FOUNDATION FOR NATIONAL RENEWAL

Crafting a Model Constitution

THE JUDICIARY
TASK 14 - Trial by Jury

Introduction

1. To continue with our considerations of the judicial system, we will this month give more detailed consideration to the problem of trial by jury.

2. Section 80 of our current Constitution provides the following:

The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the parliament prescribes.

3. The essential elements of this section are:

1. It only applies to offences against Commonwealth laws.
2. If the Section applies, trial by jury is mandatory.
3. There is no definition of 'indictment' and this loophole has effectively negated the usefulness of this Section to protect the citizenry from tyrannical government. If the Parliament's legislation does not say, 'this is an indictable offence', there is no right to a trial by jury.
4. There is no definition of eligibility for jury duty. Current practice includes so many grounds for disqualification that the range of people who serve on juries is quite limited.
5. Media reports of major crimes are making it harder to find a jury that has not developed a prior opinion on the guilt or otherwise of the accused.
6. Like the society in general, crime is becoming more and more complex causing some doubt as to the ability of many ordinary citizens on jury duty to comprehend complex issues such as are erupting in white-collar crime.
7. Because of differences in State laws, trials and sentences are likely to be different depending on the State in which the trial is held.
8. There is no definition of what constitutes a jury or what proportion of jurors is required to achieve a decision as to guilt or innocence.

4. By courtesy of Doug Harrison, a series of historical documents are attached as Annex A. These documents shed some light on how we ended up with the system we have. One is moved to hope that our deliberations will be more coherent and that they will lead us to a more rational and workable system.

Considerations

5. The fundamental question here is one of 'checks and balances'. That is, whether or not trial by jury is required as a counter to tyrannical government. Trial by jury was introduced to counter a (well-justified) perception that the courts were on the side of the establishment and therefore not fair to ordinary citizens. It appears to me that, in Australia, the pendulum has swung the other way and now the 'system' bends over backwards to protect the rights of the accused. The question then arises as to the necessity for trial by jury at all. In other words, do we consider the system has such a bias against ordinary citizens that we can't trust the system to operate fairly without employing juries in criminal cases?

6. On the other hand, do we need to include some provision in the Constitution that will protect citizens from tyrannical government at some time in the future and in circumstances that currently we are unable to predict? Or can we frame the Model Constitution in such a way (by adequate separation of powers for example) that a provision for trial by jury for this reason is unnecessary?

7. Quite apart from the above considerations, there remains the second fundamental consideration of ensuring that justice is done. If we consider that a specifically trained judge cannot be trusted to assess the evidence and decide the guilt or innocence of an accused, is trial by jury the best alternative? Perhaps we should consider other alternatives such as using two or three judges in very serious cases.

8. The third fundamental question we should consider is whether or not juries should be able to decide questions of law or whether they should be restricted to deciding the facts. In other words, should juries be permitted to decide that, in this particular case, the law is bad or unjust law?

The Task

9. Do you consider that there should be provision in our constitution for trial by jury?

10. If we decide that a provision for trial by jury should be included in the constitution:

a. In what sort of cases?

i. All criminal cases?
ii All offences with a possible prison sentence of;

one year?
two years?
Three years?
Four years?

iii Civil litigation cases?

b. How should a decision that trial by jury is necessary, be made?

i. by specification in the Constitution?
ii. By application to a higher court?
iii. By random selection?

c. By whom should such a decision/application be made?

i. By the judge?
ii. By the prosecution?
iii. By the accused?
iv. By the parliament?
v. By the Department of Justice?

d. Who should be eligible for jury duty?

i. Everyone?
ii. Everyone excluding MPs?
iii. Only males over 18 years of age?
iv. Only females over 18 years of age?

e. On what grounds, if any, should exemptions be granted?

i. Pregnant women?
ii. Workers?
Iii. Those on the dole?
iv. Ethnic minorities?
v. Busy executives of large companies?
vi. Bosses of small businesses?
vii. One-person-business owners?
viii. Defence personnel?
ix. Police?
x. Drug addicts or alcoholics?
xi. Others?

e. How many citizens should be required to constitute a jury?

f. How should those co-opted for jury duty be compensated?

i. They should receive their normal remuneration?
ii. A fixed allowance based on average weekly earnings?
iii. A fixed allowance based on some other criteria?
iv. By being exempt from any further jury duty?

