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THE CONSTITUTION AND EFFECTS
A PETTY JURY.
Mos erat antiquus, niveis atrisque lapillis,
THERE is a sort of an ecclesiastical saying in every body's mouth; The nearer the church, the farther from God.' Perhaps if this civil one were introduced, it would not be amiss ; "The nearer the court, the farther from right. It is a common observation, that there is no where more filching, and picking of pockets, than at the execution of a felon. For the truth of this we are to credit those who frequent such entertainments. But I can aver upon my own knowledge, that in no place more tricking and dishonesty is learned and practised, than in and near our courts of justice, as they are called; I do not mean that the jail, which generally makes a part of the court-house, is a seminary of thieves, and a kind of college where the arts of evading law, and escaping justice may be easily and cheaply learned by the dregs of the people. What I mean, is, that in the court itself, where the law is explained and causes tried, the wealthier kind of people are taught a more refined system of arts, by which property may be confounded in a creditable, and blood shed in an honourable way.
Having lived for these four or five years in an assize town, and having not only conversed a good deal with the people, but also attended at many trials of different kinds,
I have had frequent and flagrant opportunity of observing, that for one that obtains justice, a hundred are taught injustice at an assize. This I will not charge, as is generally done, on the periodical flight of powdered practitioners that circulate with our judges, and to make law the more necessary, endeavour to banish religion from among our country gentlemen, who, being obliged to take that matter upon authority, had rather trust to a lay-brother, than him that gets the tithes. Many of these people, it is true, who have learned to talk, do some hurt. They sap the only foundation of honesty, by undermining religion ; and every body knows the less honesty the better for them.
The general decay of justice must be owing to some cause more powerful, and more nearly concerned in the administration of our laws. I am afraid the constitution of a petty jury is chiefly to be blamed for it. However, whether it is or not, will perhaps better appear upon examination.
A petty jury consists of twelve men, who are obliged, upon oath, well and truly to try, and true deliverance make, of such causes as are brought before them. Their trial and deliverance is to be the result of the evidence produced by either or both parties in the debate. As soon as they have heard the witnesses examined, they are shut up in a close room, and one set to keep the door, who is sworn to suffer neither meat, drink, fire, nor candle to be carried in to them, nor any of them to go out thence, till they are ready to give a verdict, in which they must be unanimous to a man, or it is not decisive. If there is but one who dissents from the opinion of the rest, they are all confined under the aforesaid difficulties till he agrees, nor can they be set at liberty, till the judge is out of the county,
Such is the constitution of a petty jury, which, were it shewn to some one, who had never heard of a jury before, would probably appear a very unpromising instrument of justice. The necessity that the whole number should be unanimous, is the first thing that would shock him. Some cases indeed are made so plain by the evidence, that all mankind must agree about them; but there are infinitely more cases where the evidence is neither so clear nor full,
but that of six who attend to it, one or two would differ from the rest, at least till they had conferred. And it should seem no less improbable that conferring should reconcile them. Every one who is in the least acquainted with human nature, knows, that to persuade or convince is a very difficult undertaking, and that the difficulty is still incomparably greater, when the reasons, the opinions, the prejudices, and perhaps interests of one man are to be beat down, and those of another erected in their place. We see that in mere speculative disputes, the shame of a defeat, and thirst of victory are alone sufficient to make them endless.
It may be objected here, that the oath of a petty juror, and the sense of his duty will probably take off those bi. asses from his mind, and leave him at liberty to hear reason and to form a fair and candid judgment. He that knows mankind, knows the case to be otherwise in general. In most men, passion and interest are superior to principle, and govern without disguise. In many, they conceal themselves under a shew of reason, and so impose upon conscience. But in those few that are swayed by conscience, if their oath rids them of prejudices and attachments, it substitutes in the room of them such a scrupulous and timorous exactness as will make it very hard for them to be determined either by their own or other people's reasonings; insomuch that if we could suppose a jury of such, the case must be extremely clear in which they could agree. A man of candour frequently finds it difficult to decide a doubtful case within himself. If in one mind there is so much room for debate and doubt, what must there be among twelve, whose ways of thinking are at least as peculiar and individual as their faces ?
