Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
(?-1899)
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1881
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New York: Maynard, Merrill, and Co.
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1899
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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JURY

II.223.1

JURY, Trial by. The jury system, both as a judicial and as a political institution, is one of the most conspicuous features in the modern state, and it is peculiarly the offspring of the English people. It has been carried into the remotest parts of the earth and established there by Englishmen, and in those parts of the civilized world into which it has not been introduced by them, it has been established by others, who confessedly adopted it from England. Our own writers have made the system of trial by jury the subject of extravagant praises, and those of other peoples have lauded it as one of the foundations of English greatness and of English liberty. De Tocqueville, for instance, says, "If it had been as easy to remove the jury from the manners as from the laws of England, it would have perished under the Tudors; and the civil jury did in reality, at that period, save the liberties of England." Other writers have in like manner exalted it, and at every new distribution of political power on the continent, trial by jury has been specified as one of the rights of the people, the introduction or extension of which has been most loudly demanded.

II.223.2

—There have been many theories of the origin of the jury, which need here only to be referred to; they are elaborated in the works the titles to which are given at the end of this article. From them it will be seen that the jury has been derived from the institutions of the Greeks and Romans, as well as from the earliest tribunals of the Teutonic peoples, and that analogies have been carefully drawn between it and the ancient Scandinavian assemblies. Blackstone thinks it was in use "among the earliest Saxon colonies"; it was long popularly supposed to have been established as a completed institution by Alfred the Great, and it has been traced to the assises de Jerusalem of Godfrey de Bouillon, and thought to have been introduced into England by the Normans. Without considering any of these theories, and without undertaking to fix the very time or place of the origin of the jury system, it will be sufficient for the purposes of this article to begin with that in its history which is certain, and to give a brief account, I., of its development from that point; II., of its present form, III., of its extension; and IV., of its advantages, its evils and the remedies for them.

II.223.3

—I. History. The jury was undoubtedly developed from the early judicial customs of the Teutonic peoples, and can be directly connected with the system of compurgation which prevailed among the Anglo Saxons. Its positive history may be said to begin with a trial between Gundolph, the bishop of Rochester, and Pichot, one of the king's sheriffs, of the title to certain lands in Kent, of which the ownership was in dispute between the king and St. Andrew. This is the first case of which we have any record, in which the decision was rendered by a limited number of suitors, or pares curiœ, upon oath. From the record it appeared that the king commanded that all the men of that county, Kent, should be convened, in order to decide which had the better title. But they, being intimidated by the sheriff, affirmed it to be the land of the king rather than that of St. Andrew. The bishop of Baieux, the king's justiciary, however, did not trust to their decision, and commanded, that if they knew what they said to be true, they should select twelve of their number, who should confirm by their oath that which all had said; but the twelve, after they had retired to consult and had been alarmed by a message from the sheriff, swore on returning, that what they had already said was true. And so the land remained in the king's hands. But in the same year, a monk by the name of Grim came to the bishop, and, having heard what the twelve had sworn, with wonder and detestation asserted that they were all of them perjured. For Grim himself had been the overlooker of the lord of Fracheham, and had taken services and customs for that manor, and had had one of those who had so sworn under him in the same manor. This was communicated by the bishop of Rochester to the bishop of Baieux, to whom Grim gave the same account. The justiciary then caused one of those who had so sworn to come before him, who, when he had come, falling at the bishop's feet, confessed his guilt. Another, who had sworn the first, made the like confession. The rest of the jurors were then, by the order of the bishop as justiciary, sent to London. All being assembled at London, it was adjudged both by French and English that all the twelve were perjured. On this condemnation the bishop of Rochester had his land again. It appears also, from this account, that twelve others de melioribus comitatus were called to account for having confirmed what the others had sworn, and that when these affirmed that they had not agreed with those who had so sworn, the bishop said they should prove their assertion by the ordeal of iron; this they promised to do, but being unable to perform their promise, were by the judgment of the county fined in the penalty of £300 to the king. (Textus Roffensis, Thorpe. 31.) Mr. Forsyth insists that the twelve here were merely compurgators, while Mr. Starkie thinks the case a precedent which must have had much weight, and which established if it did not introduce the trial by jury. The weight of authority, as well as the apparent probabilities of the case, indicate that the practice or custom described in the foregoing account was the beginning from which that institution which was incontestably the trial by jury was developed by the Norman lawyers during the time of the Plantagenets.

II.223.4

—The next landmark is the treatise of Glanvil, which was written about 1187. Glanvil speaks of trial by ordinary assize and jurata patriœ as forms of trial already in existence, and thus describes the grand assize which has been recently established as a method of trying the title to land, rights of advowson, and claims of vassalage. "This," he says, "is a certain royal benefit bestowed upon the people and emanating from the clemency of the prince, with the advice of his nobles—regale beneficium clementia principis populis indultum. So effectually does this proceeding preserve the lives and civil condition of men, that every one may now possess his right in safety at the same time that he avoids the doubtful event of a duel. This legal institution flows from the most profound equity * * *; by so much as the testimony of many credible witnesses in judicial proceedings preponderates over that of one only, by so much greater equity is this institution regulated than that of the duel; for, since the duel proceeds upon the testimony of one juror, this constitution requires the oaths of twelve lawful men at least." (Glanvil, lib. ii., c. 7.) He then continues to describe the workings of the grand assize as follows: "When the assize proceeds to make the recognition, the right will be well known either to all the jurors, or some may know it and some may not, or all may be alike ignorant concerning it. If none of them are acquainted with the truth of the matter, and this be testified upon their oaths in court, recourse must be had to others until such can be found who do know the truth of it. Should it, however, happen that some of them know the truth of the matter and some not, the latter are to be rejected, and others summoned to court, until twelve at least can be found who are unanimous. But if some of the jurors should decide for one party, and some of them for the other, then others must be added until twelve at least can be obtained who agree in favor of one side. Each of the knights summoned for this purpose ought to swear that he will neither utter that which is false nor knowingly conceal the truth. With respect to the knowledge requisite on the part of those sworn, they should be acquainted with the merits of the cause, either from what they have personally seen and heard or from the declaration of their fathers, and from other sources equally entitled to credit as if falling within their own immediate knowledge."

