Some Observations Upon the Civilization of the Western Barbarians, Particularly of the English / made during the residence of some years in those parts.

by John B. Swazey

But aside from principles which control comprehensive forms, like the Family and Government, there are secondary growths, usages (perhaps not referable to any marked rule), which have had powerful influence. For instance, the mode of trying persons suspected of Crime, appears to my poor mind to be very fantastic and irrational. The Barbarians, however, boast of the superiority of their way over all other tribes, ancient or modern.

When a crime has been committed, and some one, suspected, has been arrested, he is brought before a Judge, whose duty it is to see if there be good reasons for the arrest. The very first thing, we should think, would be to ask the accused to give any explanation he may wish. Not at all; he is told to say nothing; for if he do it will be recorded and may go to his hurt. How to his hurt unless he be guilty? How it may be that the accused could, at once, explain everything—but no—the officers who have made the arrest wish to work out a theory of their own; and the Judge, listening to these officers, who are uneducated, rude, and often at work for a large prize, commits the accused to prison to be tried over again, really, at a future day, by some other Judge. Meantime everybody who, upon the theory of the officers, is imagined to know anything, is ordered to give security that they will appear at the next trial, and say what they know. And if a witness cannot give this security (frequently the case with the poor), he is also thrust into prison. In this manner persons, who have been so unfortunate as to be fixed upon by these ignorant officers, are treated like the accused, and put to great inconvenience and sometimes suffering, either in themselves, or their families, or affairs. This goes on—the next trial is postponed, delay after delay, whilst the officers are working out their theory; and finally the accused is discharged and the witnesses also, the whole disgraceful proceeding being a blunder, in which innocent people have been punished as criminal, and the Criminal has escaped! A natural and simple examination of the accused, when first brought before the Judge, would have saved all this loss, suffering, and shame! Such an absurdity can only be to the advantage of the guilty!

A man may be caught under circumstances of guilt so certain that there is no rational hypothesis of innocence. Yet, with the very blood and property of the murdered perhaps upon him, surprised, red-handed in the very act, he will be treated as if he were merely suspect; will be cautioned to say nothing; will have every chance and opportunity to escape by reason of the unaccountable mode of procedure. For he is still innocent. Such is the hypothesis; and disregarding the obvious and simple way of asking for an explanation consistent with innocence (when guilt would be doubly manifest), the other ridiculous hypothesis is maintained, if possible, and the whole community and many innocent people are afflicted and tortured with the most minute and painful investigations (having perhaps no sort of relation to the matter), to see if some doubt may not arise somehow, not as to the guilt, but as to some parts of the case as imagined to be!

Thus, theories of guilt are to be established when the fact is patent, if one will simply look at the proofs immediately at hand!

In this case just supposed, too, there is no trial at all of the man so clearly seen to be guilty. Twelve men are convened by a sort of inferior Judge, first to see how the dead man came to be dead—it is certain as anything can well be! Yet this kind of Court must go through the long, tedious, and painful inquiry, how the man died. Witnesses are dragged from home, from their pursuits, ruined may be; the whole community horrified, and the twelve men kept from home and business, and shocked by the most disgusting examinations of the dead! This whole process seems rather designed to give fees and business to the petty Judge and officers who compose this singular tribunal.

But when this sham Court has got through, the accused meantime, and the witnesses, are still awaiting the real inquiry, which may be put off for many weeks.

When, after tedious delays, twenty-four petty judges, assisted by an officer, having made up their minds to formally charge the accused with the crime, he is brought before a Judge, who is now for the first time to really try the man, another curious thing occurs. The Judge is not trusted alone to proceed—he must have twelve little Judges, and several Lawyers, to assist him. The little judges are the Jury, not selected for knowledge nor excellency, but any twelve men who can be readily got. Generally they are very poor represervatives of even the average wisdom and morality. They know nothing of law, nor of the Court, nor are they in the least competent to undergo the complex, tedious, and artificial trial to which they are about to be put, as well as the accused. However, the business of these twelve is not to look directly at the man and at the clear evidence against him—which might be within even their competency—but they are sworn upon the Sacred Writings and by Jah (under severe penalties) to try the accused according to the Law and the evidence. Now, the Lawyers and the Judge determine as to the law, and the twelve men must obey them as to that—the twelve, however, are to determine as to the evidence. This means—they are to see and hear the witnesses, examine the objects of proof (which may take many days); keep all the statements, conflicting, confused, or other; hear all that the Lawyers may say; watch the demeanour of the witnesses, and of the accused—and they must take the Case as presented and offered to them, however absurd much of it may be—and, finally, after all, they are not to take this Evidence (as it is called) to judge it for themselves—no, they must take it under the direction of the Judge. They are sworn to try according to the Law and the evidence; but evidence means legal evidence! and the Judge (aided by the Lawyers) directs the twelve men as to what is evidence. Under these conditions, one may judge as to the usefulness of this Jury—unless as a contrivance for the torturing of the innocent and the clearing of the guilty!

I was present and examined this matter—for from the common boast of this excellent Jury-mode of trial, I wished to see with my own mind.

At length, the twelve men being confined, so that they cannot escape, in a sort of box; the Judge and the Lawyers being in their places, attired in the absurd wigs and black gowns [phe-ty-kos] (somebody once whispered in my ear, black-guards) [kon-di-to-ri]; the accused is ordered to stand up. The charge of murder is read;—confused by so much barbarous jargon, that no one but the Judge and the Lawyers understand it—in fact, oftentimes do not understand it—and the criminal often escapes trial because the proper jargon has not been used. This mixed tongue is the only one allowed in these trials, and must be taken from the fountain of Wisdom (as the Law book is called containing it). The speech is uncertain, only known to the Lawyers; and a mistake spoils the whole charge. Well, after more or less wrangling among the Lawyers, the charge finally stands. I must explain; there are two sides of Lawyers—one (hired to do so), by every means in its power tries to get the accused discharged, and is helped to do this by all the machinery of the trial—the other merely watches the proceedings, and sees that they are not too absolutely controlled by the other side. The latter, also, open and state the matter, and conduct it; but neither side works simply to obtain the truth. On the side of the accused, if guilty, the truth is not wanted; and, on the other side, there is no interest in the matter which greatly moves. But the interest for the accused may be not merely to gratify, in some cases, powerful relatives, but to obtain as large a sum of money as the Lawyers can get—which, where life is at stake, may be all the accused has now, or may, if discharged, acquire. In fact, in cases of robbery, the Lawyers for the accused may have received their compensation from the very plunder!

The accused says to the charge either Guilty or Not Guilty! This is a mere form. Then the names of the twelve men are called over, to see that none have got away—for it is a hateful and disgusting business often, wherein they instinctively feel they really have no function—and yet enforced upon them, often to their actual great loss and suffering.