g. What proportion of jurors should be required to achieve a verdict? 100%?, 50% +1?, 75 %?, 60%?

h. How do we ensure that trial by jury can become a right when a tyrannical government oversteps the mark without incurring the huge costs involved in using jury trials all the time?

i. Should trial by jury be mandatory?

j. Should an accused be entitled to choose trial by jury?

k. Should the prosecution be entitled to insist on trial by judge or jury?

l. If you were guilty of a serious offence, but intended to plead 'not guilty', would you prefer trial by judge or jury?

m. If you were charged with a serious offence, but considered yourself innocent, would you prefer trial by judge or jury?

n. If you were guilty of an offense but considered the law to be wrong or unjust, would you prefer trial by judge or jury?

o. If an accused is allowed to choose trial by jury, should there be a penalty if he/she is convicted to offset the extra costs incurred by the taxpayer?

p. Please add any other comments you might have in the space below.

11. Your response by the end of June 2002 would be appreciated.

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Trial by jury debates @ Con Con ; Melb. 1898

Clause 80 of 1900 Australian Constitution

Clause 79. -The trial of all indictable offences cognisable by any court established under the authority of this Constitution shall be by jury, and every such trial shall be held in the state where the offence has been committed, and when not committed within any state the trial shall be held at such place or places as the Parliament prescribes.

Mr. BARTON (New South Wales). -I have an amendment to propose in this clause. I think it is a little more than a drafting amendment, however. I beg to move-

That the words "established under the authority of this Constitution" (line 2) be omitted, and that the words "exercising federal jurisdiction" be substituted.

The amendment was agreed to.

Amendment suggested by the Legislative Assembly of South Australia:

Omit "shall be by jury, and every such trial" (line 3).

Mr. GLYNN (South Australia). -I hope that the committee will seriously consider this amendment. It was proposed in Adelaide, and by the Legislative Assembly of South Australia. The object of the proposal is to render the Federal Parliament as omnipotent within its own authority as the existing Parliaments of the states are at present. I do not see why we should put any limit on the Federal Parliament within its own jurisdiction such as is proposed in this clause. We are making trial by jury a fixture.

Mr. WISE. -Hear, hear.

Mr. GLYNN. -We should give the Federal Parliament as much latitude in deciding whether trial by jury should be perpetuated as possible. We should not render its power less great than the power which is possessed by the states at present. It is for that reason that the suggestion is made by the Legislative Assembly of South Australia, and I trust that the words in question will be struck out.

Mr. WISE (New South Wales). -I think that the clause as it stands is a necessary safeguard to the individual liberty of the subject in every state. It does not interfere with the right of every state to alter its laws and to deprive its citizens of their liberty of being tried by a jury of their fellow countrymen, but it does say that the Federal Parliament shall be compelled to submit any person accused of a breach of the federal laws to trial before a body of his own fellow citizens, in the state to which he belongs. If this clause were not here offenders under the Federal Parliament might be removed under an executive act from one part of the Commonwealth to another, to be tried by resident magistrates, and the Federal Executive would be given authority which might permit them to tyrannously interfere with the liberties of every subject in the community.

Mr. SYMON (South Australia). -The only argument I have heard in support of the argument of my honorable friend (Mr. Glynn) was that which O'Connell used in the House of Commons. He said that he was concerned in a case in which a prisoner was being tried for murder. The case was tried in Ireland. The one witness who was called for the defence was the murdered man. There was no doubt as to his identity, but the jury found the prisoner guilty.

Mr. HIGGINS (Victoria). -I feel very strongly that, no matter how much we may value trial by jury as a piece of machinery, it is not a matter for this Constitution at all.

Mr. WISE. -It is only for indictable offences committed under laws passed by the Federal Parliament.

Mr. HIGGINS. -But why should we make it a matter for the Constitution, which cannot be affected by anything the Federal Parliament may do, that there shall be a jury for the trial of any indictable offence?

Mr. WISE. -Because it is a safeguard of liberty.

Mr. HIGGINS. -If the honorable member were speaking a hundred years ago he might have expected his remark to be applauded when he spoke of trial by jury as being a necessary safeguard of liberty.

Mr. WISE. -I am speaking of modern times and in view of the decisions of Courts of Equity.

