MARGINAL COMMENT
By HAROLD NICOLSON
T HAVE always felt that the jury system is one of the main j foundations of human liberty. It is with happiness and pride that I recall that June afternoon at Runnymede when it was agreed that inquisitions into mort d'ancestor, darrein presentment and Novel disseisin should be held by two justices travelling upon regular circuits. I am glad to think that it was then also decided that earls and barons were to be amerced by their peers, and that the amerce- ments of more humble individuals must be assessed henceforward by the honest men of the neighbourhood. A system which admits of third-party judgement is clearly preferable to despotic impulsive- ness or the cold slow cruelty of totalitarian States. I should not, were I involved in a criminal trial or a civil action, feel confidence in the 'ancient processes of divination, whether coscinomancy or axinomancy. Much injustice must have been occasioned in the past by the practice of forcing a suspected murderer to touch the corpse of his victim, at which, if the suspect were guilty, the wounds would " open their congeal'd mouths and bleed afresh." Such methods belong, not to modern jurisprudence, but to the Niebelungenlied. Even more should I have disliked being obliged to carry red-hot iron in order to prove my innocence, or being forced, as the mother of Edward the Confessor was forced, to walk bare footed over nine glowing ploughshares. These Anglo-Saxon methods of trial by ordeal were, after the Conquest, superseded by the wager of combat. It is true that if one were very infirm one could hire a tough to do this battle for one. Yet if I became involved in a civil action with one of our national newspapers I should have an uneasy feeling that the Press Baron involved could" hire a tough more expensive than any I could myself afford. I am thus relieved to feel that wager by battle was abolished in 1818, and that even the duel, which succeeded it as a means of direct action, has now fallen out of fashion. Had I to fight a duel today I should be very frightened indeed. It is certainly more agreeable, and undoubtedly more fair, to be tried by twelve honest men and women of the neighbourhood.
* * * However much one may esteem a principle, the true test comes when that principle is applied in practice. A week or so ago I received a polite notice from the High Court of Justice informing me that I was invited on a specified date to serve upon a jury and to continue that service for such further days as the Court might decide. It seemed to me a capricious and arbitrary act on the part of the Lord Chief Justice, who has some forty million potential jurors at his disposal, to pick on a busy bee like myself. This disrespectful and unwarranted reaction was immediately quenched within me by an uprise of civic worth and by the comforting reflection that the Lord Chief Justice had failed to notice that I was above the statutory age. With some pleasure I replied to this summons by pointing out that owing to approaching senility I was not qualified to serve upon a jury, and that were I to obey his summons the resulting trial and verdict might be held to be null and void. I was then informed that it was to no common jury that I had been summoned but to a special jury ; and that therefore the age limit did not apply. Resigning myself to the inevitable, I cancelled all my engagements and prepared to play my part as an honest man of the neighbourhood in dispensing justice to my fellows. It was with a face set in firm judicial lines, with a heart glowing with civic sacrifice, that I took a bus to the Strand and entered the grim portal of the Law Courts. Within a short space of time I had answered to my name, grasped a testament in my hand, taken a fine oath, and become empanelled.
* * * The Magna Carta feel tends, I admit, to become slightly deflated when one is thereafter informed that one is not wanted and must go away, on condition that one turns up in the same place the next morning at ten of the clock. To be deprived in this careless way of the first fine hour of the morning's work is a distressing experience for any writer. There must, I feel sure, exist some good reason for this cat-and-mouse policy. After all, no judge can foretell how long any given case is likely to last, and if the preceding case runs over into the next morning it is obvious that the jury empanelled for its successor must be told to go home. I admit, moreover, that the sense of wastage occasioned by this dismissal is mitigated by the extreme courtesy of the court officials, whose sympathy and con- sideration are humane. But it is certainly inconvenient not to know in advance how long this duty is to be imposed upon one and which of one's future engagements must be cancelled and which can take their chance. I stilled my irritation by the reflection that what for me was a mere inconvenience represented for the unhappy litigants a crucial and perhaps tragic episode in their lives. It was unseemly to feel impatience in such circumstances, and as I boarded my bus homewards I repeated to myself the lines in the Rape of the Lock in which Pope reproved all jurors who allowed their personal con- veniences or appetites to interfere with the slow and scrupulous administration of justice. No wretch, I resolved, should hang because I wanted to keep a luncheon engagement. Revived by Pope, the Magna Carta feel returned.
. * * *
I have not, as yet, been placed in the dock ; I have only attended a trial or a civil action once or twice in my life. Thus when I was at last called and found myself sitting with my eleven fellows in the jury box I felt as if the whole majesty of the law had descended upon me ; I felt important, excited, awed. For those who are interested in the quirks and jerks of human conduct, for those who are fascinated by the special manner adopted by those who follow an esoteric calling, it is in truth a strange experience to sit all day in a wooden box and to watch people behaving as they behave. I am unaware of the hierarchy of the legal profession, but it was evident to me that they were -all very much aware of it themselves. The manner adopted by the Clerk of the Court was more proprietary than the manner of the solicitors' and barristers' clerks who hurried into the court-room and deposited files upon the desks ; yet they also indicated by the familiarity of their movements that, unlike us, they were part of the show. The Judge's attendant who, a few minutes before the proceedings opened, came in and placed a cushion on his chair did so with a hierophantic gesture by which I was deeply moved. There was a noticeable difference between the way in which the barristers strolled into the Court and the way the solicitors hurried or the witnesses shambled reverently. I was glad to observe a slight, although quite comradely, distinction in the relationship between the senior and the junior counsel, which recalled to me the intricate patterns of intimacy woven in the House of Commons between the Ministers, the Under Secretaries, the Parliamentary Private Secretaries, die Whips and the back-benchers. Under all this apparent nonchalance there seemed to lie a keen sense of status and function ; I was enthralled to observe these grades of significance. And then the Judge entered and we all bowed deeply to each other and Justice loomed.
* * * To the lawyers present the case before us must have seemed a very ordinary piece of litigation ; not sensational and yet not simple in the least. But for me, sitting there hour after hour bunched in that cloistral room, it seemed that I had been admitted (or perhaps conscripted) into a new world. How solemn, how beneficent, I felt, are the functions of a juryman ! The facts of any case may appear simple on paper ; but when one watches the movements of the hands and lips of litigants and witnesses one realises that it is a fine system which provides that the assessment of credibility or the reverse should be entrusted to twelve disinterested men and women, whose experience of life enables them to differentiate human values sensibly. I came away wishing that I had chosen the law as my profession. I also might by now be arrayed in scarlet and fur, applying all my knowledge and intelligence to the discovery of truth, being lucid and benign. But all I could do was to be a juryman ; not a bad thing to be.
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