weighing another man's pecuniary rights. Any name on the list is objected to if its bearer has the slightest interest in the cause to be tried; all the ingenuity of attorneys and clients is exerted to strike off every man who may be supposed to have a prejudiceforthe opposite side; it may therefore be concluded that on the whole the jury is an impartial body. But how are these 12 men who are sworn to do right and have no interest to do otherwise treated by the law? One would think that their conscientious disagreement after a certain limited time would be held sufficient to warrant their discharge, and that if they could not agree in two or three hours the case might fairly be considered as insufficiently elucidated by evidence, and as therefore demanding further examination. How different the actual practice is from this is shown in the case "Elkins v. Murphy," tried before Lord Campbell on Tuesday. The jury were unable to agree in their verdict, and retired to deliberate at half-past 1 o'clock. At 5 o'clock the Chief Justice sent for them, when the Foreman said they had not agreed and that there was no chance of their doing so. Two of the jurors differed from the other ten, and no arguments of his own had been able to convert the recusant pair. He, himself, he said, lived at Hampstead, and in order to be in time for the " sitting" of the Court he had left home that morning without his breakfast. Lord Campbell, of course, merely stated the law for the satisfaction of the exhausted juror. He had no power to change what was positively provided. The jury must be locked up. again, and under the enlightening effects of imprisonment they would, no doubt, come to an understanding. The Foreman then bluntly declared that he incapable of giving, any more attention-to>'the' "case. The jury, he said, were not permitted to have the slightest refreshment, and his health would be much endangered if he were confined any longer. Another juror complained of serious illness. " 1 am very sorry for your sufferings," said Lord Campbell, " but I cannot assist you. I must ask you to retire again." After another remonstrance from the Foreman, a juror begged that they might be allowed something to eat, and then they would see what they could do. Lord Campbell could not entertain this proposition, but was willing, if there was no objection from the parties, to discharge the jury. The defendant consented to this, but the plaintiff would not hear of it. The most that could be extracted from the latter was that the jury should be supplied with refreshments. The defendant consenting to this, the jury were again ordered to their room, with the understanding that they were to be supplied with moderate refreshments, but that no stimulants or tobacco were to be allowed. At last, towards midnight, they agreed and rewarded the more humane of the parties—the defendant—with a verdict. No one can deny that such a scene as this is somewhat too farcical for a Court of Justice in our day. The endeavour to extract a verdict respecting the right to sell a house by locking up 12 respectable men' all night reminds one more of the rude procedure of savage tribes than of anything that prevails in a civilised country. Be it observed also, that in a criminal case the refreshment wdiich the jury in " Elkins v. Murphy " received could not be allowed. There are continually instances of a jury being shut up all night on a trial for felony and discharged in the morning without a verdict, after more than one of the jury has been" brought to the point of exhaustion. In the case of O'Doherty, the Irish rebel of 1848, two Juries, if we remember aright, were thus discharged. It is difficult to believe that in any cause, civil or criminal, the ends of justice have been forwarded by the denial of sustenance and warmth to the men intrusted with the performance of an arduous duty. To our progenitors of the dark ages, who believed implicitly in bone and sinew, it was natural to think that the men who formed the most honest opinion would be those who could hold out most easily against a twenty-four hours' fast. But we, in our day, have learnt, whether rightly or not, to believe in a disintegration between brain and stomach. An acute.perception, a logical intellect, or a large acquaintance with business and its rules may be found in conjunction with a weak digestion or a consumptive chest. To keep a man of weak constitution without food until he can persuade a broad-shouldered giant, fortified by one enormous meal, to adopt his opinion, is certainly as irrational a proceeding as can well be imagined. We trust that among the little reforms which law lords are continually making a Bill for dealing more sensibly with hesitating Juries may not be forgotten.