Is there such calm for mortal breasts when storms have once been there. Yes! But it is not of this world, the peace that must be sought, T. R. The Letter of CIVIS," to the Editor of the Courier, upor the Jury Question Hobart Town, printed by JAMES Ross, 1834. A pamphlet, bearing the title, prefixed to the present article, has just been placed in our hands: it is a re-print, with some additions, of the letter, which appeared in the Courier, in vindication of the proposed alteration in our Jury Laws; and, although, we have already fully expressed our own opinion on this important subject, we shall, nevertheless, devote a small space to the consideration of the pamphlet before us. It would be invidious, probably, to fix the authorship of this brochure upon any particular person, because, being an anonymous production, we have no right to assume an exclusive authorship for the same; but still, it is quite impossible to shut one's eyes to the style and mannerism displayed in every line: we have, in short, internal evidence of its progenitor, and we name him, at once, as our Attorney General. The pamphlet is clever, but unsatisfactory; there is too much special pleading (the besetting sin of lawyers) in it; and it does not, in our estimation, at least, carry conviction to our minds, of the efficacy or expediency of the alteration, which it extenuates. We pass over a "smart" peroration on the beauty and antiquity of Trial by Jury-and come, at once, per saltum, to the question:"In what does the excellence of Trial by Jury consist ?" Ably is it answered! The excellence of this admirable institution consists in the pure, and upright, and impartial administration of justice: this is its "excellence," and how is it to be acquired-how maintained? By the decision of seven men or of twelve? The settlement of this question is the point at issue between Civis and the People: it is, on the part of CIVIS "SEVEN versus TWELVE,'-on the part of the People-"TWELVE versus SEVEN." Hear what CIVIS saith for his client :-"On the second article of genuine and apostolical belief. that which pays respect to no number of Jurymen less than twelve, there is equal strength of argument adduced, and of a nature precisely similar. It has been sanctioned by the usages of our ances tors. But, why that number was selected originally, why it should be continued, how the system of Trial by Jury can be prejudiced by any alteration in (diminution of)—that number, or why, assuming jurors to be, in the main, honorably disposed, justice should not be as effectually administered, and liberty as well secured, by seven honest and independent men, as by twelve or a greater number, it would not be easy to show. The fact is, however, that no argument against the proposed reduction in number, has ever been urged upon that assumption. It is, by a most unflattering process, taken for granted, that Jurors will not be honest and independent. It is deliberately argued, that, in questions between the Crown, and certain particular interests, seven men will not do their duty, deterred by coward fear; but that twelve men will do their duty, since twelve will rise superior to fear."-p.p. 9, 10. Our exposition of the fallacy of this reasoning will not occupy much space. In estimating the characters of Jurors, Civis adopts an assumption, perfectly gratuitous. He says, either our Jurymen are honest and independent, or they are not." Why so? Are there no intermediate grades of vice and virtue ? Is human nature so limited in its attributes, as to skip at once from the two extremes of good and evil? Besides, a man may be very honest, very independent, and a most excellent member of society-but he may be but an indifferent Juryman, after all; and, looking at human nature in all its varieties-its passions, its prejudices, its dogmatic opinions, its pride, its feelings and its failings-all of which is necessary, properly to estimate the influence and operation of Trial by Jury-we do say, that twelve men would be better than seven, inasmuch as there is very nearly a double guarantee for the "impartial administration of justice." The discussions, which have taken place on the Jury Question, have assumed a character almost exclusively political it is the "Crown and the People," the "Government and the People;"and, forthwith, does the disputant launch out into a flowing declamation, touching the violation of our rights and liberties. But, we think, the question will bear looking at very closely in its relation to the simple, but important, dispensing of justice between man and man, in the ordinary transactions of life; and, viewing it in this light, we do not think there is a single man in the Colony, CIVIS alone excepted, who would hesitate one moment between a Jury of twelve or of seven. As the Colony advances in importance, many disputes will arise, and on no subject more frequently, than on matters connected with the possession of land: and in establishing any portion of our judicial system, but more, especially, that of the Jury, the utmost exertion should be made to acquire all the security we can : We, therefore, perfectly coincide with Blackstone in the opinion, that a Jury of twelve of our equals is the best safeguard we can have, and the best guarantee for the satisfactory and “impartial administration of justice." We generally agree with Civis, in his eulogium on the manner in which a Jury is summoned; because we feel fully convinced, that, if the process be performed properly, no packing or partiality can be practised. “Jurymen (he says) are summoned at random, or, rather, by a settled rule of rotation, from which the officer has no power to deviate: they are taken, indiscriminately, from amongst a numerous class or description of persons, varied, occasionally, according to the nature of the cause, but never at the mere will or discretion of any They are the-possessing various shades of opinion and tering and having öferent habits and associations—likely to arrive at aur an erect rest-and to form and express an opinion, wag made survosed to represent