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ATTAINMENT OF JUSTICE?
'AFFIRMATIVE ARTICLE.-II. We have been much interested in the for adoption now in England ;-we allude to perusal of the articles on this question by taking verdicts by vote; his arguments in * Beta” and “Morfhaich," which display a favour of which are, in our opinion, most knowledge of the subject of which they successfully overturned by those advanced respectively treat, although, after a careful by “ Beta.” The system was tried, and it consideration of the matter, we are inclined failed; and that very fact, independently to differ with the opinions entertained there- of the weight which unanimous verdicts on by the latter writer.
carry with them to the public mind, and of England is renowned for her free institu-, their being more calculated to impress the tions, and there is nothing so characteristic criminal with their justice, is, of itself, of her greatness, her power, and her free. ample reason why it should not be renewed dom, as the encouragement and support in this country. given thereto by her government and her But assuming, for a moment, that the subjects; and of all her institutions-free, English jury system was assimilated to the noble, glorious as they are-none bestow Scottish, and that fifteen of our “neighbours such extensive privileges, nor so effectually and equals” were appointed to sit in judgprotect the interests of the nation, as does ment on trials to be decided by their vote, trial by jury.
i and supposing that a criminal was arraigned It appears that this institution was strictly before them for an offence, and a majority observed by the Normans, long before they decided upon convicting him; would it not be landed on our shores; but from information nearly as difficult to secure unanimity in which we have with difficulty been able to ten jurymen (the two-thirds who must agree glean, it would seem that the original to form a verdict of conviction in Scotland) system was afterwards departed from, and as it would in twelve? and would not unaanother scheme, with which we are un- nimity in twelve men be far preferable to all acquainted, devised and adopted. In the parties, and more conducive to the adminreign of King Alfred, trial by jury was istration of justice? again revived, and it prevailed very gene- We are told also by “Morfhaich” that rally until some time after his decease, “the system in England, which requires when, we believe, in consequence of the per- total unanimity in the jurymen, must be a turbed state of the country, it again degene- great nursery of falsehood and perjuryrated from its original purity. Daring the verdicts in opposition to the inward decisions reign of Henry the Second, it made its re- of many must be given among the thousands appearance, though, we are informed by that are yearly recorded. * * * It is some historians, the primitive system was, impossible but that some must perjure for a considerable time, subsequently but themselves in assenting to verdicts with imperfectly understood, and consequently which they do not conscientiously concur." nasatisfactorily carried out in course of Now we do not think “Morfhaich” is justitime, however, and after repeated experi- fied — we speak respectfully-in questioning ments had been performed, each in some the integrity of our juries, impagning their respect differing from that which preceded motives, and charging them with the foul it, this institution reached its present state of crime of perjury. Juries, as juries, are subefficiency and purity.
ject to no control or bias in the consideration Now, if we mistake not, one of these systems of their verdicts, save, we hope and believe, was actually such as that for which " Morf- by a praiseworthy desire to maintain truth, haich" seems to have such an ardent affec- administer impartial justice, and defend the tion, and which he so earnestly recommends I rights of individuals and society in general.
No jurymen would, we trust, perjure them to the late changes in the Scotch jury law, selves by acquiescing in a verdict contrary says:-“These changes were at the same time to the dictates of their consciences and the sought to be introduced into the English oaths they have taken. We have too much trial by jury in civil cases, but ineffectually, confidence in their love of justice and their and the policy of the innovation is gravely respect for that institution which is “the questionable." And in his “ Commentaries," glory of the English law," and, as Delolme the celebrated Blackstone remarks:-“It is observes, “that point of their liberty to the most transcendent privilege which any which the English are thoroughly and uni- subject can enjoy or wish for, that he cannot versally wedded."