II.223.5

—From this description it is clear that at this time the jurors of the grand assize were mere recognitors, that is, that they were to deliver their verdict upon their own knowledge of the facts in question. In order to obtain the required unanimous verdict of the twelve, resort was had to the practice of afforcing, by which was meant, dropping jurors who were ignorant of the facts in cases of disagreement, and adding others in their stead, until twelve were obtained who were unanimous. Afforcement, however, appears to have very early fallen into disuse, and there was some doubt whether thereafter the verdict should be rendered by a majority of the original jurors—as was done, for instance, in one case in 20 Edw. III., in which C. J. Thorpe took a verdict from eleven of the jurors, for which, however, he was reproved—or whether a unanimous verdict was required, which latter rule seems to have become established during the reign of Edward III. The names of those who were to serve on the grand assize being known beforehand, endeavors to make sure of a favorable verdict were naturally to be anticipated, and in proof of this fact it is to be noticed that three different statutes of Edward III. are directed against the bribing of jurors.

II.223.6

—The precise time of the establishment of the grand assize is not known, but the use of recognition by twelve or more witnesses is provided for in the constitutions of Clarendon, 1164, in cases of dispute as to the title of lands between a layman and a clerk, and the statute of Northampton, 1176, provides for the recognition of the claims of heirs before the itinerant justices. The grand assize was, it has been suggested, only the technical form of the jurata patriœ, which was a form of trying the title to lands by the swearing as to the same by the whole community, and afterward by a number selected from the community. Certainly the distinction between the jurata patriœ and the grand assize seems to have been very early lost, and both became known as the jury. With the establishment of justices in Eyre and the increasing number of suitors who resorted to the king's courts, the grand assize superseded the ordinary assize referred to by Glanvil, and recognition of facts in the manner described by him became part of its regular business. Trials in these courts were both by assizes and juries, but the former gradually fell more and more into disuse, although as a distinct manner of trial it existed until 1838, and was only abolished by 3 and 4 Wm. IV., c. 27.

II.223.7

—The writers succeeding Glanvil are Bracton, Britton, and the author of Fleta, by each of whom the jury of the assize is further described. Bracton, stating the grounds for exemption from service on the jury, says, that the same causes which disqualified a man from testifying were good grounds of objection to his serving on the assize, and he enumerates as such, conviction for perjury, serfdom, consanguinity, affinity, and enmity or close friendship with the other party; and he continues, the objections having been disposed of, the jury were sworn and retired to consult upon the verdict, and until they had agreed no one was allowed access to them. If they could not agree, new recognitors, equal in number to the minority, were added, and the verdict was then rendered by the twelve who were found to agree. If, however, any of the jurors were ignorant of the facts of the case, others who knew the truth, were added in their stead, and the truth was then declared. Down to the time of the writers last mentioned the jurors were, as we have seen, mere recognitors deciding upon their own knowledge. The next step forward consisted in adding to their own knowledge that of others, thus making the jurors judges of evidence; but before considering this, it is proper to examine the jury for the presentment and trial of criminals. Its origin is not clear, but from the time of Henry IV. its development is marked by stages which correspond to those in the history of the assize. It has been supposed that a law of Ethelred, which is still extant, was the source both of this and of our whole system of jury trial. That law reads as follows: "Et habeantur placita in singulis Wapentachiis; et exeant seniores xii. tayni et prepositus cum eis, et jurent super sanctuarium quod eis dabitur in manus quod neminem innocentem velint accusare vel noxium concelare et omnis infamatus homo vadat ad triplex ordalium, vel reddat quadruplum." But while the whole jury system can not be traced to this statute, as some writers seem to have supposed, the jury provided for by it may certainly be considered the foundation of the subsequent grand jury. The criminal jury has also been traced to this statute, but not definitely, and while its origin may not be determined, its history, says Mr. Stubbs, from the year 1166 is clear, and he continues: "By the assize of Clarendon, inquest is to be made through each county and through each hundred, by twelve lawful men of the hundred and by four lawful men of each township, by their oath, that they will speak the truth. By these, all persons of evil fame are to be presented to the justices. and then to proceed to the ordeal. If they fail in the ordeal, they undergo the legal punishment; if they sustain the ordeal, yet as the presentment against them is based on the evidence of the neighborhood on the score of bad character, they are to abjure the kingdom. The jury of presentment is reduced to a still more definite form. and receives a more distinct representative character in the assizes of Northampton, and in the articles of visitation of 1194. In the latter capitulary the plan used for nominating the recognitors of the grand assize is applied to the grand jury, for so the body now constituted may be termed. In the first place, four knights are to be chosen for the whole county, who by their oath shall choose two lawful knights of each hundred or wapentake, or, if knights be wanting, legal and free men, so that these twelve may answer under all heads concerning the whole hundred or wapentake. The heads on which they answer include not only the assizes which have been already referred to in connection with the jury, but all the pleas of the crown, the trial of malefactors and their receivers, as well as a vast amount of fiscal business. The latter development of these juries does not fall under our present inquiry, but it may be generally stated thus. At an early period, even before the abolition of ordeal by the Lateran council of 1215, a petty jury was allowed to disprove the truth of the presentment, and after the abolition of ordeal that expedient came into general use. The further change in the character of the jurors by which they became judges of fact instead of witnesses, is common to the civil and criminal jury alike." (Stubbs' "Constitutional History of England," vol. i., chap. xiii.)

