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in the west, England-by descent from her, her colonies, including the United States-by adoption, France, and more recently some other European States-and, in the east, that nation over which the English have now been placed as rulers, the Hindu race.
The original possessors of it may thus be confined to two, of which the English have retained it in vigour, and strengthened and regulated it by legislation; while among the Hindus, who have dwelt for centuries in a chaos of internal disorder, it has fallen to a lower place, and, in some places, gone almost out of sight. This has especially happened, where they have been permanently subjected to a government, whose creed and form of civilization were opposed to their own.
We have not space to enquire under what forms and influences it exists in the three western nations we have named, nor to #bat extent it still survives on the soil of India. We would rather devote a few words to a subject not yet touched upon---the nature of the Jury itself. We have hitherto confined our remarks to its influences and effects.
Whatever may be its historical origin, the idea on which the Jury is based is, that respectable persons, holders of property in each locality, are interested in the protection both of life and property, are acquainted with the local characteristics, the customs that obtain, the events that occur in their neighbourhood, and are thus both qualified to judge as to a fact's having taken place, and desirous of maintaining order and obedience to the law. It is on these two qualities, the local knowledge, and the interest in repressing crime-and in proportion as the latter is more weighty than any opposite motive that the working of the Jury will be successful. There are few countries, in which some portion of the Jury class, or some section of the country, is not adverse to the execution of some part of the law, or at least to the principles on which it is founded. We should ex. pect a Vermont Jury to feel with the abolitionists in & slave case; and an English farmer to lean towards mercy's side in a game case ; a fact described in the familiar phrase that “juries cannot be got to convict.' In proportion, then, as the laws are in accordance with public opinion, and especially with that of the Jury class, the Jury system will work easily and successfully, and its characteristic results be strongly marked. But if it were desired to introduce it, and at the same time to avoid all the inconveniences attending the execution of one or two unpopular laws, it would be enough to submit to it only cases concerning property. In these cases, at least, the laws unite all suffrages in their favour: and wherever offences against property form the great body of those committed, and the test by which the success of the Police system is judged, the trial of them (by a Jury might secure many of the advantages without the disadvantages of that method.
It matters little whether the Jury consists of the apostolic number, twelve, or the smaller number, which is endeared to the Hindus by centuries of use. An Englishman would prefer the former; a man of Indian race the latter: but the chances of a just decision would not be very unequal. But what does matter, is the class from which the Jury is formed, and the share it possesses in a judgment. It must be formed of householders, who possess property sufficient to raise them above poverty, and to make the preservation of life and property their strongest permanent object. This is a class, which will be differently defined in different countries, but is not difficult to define in any
The sbare, which a Jury bears in a decision, is a question of vital consequence to its utility as an institution. We shall be told that assessors have been used in this country, and that the Jury system is therefore well understood. But what is an assessor ? He has no power of giving a verdict. His business is to furnish the Judge with an opinion which has no weight, because it may be disregarded at pleasure. An assessor therefore comes into court in his best clothes, makes a dignified salám to the Judge, looks intelligent throughout the trial, when. ever he is not asleep, and concludes his laborious judicial duties by finding out the opinion of the Judge, and giving his own accordingly: he then returns home with the gratifying conviction of having accomplished his mission. The Jury-man must have a substantive part in the decision-a part either equal or superior to that of the Judgemone, which either is final as to the fact, or, being of equal weight with the Judge's opinion, is liable to be reversed only by a superior court. Any thing less than this will deprive the office of importance and responsibility, and make it purely perfunctory. How great an influence, especially in diminishing the labour of the appeal courts, either would have on our judicial system, where every judgment is liable to reversal on appeal, it is needless for us to point out.
Our remarks on the Jury system are now concluded. We have not advocated a cause, but stated facts ; facts which will be found of general truth in most civilized communities, but most so in those which are well ordered and not disturbed by violent passions. We have scarcely adverted to the judicial system, as it now exists in any part of India. Yet something might not in. appropriately be added, if space permitted, on the applicability of our remarks to some part of this great empire. There are acknowledged to be parts of it, where, notwithstanding all the consideration that has been bestowed on it, the seat of the disease has not been reached, and the Police is unsuccessful in the repression of great crimes. The machinery of the Police has been improved, and with a beneficial result--though still manifestly ineffectual to accomplish what is desired. We take upon ourselves to say, that it never will accomplish it. You may furbish up an inefficient machine as you will, but it will never turn out good work. The work required of this one is beyond its powers, and it will never be able to perform it. In such circumstances, we should be inclined to consult the experience of others : to look abroad among other nations, and to investigate the means by which they are more successful. It is the province of wit to perceive resemblances; that of judgment to observe differences: and this quality can scarcely find a nobler field of exercise than in labouring for the public benefit to eliminate, with a practical object, the points which constitute the difference between our own and other systems.
