THE TRIAL BY JURY.

Ir is not our purpose in this article to go into any profound investigation of our subject, either as to its origin or its general history. If we were writing for lawyers such a course would be worthless, for it would be asking them to travel over ground already familiar; and to others it might be worse than worthless, because it would necessarily involve a great deal of technical learning which they have no desire to study, and which would be of very little practical advantage after it was acquired. Our main object is to touch upon its prominent feature, and if possible to unsettle some of the prejudices which have, in our opinion, done infinite mischief to the system; so far forth, we verily believe, as to endanger its stability.

In common with every friend of well-regulated freedom, we claim the right to appreciate the value of a trial by our peers. We look with as much reverence on the trial by jury,' as the most enthusiastic of its admirers. We think it capable of becoming the safe-guard of the citizen, and we believe, furthermore, that it has been a shield of protection to the unjustly accused. It is, for aught we know, the 'palladium of liberty. Sure we are, that it may be, under rational regulations. It has undoubtedly rescued the innocent from undeserved punishment, and if it has too frequently interposed between justice and the rogue; if it has very often stepped between the gallows and the most deserving candidate for its first honors,' the circumstance is not ascribable to the general character of the system, but to its faults. The system is excellent, but its blemishes are to be blamed with the more freedom, as they do harm in a good cause, and render even a praiseworthy institution odious, by doing all they can to discredit what is in itself worthy of all praise. In short, the trial by jury is a privilege of inestimable value, but our mode of conducting it is in the highest degree absurd.

It is not our wont to quarrel with antiquity, or to feel favor for modern innovation, in any shape. The march of improvement' is too rapid altogether, to suit either our tastes or our habitudes; and as a lawyer, loving the profession to which we were bred, it must be a very glaring defect in the common law principles and practices of the science, which could lead us, at any rate, into the desire, or even the willingness, to see them superseded by any change of form, or novelty of administration. We shall claim, therefore, at least the merit of sincerity in the remarks we make, and we hope at the same time so to conduct the discussion, as to convince the reader that our propositions have been well considered.

Our present business is with the principle, or rather desecration of x principle, which requires UNANIMITY IN THE VERDICT. That principle has been rotten, from its first adoption, and is abundantly more so now than ever. The very reasons that might have been urged in its favor some half a dozen centuries since, are among the strongest that could be adduced against it in the present state of society, and under the meliorated and more enlightened' ideas of modern times.

While government was arbitrary, and while the prince and his

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minions were in constant warfare with the people; when regal power, and regal power alone, made up the main spring of authority; it was undoubtedly of great consequence to the subject to hold this barrier between himself and the royal prerogative. It was a protection of potent force. He could not be punished for crime, real or imaginary, against the crown, but by the unanimous decision of his peers; and of course the chances of unjust conviction were very much diminished by the requirement that the whole pannel of twelve men should pronounce upon his case, instead of a majority. In such times, it is conceded that the system was favorable to liberty, and the circumstance may in some measure justify the eulogium bestowed upon this mode of trial; especially when it is contrasted with the absurdities of other modes in vogue during the darker ages of English jurisprudence. Compared, for instance, with the wager of battle," with the fire and water ordeal,' by which Queen Emma singed her slippers; compared with the peine forte et dure, in which the prisoner was pressed to death, upon the presumption that he was guilty because he chose to stand mute under the accusation against him, the trial by jury may very well have been claimed as a 'palladium ;' under whatever form of absurdity it may have been framed or conducted. It is our object, however, to prove that the principle has no possible application to our state of civilization, and our modifications of legal polity; and in carrying out our views on this subject, we shall confine ourselves strictly to two points.

FIRST, that there is no magic in the number twelve; but that a jury composed of nine, eleven, thirteen, or fifteen, would be abundantly preferable; and,

SECONDLY, that the requirement of unanimity in making up a verdict, is alike at war with common sense, common justice, and with the well known operations of human nature; involving a profound absurdity upon its very face, and calling upon mankind for the performance of a moral impossibility.

