The Hawaiian gazette., 1880-08-18
6azette.
WEDNESDAY, AUGUST is, 1850.
saracity OF Juries.

The following IS extracted from the report
of conversation between Sir William Erie,
then Chief Justice of the English Court of
Common Pleas, and "Senior," a contributor
to Appieton's Journal for June:
September LIST, (ls6I).-I will throw to-
gether my conversation Of the last two days
with Sir W. Erie.
mentioned that in all the Swiss constitu-
tons trial by jury in criminal matters was re-
quined.
Erie. And very wisely.
Senior. Wisely for the purpose Of keeping
power in the hands of the people?
Erie Wisely for all purposes.
Senior. Including the discovery Of truth ?
Erie. Including the discovery of truth. l
believe that = jury is in general far more like
" to come to right decision than Judge.
Senior. That seems to me strange The
Judge has everything in his favor-intelli-
gence. education, experience, and RESPONSE
bility.
Erie With respect to intelligence, judge
is certainly superior to an ordinary juryman;
but among the twelve there will generally be
found one, often two men, of considerable in
telligence, and they lead the rest As to edu-
cation, the jury have decidedly the advantage.
The education of judge, as far as relates to
deciding fact is the education Of practicing
barrister who is immersed in the world of
words, and removed from acting in the COM
mercial, agricultural, and manufacturing facts
which form the staple of contest. He is so
accustomed to deny what he believes to be
true, to defend what he feels to be wrong, TO
look for premises, not Cor conclusions, that ne
loses the sense of true and false-i. e., real
and unreal. Then be is essentially London
gentleman; he knows nothing of the habits of
thought, or of feeling, or of action in the mid
die and lower classes who supply our litigants,
witnesses, and prisoners. And 1t is from bar
risters thus educated that judges are taken.
When tried by jury, the prisoner is tried
by his peers, or by those who are little above
his peers, who are practically accustomed TO
the facts adduced as probdnfiI, and can truly
appreciate their value. l have often been as
tonished by the sagacity with which they en-
ter into his feelings, suppose his motives, and
from the scattered iRdicia afforded by the evil
6ence conjecture whole series of events
For, after all, the verdict if il be conviction,
must always be conjecture.
Experience the judge certainly has. As
counsel or as judge he has taken part IN many
hundreds of trials. The juryn,an may never
have served before. But this long experience
often gives the judge prejudices which warp
his Judgment The counsel who are accustom.
ed to plead before him find them out and prac-
tice on them.
was counsel in case of assault. Nv
client had had three ribs broken by drunken
bargeman The opposite counsel cruss-ex-
aluined as TO whether since the accident he
had not been field-preacher, whether he had
not actually preached from tub. He admit
ted that he had. l did not see the drift of
this, for. though man could not easily preach
directly after his ribs had been broken, he
might when they had reunited. The Judge
summed up strongly against me, and my client
got nothing. l afterward found that the Judge
had an almost insane hatred of field-preachers.
II is true that each luryman may have preju-
dices equally absurd, but they are neutralized
by his fellows, and, above all, they are not
known. They can not be turned to account
by counsel.
As for responsibility, a judge being per-
mapent officer, especially Judge sitting alIne,
is more responsible to public opinion than any
individual juryman, who is one of body as
sembled only once and Immediately dissolved.
But L believe that the feeling of moral res
possibility is much stronger in the case of the
juryman, to whom the situation is new, whose
attention is excited, who for the first time in
his life is called upon to exercise public i'm
lNANaLk 4uuStANus III tic lNCS vi all Ills uSlEu-
bors, than in that of a judge who is doing to-
day what he has been doing perhaps every
day for ten years before. / have seen dread
full carelessness in judges. Again, Judge is
often under the influence OF particular coun-
sci; some he hates, some he likes, some he
relies on, and some he fears. 1t is easy for
judge to be impartial between plaintiff and de-
fendant-lndeed, he is almost always so it is
difficult to be impartial between counsel and
counsel.
Senior have felt that myself but in gen.
ersl the feeling of dislike was stronger than
that of liking. There were men on whose side
l could decide only by an effort; they were so
false. SO sophistical, 50 anxious to dress up a
cause which was sufficiently good if merely
clearly and simply stated, that l was almost
ashamed to decide for them lest l should be
supposed to have been deceived. But do
not recollect having had favorites.
Ere. Perhaps you had them without know
ing IT, and attributed solely to the argument of
force which was partly due to your good opin-
ion of the speaker.
SeHi9T. just as juryman, who had been
in court during the whole sitting at Liverpool,
congratulated Scarlet on having been always
employed by the side that was in the right.
What class give you the best Jurymen!
Erie. The respectable farmers and the
higher shopkeepers in the country towns.
The men from the great cities, accustomed to
excess in trade speculations, are inferior to
them, especially in an honest sense of duty.
The worst juries that have known came from
such places. Their adventurous gambling
trade seems to make them reckless. At one
time they appeared to have pleasure in 6ecid-
ing against what they supposed to be my opil-
ion, which counteracted by seeming to give
more emphasis to the reasons in favor of the
decision to which was opposed One of the
things which used at first TO surprise me is,
the very small motive which is enough to lead