An Arrest.—Criminal Jurisprudence.—Jurymen.—Qualification
of Jurors.—Syndics.—Royal Privilege.—Proceedings in
Court.—Witnesses.—The Verdict.—Unanimity in Juries.—Decision of the
Judge.—Prevarication.—Oaths.—False Witnesses.—Inconsistency in
requiring Oaths.—Public Opinion.—Marriage.—Succession to the Crown.
While the travellers were in conversation with their new friends, a
crowd was observed passing through the streets, as if some circumstance
of interest had just occurred. On inquiry, it turned out, that one of
the people had been arrested on rather an important charge, and that the
proper officers were leading him off in custody. The travellers were
very much struck by the demeanour of the people, which seemed to
indicate respect for the authorities, and, at the same time, a delicacy
of feeling towards the individual who was arrested, though not yet
proved guilty. They became naturally curious to obtain information
concerning their criminal jurisprudence, their mode of trial and of
punishment.
Mr. Adamson observed, that though any of the company present would be
competent to detail to him the particulars of their practice, because it
was held a general duty for every respectable person to have a knowledge
of this kind; yet that as one of their judges, Sir Peter, was present in
the room, it would be, perhaps, more satisfactory that they should seek
the information from him. Accordingly, on being introduced to him, they
started the subject by saying they were anxious to know whether the
Southlanders had retained the trial by jury, as it was practised in
England. He replied, that the first settlers had retained the usage in
this respect with which they had been familiar; but that, as the
settlement advanced, they found it expedient to adopt some modifications
of it, which they regarded as very important. These modifications
related, he said, chiefly to the selection of jurors, or, as they were
termed in the settlement, syndics, and also to the degree in which
unanimity was requisite for a verdict. “Our judges,” he said, “found
speedily that all men, even in the same rank of life, were not equally
to be entrusted with this important function; and also, that requiring
perfect unanimity was frequently the cause, either that no verdict was
arrived at, or a wrong one,—sometimes, even against the opinion of the
majority.
“These inconveniences,” he said, “did not develope themselves for a
considerable period. On our first settlement, when the minds of the
people were chiefly occupied in providing for their daily wants, we
found that the intelligence of each man might be very safely measured by
the successfulness of his industry; and we allowed our jurymen to be
selected indiscriminately from amongst those who were able to support
themselves creditably by their own exertions. But we found,
subsequently, that successful industry was not always accompanied by
that intelligence and sagacity which would enable men to decide on the
merits of conflicting evidence.
“We have instituted, therefore, an examination for the purpose of
ascertaining fitness. As each man becomes of age, he may, if he thinks
himself prepared, submit himself to the assembled judges, who question
him with regard to the laws of evidence; and, if they are satisfied both
as to his intelligence and moral character, he is marked as a person
capable of discharging this function.”
The English travellers replied with a smile, that few in England would
be found, probably, to submit themselves to such an examination; that,
though they prided themselves as a nation upon the possession of the
right to trial by jury, yet that each man considered the office as a
burthen, which he was anxious to roll over upon his neighbour, as
interfering with the employment of his time; and that this feeling would
certainly be strengthened if an examination were required.
“We,” said Mr. Benson, “have established an order of syndics; and it is
considered honourable to be enrolled amongst the number. We have
conferred certain privileges on the order; for instance, while we give
to every man who has not been disqualified by crime a right to one vote
in the selection of parliamentary representatives, we give three votes
to each syndic; and this in addition to the increased number of votes
which he may have arising from the manner in which we have graduated
property. This latter circumstance has, however, nothing to do with the
matter in question. What I wish you to remark now is, that we regard any
man of sufficient intelligence to be a syndic, as entitled on that
account to exercise a greater influence than others in the selection of
those who are to frame our laws.”
On being asked whether the examination was really strict, Sir Peter
answered that the strictness of course varied with the dispositions and
sense of duty possessed by the existing judges; but that rejection was a
very common occurrence. If this proceeded from moral objection, it was
exceedingly difficult for the person to gain admission afterwards; this
could only be effected by very conspicuous and continued good conduct.
