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What amount of veracity is to be found in the body of society, as well as in the individual in his private capacity-what are the influences which cause a deviation from truth-these are points which must be examined and conceived with fairness, before the probability of witnesses giving true evidence can be at all calculated.
We have heard it asserted, that falsehood is to be expected semper, ubique, et ab omnibus : but if this was true, how could society hold together ? One form of truth, fidelity to their salt, is (not confining the remark to any particular locality) a marked characteristic of the great mass of the people. But towards speaking the truth the presence of more than one quality is essential.
The first requisite is a clear and distinct perception of a fact; and this perception, especially in the lower grades of the agricultural population throughout India, is often deficient.
No one, who is acquainted with the credulity which exists among them on every point connected with the supernatural, the belief in witch-craft, and the attributing matters of common occurrence to sorcery or the sportive or malignant influence of the gods, can fail to perceive how far from the calmness and singleness of mind of a pbilosophic observer is their apprehension of a fact out of the common way.
The mind of the people is still in the mythical stage, and that is but another form of words for a want of correct observation. It implies also an absence of the knowledge of the importance of truth, of there being but one truth, and that it should be a subject of careful research. In all this, there is nothing which should make them other than loose and incorrect observers, without such attachment to truth as must characterize those nations, whose forefathers branded fear as the basest of passions, and stamped on falsehood, as arising from fear, a kindred infamy. Among the village communities of India, therefore, where old institutions survive, and there is no despotic power to compel to falsehood by oppression,* there is probably about as much veracity between man and man as may be found in the southern nations of Europe. Falsehood to avoid taxation is sufficiently common everywhere: but the nature of Indian Governments has ever been such that it became the only defence of the oppressed. Though truth within the village circle was valued, falsehood towards the Government and superiors generally became the point of honour-the duty imposed on each individual in self-defence.
Hence the confession of a criminal to prevent annoyance to his neighbours, and to retain the good will of the society with
• See Colonel Sleeman's Rambles of an Indian Official, vol. 2, p. 123. The whole of Chapter ix. is an interesting discussion of this question.
which he is connected; hence the disregard of truth by witnesses, supported by the approbation of their friends, when their interests are concerned; and, when not so, growing in intensity the farther they are removed from their own neighbourhood. Tbere can be no doubt that the presence of a Jury would have some effect in bridling the inventive faculty, and in reducing to more sober limits the too lively imagination of a witness; but there are influences, yet to be adverted to, which would come in aid of the witness's fear that the Jury was conversant with the truth, or that he would require the greater skill and composure to elude the perception of his countrymen.
It might seem to be a matter of little consequence to the prisoner, whether he is to be tried by a single Judge or by a Jury; but even to him, it is perceptible there are some shades of difference. Doubtless, every man if he was going to be tried, would have some pre-possessions in favour of one or other tribunal, varying probably according to the nature of his case, and to the fact of his being innocent or guilty. This point we will leave our readers to decide for themselves. They will perhaps agree with us in thinking, that, where the accused is one of the middle or upper classes, and the charge involves some disgrace, the verdict of a Jury would deepen the stain of a conviction, and more completely efface it by a declaration of innocence.
Passing from this limited, and therefore less important, section of cases, to those affecting the criminal classes, the professional thieves, &c., the question immediately presents itself, in what light do they regard these tribunals ? wbat are their practical speculations on judicial machinery ? There are unfortunately not many opportunities of ascertaining the sentiments of this interesting class on a subject of such vital importance to them. M. Riouffe, * however, who in the first
• Extract from Riouffe's Memoirs :
Pendant ce temps, j'eus occasion de me trouver avec beaucoup de voleurs....Je oonnus par leurs entretiens, au moment où je feignais de dormir, qu'ils tenaient à tous les voleurs de Paris...... Ils etaieut aristocrates presque tous: mais la cause s'en rapportait uniquement à eux.
C'etait parce que, dans le nouveau code, ils etaient jugés par des jurés, qu' ils trai taient d' ignorants, et qu'il n'etait pas facile d'abuser. Je ne pouvais m'empêcher de rire, en les voyant se frapper le front de colère, et dire en jurant, ' Si c'etaient des gens habiles, nous nous tirerions d'affaire. Ils savaient parfaitement les lois, qui les concerneut, et surtout leurs ambiguités. Mais le sens et la raison du jury n'etaient point eblouis des fausses lueurs de leur chicane, qu'ils possedaient mieux que beaucoup d'avocats; et c'est ce qui les irritait. D'ailleurs ils etaient attachés au vieux barreau, sous lequel ils avaient leurs premières armes,
Pampin* parlait toujours avec les plus grands eloges de l'ancienne magistrature.
• A distinguished assassin,
French Revolution was confined in the Conciergerie, in a cell tenanted only by murderers, burglars and coiners, has left us, in his Memoirs, their view of the result of trial by Jury : and, with all allowance for the rapidity of decision then in vogue, having perhaps in some degree extended itself to the trial of common criminal cases, his account is both instructive and entertaining. In the course of the long conversations which he had with them, and of the many hours during which he pretended to be asleep, and lay listening to their reminiscences, he had ample opportunities of learning their opinions :--and he describes them as aristocrats to a man! Their reactionary desires, however, were based on an excellent reason. They were thoroughly acquainted with the laws which affected them, and especially with all possible loopholes in them. But under the new code they were tried by a Jury; and the Jury-men they declared to be ignorant fellows, whom it was very difficult to blind. they," they exclaimed with the most heartfelt indignation, “ been but clever men, one could reckon on an acquittal.”