that, of, nearly, the entire comi, vt velation is taken, to ensure the attendwhy stud be competent to their duties; upright, IRSMAS Perqueer müferent to either party. Certain qualifii nisscat in designed, chiefly, as tests of capabut these are ascertained beforehand, and are Nart of the machinery is defective. a urs ach in his turn, from a list open to ee me, and in the preparation of which he has i mea ut ul. He compels, in every instance, the wer ess than tuoie, and, in general, four times the Al these names are written on sepa * 2 V The au naceu in a box on the day of trial, in such 2 tu 10 nume zu be read, until after it has been drawn. VR Bently empose the Jury, are determined as a the requisite number, AL Shiu at the Jury. In this 30 selection of any e. By no ingenuity be returned upon a Jury, ***at pretext, or at whose herefore, out of the quesNo person in his senses ould be sure of instant detecNevitable and most condign , no alterations, Civis tells contemplated :—the change Jurors; and “no man, (CIVIS hout prejudice, reflects on this all against any reduction in the number 5072 various shades of opinion, &c." de whole community than seven. question, will really believe, that a mere alteration in the number can produce any consequences, like those so strangely anticipated from it. He will, at once, perceive, that the value of the institution depends not on any particular number whatever. If the number be such as to secure a sufficient combination of different minds, actuated alike by one common principle of integrity, but distinguished separately by a reasonable variety of feelings, habits and opinions, every object is attained, which any one ever yet deemed on this score necessary or desirable. The law officers have thought that, should Trial by Jury be extended, whereby the number of Juries would be much increased, the duty would become extremely harrassing; and that, consequently, it would be more convenient to the public, were the number of Jurors diminished. They have thought that, in reference to the only principle, on which the number of seven persons composing a Jury is of any consequence, seven would be sufficient. They may be mistaken in those opinions. But they are not, therefore, tyrants. Nor do they, on this account, deserve repeated scandal, and obloquy, and insult."-p. 17. Here, then, is the avowed reason of the contemplated innovation -" the convenience of the public!" We should like much to know how any convenience could accrue to the public from diminishing the number of Jurors. It is, doubtless, a matter of inconvenience to many persons to have anything to do with Juries; but we should think, that no good and considerate Colonist would begrudge a portion of his time and trouble for the public good, especially as he is entitled to a similar obligation on the part of his fellow-colonists, should he ever require it: and we will engage to affirm, without fear of contradiction, that there is not a Juryman in the country, who would not prefer to sit in jndgment with eleven rather than six of his compeers. We must, therefore, dismiss this reason at once, as insufficient to account for so important an alteration. With regard to " Special Juries," we do not see so much objection to a reduction of the number, especially as that class of the community, whence they are derived, is so limited. Civis states, upon what grounds, we know not, that there are not more than thirty persons, eligible to sit as Special Jurors. We think he has underrated the number, as there surely must be more than thirty esquires and merchants in the town. It is not, however, merely as regards the supposed small number, of this class, that we should be prevailed upon to agree in the diminution,-but their superior intelligence, as well as the paucity and infrequency of cases, in which they are called upon to adjudicate, would, also, lead us to acquiesce in this measure. We have, now, placed the gist and pith of CIVIS's arguments before the reader, and have commented upon them, as we have proceeded. The discussion has now assumed a consequence, commensurate with its importance; but we regret to see so much acrimonious feeling mixed up in the contest. Our little community is not so gifted with blessings, as to render these diversions necessary or agreeable; and, whatever may be our diversities of opinion, let us use towards each other, that courtesy, which will soothe even the mortification of defeat. One word at parting with CIVIS. In reference to the old law of starving out a Jury, unless the verdict should be unanimous, he sarcastically and sneeringly exclaims-Nolumus leges Angliæ mutari! No such thing! The laws of England-the leges Anglia, are undergoing a mighty, and a magnificent change. Men do not now, bow down in blind and reverent obedience to laws, merely because they are laws: neither do they worship them for their antiquity, unless they are, by that antiquity, ratified into excellence. No! They look to the meaning, the bearing, the influence and justice of those laws, and reverence them accordingly, or spurn at and despise them. [P.S.-Since the above was written, we have seen the Tasmanian of the 11th of July; wherein we find that PHILO has, with ourselves, exposed the fallacy of the superiority of seven over twelve Jurors, as expressive of the opinions of the whole community. Indeed, this is so evidently absurd, that we are surprised at the author's inadvertence in admitting it. Our object, however, in mentioning this circumstance, is to avow our ignorance of PHILO's communication, until our own little article was written: had we seen the letter alluded to, before our observations were in the press, we should have availed ourselves of some of PHILO's admirable arguments. As it is, we can only refer our readers to the Journal which contains them.] Spirit! Thine eye betrays the depth of thought, We've met thee,-child of thought!--with tranquil eye, And glide into thy spirit, like a dream! On the brow of rock or steep, In thoughtful silence she reclines, And soft winds whisper through the pines; |