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

How the scene fairly opens. The twelve little judges in their box; the big one sitting aloft, with pig-tail-ear-flapper wig; the Lawyers in pig-tail wigs and gowns; the officers of the Court; the witnesses, cowering and afraid; the accused in his high, strong cage (or box); and the spectators, friends, relatives, associates of the witnesses and of the accused—women and men—crowding in the dark corners of the Hall of trial.

The Lawyers call and examine the witnesses. These are not permitted to tell the truth in their own way at all. They are sworn upon the Sacred Writings, upon pain of penalties of the Law, and the dreadful fear of the awful Jah and Hell, to speak the truth, the whole truth, and nothing but the truth! Now, the truth which they are to speak must be that sort of truth which the Lawyers and the Judge determine upon to hear—not by any means that truth which the witness, in his simplicity, is about to utter! Here, then, an honest and conscientious witness is likely to be at once bewildered; but a callous, self-possessed one, who does not intend to say one word more than he can help, finds himself doing exactly what the Lawyers and the Court understand by the oath—that is, to speak for the one side or the other; not for truth!

Consider the position of a witness, perhaps a timid woman, or an inexperienced person, never before called upon to take the awful oath, never before in such a place! Confronted, made to stand up, thrust without respect, sometimes rudely and with positive disrespect; treated, in fact, as if a party to the crime, though perfectly ignorant of anything excepting of some chance link required in the theory of the charge—thrust forward into the gaze of the Judge, of the whole assembly. Every eye is fastened upon the trembling witness. She is ordered in a rough tone to hold up her hand, to take the oath, to kiss the Sacred Writings! What with the crowd, the novel and painful position, by this time the poor woman, when asked a question, can scarcely speak. The old, half-deaf Judge, turns his awful be-wigged head to her, raises his ear-flapper and says, "Speak louder, witness; I can't hear you." An officer bawls out, "Silence!" and, not unlikely, the poor witness fairly collapses, faints, and she is allowed to be seated.

The Lawyers examine the witnesses, and if one begins to say something very damaging, if possible, will interrupt him; or, by and by, will insinuate some vile charge against him, to destroy his character with the hearers—not that there be any truth in the insinuation, but merely to effect the purpose of a vile minion paid to defend, perhaps, a notorious offender!

Thus the trial proceeds; every effort is made on the side of the accused (which is the active side) to mislead, to confuse, to bewilder. The Law, read from big books, is constantly referred to, now to stop a witness in what he is about to say; now to get something already said scratched off from the minds of the twelve men; and now to take the opinion of the Judges as to whether this or that should, or should not, be heard by the Jury.

All these things go on day after day, not at all because there is any doubt as to the guilt of the accused, but because by these confused and interminable proceedings, the Lawyers who act for him expect to get him discharged—and discharged, declared by the twelve men to be not guilty! This is the great point; for, if this occur, it does not matter at all that the accused himself confess to the crime, on no account can he ever be arrested again for the offence! "But how, when the proofs of guilt are present and so certain, can the Lawyers expect to get the twelve men to go against their very senses?" To answer this is to show the nature of the Jury system very plainly.

When all the wranglings and speeches and Law-readings of the Lawyers have at last ended; when the Judge—who has in the course of the trial already loaded the twelve with all sorts of instructions as to what they are to keep in mind as legal evidence, and what they are to leave out of mind—has made a long and confused speech (often interrupted by the Lawyers) recapitulating those parts of the conflicting mass of evidence which, and only which, is evidence, and has told them the manner in which this evidence must be applied to the charge; has finally told them that the crime charged must be the precise crime laid down in the Law-books by that name, and none other; and that having found beyond all doubt that that crime, upon the legal evidence, has been committed, then has the accused committed the crime so defined, and so proved? To be certain of this, the accused must not only be found to have done it, but he must have known that he was doing it—that is, he must have been sound in mind. And if in any of these particulars there be any doubt, the accused must be acquitted; and further, every one of the twelve must agree—if any one withhold his assent, then the prisoner cannot be declared to be guilty!

With all these clear and simple directions (!) as to how they are to use their minds, an officer leads the twelve into a strong-room, and fastens them in! to consider their verdict (as it is called). Not to consider simply and directly upon the plain evidence of their senses, and according to reason ordinarily used, but to consider their Verdict—a technical, artificial affair, made by the Lawyers, and only fit for their minds—if even they could do anything satisfactory to an honest man with it!

The twelve are locked in and guarded by an officer; deprived of food, of rest, of any recreation; perhaps already exhausted from the hair-splitting [di-do-tzi] and intricate directions and proceedings. They are Sworn to give their verdict according to the Law (first) and the Evidence (second). The evidence, however, being all law. Then, too, they are to say either Guilty, or not guilty; and no more.