The primary proposition is only necessary to be hinted at, and is merely mentioned first, for the sake of an orderly consideration of the subject. If we succeed in establishing the second branch of the argument, we carry the other with it, of course. If it be true that the unanimous voice of a jury ought not to be required, it will fʊllow that the number twelve has no particular virtue in it, and that the Nembda of the Teutons has more of antiquity than of intrinsic value about it. The English writers, and especially Sir William Blackstone, in tracing the history of the system, show us clearly enough how it happened that this particular number chanced to be hit upon, and none of them seem to insist upon it as essential to its constitution. We intend ourselves to show that it is an essential defect.

Should unanimity be required?

In the first place, such a requirement is directly in the teeth of human nature itself. No twelve- no three men, were ever yet congregated upon the globe, whose minds coincided. They may chance to agree upon an isolated point; they may come together on a given proposition; but no plurality of mere men can interchange opinions during half an hour, with an honest concurrence in each others' views;

and however courtesy and good feeling may seem to assimilate them, they differ; deferentially, perhaps, but still they differ. To suppose that a dozen men may come to the same conclusion on the clearest case that may be submitted to their judgment, is to look for a mental phenomenon which the law exhibits very little wisdom in calling for. Who of us can converse with one of our best friends, on any but the simplest subject, without differing with him? Who ever yet communed with the most congenial minds, without encountering discrepancies of opinion? Has it fallen to the lot of any three of our friends to discuss a topic of interest, involving a question of any complication, with entire unanimity of view? We venture to say they never did; and it is hardly possible they ever can. How then, let

us ask, is it to be expected that twelve men, brought together at random, without any congeniality of thought; discordant in disposition, wide apart in all their modes of looking at things; different in mental temperament, in education, association, and habit, can perform a miracle in the jury box, and there jump at once to the same conclusion on a case involving probably every complication of consideration? The supposition is preposterous, and so is the system that depends upon it for the due administration of justice! But, these are abstractions; let us look at the subject in a less general view. What is the practical operation of our jury system?

We hesitate not to say that it is equally militant with the republicanism which we profess so much to reverence, and with all the ends of substantial justice; alike repugnant to the general spirit of our institutions, and to the wholesome dispensation of equal laws. What is the character of this system? How does it work in practice? Is the verdict of the jury the judgment of the twelve 'peers' who compose the panel, or is it the major voice of those men? It is neither the one nor the other, except by the merest accident; and it rarely speaks, even nominally, the opinion of the whole body, without the exercise of a gambling resort to chance, or a fraudulent compromise with conscience. Wretches sometimes

'hang, that jurymen may dine.'

In other words, juries are urged into unanimity by their appetites, and agree to think alike, lest their dinner should get cold. They coincide rather than go hungry, and under the judicial dread of starvation, sometimes substitute a concurrence of stomach for the identity of opinion required of them in the rendition of a verdict; or rather, they make the exigencies of the one, a legal excuse for endangering the salvation of their souls in pretending to the other. It were strong language to use, we acknowledge, but, it is a settled opinion with us, that as much felony is committed WITHIN the jury boxes, as is brought before them for trial! At any rate, more perjury is there perpetrated, than is ever put regularly on trial before courts of justice; and most of this is brought about by the obstinacy or stupidity of the minor number. It is not often that the jury decides the case. It is perhaps a single one of the number!

A single juror cannot, to be sure, give a substantive verdict against the opinions of his eleven compeers, but he can always, and very

often does perform acts that amount to the same thing. He can prevent the administration of justice; he can nullify the honest efforts of his brethren, and render of no avail all their disposition to do right; he can save from the gallows or the penitentiary the criminal whose punishment is essential to the well-being of society; in short, he can, by his own stupid sic volo, set aside not only all the interests of the community, but he can abrogate all the laws of the land. He not only holds a veto on the entire criminal code, but he has in his hands the power of perverting the course of justice in all its channels. Every contract between man and man, every issue on which depend the rights of individuals, is at his mercy. An Englishman or an American has very little reason for the boast that he finds safety and protection in the juries of his country. He finds no such thing. Juries, as juries, are utterly powerless in the premises; for eleven of the number are completely controlled by any duodecimal fraction that may choose to make itself of more arithmetical consequence than the whole number.