be effected in either his property, his liberty , The law, too, has granted to the prisoner or his person, but by the UNANIMOUS Coxthe extensive right of challenging either the SENT OF TWELVE of his neighbours and whole array or the separate polls, i. e., the equals. This is a constitution which I may whole jury panel or particular jurymen,* so venture to affirm has, under Providence, that, virtually, the choice of men who com secured the liberties of this nation for a long pose the jury, and on whom his fate depends, succession of ages.” These sentiments are is entirely in his own hands; and this great certainly opposed to the arguments of “Morfprivilege, coupled with the fact of the verdict haich," to whose attention we would beg of these twelve men, in whom he has reposed to call, in conclusion, the following obserconfidence, being a unanimous one, would vations by the same celebrated jurist:convince him, if he be found guilty, of the “It is, therefore, upon the whole, a duty fairness of his trial, the justness of his pu- which every man owes to his country, his nishment, and the wickedness of his crime. friends, his posterity, and himself, to main
Many experienced judges, and others pro tain, to the utmost of his power, this ficient in legal science, have not been back- valuable institution in all its rights; to ward in expressing their great disapproba restore it to its ancient dignity, if at all tion of the Scottish system; and we presume impaired by the different value of property, it will not be denied, that none are more or if it have otherwise deviated from its capable of judging of the merits or demerits first institution; to amend it wherever it is of the practical operation of an institution defective; and, above all, to guard with the to which they so constantly appeal and give most zealous circumspection against the intheir aid and counsel. One of our most troduction of new and arbitrary methods of talented authors † on jurisprudence, alluding trial, which, under a variety of plausible
pretences, may in time imperceptibly under* Warren's “Blackstone's Commentaries,'' | mine THIS BEST PRESERVATION OF Exop. 630.
LISH LIBERTY.” + Samuel Warren, Esq., D.C.L., F.R.S.,
T. W. R. in his abridged edition of “Blackstone's Com. mentaries," p. 567.
NEGATIVE ARTICLE.—II. “Our public progress is far behind our | hindered here and there awhile, has made private progress," remarked Mr. Charles considerable progress. Now, at length, she Dickens, in the course of a recent speech on discovers that her brother is not with her administrative reform. Those two fair tra- that he lingers far behind. Ah! at those vellers on the uphill road to perfection-the inns has he become intoxicated, and obstistrong, stalwart, handsome brother, and the nately opposed to any further progress; and confiding, yet determined and more than now he staggers, and looks as if he and the equally fair sister, started hand in hand. precious load he bears would be dashed into For awhile they walked in company, but ere irretrievable ruin! long the brother turned aside to the road- | Thus have we attempted to wear tbe robe side inns of Routine and Favour. A moment of allegory, which, has Rogers has said, or so the sister waited for him, but then “none but Bunyan could wear long and pressed on, expecting him to join her. wear gracefully.” Perhaps it may be well Determined to reach the goal, she has to follow the example of the unskilful
trned intently along the road, and though draughtsman, who, fearful lest spectators should mistake his drawing for an elephant, appetites, and of the sense of shame (both explained it by writing beneath, “This is a belonging to the lower nature of man, be it horse."-By the brother we would signify remarked), the will is influenced, and this, oor public administration; by the sister, our in its turn, influences the belief. To put private. Through adherence to routine and any force upon a man's belief is unjust. the present iniquitous system of favour- Here a force is put upon the belief; therepatronage, the former is far behind the fore, the verdict obtained through coercion latter, and appears as a drunken man, in- is obtained unjustly. toxicated with indulgence.
Moreover, justice is a hallowed thing. If, then, it be admitted that this groan- It is one, of the chief perfections of the ing nation needs administrative reform, does Deity—“just and right is he.” Then, is it it not also need judicial reform? Have we needful to act unjustly to obtain justice? with regard to the judicial power, kept pace can darkness bring forth light, or falsehood with the quick march of humanity? Vast eliminate truth? Then how can injustice has been the track which man has travelled produce justice? over; daily does his distance from super Let us not be misunderstood. We would stition increase. Humanity, like a mighty not say that no verdict given by a jury wave resistless, rolls across the wide Time which has been starved into unanimity has Ocean, increasing as it comes nigh the been a just one. This does not follow. But boundless eternal shore, whereon, ere long, we would argue that, out of twelve men, if it is to break. Man has advanced, but have eight, upright and honest, form a contrary institutions improved? Do those connected opinion to that of the other four, and they with the attainment of justice meet the be taken as the verdict, that it is obtained requirements of the age? Let us see. justly—that those eight are, as a general
The age requires justice. The motto of rule, in the right. Extraordinary cases of every true man is, “ Justice to all, favour to delusion will of course occur; but, were we none."