If, however, the rejection arose from a want merely of adequate
knowledge, the individual was always at liberty to submit himself freely
for re-examination, when in his own judgment he had acquired it. It was
not considered creditable for any syndic to give his daughter in
marriage to any one who was not enrolled with himself in the rank of the
intelligent. Thus, he said, public opinion has conspired with civil
privileges to render it important to each man to acquire this rank.
On being asked whether the number of syndics was considerable, he
replied that it was, and that it was found by the periodical census that
it was bearing an increasing proportion to the number of citizens
generally; that they regarded this, in fact, as one of the tests of
increasing civilization,—more especially because their experience proved
that the examination became more strict and enlarged, according as the
general intelligence of the country was increased. Persons would be
rejected now, who, some years back, would have been, on the same
acquirements, sure of admission.
“I am describing to you, however,” he said, “the regulations which
prevail in this particular state. In the other states in union with us,
many variations may be observed, though all agree in selecting syndics
by examination. The number of votes, for instance, given to a syndic, as
such, is different in different states. Again, in some states, the
number of syndics is not left indefinite, as with us, but is limited.”
Sir Peter went on to observe, that the names of all the syndics were
regularly arranged on rolls, each of which, in this particular state,
contained not less than one hundred and twenty names. These rolls, a day
or two before the commencement of the assizes, were presented to the
judge, who drew from them a certain number by lot. The persons so drawn
were then summoned to attend the court; and when any cause was entered
upon for trial, the plaintiff and defendant were each allowed to assign
some rule according to which triers should be taken from the roll of
attendants summoned for that day,—as, for instance, every third or fifth
or tenth individual, commencing from the top or bottom of the list, till
the number of twelve was completed. “Thus,” he said, “having taken
precaution that none but men of intelligence should have their names
enrolled, we must be careful that all packing of juries shall be out of
the question. Neither of the interested parties can influence, either
directly or indirectly, the selection of those who have to try the
case.”
In those states which have a regal (or _quasi_-regal) form of
government, the sovereign has, as with us, the privilege of pardoning
criminals, but with one exception; attempts on the life of the sovereign
himself cannot receive the royal pardon, except through the means of an
address to the throne from the whole legislative body.
“It is,” say they, “very indelicate at least, to let the king be placed
in so invidious a situation as that of having to decide on the fate of
one who assailed his life.”
“And now,” said Sir Peter, “having given you such preliminary
information as you could not obtain by merely attending our courts, I
would propose to you to defer any further enquiries respecting our modes
of trial. These you can best judge of by actually witnessing them for
yourselves. Come with me to-morrow: I will take care that you shall have
a convenient seat. Observe narrowly for yourselves, and, when the
business of the day is over, put any questions you please to me on any
point in which you perceive our customs differ from yours, and I will
explain to you our reasons for such changes.”
The travellers thankfully availed themselves of this offer; and next
morning, accordingly, they accompanied Sir Peter to the court.
Immediately on his taking his seat, general silence was proclaimed, when
the regular officer read from a paper the character of the suit to be
tried, the names of the parties, and of the witnesses whom each party
had summoned to give evidence. The witnesses were then called forward,
and placed under the care of an officer, whom they accompanied out of
court. Sir Peter whispered to the travellers, that in no case did they
permit one witness to hear the testimony given by another.
The jury were then selected in the manner already pointed out by Mr.
Benson on the previous evening. On their taking their seats the trial
immediately proceeded; but, as the travellers were surprised to observe,
without any administration of oaths. They remarked also, as each witness
was called, it was stated whether he was a syndic or not. In case he was
a syndic, the examination proceeded at once; but when a witness not a
syndic was called upon, the judge urged on him, in a brief but solemn
manner, to remember, in giving his testimony, that his thoughts and
words were known to the Searcher of hearts.
As each witness concluded his evidence, the judge asked the opinion of
the triers as to whether that witness had shown a wish to prevaricate.
In one instance it happened that an affirmative answer was returned,
when the witness was immediately given over to the custody of an
attending officer.