II.223.8

—We have now only to follow the course of that change. The first step toward it was, as has been seen, the addition of witnesses to the jury. The verdicts of both the jurata and the assize were in the beginning based exclusively upon the personal knowledge of the jurors. Naturally, however, each juror must have more or less supplemented his own knowledge by that of his cojurors. This would be especially true in cases where the issues were complicated, and the appreciation of this inevitable fact very soon created two apparent exceptions to the rule that verdicts were rendered only upon the personal knowledge of the jurors. These were, first, the trial per patriam et testes, which had become a common practice during the reign of Henry III., in cases where the question was of the existence of a deed; and, second, the trial per sectam, which appears to have grown up between the time of Glanvil who does not mention it, and of Bracton who describes it. The trial per patriam et testes was at first allowed only in cases where deeds were in dispute, and it grew naturally from the early practice of deciding such cases by single combat, in which one of the attesting witnesses served as the plaintiff's champion. When the single combat fell into disuse, the writ to the sheriff, in those cases which had formerly been decided in this manner, commanded him to summon the witnesses named in the deed, which had been brought into court, together with a certain number of witnesses, to make recognition as to the fact in dispute. Subsequently merchants and traders were in like manner allowed to prove the fact of payment or of debt, per testes et patriam. The trial per sectam was where a party had made his claim inde producit sectam, i.e., offered to produce a number of witnesses who had been present at the transaction in dispute, to sustain his position. If the defendant could then produce a greater number of secta, he had his cause; if not, he lost it: but if he offered any other defense than a denial, such as a deed, then the plaintiff was not allowed to offer rebutting secta, but the trial must be had per patriam, or per patriam et testes nommatio in carta quam, etc. These exceptional methods of trial prepared the way for the change from mere recognition by the jurors on their own knowledge, to the system in which the jury ceased to be witnesses, and gave their verdict upon the evidence submitted to them by others. The first step toward this important change which can be clearly distinguished, is the adjoining of the witnesses to the jury, in the twenty-third year of Edward III. This was for the purpose of assisting the jury by means of the knowledge of the witnesses so adjoined. The latter, however, had no voice in the verdict, which was to be accepted even though it was opposed to the evidence of these witnesses. The range of the jury was thus greatly extended; and although the jurors still decided on their own knowledge, and were still, therefore, taken from the vicinage, this enlargement of the sources of their knowledge carried with it some important consequences. First, the educating influence of service on the jury was greatly increased by requiring jurors to draw conclusions from the testimony of others. Second, it was the foundation for the law of evidence. Very early, great care had been found necessary to exclude from the consideration of the jury all improper or corrupted evidence. This was done by requiring the evidence to be given in the presence of the court, and subsequently by the establishment of rules respecting its production. This change began probably very soon after witnesses were adjoined to the jury, as is shown by the report of a case in the eleventh year of Henry III.. in which a verdict was set aside because a jury, on retiring to consider their verdict, had taken with them an escrow which had neither been proved in evidence nor delivered to the court. A third consequence of this enlargement of the functions of the jury was the creation of a field of activity for the advocate. With the handling of witnesses and the construction of their testimony for the juries, came the opportunity for the whole of the lawyer's forensic activity. Finally, it is to be noticed that through this change the cruel practice of attainting the jury fell into disuse. Attainting the jury was the only means of obtaining a new trial in cases of a mistaken or corrupt verdict. Twenty-four jurors were summoned to try the truth of the former verdict, and if they found the former jury to have rendered a false verdict, all of its members were arrested and imprisoned, their lands and chattels forfeited, they became no longer "oathesworthe," says Bracton, and at one period it was provided that their wives and children should be turned out of their homes, and their houses and fields destroyed—a punishment which, however. was subsequently commuted by a pecuniary penalty. So long as the verdict of the jurors was rendered solely on their own knowledge, a verdict which was false must have involved perjury, and these severe punishments were perhaps justifiable; but when the verdict might, if wrong, be merely in consequence of a mistaken view of the evidence of the witnesses, such punishment became manifestly excessive. Some attempts to punish jurors under color of attaint were made under the Tudors, and the system of attaints was then expressly repudiated; but although it had long fallen into complete abeyance, it was not abolished until 6 George IV. After its disuse the means of correcting mistakes in a verdict were left unprovided for until the seventeenth century. when the introduction of new trials afforded a remedy, and the first of these of which we have any record was in 1665.