Mr. HIGGINS. -A Court of Equity would not be able to imprison the honorable member, except be were guilty of contempt of court, without trial by jury; they would have no power to put him in prison for an indictable offence, even supposing that the honorable member were guilty of an indictable offence. It would be, in the mouth of any one else but my honorable and learned friend, mere clap-trap to say that trial by jury was a safeguard of liberty at the present time. I agree that it is as well to have a jury in criminal cases; I should like to see the system preserved in such cases. But that is not the issue. The issue is whether we are to stereotype this in the Constitution, and to say, no matter what changes may come about in legal procedure and in the mode of dealing with crimes, that we must have a jury, and that nothing but a change in the Constitution can bring about an alteration. I can tell honorable members that under a similar provision in the American Constitution there has been a great deal of embarrassment, because they have not been able to alter the criminal procedure in order to suit the exigencies of modem times.

Mr. GLYNN. -They have no power to take a majority verdict, for instance.

Mr. HIGGINS. -That may be right or wrong; they cannot have assessors in commercial cases. No matter how important the case may be, nor how large the interests at stake, they have to take the verdict of a common jury composed of men taken out of the street, as it were, although the case may involve huge interests, and be very complicated. There is more and more a tendency for the frauds which take up the time of the criminal courts to be of a complicated nature, often involving difficult questions of accountancy. And is it fair to say that there should be no power to say what class of men shall try a case of that kind? In Victoria, where there have been charges made against the directors of public companies, there has been a general feeling that ordinary juries are not competent to go into the difficult questions of accountancy involved.

Mr. OCONNOR. -This matter does not cover cases of that kind, but relates to matters which are undoubtedly offences under the Constitution.

Mr. HIGGINS. -But the instances I have given serve as an illustration. Under the American Constitution, which is still more stringent, they have no power to vary the constitution of the jury; the kind of jury must always be the common law jury. In dealing with federal functions, or functions which come under the federal law, we should not restrict the Federal Parliament from making its own procedure. I may remind honorable members that the Federal Parliament will have power to deal with bankruptcy law, with company law, and other complicated matters. In view of such intricate affairs being delegated to the federal authority, is it not possible that there will be difficult matters of accountancy cropping up in cases tried under the federal law? I shall, therefore, have much pleasure in supporting Mr. Glynn in this amendment. I may say also with regard to the latter part of the clause, that I think it is still more objectionable. Why on earth should the trial necessarily take place in the state in which the offence is committed? The offence, or alleged offence, may be one which is backed up by the sentiment of the people in the state in which it is committed, and it may be very hard indeed to get a conviction there. My view is that what we want to get is justice-to get the law carried out, right or wrong, and in order to get justice it may often be expedient to have the, trial conducted in a place far removed from where the offence was committed. For instance, if the customs law happens to be agreeable to eleven out of twelve states, but the twelfth state objects to the law, and an accusation is brought against a man in the twelfth state, why on earth should not the trial be removed to where there may be an impartial verdict given?

Mr. BARTON. -Is not every state big enough to have a trial in?

Mr. HIGGINS. -It may be big enough, but every state may have different interests.

Mr. WISE. -A man ought not to be punished for what twelve jurymen think to be right.

Mr. HIGGINS. -It depends upon what the jurymen are. Suppose they happen to be twelve pals of his.

Mr. WISE. -That is his good luck.

Mr. HIGGINS. -Suppose the twelve jurymen happen to be inclined to favour the offender. I do not mean to say, as a rule, that a man ought not to be tried among those who are his neighbours, but I hold that we ought not to put this as a rigid condition within the four corners of the Constitution Act. I shall support my honorable friend now, and if he succeeds in this amendment, then I shall support him if he moves to leave out the latter part of the clause.

Mr. ISAACS (Victoria). -I do not think there is any safeguard at all such as the honorable and learned member (Mr. Wise) has stated. He says it is to safeguard the right of every person charged with an indictable offence to have a jury. To my mind, it is a very proper thing to do. I think, in our present state of development, a man is entitled to have a jury in a case; but it is no fetter on the Federal Parliament, because, when it creates an offence it may say it is not to be prosecuted by indictment, and immediately it does it is not within the protection of this clause of the Constitution. In the United States Constitution, the corresponding clause is "the trial of all crimes, except in cases of impeachment, shall be by jury," which is a very different thing; so that if the Congress of America were to declare any act or default to be a crime, necessarily it could not go on to say, or use any words, or make any provisions by which a person could be deprived of a jury.

