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Evening Star, Volume III, Issue 832, 5 January 1866, Page 2

“Wokds are things,” as Mirabeau said, and very material things too. And so forms are often substances, and mischievous ones into the bargain. One of the timehonored forms of trial by jury, at least, comes within this category, for the injurv which it must often do to the moral sense, and the actual injustice which sometimes follows from its observance. In England, in olden times, a prisoner indicted for crime was required to hold up bis right hand at the bar of the Court which was to try him, and answer '•‘ Guilty ” or “ Not Guilty ” to the indictment. If ‘‘Guilty.” sentence was passed.; if “ Not guilty,” the trial proceeded. If he stood mute, and refused to utter either formula, he was subjected to the torture of the “p vine forte et dure” or being pressed to death by the gradual imposition of heavy weights übon his breast, unless he relented from his obstinacy. There are instances of this cruelty being obstinately suffered, probably from some insane delusion, or, in some instances, for the purpose* of saving to the heirs of the prisoner his goods and estates, which would be forfeited by confession or conviction. So slow is the Anglo-Saxon mind to receive novelties in legal practice —and no doubt wisely so—that it has been of 1 ite years, comparatively, that the simple method of-regarding the refusal to jdead, j either as an admission or denial of guilt, and proceeding accordingly, has been disideAed. In old times the plea must be

• obtained, or tbe whole process was blocked. The law considered itself set at defiance, and strove to vindicate its injured majesty at any cost to the recusant. The corporeal barbarity of the “ peine forte et dure ” has vanished before the light of civilisation; but we think it is open to question whether what remains of the custom does not yet expose human beings to moral injuries, from which enlightened policy, as w ell as Christianity, would do well to free theih. It is urged that this plea is an unmeaning formula, merely expressing a willingness to be tiled. But if so, why retain it ? The trial should and must proceed, whether the prisoner consents or not, and he need not be required to deny what he knows to be true, as a necessary preliminary. And when the force of conscience, or the belief that escape is impossible, induces a criminal to plead guilty, the worse than absurd spectacle is sometimes afforded of advice‘being given to the jury from the bench as to its legal etf.ct, and the opportunity is afforded, if not "urged upon, the criminal of retracting the truth and telling a falsehood, that he may not lose the chance of a technical acquittal through some of the formalities which the o # provides for the protection of innocence, but which sometimes open a way of escape to the guilty. And strange as it may -seem, 'there have been cases of accused persons pleading guilty to a charge, of which they were afterwards proved to be entirely innocent. In the fampus Vermont ease, frequently quoted at trials for murder, the accused confessed his guilt, and execution was at hand, when the murdered man arrived, alive and well, and in time to prevent it.

Criminal iustice is uncertain enough in V her course, without leaving antiquated stumbling blocks in her way ; and we hold that every man accused of crime should have a public ’trial of his ease. The 'Crown is bound to make out his guilt be . fore punishing him, without permitting him to stay the process. There are not wanting recent eases to show the practical importance of the change. The man Williams who killed his wife in London a few years ago, and pleaded guilty to the charge of murder, suffered death in consequence, but it was perfectly demonstrated by the highest legal authorities that he could only have been convicted of manslaughter had the case gone to a-Jury. The refusal of Sir George Grey to commute that man -S' sentence will doubtless be a blot on his name as long as it is remembered Constance Kent, so recently before the public, by pleading guilty to the murder of her little halt brother, prevented the judicial investigation of that mysterious crime, which ought to have taken place, and which might have brought out some evidence of mental condition on her part, which would have mitigated the horror of her crime. Nothing would be easier than to make the change we suggest. It wouh Ibe merely to omit calling upon the accused to plead, and proceeding to see whether the indictment be sustained by evidence or not. The prisoner could not then stop the process by pleadingguilty, nor could be required to tell a lie, if conscious of guilt ; in order that it might go on. The duty of proving the charge would still rest with the Government ; a task from -which it ought in no case to be excused, while the rights of the defence would remain just where they are now. And a further right, we hold, should be added to them—that of the prisoner to be examined in his own defence; should he choose so to be. On the Continent the accused is made the principal witness against himself. In England and America he is put on his guard, and cautioned against confessing—an extreme as absurd as the other is often cruel. In multitudes of cases, indeed in all, the person who has committed an act is the only one who knows about motives and particulars, and his mouth we seek to seal hermetically. We would not compel one accused of crime to undergo the moral torture to which he is subjected in France in order to extort the truth from him ; but if be wishes to tell his own story in open court on oath, subject to cross-examination by the Crown, we'think Tie should be permitted to do so ; and it is highly prob ble that had this course been adopted with the persons who were charged with the late murder in High street, conviction would have been brought home, whilst for want of such a course the ends of justice were frustrated. A false story would seldom stand the test of crossexamination and a comparison with the facts in evidence. One that could pass through this oi deal might be reasonably presumed to be time, and relieve the jury from many doubts when they were inclined to an acquittal.

The exainina'ion of parti s to civil actions, whiah had. been denied for canturies, has been granted of late years, with no detriment to justice. Why should not the

same grace be extended to the parties in criminal trials ? We unhesitatingly believe that if the late convict Jarvey had been put to his trial without having first to answer the question. Guilty or not guilty, and been afterwards cross-examined, he would, with the heavy burden of evidence brought against him, never have left the Court, much less the world, without confessing his guilt. Such reforms as the one we have indicated are worthy the attention of the public mind, the opinion of which, properly directed and sustained, cannot fail to mould laws and customs into its own similitude.