Year: 1873

bly, in relation to the triers will do something
to prevent the rejection of competent jurors,
but not much. We need q complete revision
of the law as to competency, and first OF all
we must discard that fundamental rule OF our
present practice which excludes from the box
every man who has formed an opinion upon
the case at issue. Anciently the jurors were
not merely the judges but the witnesses of the
crime. They were taken from among the by
ISLANDERS who saw the offense committed, and
their Office was to determine whether the cir
cumstances were such as to make the act a
punishable offense. 1t was essential then that
they should not have made up their minds
before hearing the prisoners defense. The
custom of refusing every juror who had
formed or expressed an opinion" has
been introduced gradually and its scope
has been constantly increasing. When
the means of disseminating intelligence
were meager, this custom was good
one. The news of theft or q murder trav-
eled slowly or only a short distance; the men
who formed an opinion about it were gener-
ally those Immediately in contact with some
of the actors in the affair; and it was easy to
find intelligent citizens who had neither pre-
Judged it nor even heard of it. But now that
the newspapers spread before the public every
morning the smallest occurrences of the day
before, the case is altered. The man who has
formed no opinion whatever about notorious
crime is man who does not read. The man
who does not read in these days is not fit to
Judge The light and summary opinion which
an intelligent person forms of the events mar
rated in his daily paper is not prejudice
which would deter him from doing justice; it
is mere intellectual leaning which can be
instantly corrected by evidence. Indeed, an
innocent prisoner would probably be much
safer in the hands of twelve intelligent jurors
who had formed one of these cursOry opinions
against him, than before a jury of the or
dinary pattern, composed of men who are too
obstinate to believe what they hear or too
sluggish in mind to receive an impression
from it,


g The plan of submitting the question of
sanity, in criminal causes, to a commission OF
five experts, as preliminary to the issue on
the facts, strikes at an abuse Of our courts
for which the weakness of our juries is much
more responsible than our laws. The testi-
mony of medical experts in cases of insanity
has done more to confuse than to enlighten
the average juryman, and we are by no means
certain that jury of medical experts would
do much to further the cause of justice. There
is apparently a tendency with students of
mental disease to exaggerate the Importance of
alterations which the unlearned observer would
never have detected. They look too closely at the
physical effects of the disorder, and too little
at the moral effects. There never was muir
derer set free by acquttal on the score of in
sanity who had not among his witnesses
number of reputable physicians, and in some
of the most scandalous instances of the cheat
ing of the gallOws by this favOrite device dis
tinguished experts have had conspicuous
part. But some law we certainly do need for
the restraint of insane criminals. Possibly
iures should be forbidden to take the defense
of insanity into account, leaving it to be urged
afterwards before some other tribunal whose
decision should control the sentence of the
court.


g. If we could secure good juries we should
be less troubled with the abuses Indicated IN
the preceding paragraph, and also with the
dangers which we have now to consider. The
disagreement of juries has come to be one of
the greatest obstacles in the way Of justice.


Lawyers will tell us that it is never an innO
cent prisoner who suffers by the failure to ac-
quit it is always the public that is wronged
by the inability to obtain a conviction. The
worst offender may rest secure so long as he
can foist one of his friends in among the
twelve, or find one who will take bribe, or
yield to a threat. This is menace to the
public safety which has long demanded atten-
ton, and which recent events have pressed
upon us still more closely. In England change
in the law has been persstently but frutlessly
urged for many years. The present scheme the
Attorney General, Sir John COleridge, proposes
that in any case except high treason, treason
felony, or murder, verdict may be rendered
by majority of jury of seven. The plan
proposed to our Constitutional Commission is
TO permit verdict to be rendered by nine
out of twelve. 1t is not certain that unanimity
was ever required of jury in ancient times.
Probably there were or might be more than
twelve jurors, but twelve were required to
agree, and so when the number was finally
reduced to twelve the rule of unanimity became
of force. In Scotland the rule has been abrO-
gated and if we are not mistaken it has also
been abolished in some of the English colo
MES. 1t would be worth while to inquire
into the practical result of the change before
we introduce it here. Meanwhile our first
duty should be to raise the character of the
Jury. A reform in that direction will perhaps
obviate the necessity of any more radical
remedy while without it none of the other
changes that have been suggested will be Of
much avail.


APPRECIATTVE CONSTITUENCIES


These be balmy breeZes that come to us