Mr. WISE.-Do you think that public sentiment would ever tolerate the punishment of imprisonment for an offence which was not triable by indictment?

Mr. ISAACS. -It is done every day. A man is tried before a magistrate and gets twelve months or two years' imprisonment.

Mr. WISE. -Two years?

Mr. OCONNOR. -Two years, by a court of summary jurisdiction?

Mr. ISAACS. -I will not bind myself down to two years, but it is certainly a year's imprisonment that he gets.

Mr. BARTON. -Then you ought to have very good magistrates.

Mr. ISAACS. -I will say, two years at all events, and in the Court of Insolvency one Judge sits and has power to inflict imprisonment to a very considerable period. Whether it is right or whether it is wrong, I think a man should have, for what are known as criminal offences, a right to a jury. But this clause as it is framed will not conserve that right. It does not use the word "crime"-it uses the words "indictable offence"; and all the Legislature has to do is to say that an offence shall be prosecuted by information or shall not be tried by indictment, and there is no right to a jury at all. The moment the offence is not an indictable offence, then it ceases to be one which comes within the purview of this clause.

Mr. OCONNOR. -You may trust the Parliament not to increase the list of offences to be dealt with by summary jurisdiction.

Mr. ISAACS. -Then you may trust the Parliament not to wipe out the right to a jury? I am not arguing against the right to a jury, because I think that, except in certain cases of summary procedure, a man has a right to have a jury, and public sentiment would not at this day allow that right to be swept away. If this is intended to fetter the Federal Parliament it partly fails in that intention.

Mr. GLYNN (South Australia). -I would like, in order to have this point a little more carefully considered, to point out that this is one of the original amendments which were put in the American Constitution. At the meeting of nine states in New York in 1765, in the Declaration of Rights against England, it was declared that trial by jury, which it was then feared was being attacked by England, was one of the inalienable rights of every British subject in the colonies, and many of the states which took part in that Declaration of Rights in 1765 subsequently refused to join unless a similar provision was put in the American Constitution. I ask on what grounds are we to follow the precedent of America in this matter? There is no reason why we should do so. It is simply the copying, without the existence of the same necessity, of a clause in the American Constitution. On the ground that you should not fetter the omnipotence of Parliament, I hold that the words ought to be struck out.

Mr. SYMON (South Australia). -I shall vote with my honorable friend (Mr. Glynn). Although at first I was inclined to say that these words ought to be put in, I think now they are very much better left out. I think that in cases where it is desirable that a man should be tried by a jury the Federal Parliament will confer that right. If there are cases in which some other mode of trial ought to be prescribed, I think we may rest assured that the necessary provision will be made by the Federal Parliament.

Question-That the words proposed to be omitted stand part of the clause-put.

The committee divided-

Ayes ... ... ... ... 17

Noes ... ... ... ... 8

Majority against the amendment 9

Clause 79. -The trial of all indictable offences against any law of the Commonwealth shall be by jury, and every such trial shall be held in the state where the offence was committed, and if the offence was not committed within any state the trial shall be held at such place or places as the Parliament prescribes.

Mr. BARTON (New South Wales). -I beg to move-

That the words "of all indictable offences" (line 1), be struck out, and that the words "on indictment of any offence" be substituted.

The object of this amendment is simple. As the clause stood it provided that the trial of all indictable offences against any law of the Commonwealth "shall be by jury." This meant that, however small might be the offence created by any Commonwealth enactment, supposing an offence that should be punishable summarily, it would, nevertheless, have to be tried by Jury. Then there are cases of contempt which are, we know, indictable offences, and these, under the clause, would have to be tried by jury. The better way, however, is as we suggest, that where there is a power of punishing a minor offence summarily, it may be so punished summarily. But where an indictment has been brought the trial must be by jury. The object was to preserve trial by jury where an indictment has been brought, but such cases of contempt should be punishable by the court in the ordinary way. The clause as it stood would compel the trial of all contempts by jury, and so. in regard to a large number of minor cases with which, of course, it would be necessary to deal promptly by way of summary procedure. There will be numerous Commonwealth enactments which would prescribe, and properly prescribe, punishment, and summary punishment; and if we do not alter the clause in this way they will have to be tried by jury, which would be a cumbrous thing, and would hamper the administration of justice of minor cases entirely.

