“If this yielding, however,” said Sir Peter, “proceeded, not from conviction, but from fear of punishment and ridicule, it may be doubted at least whether your juries are always, in point of fact, unanimous in their verdicts. Many of your jurors may have a strong suspicion, at least, that the verdict should be in some respects different from that which is actually returned. When no verdict has been given in, the public are aware that there was a difference of opinion amongst the jury; but when they do deliver a verdict, it cannot be concluded, in every case, that there was even ultimately an unanimity. We think it better that every man should be left free, after having heard the opinions of others, and consulted with them, to declare what was his own ultimate conviction.”
“But supposing,” the travellers said, “that no decision is come to by the jury after the third attempt, have you made any provision to meet this difficulty?”
“In that case,” said Sir Peter, “the judge decides, as we think he fairly might. Where the contest is about property, we conceive it better that a positive decision should be arrived at rather than that the matter should be left doubtful. We give then, however, a power of appeal to twelve judges, who examine the evidence, and ultimately decide. In a criminal trial we give an absolute power of decision to the judge, leaving him however at liberty if he pleases to pronounce a verdict merely of Not proved; in which case, this verdict is recorded against the supposed culprit, as affecting his character in case of any subsequent charge against him.”
“We strongly suspect,” said the English travellers, “that you are right in this part of your practice; but,” added they with a smile, “you have taken us by surprise in one respect; we did not know you had adopted the opinion of the Quakers we were describing to you,—that oaths were forbidden by the Christian religion.”
“We have adopted their practice,” said Sir Peter, “but not their principles. We do not conceive oaths unlawful, but inexpedient.”
The travellers said, “We perceive you have a substitute for oaths, as far as witnesses are concerned, because you make the triers pronounce as to whether any has been in their opinion guilty of prevarication, while his testimony is still fresh in their recollections: and we also observed that, when the whole trial is over, the triers are called on to decide whether any witness has been in their opinion guilty of perjury. We suppose,” they observed, “that you have a punishment when an affirmative answer is returned?”
“We make the punishment,” said Mr. Benson, “proportioned to the effect which would have been produced by his testimony, supposing it to have been believed true. In all cases, of course, he forfeits office and civil privileges, as a person unworthy of their exercise; and, in some cases, he is fined heavily, or his property is made to pass on to his heir, as if he himself were dead. He may be sentenced, again, to imprisonment and hard labour, or even to death, should his testimony have endangered the life of another.”
“We think,” said the travellers, “that this is certainly capable of securing truth fully as much, and even more than can be effected by an oath; for many will shun falsehood, through fear of detection, who would not scruple to break an oath. But,” they said, “the decision of your juries would appear to us more to be relied on if that decision was given under the sanction of an oath.”
“We doubt it,” said Mr. Benson, “and we strongly suspect that you do not really differ from us in opinion, though you do in practice; because in the case of Quakers and others, who are exempted from the legal necessity of taking an oath, you are in the habit of relying fully as much on their testimony as if they had taken an oath. Now this does not happen, I believe, from your thinking more highly of Quakers than of others, but from your conviction that oaths do not supply any real security. To us, however, it appears that oaths proceed altogether on an erroneous principle. It looks as if you thought that God would not attend to perjury, unless his attention were specially called to the matter. And this is to think as the savages do, who conceive their gods are often asleep or on a journey, and that they notice nothing except so far as they are solicited.”
“But would not your principle,” said the English travellers, “equally militate against prayer of any kind; because God must know our wants, whether we supplicate him or not?”