The Timaru Herald WEDNESDAY, JULY 2, 1930. DEFENCE OF JURY SYSTEM.

Timaru Herald, Volume CXXV, Issue 18608, 2 July 1930, Page 8

The Timaru Herald WEDNESDAY, JULY 2, 1930. DEFENCE OF JURY SYSTEM.

If Lord Hewart, who raised sucli important psychological questions in the brilliant attack on officialism he launched in “New Despotism,” could discern in recent English legislation the pernicious habits public departments have contracted of more or less secretly abrogating to themselves the powers of Parliament and the duties of the Law Courts, we wonder what the Lord Chief Justice of England would say if he knew that the trusted facilities the jury system in New Zealand affords litigants, to settle their differences, has been virtually abolished by Order-in-Couucil! The methods by which Departments of State exert this new despotism is by inserting in Parliamentary Bills subtle clauses empowering the departments concerned to make regulations which have the force of statutes, and even go as far as to oust the jurisdiction of the judges. Presumably in the subtle assault that has been made on the jury system, the New’ Zealand Judiciary has conspired with high departmental officialism to throw down this rampart of popular rights:

“The jury system, in effect,” declared Mr J. P. O'Regan, a wellknown Wellington barrister, the other day, “has been virtually abolished since 1925.”

Mr O’Regan explains that it came somewhat of a shock to find that such a drastic derogation from long-standing popular rights should be made by Order-in-Council, but he is not content to make oral protest and leave it at that. “I am quite satisfied,” said Mr O'Regan, “that the last has by no means been heard of the matter.”

Obviously the practices graphically described by the Lord Chief Justice, are not the lly manifestations of a desire for autocratic government; on the contrary, the assault ou what Judge Chalmers describes as a “far better tribunal than a judge for dealing with questions of fact,” has succeeded without the great mass of the people realising that by Order-in-Couucil a drastic change has been made in the constitution. Of such vital importance is this question, that we are glad to notice that the remarks made by the Wellington barrister have not gone unheeded. Hence the illuminating and convincing address delivered by Sir IV. D. Campbell, before the Timaru Rotary Club, not only emphasises the protests that have already been made, but presents a masterly defence of the jury system, as well as issuing a call to the people to realise the revolutionary change in the jury system that has taken place within the last five years in the direction of the virtual abolition of trial by jury iu civil cases. In the course of his address, Mr Campbell said:

Up till that time every action where the amount claimed for debt or damages or chattels exceeded £SOO, was tried, as of course, before a judge and jury of 12. Where the amount was between £SO and £SOO the litigant could get a jury of four. Since the beginning of 1925, the right to a jury has been abolished except in actions of tort (such as collision eases), and now a litigant in most civil cases can obtain a jury only if the Court thinks the action can be more conveniently tried in that way. This change was effected by an Order-in-Council made under the professed authority of a section in the Judicature Act, which authorises the Governor-in-Council, with the concurrence of any two or more of the Judges, to make rules regulating the practice and procedure of the Court. The practice and procedure of the Court relates to the machinery of the law, by which the rights of litigants are decided and enforced, and not to those rights themselves. It seems open to question whether the section of the Judicature Act referred to authorises the making of a rule which not merely relates to the practice and procedure of the Court, but cuts away from litigants the right to have questions of fact in their disputes settled by a jury —a right which has existed and been exercised in England and its off-shoots for hundreds of years.

From time to time the legal profession in New Zealand lias voiced strong protests, but the Order-in-Council has been given the force of statute, and the rights of the people to appeal to their peers has been immeasurably curtailed. It is just as well for tlie people to realise that if this first invasion is not repulsed, another Order-in-Council may be given such statutory authority as to abolish trial by jury altogether. Quite a formidable array of authorities was quoted by Mr Campbell in defence of the jury system. Moreover, it is obviously the considered opinion of distinguished members of the Bench and Bar in New Zealand, that it was never the intention of the Legislature to give the Governor-in-Council such absolute power.