Mr. ISAACS (Victoria). -When the clause was before us previously, I pointed out that I did not think it would have any real effect at all, because it is within the powers of the Parliament to say what shall be an indictable offence and what shall not. The Parliament could, if it chose, say that murder was not to be an indictable offence, and therefore the right to try a person accused of murder would not necessarily be by jury.

Mr. BARTON. -It might drive the Commonwealth to deal differently with this class of offences.

Mr. ISAACS. -It might. If you say "on indictment of any offence," if it means proceedings by means known technically as indictment, that could be got over by what is known as a presentment, and then the trial need not be by jury at all. It could be got over in various ways by saying that the jury should be composed of two persons, or, of only one person. The alteration here proposed prevents the difficulty Mr. Barton refers to, but I must say that I do not see much effect in the clause as it stands in regard to preserving in all circumstances trial by jury.

Mr. DOUGLAS (Tasmania). -There are many offences dealt with summarily which are indictable, and we must be careful not to do away with summary jurisdiction. That would not be at all desirable.

The amendment was agreed to.

Trial by jury (Isaacs 1898)

P 350 Melb. Mr. ISAACS (Victoria). -I do not think there is any safeguard at all such as the honorable and learned member (Mr. Wise) has stated. He says it is to safeguard the right of every person charged with an indictable offence to have a jury. To my mind, it is a very proper thing to do. I think, in our present state of development, a man is entitled to have a jury in a case; but it is no fetter on the Federal Parliament, because, when it creates an offence it may say it is not to be prosecuted by indictment, and immediately it does it is not within the protection of this clause of the Constitution. In the United States Constitution, the corresponding clause is "the trial of all crimes, except in cases of impeachment, shall be by jury," which is a very different thing; so that if the Congress of America were to declare any act or default to be a crime, necessarily it could not go on to say, or use any words, or make any provisions by which a person could be deprived of a jury.

Mr. WISE. -Do you think that public sentiment would ever tolerate the punishment of imprisonment for an offence which was not triable by indictment?

Mr. ISAACS. -It is done every day. A man is tried before a magistrate and gets twelve months or two years' imprisonment.

Mr. ISAACS. -I will say, two years at all events, and in the Court of Insolvency one Judge sits and has power to inflict imprisonment to a very considerable period. Whether it is right or whether it is wrong, I think a man should have, for what are known as criminal offences, a right to a jury. But this clause as it is framed will not conserve that right. It does not use the word "crime"-it uses the words "indictable offence"; and all the Legislature has to do is to say that an offence shall be prosecuted by information or shall not be tried by indictment, and there is no right to a jury at all. The moment the offence is not an indictable offence, then it ceases to be one which comes within the purview of this clause.

Mr. OCONNOR. -You may trust the Parliament not to increase the list of offences to be dealt with by summary jurisdiction.

Mr. ISAACS. -Then you may trust the Parliament not to wipe out the right to a jury? I am not arguing against the right to a jury, because I think that, except in certain cases of summary procedure, a man has a right to have a jury, and public sentiment would not at this day allow that right to be swept away. If this is intended to fetter the Federal Parliament it partly fails in that intention.

AND LATER (p 1895 Melb. 1898)

Clause 79. -The trial of all indictable offences against any law of the Commonwealth shall be by jury, and every such trial shall be held in the state where the offence was committed, and if the offence was not committed within any state the trial shall be held at such place or places as the Parliament prescribes.

Mr. BARTON (New South Wales). -I beg to move-

That the words "of all indictable offences" (line 1), be struck out, and that the words "on indictment of any offence" be substituted.