on our trial, we should be apt to consider We have now to discuss one branch of the verdict of the majority a just one. the subject:-Is the unanimity required in Therefore, if, in such a case as the one menjuries conducive to the attainment of that tioned, the four jurors were starved into great requirement of the age-justice? compliance with the rest, we should not
We are free men. Let prelates and their regard the verdict as necessarily unjust; but myrmidons, who desire to be lords over God's it would be far otherwise if, on account of heritage-man's spiritual nature, say what these four having made a very hearty breakthey will; liberty of thought, belief, and fast, or having secreted a supply of saveloys action is our choicest possession, it is man's and bread, they were enabled to hold out, unalienable right. But is not the principle and the other eight were forced to agree involved in the question under discussion with them, and gave the verdict accordingly. opposed to this ? To obtain unanimity, Then the commanding probability would be coercion of some sort must in most cases that it was unjust. be resorted to; a man must either be forced Moreover, we are forbidden to do evil that into a belief, or he must perjure himself good may come. Now, in either coercing by saying he believes what he believes not. the belief of men, or in forcing them to Our readers are doubtless aware of the mode commit perjury, we do evil, to promote, as of coercion. The jury, on withdrawment, we think, the ends of justice. This, under “are debarred from all foreign communi- the Christian dispensation, we are strictly cation, and denied all refreshment, until they forbidden; and it is of no use to tell us that become unanimous in their opinion ;*” and “the particular consequence appears to in the case of the assizes, if they be not exceed the value of the general rule.”* unanimous, the judges “may carry them Can any think that this was intended by round the circuit, from town to town, in a the apostle? “If he meant this, surely cart.” † Thus, through the channel of the there was little truth in the declaration of
* “Elements of the British Constitution," the same apostle, that he used great plainSchomberg, p. 129.
+ “Commentaries on the Laws of England," | Stephens, vol. iii., p. 619.
| * Paley,“ Moral and Political Philosophy."
ness of speech.” * But this is, strictly for his client; but he was firm, and the speaking, a digression.
others were anxious to go, and therefore he But how can a system be supposed con- succeeded in having the verdict as he wisbed! ducive to the attainment of justice, when it When there is good opportunity for crime, allows men the opportunity of taking with is that opportunity usually untaken? Quis them a quantity of food, so as to be able to ignorat, maximam illecebram esse peccandi, starve out the rest of the jurors ? | How impunitatis spem ? * easy for a prisoner to manage to have some | Candid readers! we ask, Is this system communication with a juryman! How easy likely to be conducive to the attainment of to bribe one! And when you conceive it justice? possible that there should be tampering, Were verdicts to be determined by the think of the temptation a handful of gold majority, how much more likely should we pieces presents to one who, though outwardly be to judge aright.t Then there would be respectable, may be on the verge of bank- no occasion for the Irishman to exclaim, ruptcy, or has lost fortune, or is losing it, “ Och, yer Honour, there never was an by one of the chances so well known in our obstinater pack of men than this bere jury! land. How great must be the temptation Do what I will, yer Honour, I can't bring to such a man--indocilis pauperiem pati! 'em over to my idea.” How many guilty secrets connected with Should the numbers be equal, the judge our present system of judicature are there might be empowered to give a casting vote, locked up in seared hearts, we cannot know; or, what is better, let the criminal have the but there is One who seeth into all hearts. benefit of the doubt, as in the Gothic nembda. How many are registered in that awful Indeed, we see no reason for retaining juries book-his infinite mind! In saying this, at all, and would confide the power of deterlet us not be accused of taking a jaundiced mining to magistrates. Juries, certainly, view of our fellow creatures. There have | are very ancient (being mentioned in the been such cases. In proof of this statement, laws of Ethelredt), but so are many other I may quote the testimony of an experienced absurdities yet to be noticed in our constiand accomplished lawyer, on wbose friend - tution. Their antiquity is no reason for ship I pride myself, and of whose moral retaining them. Judges, unfettered by juries. worth I have the higbest opinion. In a were appointed among the Israelites. This town of Hampshire, a case was lately tried; was with the direct sanction of Jehovah, and the jury were chosen from the inhabitants, therefore the wisest system. “Moses chose and, knowing plaintiff and defendant, of able, men out of all Israel, .... and they course could not help being biassed in favour judged the people at all seasons.” of one or another. One of the jurors was Were the judicial power entirely entrusted notoriously so: he stood out; a decision to magistrates, how much more expeditiously could not be come to, and therefore a new and safely would justice be obtained; for it trial was decreed.