II.223.9

—The last step in the history of the development of the jury. is the limitation of its functions to rendering a decision solely upon the evidence submitted to it by the witnesses, and in eliminating the traces of the original functions of the jurors as recognitors and mere witnesses. The principles which necessitated such a change it has been said are obvious: the discovery of the truth was made more difficult, rather than more certain, by the fact of the residence of the jurors in the neighborhood of the disputed fact, and the rules as to venue grew after a while so complicated and troublesome that it became desirable to get rid of them. The number of hundredors on the inquest was altered from time to time, and finally the laws requiring jurors to be summoned from the hundred or vicinage were abolished in all civil actions by 4 and 5 Anne, c. 16, and 24 Geo. II., c. 18, and the jurors were thereafter drawn from the whole county. These statutes, says Mr. Starkie, are indirect authorities for the position that jurors should not still render verdicts on their knowledge of the facts. The granting by the courts of new trials, on the ground that the verdict was against evidence, is a direct authority to the same effect. In the first year of Anne's reign this transition may be said to have been completed and clearly defined by a decision found in 1 Salk., 405, to the effect that if a jury give a verdict of their own knowledge they should so inform the court that they may be sworn as witnesses, and that they ought fairly to tell the court that they had evidence to give as witnesses, before they were sworn as jurors—We have thus arrived at the existing form of the jury. Resting upon the earliest legal institutions of the Teutonic races, it was at first a body chosen for its special knowledge of the facts in dispute, the members of which decided those facts upon their personal knowledge of them. Next, witnesses were added. and the jurors decided upon the evidence given by them as well as upon their own personal knowledge. Finally, the witnesses were separated from the jury, and the jurors became thereby the judges of the evidence of witnesses, and found their verdict solely from such evidence.

II.223.10

—The origin of the rule that the verdict of the jury, both in civil and criminal cases, should be unanimous, lies in the fact that the jurors were at first only witnesses. The opinion of twelve was fixed as the least amount of evidence which would be accepted as final, and the jury was afforced until at least twelve agreed. In what manner twelve came to be selected as the requisite number, admits perhaps of no more scientific explanation than that offered in the "Guide to English Juries, by a Person of Quality," published in 1682, and ascribed to Lord Somers. The author says: "In analogy, of late the jury is reduced to the number of twelve; like as the prophets were twelve to foretell the truth; the apostles twelve, to preach the truth; the discoverers twelve, sent into Canaan to seek and report the truth; and the stones twelve, that the Hierusalem is built on; and as the judges were anciently twelve to try and determine matters of law; and always when there is any waging law, there must be twelve to swear in it."

II.223.11

—II. Present State of the System. The jury, the growth of which has thus been outlined, was cherished by the English colonists who brought it hither, as one of the dearest of their institutions. It was in general use during the colonial period, and it is expressly protected by the 5th, 7th and 8th amendments to the constitution of the United States, and in the constitutions of most of the states. From these constitutions, and from the statutes passed under them, it appears that in this country the system of trial by jury in criminal cases is universal, and that while in civil causes it is generally used, it may, in most of the states, be waived upon the consent of the parties. Four distinguishing elements also are manifest.

II.223.12

—1. The jury must be composed of twelve persons. It is, however, provided in Arkansas, Colorado, Connecticut, Indiana, Iowa, Kentucky, New York and Texas, that the parties may agree upon a smaller number in certain cases. In several of the states, also, provision is made for a jury of six in the justices' and county courts, and the constitutions of Georgia, Colorado, Louisiana and Michigan declare that the legislatures of these states may provide for a jury of less than twelve, but of this power no use has been made.

II.223.13

—2. The jury must be drawn from the vicinage—the district or county within which the trial is held—and from the whole number of the qualified citizens not expressly exempted by statute. The origin of the rule as to vicinage has already been given. The statutory definitions of those qualified to serve are, generally, that a juror must be in possession of his faculties and of fair character and intelligence. In some states a property qualification is also required. It seems clear from these statutes that jury service is a duty due from the citizens to the state, which the state may exact from all, and which it does exact from the largest possible number. Certain persons are exempted because their occupations are either necessary to the public or are of such a nature that they can not be delegated, or that they can not be withdrawn from them without great loss. These exemptions include, generally, all public officers, active professional men, teachers, telegraph operators and firemen; and the exemption laws in many states throw a curious and suggestive light upon the progress and pursuits of their people. Such, for instance, are those in the west. exempting one miller to each grist mill, and a ferryman to each ferry, in the east, exempting factory employés, bankers and police; in New York, exempting employés upon the canals; and in Kentucky the disqualification of any one as a grand juror who within six months preceding has for a reward stood a horse, jack or bull. In the states of Kentucky, Oregon and Maryland, the statutes declaring who may be summoned still speak only of white persons. These provisions, however, have been made practically nugatory by the decisions of the United States supreme court in Strauder vs. West Virginia, 100 U. S. 303, Virginia vs. Rives, 100 U. S. 313, Ex parte Virginia, 100 U. S. 340; and Neal vs. Delaware, 103 U. S. 370. These cases declare the civil rights bill constitutional, and hold that, under it and the 14th amendment, it was a right of colored men. when charged with criminal offenses, to be tried by a jury indifferently selected without regard to the color of the jurors. The decision in Ex parte Virginia goes further, and decides that the enjoyment of this right by colored criminals renders it necessary that colored men shall be called to serve, and thus indicates that jury service is to be considered not only as a duty which may be exacted by the state, but as a privilege which may be claimed by the individual.

