Page images
PDF
EPUB

:

tion of the jury system into the two first by the legislature, affords an unpleasant illustration of the value of the argument. Besides, courts of equity never had any criminal jurisdiction, and when serious questions of fact came before them, they directed an issue to be tried by a jury; and if their own decisions on facts were not very often egregiously wrong it would be little short of miraculous ; for the witnesses were excluded from the presence of the judge, who therefore could not judge of their demeanour, but delivered their evidence in secret before an officer of the court, in the shape of a formal deposition, which was returned to the judge to make the best he could of it.

And now one word with reference to a favourite theory of those who in the present day attempt to disparage our common-law mode of trial-viz. : that although suitors in the county courts have the option of having their cases determined by a jury, ninety-nine cases out of one hundred in those courts are disposed of by the judge (Brown, p. 6). There is an easy answer to this. The immense inajority of the cases tried in those courts are of so trivial a nature, that it is far better they should be disposed of in a summary way, even at the risk of occasional misdecision. The bringing them before a more regular tribunal would indeed be

“Ocean into tempest wrought,

To waft a feather, or to drown a fly." Nor does this make in the slightest degree against my general argument. A court consisting of a single police magistrate is a very proper tribunal to try an ordinary case of assault, but a most improper one to determine a case of high treason. And although occasionally cases of some importance arise in County Courts, it is to be observed that the County Court Act, 9 & 10 Vict., c. 95, s. 70, is worded very insidiously, and apparently with the intention of bringing the jury system into disrepute. Having constituted the judge of the county court the tribunal for deciding matters of fact in general, it enacts “it shall be lawful for the plaintiff or defendant to require a jury to be summoned”—thus putting the party who desires a jury in the olious position of telling the judge that he has no confidence

a

in him; the judge who must preside, and direct the jury when summoned. It is not surprising that few litigants like to put themselves in that position. Mark the different language of the Common Law Procedure Act, 1854, s. 1. This Act retains the trial by judge and jury as the ordinary mode of trial, but enacts," the parties to any cause may, by consent in writing, &c., leave the decision of any issue of fact to the court, &c., provided that the court or a judge shall, in their discretion, think fit to allow such trial ;” and it is found in practice that the number of litigants who avail themselves of this boon is very small indeed. No, the enemies of our institutions—theorists, adulators of the civil law, or absolutists— must find some better proof than the practice of the county courts, that Englishmen are tired of the jury.

Having thus endeavoured to state my views on this most important question, I must now conclude by thanking the society for the patience with which they have listened to so long an address. That there is much room for reform in the working of our jury system—with respect to the class of persons summoned on juries, and in the mode of drawing up the panel—is indisputable; and the sooner these needful reforms are effected the better. But great and momentous is any proposal for the abolition of the system itself. The legislature will then have to determine whether this mode of trial by judge and jury, which has been practised and upheld with enthusiasm by Englishmen for so many centuries, has been either a delusion from the beginning, or a system which, having served its turn, must now be cast aside as a piece of antiquated lumber. Let us hope that the question will be discussed with intelligence and without prejudice. “The children of Time,” says Lord Bacon, “do take after the nature and malice of the father; for, as he devoureth his children, so one of them seeketh to devour and suppress the other; while antiquity envieth that there should be new additions, and novelty cannot be content to add, but it must deface. Surely the advice of the prophet is the true direction

1

1 Advancement of Learning, Book I.

in this matter_State super vias antiquas, et videte quænam sit via recta et bona, et ambulate in ea. Antiquity deserveth that reverence that men should make a stand thereupon, and discover what is the best way; but when the discovery is well taken, then to make progression."

[ocr errors]

201

XII.-ON THE LAW AND PROCEDURE FOR THE SUP.

PRESSION OF CORRUPT PRACTICES AT ELECTIONS. BY THOMAS PHINN, Esq., Q.C.

[Read 30th January, 1860.]

It has long been a subject of grave complaint that all the efforts of the legislature to check the corruption which pervades our electoral system have been ineffectual. Neither candidates, agents, nor voters, have been deterred from the commission of grave offences by threats of imprisonment, heavy pecuniary penalties, civil disqualification, or disfranchisement.

Judicial corruption, once rife, is now unknown. No suspicion crosses the mind of the suitor of the purity or integrity of the judge. Official corruption, the favourite theme of satirists, has, if not entirely extinct, disappeared from among the higher class of servants of the crown, and is rarely imputed to the very lowest ; and parliamentary venality, the purchase of votes in the House by the minister, formerly the avowed mode of government, is so completely eradicated from our system, as not in our hottest and most envenomed party contests to be imputed to one another by political antagonists.

These forms of corruption have disappeared, not so much under the action of legislation as by the unsparing and unswerving condemnation of public opinion, and the degradation, social and moral, affixed to the offence. Electoral corruption survives, condemned indeed by law, but under a conventional toleration, which has almost superseded and rendered nugatory the several enactments levelled against it.

It is then a fair subject for inquiry, whether our legislation is founded on wise principles; or whether the law, just in its inception, becomes futile in its operation, as not being in harmony with public opinion, and, therefore, not enlisting in its favour the sympathies of the community.

a

It

appears to me that our laws are in some respects based on wrong principles, as founded on an erroneous view of the relations of the candidate and the constituent; that they are too favourable to the briber, though severe enough against the bribed ; that with this exception they are defective, not so much in their provisions for the punishment of corrupt practices when discovered, as in salutary enactments for their prevention and detection. But grave defects exist, in the tribunals constituted to administer the law of parliament, in the law itself, and in the procedure before such tribunals; their action is slow and uncertain, cumbrous and precarious ; whilst the enforcement of the law depends on the passions or the caprices of individuals, instead of being deemed an object of the highest solicitude by the state.

In ancient times, the view entertained of the relations between the representative and his constituents, was that he was intrusted with the discharge of an honourable but onerous trust; that so far from incurring expense from the discharge of his duties, he was worthy of remuneration for his exertions; and that the constituency which required his services was bound at least to indemnify him from pecuniary loss. During this period, from these and various other causes, electoral corruption was comparatively unknown; the position of a member of parliament conferred little social distinction or real political power. He was either a courtier, or engaged in a struggle, under great personal disadvantage, with the crown. There was but little scope for his ambition, no chance of advancement or preferment, unless from the favour of the crown. In fact, it is not until the reign of Elizabeth that we meet with any instance in our annals of corrupt means being resorted to, to obtain a return to the House of Commons. In that reign, as is well known, Thomas Long, of Westbury, having given the returning officer of that borough £4 to be returned, the borough was amerced in L20, the member removed, and the returning officer fined and imprisoned, and also ordered to return the bribe, and to cancel all securities given him by the member. And in the succeeding reign, Mr. Lovell, having given some money, but very little, to the eleo

.

a

« EelmineJätka »