is indeed true that no Englishman" would Again: a case was conducted at the dream of throwing out even a suspicion that assizes, where, the jurors being chosen out the magistrates of England were not only of the whole county, good faith might have competent and disinterested, but the most been expected. The lawyer who conducted competent and the most disinterested that the case for the defendant, who was acquitted, could be appointed." heard afterwards that one only was at first
+ The Common Law Commissioners depre* Dymond.
cated the evil of a required uuanimity, and recom+ “Let it be understood, however, that if dis- mended that when unanimity was not to be had, covered to have eatables about them, jurors will the verdict of nine should be received.-Third be fined."-Stcphens' “ Commentaries," vol. ii., | Report, p. 70. p. 618.
“Let there be gemots in every walpentace, # Blackstone himself, alluding to the privy and let tuclue of the eldest theignes go out with verdict, calls it “a dangerous practice, allowing the gerefa (sheriff), and swear, upon the relics time for the parties to tamper with the jury." | which shall be given into their hands, that they "On which account," adds he afterwards, “it is will condemn no innocent man, nor screen any now very seldom indulged in." - Blackstone's that is guilty."-The Laus of Ethelred. " Commentaries," vol. ij., p. 377.
10 Brongham, July 9, 1833.
“ Custom lies upon them with a weight Heavy as frost, and deep almost as life.'
But it appears that Englishmen must give up all hope of reform. It is, alas! always to be said of those in power in Britain
HINTS ON EXTEMPORANEOUS SPEAKING, IN giving these hints, it is of course result will be the measure of his proficiency assumed, that the party receiving them has in the art; and, if rightly regarded, cannot an earnest desire to become a good extem- fail, at every repetition of the exercise, to poraneous speaker, and is, therefore, willing prove a healthful stimulus to renewed exerand ready, as far as may be practicable, to tion. follow them out in a spirit of zeal and per- The second rule is-Be in the constant severance. This is an indispensable pre- habit of seeking the best possible language liminary to any sort of success in the matter; for the expression of your ideas, even in for no idle aspirations, no lazy wishes, un- ordinary conversation. accompanied by resolution and industry, can As the best school of practical morals is ever achieve a position worth occupying in the society of moral people, so the best exerthe arena of public debate.
cise in oral expression is conversation with The first rule which we shall bere lay refined and educated persons. The converse down, as conducive, if rightly followed, to of this statement is also painfully true. skill in the use of extemporaneous language, “ Evil communications corrupt good manis-Endeavour always to think clearly and ners," says the apostle; and some one has methodically.
aptly added —" and good language too!” Thinking and speaking are things cor- ! He, therefore, who aims to be a good relative. They stand in the relation of deliberative orator, must be ever equally on cause and effect. When, therefore, it is the the alert to catch wbat is choice and correct, settled habit of the mind to think in an and to avoid what is vulgar and inaccurate, orderly and perspicuous manner, it follows in his daily intercourse with others. It is naturally that the tongue, which is under not enough to exercise particular care on the guidance of the mind, should utter words particular occasions. It must be a thing of in a corresponding style.
habit, growing out of a settled purpose to In order to the efficient application of be superior in the power of speech. this rule, let the young speaker often assume, The third rule is—Read often and careas an intellectual gymnastic, some debatable fully the best specimens of deliberative elosubject for the exercise of his mental powers. quence. Let him then deal with it as with a thing An intelligent application of this rule of reality, a question of real life. Let him requires that the student should become acquire an interest, an enthusiasm, if possi- familiar with many particulars bearing upon ble, in its management. Let him survey it what he reads. What is the precise nature as a whole, study it in detail, detect its def- of the proposition which the speaker advociencies, bring out its excellencies, and hold cates or opposes ? What are his own perit up to the light in all possible aspects. sonal relations to it? What is the character Let him consider in how many ways the or constitution of the body whom he adpoint which he wishes to make can be pre- dresses? What the time, the place, the sented and defended, and, among these, circumstances, wherein the speech was deliwhich is the most likely to be fully undervered? All these and other kindred instood, and fairly appreciated.
quiries he should make, in order to put himWhen all this is done in the mind, let self duly in sympathy with the parties him try the experiment of putting the whole originally and really interested in the case. process into extemporaneous language. The Then let him observe accurately the