Good men and true
Richard West The threat of a libel action has stopped Lord Denning's latest book, What Next in the Law, so we may never know the views of Britain's wisest judge. Since the threat came from two Bristol people of African or West Indian origin, we must assume that Lord Denning wrote something critical of the process of law that followed the riots in the St Paul's district of Bristol, after police had raided a club where marijuana was smoked. We must assume, since we cannot know, that Lord Denning is critical of the Juries Act (1974) removing the property qualification for jurors. It has been alleged already, and still I trust is legal to argue, that lawyers are now able to 'pack' juries to get a verdict favourable to a client of some ethnic, religious or even political group. If Lord Denning did in fact raise this ques- on, he merely reintroduced an argument Which is almost as old as our law. The com- position and vagaries of the jury were a constant cause of debate in Victorian times, especially with regard to Ireland. Thanks to the jury system, the British could never really control or punish the Irish nationalists. One of Trollope's earliest novels , The Kellys and the O'Kellys, begins with the great excitement over whether the Crown could manage to get a jury to con- vict Daniel O'Connell, the greatly adored Catholic leader; even the Whitehall govern- ment was amazed as well as delighted when, somehow, a diehard Protestant got on the Jury unchallenged. In Maurice Healy's wonderful book The Old Munster Circuit We hear of the judge who told a man in the b: (32t; 'You have been acquitted by ,a L imerick jury and you may now leave the dock without any other stain upon your character.' It may have been to the same ac- cused that Richard Adams, the judge, said: by Murphy, you have been acquitted ny these 12 jurors of the crime of which you were charged. Take a good look at them, Pat; study their faces well; for I give you my solemn promise that if you are found guilty before me of doing to any one of them what ?`°1-1 did to the prosecutor in this case, you won't get a day's imprisonment for it.' ha Most of the odd verdicts of Irish juries ct something to do with sectarian „,rtvalties. An Ulster lawyer, John Bartley, ,-,as once asked suspiciously by the judge: Cis there any question of religion in. this answered: Mr Bartley?', to which he benignly the 'No religion at all, my Lord; all Ile Parties are Presbyterians.' The same Mr Barley said of his fellow Presbyterians: 'It isn't a religion at all, 'tis a trade union it is!' and he used to explain the differences in the Presbyterian faith: 'I'll tall ye. A Calvinist Prasb'tayrian believes all you Papishes wull be domned because ye're predastined to be domned; but we or'nary Prasb'tayrians b'lieve all you Papishes wull be domned on yer mer'ts!' One might have thought that barristers such as Bartley enjoyed a natural advan- tage, since jury service was open only to property-holders, of whom a dispropor- tionate number were Protestants. People involved in legal disputes tended to get a lawyer of their own faith. Yet clever Catholic lawyers knew how to get a Catholic jury. Maurice Healy tells of a case in Cork, where juries were normally fair but where, for once, fury was roused on sec- tarian grounds: the Protestant Irish Times had published a statement that Canon Maclnerney, a highly esteemed Catholic priest, had allowed a member of his flock to die like a dog, without the consolations of religion. The canon issued a writ and Healy's uncle was hired for the prosecu- tion. At first things looked bad. 'We're beaten, Mr Healy,' said the clerk. 'There are four Protestants to one Catholic on the panel.' But Uncle Tim was not dismayed. `Challenge for cause!' he cried. 'Now when a juror is challenged for cause, the next two jurors on the list are immediately sworn without right of challenge, and they hear evidence and decide whether the cause shewn is good.' Tim Healy challenged one Alexander McOstrich, a well-known stockbroker and Presbyterian. 'How many shares in the Irish Times company do you
hold? . None . . What! Do you swear you have no interest in the company? . . When did you get rid of your shares? . . . Does your wife hold any, or did she ever?' At last, he asked Mr McOstrich to go and fetch his bank book. Then Tim Healy told Mr McOstrich: 'I erred in my suspicions a little while ago. I admit I cannot shew cause against your serving as a juror, but 1 will challenge you peremptorily instead, and thus, perhaps, relieve you of a duty you might have found unpleasant.' One might have thought that Healy had lost this en- counter. Far from it: `McOstrich withdrew, probably rather pleased than otherwise to have escaped service; the calling of the panel continued. Not a Protestant answered. Few people care to have their bank accounts examined in open court. The Catholic jurors, however, had no dread that anyone would ask to see their bank ac- counts; and twelve good Papists were sworn to try the issues in the cause.'
The reputation of Irish juries was good compared to that of juries in Sierra Leone, our little colony in West Africa. Moreover, some of the allegations then made against juries in Africa are reproduc- ed in a different fashion by modern critics of juries in England; perhaps by Lord Den- ning, did we but know. Sierra Leone was a special kind of colony. It was founded in 1787 by Evangelicals in order to make a home for the very large black population of London, most of whom came from Britain's North American colonies and did not want to go back to slavery in the new United States. Several hundred were per- suaded to start a new life in Sierra Leone, where they were later joined by blacks from Canada, Jamaica and, after the abolition of the slave trade, by people rescued from slaving ships, known as 'recaptives'. The Evangelicals hoped that Sierra Leone would be a self-governing settlement based on a kind of Anglo-Saxon system of law and government, with frankpledge, hundreds and trial by jury. Gradually it developed in- to a colony, like the Gambia, the Gold Coast or Nigeria, but the blacks, or rather the settler families (not so much the in- digenous Africans), still held more rights than elsewhere in Africa, and more rights than most people in England at that time. The jury system was famous, or infamous, according to one's view of the natural ability of the Africans.
The White Man's Grave or the Devil's Poste Restante, as Sierra Leone was sometimes called, has a frightful climate that lends itself to litigiousness. As early as 1790, the settlers had a passion for going to law, especially the women. 'For one man, four women were said to bring action in the Petty Courts. No wonder if amid so much female litigation a Scolds Act was passed condemning women convicted of defaming their neighbours to a public ducking in the harbour' (Christopher Fyfe's A History of Sierra Leone). There had long been hostility .among the settlers from England, Canada and Jamaica, to which was added rivalry between different tribes of `recaptives'. The Yorubas, known as Akus, were particularly clannish. To quote Fyfe again: 'It was said Aku policemen would not inform on other Aku, and that Aku jurors, a high propor- tion among those qualified, discussed cases with their leaders and went into court with a ready-made verdict.'
The whites loudly complained of legal ac- tion taken against them, and of their con- viction by black jurors. A Dr Bradshaw who struck an African groom in 1864 was sued for £200 and settled for £30. A lawyer, Thomas Marston, who kicked an African tailor out of his yard, had to pay £50 damages. An Aku jury had helped one of their own. The explorer and scholar Sir Richard Burton encountered similar troubles in Sierra Leone, and gave a memorable verdict upon its jury system:
`The British Constitution determines that a man may be tried by his peers. His peers at S'a Leone are perhaps a dozen full- blooded blacks, liberated slaves, half- reformed fetishmen, sometimes with a sneaking fondness for the worship of Shango, and if not criminals in their own country, at least paupers clad in dish-cloth and palm-oil. It is useless to "challenge" for other negroes will surely take the place of those objected to . . . The judge may be
"touched" with the tarbrush but be he white as milk he must pass judgment accor- ding to verdict, and when damages are under £200 there is no appeal . . . Our forefathers never dreamed that the liberty and the institutions for which during long centuries they fought and bled, would thus be prostituted — be lavished upon every black recaptive, be he assassin, thief or wizard, after a residence of some fourteen days in a dark corner of the British Empire . . .' Perhaps Lord Denning made those points. Now we shall never know.
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