II.223.14

—3. The verdict of the jury must be unanimous. This is the invariable rule in criminal cases; generally also in civil cases; but in California three-fourths may render a verdict in such cases, and in Louisiana "if nine or more agree upon a verdict it shall be recorded." The historical origin of the requirement of unanimity has been given, but it appears now to be arbitrary and unreasonable, and the tendency of the better professional opinion seems to be clearly in favor of a modification of the rule. The law writers and philosophers have been unsparing in its condemnation. Hallam speaks of it as "a preposterous relic of barbarism"; Bentham disapproves of it; the common law commissioners in 1830 said, "It is difficult to defend the justice or wisdom of the rule"; and, in his "Fundamental Constitution of Carolina," Locke declared, "that it should not be necessary for a jury to agree, but that the verdict should be according to the opinion of the majority."

II.223.15

—4. The jury must be impartial. This is of its essence. It is in the main sought to be accomplished by the manner of selecting the jurors, and by giving to the parties the right of challenging the jurors chosen. First. Manner of selecting jurors. The method of selecting ordinary jurors is invariably by some form of lot. Lists of jurors are prepared by designated country officers, and from these lists county or court officers, select the panel required, usually by drawing the requisite number of names from a box containing all of those upon the prepared list. The particular arrangements, however, are various, and minutely regulated in each state by statute. The complaints and criticisms of the jury system arise largely from the execution of these statutes, and in several of the large cities a class of hangers-on about the court houses, and of disreputable attorneys, have become known as "jury fixers." They pretend to be, and in many cases undoubtedly are, able, through political influence or open bribery, to secure the impaneling upon a jury of one or more persons through whom a disagreement or verdict may be obtained. It need only, however, be pointed out that such results are attained through the evasion or breach of purely administrative laws. Such abuses furnish an argument for the purification and reform of the civil service of that locality in which they occur, but they have nothing whatever to do with the merits or demerits of the system of trial by jury. In 1879 congress sought to provide a remedy for some of the alleged evils in the selection of jurors in the United States courts, by enacting that all jurors should be "publicly drawn from a box containing the names of not less than 300 persons, * * *, which names shall have been placed therein by the clerk of such court and a commissioner to be appointed by the judge thereof, which commissioner shall be a citizen of good standing, residing in the district in which such court is held, and a well known member of the principal political party in the district in which the court is held opposing that to which the clerk may belong, the clerk and said commissioner each to place one name in said box alternately, without reference to party affiliations, until the whole number required shall be placed therein." The effect of this law, as was well said by Gen. Garfield in the debate upon its passage, is "to put into the jury box a man recognized as a political partisan, and then another beside him recognized as belonging to another political party, to administer justice." While it is difficult to ascertain accurately how such a statute really operates, it seems to be the fact, that in certain political cases, such as those for the violation of the election laws, it amounts to a legalization of "jury fixing." Nevertheless the general adoption of such a system as is provided for by this statute has been urged as a remedy for the packing of juries. But it is an aggravation, not a remedy. Second. The right of challenging. Challenges may be made, First, to the array, which is an objection to the entire panel as arranged by the officers in charge because of some error or partiality in obtaining the panel, which must, from its nature, necessarily affect all the jurors obtained. Second, to the poll, for which the causes are: 1st, propter honoris respectum, as when a peer is summoned, which does not exist in the United States; 2d, propter defectum, which may arise from a lack of the statutory qualifications; 3d, propter affectum, which may arise from partiality on account of relationship, from an interest in the result of the trial, from conscientious scruples in capital cases, or from declarations of opinion as to the result; 4th, propter delictum, or conviction of a crime. In some states all challenges are decided by the court; in others, triers are appointed by the court, usually two in number, to try whether the jurors challenged "stand indifferently." Third. Peremptory challenges. It is provided that any person on trial for a capital offense or other felony, and in some states, also for a misdemeanor, shall be entitled to challenge peremptorily, without assigning any cause, a fixed number of jurors.

II.223.16

—Under this head of securing impartiality in the jury there are also to be noticed special provisions in some of the states such as that in New York providing for a "foreign jury" in cases where a claim involving a general interest of the inhabitants of a particular place or county is to be litigated, and it is thought that an impartial jury can not be had a that county or in the neighboring county. In such cases a jury from another county can be obtained, upon sufficient proof of the circumstances. Such also is the provision for trial by a jury de mediatate linguœ, which may still be had in Kentucky. This is a jury one-half of which must consist of aliens, and may be had whenever one of the parties is an alien. It originated in a charter of Edward I. providing for the safety of foreign merchants sojourning in his realm, and was abolished in that realm by the naturalization act in 1844. With these safeguards thrown about the system it is next provided in Arkansas, California, Colorado, Connecticut, Iowa, Kansas, Kentucky, Massachusetts, Michigan, Minnesota, Nebraska, New Jersey, New York, North Carolina, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, the Virginias, and in the United States courts, that a jury may be waived in all civil cases upon the consent of the parties, which must usually be written, and filed with the clerk of the court. In Florida and Missouri a jury may be waived in cases of misdemeanor as well as in civil cases, in Indiana it may be waived in all cases not capital, and in Maryland in all cases. A provision in Connecticut for the waiver of a jury in criminal cases was repealed in 1878.

