TRIAL BY JURY.

Colonist, Volume III, Issue 296, 21 August 1860, Page 2

TRIAL BY JURY.

"[communicated.) ./ '. It may seem somewhat paradoxical at this time of day to call in question,the utility of trial by jury —an institution which, has been handed down to us from our forefathers for so mUny ages; an. institution whjchhaaalwaySbeen considered as oneof the greatest bulwarks of the -liberty of Englishmen. But it must'be recollected that our ancestors;were but men like ourselves, and were liable to err^ and to reason falsely in matters; of legislation as- well as, of any other science f and considering how very little'the sciences formed any part of their studies, their opinions.'on any point ought not in the.present.age"t6'be taken afcthe 'ne'plus ultra' .ov'true. standard as regards legisla^ tion or even morals. . ; ; ; ,•■ - i Trial by jury must be judged of, like any other,' institution, according to the standard of its utilityr that is; whether upon the whole-it is productive of preponderant good, or evil. la considering this subject we ought first to show what qualities on .ttie part of a Judge are required uncj(er a good system of judicature, and-, then, comparing it with trial by jury,l;see whether or not that institution possesses those qualities which are requisite io the ends of justice.' ■ v • . %-. t ; : First, as regards the qualifications of a Judge. Thefunctipp of aqudge isto decide justly, that is, according to the evidence before him. To fill such a situation, asthis, a man must not be chosen at random. Something of his.previous: character must be known as to integrity; and moreover it should be the business oi;the inidividual who Appoints him to ascertain that.his /wora^characterisunimpeachable. ' t^h:-'--; -;. ■ '■•. r:.':.'{l-,"...-^:., '■ ■.■ ■ , ■ " But horiegty alone is not sufficient to enable, a man to come, to a .just conclusion on any subject; ;he"must have knowledge. And-.as there are few^ situationsin which, spch a variety of matters are discussed "as .in' courts of law or equity, a Judge must have knowledge on various subjects. He must be a man of libjerial Education ■■! and enlarged views. To decide justly, it is necessary that he should pay attention to the evidence which may be adduceo: on both sides. To sura uj? the whole,

every judge should possess appropriate moral, intellectual,1 and active aptitude. ;' The functions of a juryman being .the same as tHt wljich we have ju3t seen/belongs to a judge,it {allows that he also should posses3th.ose qualities which it is requisite the judge should" possess. Let us then see. to what extent measures are taken to secure the possession of these qualities on the part of jurymen. First, then, as to moral aptitude. The leading feature of trial by jury consists in the jurymen being chosen without any sort of distinction; in fact, it is considered as the most essential point in its constitution that they he chosen by chance or ballot. From such a system what security can there possibly be as to the moral aptitude of any one of the jurymen ? The.individual who pricks the list cannot possibly be acquainted with the characters of all or of any considerable portion of them; and. even if he were acquainted witli the character of any one of them, however bad he may know it to be, he has no authority to-set him' aside. In short,..any such optional power as this vested in an individual would totally destroy the characteristic feature of the whole thing. The public in general kno*v no more, about them, nor so much perhaps as the officer who selects them; consequently, the public can have scarcely any moral control over them. The effect of this is to make juries independent of public opinion, and in fact they are for the time being, as far- as the manner of giving their .verdict, so many despots: whether they decide justly or unjustly, it is all. the same to them. If their verdict is an- unjust one they cannot be punished; neither does that odium which would necessarily fall upon a single judge fall upon them.' 'Instead of this they mix in society as before, %M "ftothing more is heard of them. ~ , Neither does that sort" of moral restraint the j • necessary result of the individuals who oocupy the j court, small as that number is, affect them. It can ] only affect them duiing the time it may take them ' to state wliythey decided in such or such a way; but as they give no reasons for their verdict, and disperse after their verdict is given,- there is no time for the operation of even this exceeding small • s'ectionof the moral, sanction. _ . I. But there is another obstacle to securing moral aptitude on the part of jurors. That is, in requiring that the verdict shall be on all subjects the. unanimous verdict of the twelve jurymen; It would be a needless waste of time to enumerate the various modes by" which the obstinacy of one juror may defeat the ends, of justice, even where he may conscientiously, persist in his conclusions ; but it might be assertedHiat it opens a door to dishonesty, and although dishonesty; may not; have taken place in any given, instance, there i«r no security against it. , We next come to the second qualification. Intellectual aptitude is a quality with which jurors in general have less to do thaa with any other. They are for the most part chosen from the class of tradesmen or small farmers—a class which, under .present circumstances, seldom possess or'! receive any other education than such as is abso-; lutely requisite for their respective occupations. Supposing that some few had received a better education than others, the choice being made by chance, they, cannot be chosen in preference to others who may not have received bo.good an edur cation. Can it then seriously be supposed3 for a moment that on the'part of a random assemblage of men unused to judicature, the chances of misdecisipn can in each instance be less than on the part of a man,of education who has made the > study of the law the business of his life, and who has besides in each instance (owing to his responsibility) a strong interest to decide justly? There remains the third qualification, namely, active aptitude, which is reserved for a, future number. _ ':"