How rare a thing is it to see a company of four or five agree about such points as happen to be debated among them? It is well if they can bring tbeir various sentiments under but two opposite opinions. I speak this of companies made up of people upon an equality with one another. Even when the fortune or reputed understanding of one makes him a dictator to the rest, his opinion is only complimented with a seeming concurrence. But when a man is sensible that the property or life of his neighbour,
and his own soul, are all risked upon the justice of his verdict, then if there is either sense or conscience in him, they will oblige him to examine with the greatest nicety, and judge with the utmost circumspection. And what will be the effect of all this? Why, in some cases, and in some minds it will be attended with such doubts and scruples as the man himself can never determine, though he call in all the assistance of other people. But in others, such a nice and severe disquisition will end in an opinion so riveted, that no arguments nor persuasions will be able to get the better of it. In either case there will be no determination; or if there is, it will be against the conscience of some in the number. In short, if a man is more concerned to examine with care, and judge for himself upon oath, than without it, it follows that opinions, formed at such a peril of his soul, will be less accommodated to the opinions of others, and yield with infinitely more reluctance to persuasion, than such as he is accountable for only to his understanding, which, nevertheless, few men know bow to surrender.
It is plain that the Gothic compilers of this constitution have taken all the above-mentioned difficulties for granted, by the means they have used to procure verdicts notwithstanding. The twelve men are to be kept close in the most uncomfortable confinement till they can agree. They are to have neither meat, drink, fire, candle, nor easement, unless their porter is so charitable as to damn his soul for their relief, till they can all think one way. The contrivers of this expedient being sensible that there is a very strict connexion between the mind and body of man, and not knowing how to strike immediately at the mind, played their engine against the body, by distressing of which they proposed to reduce reason and conscience to a proper pliancy. It is manifest, that in this they took more care to have a verdict, than that justice should be done, though the latter was the only end to be obtained, and the jury itself but the means.
I believe there cannot be an instance given of a more barbarous attack upon reason, or greater violence done to the conscience. The body is to be starved, and the life put in imminent danger in order to bring over the under
standing, while its real determination is supposed to be withheld by conviction, and its outward assent by an oath. Is it not as monstrous to consult justice by forcing a unanimity in this manner, as to force uniformity by persecution, in order to the advancement of religion ? By thus laying a weight upon the body, the external assent is brought over, while conviction and conscience stare it full in the face. I fancy it must be entertaining enough to observe the sentiments of a jury that differed widely at its first going out, drawing nearer and nearer to each other as the reasons, offered by the appetite and stomach grow stronger and stronger, till all their differences being devoured, as it were by hunger, are digested and done away, and the opinion of him or them who are least dependant upon meat and drink, is returned as the unanimous opinion of them all. What are reason and principle in the way of hunger, that breaks through stone walls?
Such would be the objections of one, who never heard of a jury before, to the form of our petty jury, from the mere nature of the thing itself. It may be asked then, how such an unreasonable scheme for the administration of our laws came to take place among us, and what induced the pation to submit the bulk of all its business, the properties, liberties, and lives of the subject, to a contrivance so misshapen and so ill-concerted? It is not unlikely that the same causes which usually produce unjust laws, or partial schemes of government had their share in the production of this. If it is very liable to interest, and can be easily made to serve the occasions of the leading man or party in a country, as I shall shew presently, this might have helped it into practice at first, and supported it afterward. It is certain, however, that it is of Gothic original, and that it was invented, and at first practised by a rude and barbarous people, little skilled in the art of government. Besides, at its first invention it might have had a more tolerable form; taken altogether, it seems to have been the inconsistent work of different ages, if not of different interests. It is probable that at first, it was only a court of twelve men, who were to be unanimous, or there could be no verdict; but without an oath, without confinement, &c. which seem to have been added afterward, in order to force a