CHAPTER X.
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. Theybecame 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 termedin 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 everyman 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 libertyto 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 allagree 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 allpacking 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 (orquasi-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 questionsyou 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 wasstated 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 thatthey 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 wasgone 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 forlegal 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 yieldsomewhat 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 judgedecides, 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 areconcerned, 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 byan 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 principlesin 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 hemaybear false witness, and a consequentabatementof confidence in his testimony, but a full confidence that hewillbe ready to perjure himself, and a totalexclusionof his testimony.
“Again, you appear to us to think that oaths maywear 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 transferredfrom 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 inanycase, 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 ordinarytransactions. 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 dutiesin consequenceof 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, “thatlaw 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 findthatengagement 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 unfrequentlyin 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.”