TRIAL BY JURY

THE following is the judgment of a famous English writer,* a profound student of history, on the jury system of his country:

"Popular Government and Popular Justice were originally the same thing. The ancient democracies devoted much more time and attention to the exercise of civil and criminal jurisdiction than to the administration of their public affairs; and, as a matter of fact, popular justice has lasted longer, has had a more continuous history, and has received much more observation and cultivation, than popular Government. . . . We have in England a relic of the ancient Popular Justice in the functions of the Jury. The Jury-technically known as the 'country'-is the old adjudicating Democracy, limited, modified, and improved, in accordance with the principles suggested by the experience of centuries, so as to bring it into harmony with modern ideas of judicial efficiency. The change which has had to be made in it is in the highest degree instructive. The Jurors are twelve, instead of a multitude. Their main business is to say 'Aye' or 'No' on questions which are doubtless important, but which turn on facts arising in the transactions of everyday life. In order that they may reach a conclusion, they are assisted by a system of contrivances and rules of the highest artificiality and elaboration. An expert presides over their investigations—the Judge, the representative of the rival and royal justice—and an entire literature is concerned with the conditions under which evidence on the facts in dispute may be laid before them. There is a rigid exclusion of all testimony which has a tendency to bias them unfairly. They are addressed, as of old, by the litigants or their advocates, but their inquiry concludes with a security unknown to antiquity, the summing-up of the expert President, who is bound by all the rules of his profession to the sternest impartiality. If he errs, or if they * Sir Henry Maine.

flagrantly err, the proceedings may be quashed by a superior Court. of experts. Such is Popular Justice, after ages of cultivation. Now it happens that the oldest Greek poet has left us a picture, certainly copied from reality, of what Popular Justice was in its infancy. The primitive Court is sitting; the question is guilty' or 'not guilty.' The old men of the community give their opinions in turn; the adjudicating Democracy, the Commons, standing round about, applaud the opinion which strikes them most, and the applause determines the decision. The Popular Justice of the ancient republics was essentially of the same character. The adjudicating Democracy simply followed the opinion which most impressed them in the speech of the advocate or litigant. Nor is it in the least doubtful that, but for the sternly repressive authority of the presiding Judge, the modern English Jury would, in the majority of cases, blindly surrender its verdict to the persuasiveness of one or other of the counsel who have been retained to address it."-" Popular Government," pp. 89-91. London 1885.

These are the words of an Englishman, a profound student of his country's history, and a deep thinker. We involuntarily remember the fate of this unhappy institution in countries where the historical and economic conditions from which in England it sprang do not exist. To those who introduced this institution into Continental countries we might apply the Russian proverb, “They hear a sound, but know not where it is." It was at once reckless and irrational to entrust to the justice of the people the decision as to the guilt of an accused person without devising practical measures of discipline, and without preparatory study of this alien institution in the land of its origin and with all its complex surroundings.

The consequences are apparent. After tests extending over many years, in every country where trial by jury modelled upon the English system

has been established, the question has arisen by Whe ze

what it is to be replaced to avoid the inconsequence of the judgments of which it has been the cause. Such difficulties multiply daily, and have permeated even those States where there is a strong judicial system, the product of centuries of experience and of rigorous discipline in science and practice.

It is not hard to understand the consequences of popular justice in those younger States which lack these saving elements-where, instead, we find an innumerable host of advocates who, impelled by ambition and selfishness, quickly attain that remarkable skill in the arts of casuistry and verbal subtlety needed to influence a jury of incongruous constitution, chosen at random, or with ulterior design, by whom the elements of justice are inaccessible, and the necessity for subjecting to analysis the mass of facts requiring consideration ignored. Behind these comes the motley crowd, attracted as to a play, to dissipate the monotony begotten of idleness-the mob, in the phraseology of idealists, denominated "the people." It is not to be wondered at that with such conditions the consequence so often corresponds with the judgment which I have taken from Sir Henry Maine, that “the modern jury, in the majority of cases, surrenders its verdict to the persuasiveness of one or other of the counsel who have been retained to address it."

THE PRESS

I

FROM the day that man first fell falsehood has ruled the world-ruled it in human speech, in the practical business of life, in all its relations and institutions. But never did the Father of Lies spin such webs of falsehood of every kind, as in this restless age when we hear so many falsehoods uttered everywhere on Truth. With the growing complexity of social problems increases the number of relations and institutions pervaded with falsehood through and through. At every step appears some splendid edifice bearing the legend, "Here is Truth." Do you enter-you tread on falsehoods at every step. Would you expose the falsehoods which have angered you, the world will turn on you with anger greater still, and bid you trust and preach that this is truth, and truth unassailable.

Thus we are bidden to believe that the judgments of newspapers and periodicals, the judgments of the so-called Press, are the expression of public opinion. This, too, is a falsehood. The Press is one of the falsest institutions of our time.

But who will dare to stand against the forces of opinion-the opinion of the world on men and institutions? Such is the nature of man that each one of us, whatever his words or actions may be, takes

care that he shall conform with the opinions of the people. The man is yet unborn who can truly boast himself free from this servility.

In our age the judgment of others has assumed an organised form, and calls itself Public Opinion. Its organ and representative is the Press. In truth, the importance of the Press is immense, and may be regarded as the most characteristic fact of our time-more characteristic even than our remarkable discoveries and inventions in the realm of technical science. No government, no law, no custom can withstand its destructive activity when, from day to day, through the course of years, the Press repeats and disseminates among the people its condemnations of institutions or of men.

is man's inherent weist to lect Hionge andre act as an equaj others, and

of humanso

What is the secret of this strength? Certainly The secrec not the novelties and sensations with which the news-s sur St paper is filled, but its declared policy-the political and philosophical ideas propagated in its articles, the selection and classification of its news and rumours, and the peculiar illumination which it casts upon them. The newspaper has usurped the position of judicial observer of the events of the day; it judges not only the actions and words of men, but affects a knowledge of their unexpressed opinions, their intentions, and their enterprises; it praises and condemns at discretion; it incites some, threatens others; drags to the pillory one, and others exalts as idols to be adored and examples worthy of the emulation of all. In the name of Public Opinion it bestows rewards on some, and punishes others with the severity of excommunication. The question naturally occurs: Who are these repre