The direct influences, which affect the public generally under the Jury system, are of less importance than the indirect ones. It may be true that, when in open court, as sometimes occurs, the thread of the trial is lost by a mere looker-on, owing perhaps to some technicality, the Jury-man, who labours under the same difficulties as the public, is there to ask for an explanation, and to enlighten others as weil as himself. It may be true also that there is a greater general interest felt in trials by Jury than in those before a single Judge. Every intelligent man may be in a position to be a Jury-man, and this, of itself, produces a certain personal interest. In listening to a trial, moreover, every man may fairly form his own judgment, knowing that the Jury-man will decide on views similar to his own, with which the Judge, with his legal acquirements and professional views, may be supposed to have less sympathy. But it is in its indirect effects that this is of most importance: for to whatever extent it is desirable, not only that justice should be done, but that the public should believe it is done--this greater sympathy with the Jury than with the Judge confers a superiority on the former; insomuch that, whatever may be thought of the superior qualifications of able legal men, we are satisfied that a trial at an English assize, where the Judge should have as assessors the two ablest men in the county, such as the Judge of the County Court and the Tithe Commissioner, would, setting aside all prejudices, produce none of the public satisfaction, which arises from the present mode of proceeding.
If it is true that the public is interested and feels sympathy with the Jury, it is not less so that, wanting the Jury, the court becomes an arena for contests, in which the public is a mere looker-on with comparatively little interest; and it is unfortunateiy sometimes the case that that wider field out of doors, where the Police carries on its operations, becomes a similar arena, in which the public is an unconcerned, if not hostile, spectator. We think we hear some one remark on this, that the feelings of the people are of little consequence, so long as the Police efficiently represses crime ; but this we cannot concur with ; nor do we believe that crime can be repressed, when the people are hostile to the Police.* Look for instance at the state of things described in Simond's Tour in Italy in 1818. What success could the Police have in such a case ?
From such a state of things as that described by Simond, from the friendly assistance given to the murderer of a land agent in Ireland, to the helping hands or voices exerted in London to arrest the fugitive thief, or to the readiness in supplying information, as in two instances in the case of the Mannings, there is every gradation of obstruction and ill-will, of sympathy and co-operation. We shall content ourselves with indicating that some place in that scale, we do not fix which, is Occupied by the Police and public of India.
The Jury.man, after fulfilling his functions, retires into private life; but he carries with him an interesting subject of con. versation-the principles and practice of criminal trials. These are discussed with his neighbours; and a feeling of confidence in the actual state of things, and of desire to maintain it, is created or strengthened. Hence arises a true co-operation, a practical working together of the Police and the public, both in court and out of it.
* “ There was a man stabbed at eleven o'clock this morning in the Corso, in consequence of a quarrel about a woman; and, although the street was full of people, • the assassin was suffered to escape...
“ On expressing my great surprise that a murder should have been committed at • noon.day in the most crowded street of Rome, and that the assassin should not • bave been instantly seized, a Roman, and not one of the lower order, coolly observed • that there were no Shirri present when it happened.'
"• Shirri " we exclaimed; was not every man a public officer in such a case as this ?' That would be infamous,' he said ; and such I find is the general feeling. • People here are always on the side of the offender, and against public justice,
against the execution of the law in any case. The obvious reason is that justice . and the law are regarded not as means of protection to all men, but as suspicious • instruments of power in the hands of the rich against the poor, of the high against
the low; the execution of which is entrusted to the vilest of mankind, to whom it
were infamous to give any countenance or assistance. Among the lower people to • be called the son of a Sbirro is an unpardonable insult.
“ Such is the prevalent feeling, that the popular exclamation of povero Cloristiano
is not applied to the bleeding man on the ground, but to the person who stabbed • him."-( Simond's Tour in Italy, p. 226).
“ When murder is committed, the public feeling for the sufferer is soon lost in • sympathy for the man who stabbed him, simply because he is in danger of the common enemy, the officers of justice. Knocking down a pick-pocket, or caning him, would meet with the approbation of the by-standers, but not takiug him into custody."-p. 400.
A more remote, but perhaps not less certain, effect of trial by Jury is that by submitting habitually, to a large number of the holders of property, questions of immediate interest and more or less importance, there are engendered among them a habit of applying the mind to consider evidence, a knowledge of the difficulties of forming a judgment, and a feeling of responsibility which strikes at the root of judicial corruption. For besides that an understanding between the Judge and Jury must be of rare occurrence, the number of cases, in which corruption is worth practising, will be limited, and those Jury-men, who fall under suspicion of being corrupted, will at least incur the virtuous indignation of their fellows, who having had no such opportunity, and often finding their own views and interests opposed to such corrupt decision, will learn to see the whole public inconvenience and unadvisableness of the practice. Such a conviction, once having taken root among the people, will scarcely fail eventually to influence the Judges, the Bar, and all parties connected with judicial affairs, even when not under the influence of a Jury.
We have thus noted briefly, and without detail, some of the most obvious points in which the method of trial by Jury causes results different from that by a single Judge, without adverting specially to the latter, as its details are too well known to most of our readers. Among the results, which we have pointed out, come will be observed to be faint and evanescent, others of a more marked and permanent character. Yet they are none of them peculiar to any race, climate, or country, but are to be looked for in the average of buman nature, wherever men live in well ordered communities, value the security of life and property, and give practical proof of their doo ing so by living under a system of Judicial and Police machinery. But if they are, as general propositions, applicable to such societies, yet, in their application to each separate community, there must be limitations and extensions of them, which will be based on the peculiar characteristics, the distribution of property, and the social arrangements peculiar to each. Thus, in the nations which possess trial by Jury in some form or other, we find a certain difference of institution, a certain variation of effects, in producing which these circumstances have had an influence. The only nations, which bave used the Jury system in a form applicable to judicial investigation, are