The first step in the process would be to investigate the systems which are most like : to examine in what part of India the Police is most successful, and to compare it with that in which it is least $0; to observe what are the causes of the difference, and to consider whether they cannot be removed. It is only in the records of Government, and in published reports, that such information is to be found : but we can point to Mr. Jenkins's Report on Nagpore, where the Punchayet was brought into active operation, for an instance of a state in which dacoity, originally rife, was entirely suppressed. The question necessarily arises, was it suppressed by means in which the Punchayet bore a large part ? or by what other means ? Whichever it was, let those means, which were suc. cessful, be extended to the surrounding countries; and the like effects may be expected, unless there is some radical difference in the form of society. The onus of proof will at least lie on those who oppose it.
The institution, whether called Jury or Punchayet, is at this day in force in Mysore and Ceylon; and we have the authority of one, who has sat on the bench in that island, for saying, that it is found there to be a useful one. History, it is said, is philosophy teaching by example: but here are contemporary history, and examples which can not only be studied in books, but examined while still in being. Nor need we confine our illustrations only to the south of India ; for a want at least of some
thing similar has been felt in the Agra Presidency. It is but three years since the Sudder Adawlut there, dissatisfied with the operation of Regulation VI. of 1882, suggested the extension of the powers of the assessors to that of Jury-men, and some plan for compelling their attendance.*
We may here allude to two objections commonly current, of which we can take but the most cursory notice. One is that competent jury-men cannot be found: yet it is not uncommon in the most difficult cases to call in such assistance. The other is the presumed difficulty, which is anticipated in getting theni to attend. We do not believe in this, seeing that, however much it has fallen into disuse in the courts, the Punchayet is still rooted in the minds of the people, and used in their private disputes. But if on trial it is found to be the case, the course is clear: for a nation, which will not furnish jurymen, is not worthy of the institution. That it will ever be called on to do so, is more than doubtful. The counsellors nearest at hand are the natives in public employment (let us add, the most skilful and intelligent counsellors to be found among their countrymen op most public questions); but we have yet to find among them the man, who from his heart approves of the use of the Pun: chayet, and does not look on it as an infringement of the vested rights and due influence of his own class.
We must now conclude: but a few words remain to be said to guard ourselves from being mis-understood. The Jury Act, which heads this paper, is the cause, but not the object, of our remarks.
If it passes and we believe that, at some future date, an Act of that nature will pass) it must previously have been remodelled to meet the just objections that have been made to it.* We might have added our mite to these, or contributed some suggestions towards removing them. But our object was to throw some light on the inherent qualities of the jury system, whose good results, if we have correctly stated them, must far out-balance its defects: to turn enquiry and attention to the fact, that, where it has been fairly tried in this country, it has not been found wanting, and to the question whether there is no province or district, except those where it is in force, to which it might be extended with advantage. Our business was not with the important cause, which is still pending between the Legislative Council and the thousands of British-born settlers, but with that greater cause, which concerns the millions who people the cities and villages of British India; the security of their property; the repression of crime; the good understanding and active co-operation of the better classes with the authorities ; the consequent diminution of corruption and oppression by subordinate officials, and of perjury by witnesses ; and the real attachment of large classes towards a Government in which, as members of a jury, they would bear an active part.
* See the following extract abridged from a Calcutta paper, December 14, 1847:
The Sudder Adawlut of the North West Provinces has issued a circular, stating that the practice of the Sessions Courts under Regulation VI. of 1832 requires amendment.
2. By that law the Sessions Judges are empowered to dispense with the services of the Muhammadan law officer, and to try cases with the assistauce of respectable natives; and by clause 4, section 3, the mode of selecting the jurors, the number to be employed, and the manner in which their verdict shall be delivered, are left to the discretion of the presiding Judge; the decision being vested exclusively in the Judge.
3. The Court are not satisfied with the manner in which this law has worked. The Sessions Judge being unable to compel the attendance of jurymen, Juries are usually composed of Vakíls and Múktears, generally two in number: and from the provisions of clause 2, section 4, has resulted a total disregard of their verdicts. From these again flow reluctance to attend, inattention, opportunity for corruption, and many other serious evils.
4. The Court are of opinion the present system cannot be improved, unless the Sessions Judge is empowered to summon jurymen, and are anxious to propose this measure to the Legislature with a view to a more complete practical introduction of the trial by jury. But, before submitting this proposal, they desire to know whether with reference to the local peculiarities of your district, &c., a rule, compelling the attendance of respectable persons as jurymen, could be enforced without serious difficulty or offence to the feelings of the native public; and wbether a nominal list could be drawn up of persons qualified and liable to serve, on penalty in case of recusancy.