The object of this amendment is simple. As the clause stood it provided that the trial of all indictable offences against any law of the Commonwealth "shall be by jury." This meant that, however small might be the offence created by any Commonwealth enactment, supposing an offence that should be punishable summarily, it would, nevertheless, have to be tried by Jury. Then there are cases of contempt which are, we know, indictable offences, and these, under the clause, would have to be tried by jury. The better way, however, is as we suggest, that where there is a power of punishing a minor offence summarily, it may be so punished summarily. But where an indictment has been brought the trial must be by jury. The object was to preserve trial by jury where an indictment has been brought, but such cases of contempt should be punishable by the court in the ordinary way. The clause as it stood would compel the trial of all contempts by jury, and so. in regard to a large number of minor cases with which, of course, it would be necessary to deal promptly by way of summary procedure. There will be numerous Commonwealth enactments which would prescribe, and properly prescribe, punishment, and summary punishment; and if we do not alter the clause in this way they will have to be tried by jury, which would be a cumbrous thing, and would hamper the administration of justice of minor cases entirely.

Mr. ISAACS (Victoria). -When the clause was before us previously, I pointed out that I did not think it would have any real effect at all, because it is within the powers of the Parliament to say what shall be an indictable offence and what shall not. The Parliament could, if it chose, say that murder was not to be an indictable offence, and therefore the right to try a person accused of murder would not necessarily be by jury.

Mr. BARTON. -It might drive the Commonwealth to deal differently with this class of offences.

Mr. ISAACS. -It might. If you say "on indictment of any offence," if it means proceedings by means known technically as indictment, that could be got over by what is known as a presentment, and then the trial need not be by jury at all. It could be got over in various ways by saying that the jury should be composed of two persons, or, of only one person. The alteration here proposed prevents the difficulty Mr. Barton refers to, but I must say that I do not see much effect in the clause as it stands in regard to preserving in all circumstances trial by jury.

Against trial by jury (Glynn 1898)

Mr. GLYNN (South Australia) The object of the proposal (to delete any reference to trial by jury) is to render the Federal Parliament as omnipotent within its own authority as the existing Parliaments of the States are at present. I do not see why we should put any limit on the Federal Parliament within its own jurisdiction such as is proposed in this clause. We are making trial by jury a fixture. We should give the Federal Parliament as much latitude in deciding whether trial by jury should be perpetuated as possible.

Mr. GLYNN (South Australia). -I would like, in order to have this point a little more carefully considered, to point out that this is one of the original amendments which were put in the American Constitution. At the meeting of nine states in New York in 1765, in the Declaration of Rights against England, it was declared that trial by jury, which it was then feared was being attacked by England, was one of the inalienable rights of every British subject in the colonies, and many of the states which took part in that Declaration of Rights in 1765 subsequently refused to join unless a similar provision was put in the American Constitution. I ask on what grounds are we to follow the precedent of America in this matter? There is no reason why we should do so. It is simply the copying, without the existence of the same necessity, of a clause in the American Constitution. On the ground that you should not fetter the omnipotence of Parliament, I hold that the words ought to be struck out.

Mr. SYMON (South Australia). -I shall vote with my honorable friend (Mr. Glynn). Although at first I was inclined to say that these words ought to be put in, I think now they are very much better left out. I think that in cases where it is desirable that a man should be tried by a jury the Federal Parliament will confer that right. If there are cases in which some other mode of trial ought to be prescribed, I think we may rest assured that the necessary provision will be made by the Federal Parliament.

Fourth Paper

From article by Graham Fricke QC 1997: www.aph.gov.au/library/pubs/rp/1996-97/97rp11.htm

Those who have studied such matters and those who have had experience of the jury system have generally favoured the system as one which facilitates the democratic participation of the community in the administration of justice. Lord Devlin observed that each jury 'is a little parliament'. He added that the first object of any tyrant 'would be to make parliament utterly subservient to his will'; the next would be 'to overthrow or diminish trial by jury'. He concluded with characteristic eloquence that trial by jury is more than an instrument of justice and more than one wheel of the constitution: 'it is the lamp that shows that freedom lives'. (7)

In Australia, judges and retired judges have made similar observations. The former ACT justice Xavier Connor QC has listed some of the features of the system:

• The twelve jurors chosen at random are likely to represent community views and values in a way that a single judge does not.
• Trial by jury is democratic in that the community participates in a vital way before people accused of serious crime can be convicted.
• Juries, because they do not give reasons for their decisions, can bring the conscience of the community to bear on issues in a trial in a way that a judge cannot do.
• The community participation in the administration of criminal justice, by way of jury service, promotes an understanding of the system and confidence in it in a way that no other system does.
• Trial by jury is and is seen to be a system better adapted than any other to preserving the liberty of the subject against oppression by the State.(8)