II.223.17

—That which has thus far been said upon the present state of the jury system is applicable mainly to the petit or trial jury. There is also to be considered The Grand Jury. This, in criminal cases, presents by an indictment an accusation against an offender, to a court having jurisdiction to take proceedings for his arrest and punishment. The members of the grand jury are drawn by the sheriff or other county officer, and are usually twenty-three in number. Having listened to a charge by the judge, they retire to consider the complaints, and hear the witnesses produced before them. They are the exclusive judges of the evidence submitted to them, and twelve of them at least must agree that it makes out a prima facie case against the accused, before the grand jury can find a "true bill," as it is called, against him. If they deem the evidence insufficient for this purpose, they "ignore" the bill. The prosecuting officers of the county present the indictments, with the testimony in support of the same, to the grand jury, and are allowed to be present and advise them, except when they are taking a vote. The proceedings of the grand jury are secret. The constitutions or statues of the states all provide that no person shall be held to answer for a capital or otherwise infamous crime unless on presentment or indictment of a grand jury. The origin of this rule has been seen. In England, especially during the Stuart reigns, it proved to be another and valuable safeguard for the liberty of the individual, and in times of great popular excitement it might still prove to be necessary as such, with us. It seems now, however, to be cumbersome and generally superfluous. As a matter of fact the duties of the grand jury are substantially performed by the district attorney; and if the inferior magistrates empowered to commit offenders deserve any confidence at all, it should be unnecessary to have the grand jury again go over the ground which has already been covered by them, in order to put an accused person on his trial.

II.223.18

Coroners' Juries. It is provided that whenever any person shall have been found dead or dangerously wounded, the body must remain untouched until the arrival of the coroner, who shall then summon a jury of twelve, or of between nine and fifteen persons, from among those qualified for jury service in that county, but who must not be related to the deceased or to his slayer, if he be known or suspected. The jury thus impaneled must then, together, view the body, after which they retire and take testimony as to the manner of the death or wounding. They shall then return a written verdict setting forth the time and place at which the deceased or wounded came to his death or was wounded, who he was, at whose hands it came about, and all the circumstances concerning the same. If any of these facts shall remain unknown to the jury, they shall set that forth. In England a person accused by the coroner's jury may be put on his trial at assizes without further indictment. In Massachusetts the office of coroner has been abolished, and in other states, and especially in large cities, a strong feeling exists that some much more efficacious method may be devised of determining the cause of death, and the identity of the criminal, if there be one, than by the machinery of the coroner and his jury.

II.223.19

The Special Jury. This, says Blackstone, was "originally introduced in trials at bar when the causes were of too great nicety for the discussion of ordinary freeholders." Generally in this country where it is made, on proper affidavits, to appear to a court that a fair and impartial trial by jury of an issue of fact can not be had, or that the importance or intricacy of the case demands a special jury, the court will order such a jury to be struck. This is done by the selection, by some county officer, in the presence of the parties or their attorneys, of forty-eight persons from those upon the jury lists. He must select those whom he considers most indifferent to the parties, and best fitted to decide the cause, and from this number the parties strike off alternately the names of proposed jurors until but twenty four remain, from which list the trial jury is then selected in the usual manner. Trials by a special jury are seldom granted; that of Tweed in New York is the most notable recent instance—Sheriffs' Juries are impaneled by that officer to try the title to goods seized by him when they are claimed by a third party. Sheriffs' or special juries are likewise granted in proceedings de lunatico inquirendo, and in most of the states also, under certain special laws, such as that to inquire into the value of property claimed as exempt from execution under the homestead acts, and to inquire into various questions of fact arising under laws relating to highways. A Jury of Matrons was formerly impaneled upon a writ de ventre inspiciendo, in cases where a widow was supposed to intend to defraud the next heir, by claiming falsely to be with child, for the purpose of determining whether she was or not, and also in cases where a female under sentence of death claimed to be pregnant. In the latter case a jury of physicians, as in New York, is now usually provided for.

II.223.20

—From the time of Queen Anne, at least, the province of the jury has been to decide the facts in issue upon the evidence of the witnesses, and to render a statement of their decision, called a verdict, vere dictum, to the court. In criminal cases this may be partial, finding the accused guilty on some counts and acquitting him on the rest, or finding one of several accused guilty, and acquitting the others. A general verdict pronounces upon all of the issues, and a special verdict finds only the facts, leaving the court to decide which of the parties should receive judgment, and the courts of most states may direct a special verdict, which must be in writing. The verdict being rendered may be set aside by the court if contrary to the evidence, or if the court holds it to be for an excessive amount, in civil cases. With the growth of democratic ideas there has been a manifest tendency to make the juries in criminal cases the judges of the law as well as of the facts. And in several of the states of the Union they are expressly made such, in cases of libel. This provision has a common origin with the English libel act of 1792, providing that the jury may in libel cases render a general verdict of guilty or not guilty upon the whole matter put in issue, which sprang from Lord Mansfield's celebrated charge and judgment in Rex vs. Woodfall, and the ensuring discussion thereon. Our provisions, however, are much broader than Fox's act. In some of the United States—Georgia, Louisiana, Maryland, and optionally in Minnesota—in all criminal cases the jury are to be the judges of both law and fact, a provision which, in Illinois at least, has been practically annulled by the supreme court of that state, and the repeal of which has been actively urged. In Indiana the province of the judge has been further encroached upon by a provision giving to the jury which convicts an offender of a capital offense, the right to decide whether he shall be punished by death.

