Poverty Bay Standard. PUBLISHED EVERY TUESDAY, THURSDAY AND SATURDAY MORNINGS. SATURDAY, MAY 6, 1882.

Poverty Bay Standard, Volume X, Issue 1070, 6 May 1882, Page 2

Poverty Bay Standard. PUBLISHED EVERY TUESDAY, THURSDAY AND SATURDAY MORNINGS. SATURDAY, MAY 6, 1882.

In trial by jury we are accustomed to recognise one of the bulwarks of our liberties. We approve of the abstract principle that a man shall be tried by twelve of his peers, let him be Maori or Pakeha. The system commends itself very strongly to an equitable mind, conducive to fairity. In Court. so open to public criticism as ours Justice must be had by reason of that very openness. There is also another raison d'etre with which the general public are not very familiar, and that is for every action in which law is questioned, over a hundred are heard in which facts are in dispute. Blackstone writes that twenty days ii the year are sufficient in Westminster Hall to settle upon solemn argument every demurrer or point of law that arise throughout the nation, but that two months are annually spent in deciding the truth of facts before several distinct tribunals. The

decision of fact—the decision upon which side of a question the truth lies —is what is understood by the term “ trial.” How to conduct such “ trial” has been a problem which has perplexed intelligent minds in all ages. We, under English law, may claim to have long enjoyed enlightenment in this matter. Alfred the (tliicat established the policy of bringing justice home to every man’s door by constituting as many Courts of judicature as there were manors in the kingdom. These little Courts communicated with others of larger jurisdiction, and thus the course of justice flowed in large streams from the King as its fountain, and became subdivided into smaller channels so that all the kingdom was plentifully watered and refreshed. A similar system, says Blackstone, obtained in the Jewish Republic, and also in Mexico and Peru before their discovery by the Spaniards. We cannot, however, boast too loudly of the sagacity of our forefathers, remembering as we do that Saxon times witnessed the prevalence of the system of “ compurgation.” By this system a person accused of crime could clear himself by swearing publicly to his own innocence, and bringing a number of his neighbours, from four to seventy-two, to confirm his oath. If this plan failed, the “ ordeal ” was tried. Ina church, and before witnesses, the accused plunged his bare arm into a caldron of boiling water, and lifted out a heavy weight. The priest wrapped the scalded limb in linen and fastened it with the seal of the church. If on the third day the injury was perfectly healed, the accused was declared innocent. There was a similar “ ordeal,” in which the accused was required to take a red hot bar of iron from a pillar and make three steps with it in his hand. It was decided in the same way as in the “ordeal” by water, whether he was innocent or guilty.

No record marks the date of the commencement of trial by jury. A scrutiny of Saxon memorials has raised a doubt whether the system did actually exist before the Normar conquest. Tn the reign of Henry the third, some sixty or seventy years after judges had been appointed to go circuit through the country, the custom of trial by jury had come to assume in substance its present shape. In the origin of the institution the jurors were summoned altogether from the neighborhood in which the cause of action was laid, and were, indeed, rather witnesses than judges. Why it should have been determined that the number of jurors in the superior Courts should always be the patriarchal and apostolical number of twelve, is a question in which Lord Coke discovered “abundance of mystery.” We are told that by the inhabitants of Norway, from whom Normans and Danes descended, great veneration was paid to the number twelve. Instances are furnished of the regard paid to “twelve” in the early German law, and we have distinct evidence that twelve jurors used to be assembled among the Anglo-Saxons for an inquisition, though there seems no sufficient proof that juries of twelve were used by them for purposes of trial. Whatever may be its history, trial by jury, or trial per pais (by the country) exists among us at the present day as a most valuable heritage from earlier times. A very common method in which the principle of trial by jury is put into eSect, is the method of trial at Nisi Prius. The Nisi Prius is one of the four several authorities by virtue of which the judges take their seats upon Circuit. This authority, says Sergeant Stephen, empowers them “ to try all “ questions of fact issuing out of the “ Courts at Westminster that are then “ ripe for trial by jury. These, by the “ ancient course of the Circuits, were “ usually appointed to be tried at West- “ minster, in some Easter or Michael- “ mas term, by a jury returned from “ the county in which the cause of “action arose; but with this proviso, “ Nisi Prius, unless before the day “prefixed the Judge of Assize should “ come into the county in question, “ and as in modern times they have “ invariably so come in the vacation “ preceding, the trial has always in “ fact taken place before those “ Judges.”

Although many objections have been urged against the system, it undoubtedly works well. An immense amount of justice is done by juries, and done well. They have their faults, it is true. They have been blamed for following too slavishly the courses indicated by the judges. Wo can well understand that they wait with some eagerness to hear the judge explain the circumstance of the plaintiff’s story and the defendant’s story being diametrically opposed and yet both perfetly true, and their reconciliation to such anomaly can only be produced by the judge in lucid explanation. But it is not fair to assume that juries as a rule are slavish because they seek such explanation. It has been noticed that if a judge appears to sum up like an advocate for one side, the jury will quickly return a verdict for the other. An amusing instance of the independence of juries is furnished by the records of last Bristol Assizes, where a jury were not content to take the law from Lord Chief Justice Coleridge, but asked to be allowed to examine for themselves a case which had been cited in the hearing. They were discharged forthwith by the indignant judge. The verdict of another jury in England in a case where damages were claimed from the owner of a brickfield was pronounced bv Mr Justice Lores to be

“ unintelligible a nd unsatisfactory, and “ plainly the result of a compromise.” After all it is not greatly to be wondered at if compromises of some kind are occasionally made. It must be very trying for a hungry and thirsty twelve to have among its number some bumble-headed idiot insisting that eleven more obstinate jurymen he never met in his life. Juries, like other assemblages, are but mortal, but it is an undeniable fact that to the institution of trial by jury we are indebted for one of our highest privileges.