When the evidence had been all heard, and commented on by counsel, the
names of the twelve triers were written on slips of paper, and four
names were drawn by lot. The four triers who answered to these names
were then separated from the rest, and the judge required them to
declare their decision within half an hour. They were then allowed to
retire.
Before the termination of the allotted time they returned into court,
and declared that they were agreed. In one, however, of the trials which
subsequently took place, it happened that, at the end of the half-hour,
they announced that the votes were divided. Four names of the remaining
triers were then selected by lot, as before; and the judge informed them
that he would expect their decision in twenty minutes.
At the expiration of the time they came forward, and pronounced a
decision in favour of the defendant. They were then called upon to state
whether, in their opinion, any witness had given testimony which he must
have known to be false. They replied, none. The witness charged with
prevarication was then called forward, and allowed to plead what he
thought fit in his own defence. He failed to clear himself; and
thereupon, having been very solemnly reprimanded by the judge, was
declared suspended for a twelvemonth from exercising any vote for a
representative, or holding any civil employment during that time.
The travellers remained in court, on this and some subsequent days, to
witness other trials, and perceived that the same process was gone
through, with such variations in the results as might be expected. They
remarked, for instance, that one witness, who was a syndic, was declared
guilty of prevarication, and that he was instantly pronounced to be
degraded from this office for ever; but it did not happen during three
days that the triers denounced any witness as having been guilty of
deliberate falsehood.
On joining Sir Peter in the evening of the last day, the travellers
observed to him that they had been very much pleased with the orderly
arrangements of the court, and the quiet attention of the spectators.
“We need scarcely,” they observed, “make any remarks with respect to
your not requiring unanimity in your juries. The inconvenience of this
requisition has been fully acknowledged amongst ourselves, though our
practice has been suffered to remain unchanged. We hope, indeed, that
our poet goes too far in saying that ‘wretches hang, that jurymen may
dine!’ Still, a suspicion even that this, or, more probably, the
converse may be the case, is very injurious to the respect which ought
to be entertained for legal decisions. And we must admit, also, we have
heard of one juryman complaining that no verdict was arrived at because
he was associated with eleven obstinate men who would not agree to his
opinion. We strongly suspect, therefore, that you are justified in the
change which you have made. We would wish to know, however, whether it
does not sometimes happen that the discrepancy of opinion, which we
perceived to have occurred on one occasion in the first section of your
jury, may not take place also in the second, and even in the third.
Amongst us, when a discrepancy of this kind takes place, the only remedy
we have discovered is to throw as much punishment and ridicule as we can
upon the whole jury. We lock them up for as long a time as their
constitutions can endure without actual loss of life; and when our judge
is leaving the county, we order that the jury shall be placed in a cart,
and drawn out after the judge to the boundaries of the district. This
certainly does not remedy the evil arising from want of unanimity in the
particular case; but it may operate upon the minds of jurors in other
cases, and induce each of them to yield somewhat of his own opinion, not
always to the majority or the wisest, but to the most stubborn.”
“If this yielding, however,” said Sir Peter, “proceeded, not from
conviction, but from fear of punishment and ridicule, it may be doubted
at least whether your juries are always, in point of fact, unanimous in
their verdicts. Many of your jurors may have a strong suspicion, at
least, that the verdict should be in some respects different from that
which is actually returned. When no verdict has been given in, the
public are aware that there was a difference of opinion amongst the
jury; but when they do deliver a verdict, it cannot be concluded, in
every case, that there was even ultimately an unanimity. We think it
better that every man should be left free, after having heard the
opinions of others, and consulted with them, to declare what was his own
ultimate conviction.”
“But supposing,” the travellers said, “that no decision is come to by
the jury after the third attempt, have you made any provision to meet
this difficulty?”
“In that case,” said Sir Peter, “the judge decides, as we think he
fairly might. Where the contest is about property, we conceive it better
that a positive decision should be arrived at rather than that the
matter should be left doubtful. We give then, however, a power of appeal
to twelve judges, who examine the evidence, and ultimately decide. In a
criminal trial we give an absolute power of decision to the judge,
leaving him however at liberty if he pleases to pronounce a verdict
merely of Not proved; in which case, this verdict is recorded against
the supposed culprit, as affecting his character in case of any
subsequent charge against him.”