II.223.21

—III. The Extension of the Jury System into Foreign Countries. In Scotland the jury seems to have been established at as early a date as in England, but though preserved in criminal it was very early discontinued in civil cases. In criminal cases the Scotch jury has always consisted of fifteen persons, a majority of whom may render a verdict, which need not be "guilty" or "not guilty" as elsewhere, but may be "not proven," which releases the accused while it brands him with the accusation. The civil jury was reintroduced into Scotland by 15 George III., c. 42, in a special court established for the purpose. That court has now, however, been abolished, and the civil jury is used as in England, except that if the jurors fail to agree within six hours they must be discharged. In Ireland the jury is substantially the same as in England, and when provision was made in the repression bill of 1882 for trials in certain cases without juries, the Irish judges met and passed resolutions protesting. In the island of Jersey the grand custoumier of Normandy is still the authority, and some curious features prevail. The petit jury in criminal cases consists of policemen, and an appeal may be taken from their verdict to the grand enquete or jury of twenty-three.

II.223.22

—In France. The national assembly declared, April 30, 1790, that there should be a jury in criminal cases, and that there should not be a jury in civil cases. Since that time the principle of trial by jury has remained settled, although almost numberless changes have been made in the features of the system by some sixty different laws on the subject. At present there is no civil jury except en matiere d'expropriation, and in criminal cases trial may be had by jury only in cases of felony. There is no grand jury; the verdict of the trial jury is rendered by the majority, and may be accompanied by a recommendation to mercy. No person can serve upon a jury who has not reached thirty years of age and is not in the full enjoyment of his civil and political rights.

II.223.23

—In Germany. The jury was introduced by the French into the Rhine lands during the revolution, and has been, with many fluctuations, confirmed and extended in criminal cases since that time. It was established in Prussia in 1819, and again by the constitution of 1848, and by the law of June 3, 1849, but political offenses were withdrawn from its operation in 1851. The system was also adopted by Bavaria and Hesse in 1848, by Wurtemberg and Baden in 1849, and by Austria in 1850. With the agitation of the question of a common criminal procedure for the new empire, the abolition of trial by jury was seriously considered. Prussia first proposed the substitution of sheriffs' courts in its stead, but this had to be relinquished, in consequence, as one writer natively remarks, of the overwhelming prejudice of the "non-jurists"—the people—in favor of the jury system. Finally, by sections 79-99 of the Gerichtsverfassungsgesetz all criminal offenses except treason, political crimes. and offenses of the press, are made triable by jury.

II.223.24

—In Belgium the jury has existed since the separation from Holland, and it is especially provided by the constitution that political offenses and those of the press shall be tried by jury.

II.223.25

—In Switzerland all crimes against the confederation are to be tried by jury. For other crimes each canton has its own machinery; in Geneva, the most important, the jury is in vogue, and a verdict is permitted of "guilty under extenuating circumstances" and "guilty under very extenuating circumstances."The jury system has, of course, been established in all the colonies of Great Britain substantially as in the mother country. and is in use in all the South American republics. It was introduced into Greece in 1834, and is guaranteed by the constitution of 1844. It was also established in Portugal in 1837. It has been introduced into Spain, into Italy, into Brazil, and finally into Russia, where the first trial by jury was held Aug. 8, 1866; and in each of these countries the verdict is rendered, as in France, by the majority.

II.223.26

—IV. Advantages of the Jury, its Evils and the Remedies. In summarizing the advantages of the jury system it is to be said, that as a political institution the jury has been, and still is, a necessary and most efficacious guaranty against the arbitrary exercise of power; that it diminishes the inevitable antagonism between the government of the state and its individual members by increasing the participation of the latter; that jury service is one of the duties of citizenship the performance of which best fits men to enjoy the privileges thereof, since it imposes upon individuals a sense of responsibility which directly educates their sense of personal dignity and self-respect. As a judicial institution the jury secures the publicity of the administration of justice, which is one of the safeguards of its purity. A number of ordinary men chosen as jurors are, it is thought, better judges of the ordinary facts of life than any judge or bench can be—a fact which is expressed in Lord Campbell's remark so often quoted of Lord Mansfield's juries at Guildhall, "He learned from them the usages of trade, and in return he took great pains in explaining to them the principles of jurisprudence by which they were to be guided."

