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THE Trial by Jury is the favorite of the English nation, and deservedly so; for the people have the greatest obligations to it. Their liberties have been protected by it, when every other bulwark of them has been stormed by violence, or sapped by corruption; when Parliament was venal; and Judges time-seryers. With such pre-eminent excellence as this, he would deserve ill of his country who should attempt the vain task of turning the public opinion against it. Yet, excellent as it is, there are circumstances attending it which appear so to militate against reason, common sense, and the first principles of justice, that we cannot help wondering so little has been said of them. But we are creatures of habit, and may be familiarized to absurdity as well as danger, so as to be insensible to high degrees of either, when we constantly live in their company. If these circumstances had no farther effect than producing inconveniences, even considerable ones, the writer of these pages would probably not have been inclined thus to notice them, but would have left them to the correction of time and experience; but if it can be shown that these absurdities in theory are followed by vices in practice, – that the fair distribution of justice is frequently impeded by them, that where it is otherwise, such distribution is often obtained by an agreement to set aside the law,—that they introduce perjury not only into the courts, but on the seats of justice, he feels it his duty, as most anxious for the purity of its administration by conscientious jurors, to bring forward these evils to public view, to strip them of the sophistry by which their deformities have been concealed, to examine them by the light of truth, and weigh them in the balances of reason and experience.
I conceive the following axioms not to be liable to doubt; and if I can show that the circumstances in the trial by jury, to which I allude, are inconsistent with them, (that is, with reason, as applied to the subject in question), I shall have proved them, by that balance, faulty; and the conclusion that they ought to be rejected will be established.
1. The end to be proposed by every process and mode of trying causes, civil and criminal, should be the distribution of justice to the parties before the court, with as much expedition as is consistent with fair inquiry; with as much caution as excludes unnecessary delay; and with as little suffering to all concerned, as is compatible with attaining the object of the trial.
2. To require an improbability as an essential part of any mode of trial, tends to impede, and frequently to defeat its end.
3. Judges ought not to be placed in the dilemma of suffering pain, or committing perjury. · Before I proceed farther, I shall shortly describe the present manner of trial by jury. It is not intended here to speak of the grand jury, whose constitution and process appear sufficiently free from objection, and in which unani
See, on this last point, the admirable chapter in Bentham's Théorie des Peines et des Recompenses. On the Economy of Punishments.
mity is not required. I speak only of tħe petty jury, of that which, in criminal causes, decides in the last resort, and in civil ones, generally without any preceding it. This Jury consists invariably of twelve men, freeholders or copy. holders of £10 per annum or upwards; and, in certain cases, lease-holders, inhabitants of the county where the cause is to be tried, chosen by lot in open court immediately before the trial, from the whole pannel summoned by the sheriff. These are sworn, in criminal cases, truly to try, and true deliverance make, between the king and the prisoner at the bar, and a true verdict give, according to the evidence. In civil cases, they swear in the same manner, mutatis mutandis, always concluding as in the former case, that they will give a true verdict according to the evidence. After the council and witnesses have been heard, the Judge recapitulates the evidence to the Jury, with his remarks on it, and his instructions on such points of law as the case may involve; and concludes by desiring them to consider of their verdict. They consult together in court for a few minutes; and if they do not agree, they desire to withdraw. An officer of the court is then sworn to keep them safely, without suffering any one to speak to them, or speaking to them himself, other than to ask them if they are agreed in their verdict, and without meat or drink, fire or candle, till they are so agreed. When they are agreed, they give notice to their keeper, who re-conducts them into court, where they deliver their verdict. Before taking it, the officer of the court asks them if they are agreed; and on the foreman replying in the affirmative, the verdict is taken, and the Jury is finally thus addressed by the officer: « Gentlemen of the Jury, hearken to your verdict as the court has recorded it. You find the prisoner at the bar guilty or not guilty; or, you find for the plaintiff or defendant, and so you say all.” If any juryman declares his dissent, the verdict is null, and the Jury is remanded, and kept as before. Thus they must remain till they become unanimous, or till the judge has finished his other business. If they still differ, he is to take them with him in a cart to the other places on the circuit in succession. It does not appear whether, on this tour, they are to eat or drink. I have not found any further process directed for them, and therefore I suppose the above, when regularly practised, has never been known to fail.
To remark on this account ;
First. Is there any good reason for the number of the jury being in all cases twelve? This may have originated from some forgotten Scandinavian superstition, or more probably from the number of compurgators required to confirm the oath of a person thus clearing himself of an imputed crime; and who, from their character, perfectly distinct from that of jurymen, must necessarily have been unanimous. But what are the real advantages of a jury? That it tries a man by his equals and neighbours, men of like condition and feelings with himself; that it so regulates the judicial power as to bring it into action just when and where it is wanted ; and having discharged its office, it disappears; so that in general no man can say he fears another as his judge; and that it is a power exercised by the people for the people, who therefore trust in its impartiality and love its lenity. Still nothing proves, that twelve is a number fitter to produce these benefits than eleven or thirteen; and there is one reason why it is not so good as either; because it is an even number, and therefore admits a division into two equal parts. It is also in most cases too large. There is no use in assembling twelve men to do that which nine, seven, or five, would do as well or better. A man's time is a part of his property, and in the present state of society a valuable one. Therefore if the law compels
twelve men to join in doing that which seven would do as well, five of them are injured without benefiting the public, which is injured also by the loss of those direct or indirect services the five might have rendered it, if not so employed. Perhaps it may be denied, that seven men will decide as well as twelve. It is sufficient to ask the denier, whether, when men form their own judicature, as in arbitrations, it ever enters into the mind of either party to desire twelve arbitrators ? The dictates of experience and enlightened self-interest, in pursuit of accurate examination and fair decision, direct them to a smaller number than the lowest I have mentioned. In general, arbitrators are but two, with an umpire to determine where they disagree; nor did I ever hear a complaint they were too few.
Secondly. Why should the county jurymen be always freeholders, copyholders, or leascholders? In the present state of society, from the vast increase and diffusion of personal property, there is a great mass of respectable and enlightened men who are not so. In corporation jurisdictions, even now they are not required to be such. It is a hardship on the former to confine this onerous duty to them, when the better class of householders, who are called to discharge so many other important public duties, might share it with them, without detriment to the public.
One of the most exceptionable parts of the whole process, is the juryman's vath ; for he is made to promise under that sanction what frequently he cannot perform. He is sworn to “give a true verdict according to the evidence,” whereas under the present practice his oath should be to “ give a verdict according to the opinion of the majority of his fellows." It is admitted he may found his verdict on his own private knowledge of the transaction, which may contradict the conclusion drawn by his fellows from the testimony given in court. But supposing he