“We strongly suspect,” said the English travellers, “that you are right
in this part of your practice; but,” added they with a smile, “you have
taken us by surprise in one respect; we did not know you had adopted the
opinion of the Quakers we were describing to you,—that oaths were
forbidden by the Christian religion.”
“We have adopted their practice,” said Sir Peter, “but not their
principles. We do not conceive oaths unlawful, but inexpedient.”
The travellers said, “We perceive you have a substitute for oaths, as
far as witnesses are concerned, because you make the triers pronounce as
to whether any has been in their opinion guilty of prevarication, while
his testimony is still fresh in their recollections: and we also
observed that, when the whole trial is over, the triers are called on to
decide whether any witness has been in their opinion guilty of perjury.
We suppose,” they observed, “that you have a punishment when an
affirmative answer is returned?”
“We make the punishment,” said Mr. Benson, “proportioned to the effect
which would have been produced by his testimony, supposing it to have
been believed true. In all cases, of course, he forfeits office and
civil privileges, as a person unworthy of their exercise; and, in some
cases, he is fined heavily, or his property is made to pass on to his
heir, as if he himself were dead. He may be sentenced, again, to
imprisonment and hard labour, or even to death, should his testimony
have endangered the life of another.”
“We think,” said the travellers, “that this is certainly capable of
securing truth fully as much, and even more than can be effected by an
oath; for many will shun falsehood, through fear of detection, who would
not scruple to break an oath. But,” they said, “the decision of your
juries would appear to us more to be relied on if that decision was
given under the sanction of an oath.”
“We doubt it,” said Mr. Benson, “and we strongly suspect that you do not
really differ from us in opinion, though you do in practice; because in
the case of Quakers and others, who are exempted from the legal
necessity of taking an oath, you are in the habit of relying fully as
much on their testimony as if they had taken an oath. Now this does not
happen, I believe, from your thinking more highly of Quakers than of
others, but from your conviction that oaths do not supply any real
security. To us, however, it appears that oaths proceed altogether on an
erroneous principle. It looks as if you thought that God would not
attend to perjury, unless his attention were specially called to the
matter. And this is to think as the savages do, who conceive their gods
are often asleep or on a journey, and that they notice nothing except so
far as they are solicited.”
“But would not your principle,” said the English travellers, “equally
militate against prayer of any kind; because God must know our wants,
whether we supplicate him or not?”
“True,” replied the other; “he knows our wants, but not our humble
applications to him for aid, unless we make such application. Now it is
to our prayers, not to our wants, that his gifts are promised. He does
not say ‘Need, and ye shall have; want, and ye shall find;’ but ‘Ask,
and ye shall have; seek, and ye shall find.’ In the case of false
witness, it is otherwise. God will punish the perjurer, in another world
at least, whether he calls upon him to do so or not. Of this every man
should be reminded whenever he is called upon solemnly to speak truth.
Your practice,” he added, “of requiring an oath in each case, arose at
that period when it was supposed that God would always interfere by a
special judgment. You have given this up as far as trial by single
combat is concerned; but you have retained what grew out of the same
persuasions, though, in point of fact, you as little believe your
principles in this case as in the former. Trial by jury, your great
boast, is, as practised by you, a remnant of the superstitious ordeal of
your barbarian ancestors. But the strangest part of all is, that, while
you require oaths, you proclaim at the same time your belief that every
man is ready to perjure himself if he has the smallest pecuniary
interest in doing so. Thus, for instance, you do not admit the
testimony, even on oath, of any man who may gain or lose a shilling in
consequence of his testimony. It is not a bare suspicion that he _may_
bear false witness, and a consequent _abatement_ of confidence in his
testimony, but a full confidence that he _will_ be ready to perjure
himself, and a total _exclusion_ of his testimony.