“Trial by jury,” declares one distinguished member of the New Zealand Bar, “is unquestionably one of the most marked and characteristic features of the Common Law. To the average man it is the tribunal for the decision of disputed facts—it is the tribunal, which with all its faults, real or imaginary, is immeasurably superior to any other.”

We do not know just what is the intention of the draftsmen who prepare the statutes for consideration by Parliament —that is

not always clear, hence the prevalence of legal wrangles —but we do know that trial by jury is accepted by the people as an integral part of the constitution, and we think the great weight of public opinion is on the side of the distinguished American jurist, Professor Thayer, of Harvard University, who was quoted by Mr Campbell as insisting that “the great general rule is that the regular common law mode of trying questions of fact is by jury,” and Mr Campbell expressed the opinion of free and enlightened communities when he said that “This mode of trying questions of fact in civil cases is a common law right of litigants, and it cannot be taken away by Order-in-Council made under a Statute which authorises only rules dealing with the practice and procedure of the Court.”

It is generally recognised that departmental authorities mean well, but as Lord Hewart points out, they suffer from too much zeal. They rather resemble, to quote Lord Ricjdell, the distinguished statesman of whom his daughter relates in his biography, “he was always trying to make us happy by letting us do what he liked!” Tt will be called to mind by students of constitutional history, that Buckle alleges in his famous history, that freedom and civilisation have been retarded by the excessive interference by organised minorities with the people. Only the prevailing apathy regarding public affairs can explain the failure of the average citizen to realise just 1i0..’ serious has been the blow struck at their inalienable rights by Order-in-Council. It is a new despotism, with the vengeance, which usurps the functions of the people’s legislatures. But, as Mr Campbell observes:

“The fact remains that a great constitutional change has been made in New Zealand—the judge has, in effect, displaced the jury as the criterion of truth.”

Judge Chalmers, in “ The Law Quarterly Review,” is quoted by Mr Campbell, in support of liis views, as saying:

A jury is a far Setter tribunal than a judge for dealing with questions of fact. The more I see of juries, the higher is the respect that I have for their decisions. A judge is always embarrassed by the feeling that his decision is in some sense a precedent. Juries are haunted by no such spectre, and have only to deal with the particular case before them. It may be, as Lord Bramwell says, that ‘they mitigate the rigour of the law by going wrong sometimes,’ but they do substantial justice between the parties. They have a marvellous faculty for scenting out fraud. Why a jury should be better than a judge in this respect I cannot say, but I am sure of the fact.”

The explanation is obvious, as has been so succinctly put by Mr Justice Stringer, who said:

“It is apparent from the pleadings that on the trial there will be a direct conflict of evidence and probably a good deal of hard swearing. It seems to me that with its composite intelligence a jury, viewing the relevant considerations from a variety of angles, and assisted by the presiding judge, is more likely to arrive at a just and proper conclusion on the matters at issue than would any individual judge acting alone.”

It was this strongly hold conviction that prompted Sir Ernest Wild, Iv.C. (Recorder of London) to declare that: In civil proceedings involving character, such as fraud, I do not think any judge alone should try the

Doubtless there might be some justification for making such revolutionary changes in the conduct of the Courts of Law, if the occupants of the Bench were infallible, hut as Lord Justice Atken significantly pointed out some time ago:

The number of successful appeals from the Lower Courts to the Court of Appeal is about 33 per cent of the whole number, and the number of successful appeals from the Court of Appeal to the House of Lords is about 33 per cent. “There is no reason for believing,” adds the noble judge, rather whimsically, “that if there was a higher tribunal still the proportion of successful appeals would not reach at least that figure.”

Mr O’Regan and Mr Campbell have done well to bring this “new despotism,” right out into the light of public examination, and we hope, as is suggested, that “more will yet be heard” of the protests against the restriction of the rights of the people to have their legal differences, if they so desire, decided by a jury of their peers.