Of the utter absurdity of this system as it regards the trial of all causes, it seems to us there can be but one opinion, at precisely the moment when the mind will divest itself of the prejudices which education and tradition have thrown around it. Its manifest injustice in the adjudication of civil suits, may be argued without any great fear of encountering either the demagogue or the quite as formidable folly of the tremblingly scrupulous. The barbarism may be met in that aspect without being obliged to combat the ad captandum hobbies of the liberty-lovers. We can speak of a jury decision affecting the right of citizen A. to 'four acres of arable' unjustly withheld from him by citizen B., without any special peril of the wrath of the electioneerer. We suppose most people who have thought at all, will be willing enough to think with us, that seven out of twelve men are about as likely to be right in giving their opinion on the validity or invalidity of an alleged act, as five; and that eleven jurors who should say on their oaths that C. signed a promissory note to D., were quite as much entitled to respect, as one juror who believed no such thing.

But, it is in criminal proceedings that people cling most tenaciously to their prejudices. They will agree with you in the absurdity of requiring unanimity in the jury, in the trial of civil causes, but where the life or liberty of the citizen is involved,' they cannot consent that any less than the whole jury shall assent, or at least two-thirds. Let us look a little into the soundness of this notion. It is our purpose to show its utter absurdity in one case as well as the other its absurdity, in fact, in all possible cases.

If it be an object of the laws to provide impunity for their own transgression, and if legislators, while they enact punishments for crime, have at heart at the same moment the wish of furnishing facilities for escape from them, we know of no mode more effectual than that of appointing twelve men to go through the farce of sitting in judgment on the criminal, while any one of the number has the power of putting his own opinion in opposition to all the rest, in deciding the case.

If there be any philosophy in the science of government, and if

there really is any thing in modern improvement,' it must be found, it appears to us, in the doctrine that the decisions of the larger number shall guide the actions of the smaller; that the majority shall regulate the minority. This is the only true principle; the only one that has the sanction of common sense and common justice. Why, in the name of reason, should it be discarded in the most important department of our civil polity? Why should we refuse to recognize the authority of a town constable, unless he receives a majority of votes at the election, while we permit the minority principle to prevail in the jury box? If it be important to give the largest number the liberty of electing legislators, is there any sense in suffering the even a single individual to control the tribunal which passes upon the life and death of the citizen? Is it good policy to place the entire power of punishment and impunity in the hands of one man, and make him the sole arbiter of the rights and the safety of society?

smallest number ·

It may be very sublimated benevolence to guard with extra tenderness and solicitude the scoundrel whose business it is to prey upon the public, and it is doubtless deemed exceedingly statesmanlike in certain quarters, to superintend the safety of the burglar, the incendiary, and the murderer; but if such interests must be attended to at the expense of those who disapprove of their respective callings; if the bad must be considered before the good; we would never leave the dispensation with juries; certainly never put such a power into the hands of one juror!

Our jury system is out of all analogy with the genius of the government. It recognizes a principle utterly at war with the primal considerations upon which that government was founded, and breaks in wantonly upon the symmetry of its proportions. If there be any one feature more to be admired, and more sedulously to be cherished, than another, in the frame-work of this government, it is the principle that we are under the guidance of majorities; that we have here provided for that most rational, the only rational regimé, in civil government, the preponderance of the major opinion; the doctrine that the few shall submit to the many. In other words, we have come to the con, clusion in this country, that the balance of equity is rather likelier to be found in the majority than in the minority. At all events, it is a principle pervading every department of our polity, (save the one under consideration,) that it is somewhat safer to confide power to ten men, than to one. So at least we understand the genius of our institutions; such we believe to be its scope and tendency; and so we know are they recorded in the written evidences of the popular will; so do they stand in the constitution of the United States, of the several states of the union, in the respective statute-books of the states and of the nation; and in every other muniment which the people have thrown around their political household for the defence of their rights and their liberties. Do they see any sense in placing the juridical jurisdiction on a different footing? Are they of opinion that the lesser voice is safest in a court of justice, while every where else it is only looked upon as wrong, because it is the lesser voice? Is there so much magic in a jury-box, that men actually change their