“Again, you appear to us to think that oaths may _wear out_; and you
therefore renew them from time to time. When a man is appointed to some
situation, you compel him to take certain oaths. Should he continue to
hold the same situation, all is well; but if he has so distinguished
himself as to be noticed by his superiors, and promoted to a higher
office,—as, for instance, when a clergyman is transferred from a curacy,
or from an inferior to a better parish,—instantly he seems to fall under
the suspicion of the law, and a renewal of his oaths is exacted from
him.
“All this,” he said, “appears to us not only unnecessary, but even
calculated to weaken the general sense of public duty. To require an
oath in _any_ case, is to confess an expectation that men, when not
under this obligation, are likely to tell falsehoods: to require an oath
on being invested with office, is to state that society does not expect
men to perform duties from any sense of their importance, or any
obligation arising out of the trust reposed in the individuals, but from
a principle of a distinct and different kind. Now, to proclaim such an
opinion, has, we think, a strong tendency to make it true. We should
apprehend, at least, that in all cases (and, I may add, on all points)
when no oaths are required, there would be a less active and
conscientious discharge of duties, because the only acknowledged and
legally recognised ground of obligation does not exist; just as the
oaths of witnesses tend to produce a disregard of veracity in ordinary
transactions. This would be the natural result. But, we must say, from
what we have observed of your characters, and from many things you have
mentioned to us, that you have impressed us with the belief that much
public spirit exists amongst you in spite of your system. We apprehend,
in fact, that public opinion amongst you is, in many respects, in
advance of your legal code. But we should like to know your own opinion.
Do you conceive, in general, that those who hold such employments as are
guarded by oaths perform their duties _in consequence_ of the oath, or
because they conceive that integrity and due attention are right for
their own sakes?”
The travellers replied they were of opinion that most men acted from the
latter feeling, and that the oath seldom recurred to the memory of any.
“In fact,” they said, “most persons amongst us would hold themselves
affronted if they were told that they were trusted in any particular,
not on account of their general reputation and their own sense of
rectitude, but because they had taken an oath.”
“We are anxious,” said Sir Peter, “that law should throw no obstacles in
the growth of the feelings you describe, and we therefore exact, not
only no promissory oaths, but no promises to perform duties. Of course
we allow, and legally enforce, contracts in all cases, when any
individual consents to do something he was otherwise not bound to, in
consideration of a promise made to him by another; as, for instance,
when he lets him land in consequence of a stipulated rent. Promises of
this kind are committed to writing, and legally enforced. Or, to take a
more important case—marriage. Here the parties enter upon a new course
of life, in consequence of an engagement which each makes to the other:
we enforce, therefore, by law the fulfilment of that engagement.”
The English travellers asked with a smile, “Do you always find _that_
engagement fulfilled in its spirit? Does your contract secure in all
cases mutual kindness and good temper?”
“That,” said Sir Peter, “is beyond the reach of civil law. As far as the
civil rights of either party, or of their children, are concerned, we
enforce them by a civil contract, undertaken in the presence of civil
magistrates. Here the power of the law stops. But we recommend, and
public opinion sanctions our recommendation, that every church should
add a religious ceremony; not for the purpose of enforcing the civil
obligation, for that we make a matter of the civil law, but for the
purpose of impressing the minds of both parties with a due sense of the
moral obligations they undertake. The forbearance and mutual kindness
essential for happiness in the marriage state are the fruits, not of
civil contract, (since they are not of a nature to be enforced by
coercion,) but of moral principle; and our opinion is, that this should
be strengthened by whatever religious service each church may consider
most impressive.
“Thus, again, we have no coronation oath. When our king dies, his heir
immediately succeeds as a matter of course, and with the full knowledge
that he is under an obligation to govern according to the prescribed
constitution. So far our customs are like your own. Amongst you,
however, after the king has actually entered upon his office, and not
unfrequently in some considerable time after, you exact of him an oath.
This seems to us very like constituting two different kinds of regal
government, namely that of an uncrowned and of a crowned king.”
The English travellers replied, that they regarded the power and duty of
the king as precisely the same previously and subsequently to his
coronation oath.
“We know that,” said Sir Peter; “and we therefore conclude that you
yourselves do not regard the oath as of the least importance.”