II.223.27

—The jury is also claimed to be a most valuable if not necessary protection for the individual against great impersonal corporations by which so much of the business of the world is coming to be done; and finally, it obviates the consequences of a rigid application of the logical rules of law; it "relieves against the procrustean application of legal technicalities." On the other hand, it is asserted that the jury affords an opportunity for bribery and corruption which is constantly used; that the practical workings of the jury system are so bad that those persons who still have faith in it are theorists, who really know nothing about it; that it is a source of vast and useless inconvenience to business men; and that in all cases where corporations are concerned its verdicts are hopelessly biased. When we come to the remedies, however, the statements are less precise. The radical remedies which have been proposed look toward the complete abolition of the jury, and the substitution therefor of benches of judges, from whose decision, it is even said, there should be no appeal. but most of these propositions ignore the fact that the jury is a great historical institution, which is everywhere closely interwoven with the whole fabric of the society and the government of English peoples, and that it can not, therefore, even if it be true that it has had its day, be dealt with thus lightly. Most of these propositions, also, are characterized by a certain petulance, and obviously proceed not from a view of the whole system, but from the observation of its operation in a particular instance or in a particular locality. By way of a demonstration of the absurdity of the system as it now is, these propositions have often been prefaced by a supposition of what the views of a learned oriental would be when the jury was first explained to him, and this, although it is tolerably clear from the last thousand years of the world's history, that the views of "a learned oriental," upon any governmental topic, though sometimes interesting, are not of importance. It is further to be remarked, that most of the criticism of the jury system proceeds from the great cities where the conditions of life and society are abnormal, and would, as it is easy to see, affect any substitute for the jury quite as unfavorably as they are said to affect the jury itself. Furthermore, as has already been pointed out, much of that criticism is misdirected; it should be applied to the administrative laws, to the manner of their execution. and to the view of their duties which is taken by the people themselves. With the segregation of occupations, and the close attention which every man is compelled to give to his own, individuals find that jury service is an inconvenience and a cause of pecuniary damage; and in New York, at least, they embark in almost open corruption to escape from it. But they find every other public service equally inconvenient. So, through the natural division of labor, the whole business of politics has fallen into the hands of a class as distinct as that of those engaged in any other pursuit, and it may be that, in like manner, the public will have in time to be relieved of the duty of jury service; but the approach of that possibility has nothing to do with the workings of the jury system. From the cloud of criticisms, however, just and unjust, some measures may be concluded to be remedial and desirable. 1. The amendment of the laws relating to the drawing of jurors, so as to place that operation under officers immediately responsible to the judges. 2. The vesting in and exercise by the judges of a wider discretion to excuse jurors from jury service on the grounds of their personal inconvenience. 3. The establishment in the cities of courts of arbitration of three or more judges. 4. Allowing verdicts to be rendered by three-fourths or two thirds of the jury, either absolutely, or if, after a certain number of hours, the jurors fail to arrive at unanimity. 5. Allowing persons committed by magistrates to be put on their trial without further indictment. 6. The abolition of coroners' juries. or else their elevation by making their findings of guilt equivalent to indictments by a grand jury. Such changes, or some of them, may be wise, and would be accepted as desirable. It is, however, beyond question that the very great preponderance of the best opinion is decidedly in favor of the maintenance of the jury substantially as it now exists, and it is impossible to rise from a survey of the whole system without being impressed with the soundness of the conclusions of Mr. Justice Miller, of the United States supreme court, who in an address before the New York state bar association in 1878, remarked, "It is probably wise that no man shall be convicted of an infamous crime until twelve fair-minded men are convinced of his guilt. I am also forced to admit, however, that even in civil cases my experience as a judge has been much more favorable to jury trials than it was as a practitioner. And I am bound to say that an intelligent and unprejudiced jury, when such can be obtained, who are instructed in the law with clearness and precision, are rarely mistaken in regard to facts which they are called upon to find." Nor would it be possible to conclude such a survey without full concurrence in the admirable language of Lord Coleridge, who, in charging the grand jury at Exeter, said, in words which are as applicable and as true in America as they were in England, "I think it unwise, in a complicated state of society like ours, to look at things in themselves alone, and without considering what bearing they have upon the whole machinery of society. The interests of a great number of persons in the discharge of justice, the education to a certain extent which the jury system affords to a large number of persons in our community, is a matter that is far too much lost sight of; and I should think, for my own part, that if it were true that in particular cases a better result might have been arrived at by the single judgment of a judge, than by the united judgment of a judge and jury—if that were so, upon which I express no opinion for the moment—I should say that the advantage was ill purchased by the separation of the general mass of the people from any share in the administration of our courts of justice. I believe that much of the satisfaction which I hope and trust does exist with our administration of justice as a whole, and with all its faults—for, like every other human institution, it has its faults—may to a great extent be traced to the large infusion of what I may call the popular element, and the popular element in the administration of our system of justice is the jury."

II.223.28

—BIRLIOGRAPHY. Blackstone. book iii; Reeve, History of English Law; Stubbs, History of England, vol. i.; Hallam, Middle Ages, notes; Woodeson's Lectures; Palgrave, Rise of English Commonwealth; Burke, Abridgment of English History; Dunscomb, Trial per Pais, 8th ed., London, 1766; Pettingall. Jury Among the Greeks and Romans; Kennedy, Law and Practice of Juries. London. 1826; Worthington, Powers of Juries; Forsyth, History of Trial by Jury. Am. ed., New York, 1875; Bentham, Art of Packing Applied to Special Juries; Reports of Common Law Commissioners, London, 1830-53; Hirsh, Juries, New York, 1879; Proffat. Trial by Jury; Sackett, Instructions to Juries; Thompson, Charging the Jury; Starkie, Trial by Jury; Erle, The Jury Laws; Adam, Trial by Jury in Scotland; Meyer, Origin and Progress of the Judicial Institutions of Europe; Quarterly Review No. 67; Westminster Review, Oct., 1827; Edwards' Juryman's Guide; Mr. Justice Gray, Note on Juries, end of Quincy's Reports; Advantages of the Jury System, N. Am. Review, Nov., 1882: Is the Jury System a Failure? The Century, Nov., 1882; Grand Jury. Western Jurist, Jan., 1882; Rogge. Gerichtswesen der Germanen; Brunner, Die Entste hung der Schwurgericht, Berlin, 1872; Gneist, Die Bildung der Gexchworeneagerichte in Deutschland, Berlin. 1849; Glaser, Zur Juryfrage, Vienna, 1864; von Bar, Recht und Beweis im Geschworenengericht. Hanover, 1861; Meyer, That und Rechtsfiage im Geschworenengericht, Berlin, 1860; Biener, Das Englishe Genchworenengerichte, Leipzig, 1875; Montesquieu, Esprit des Lois; de Tocqueville, De la Democratie en Amerique; Cherbuliez, dans la Revue de legislation xli., xlii.; Odillon Barrot, dans le Bulletin de L'Academie des Sciences morales et Politiques, 1871-2.

FREDERICK W. WHITRIDGE

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