THE JURY DAVID J. BREWER, Washington, D. C. Perhaps nothing in our system of administering justice has received more encomiums than "the jury." By many it is regarded as the great factor in securing and preserving AngloSaxon liberties, and is looked upon with something of the veneration with which the Hindoo bows before his idol. Any talk of destruction, or even of change, seems almost sacrilegious. It is an ancient institution in Anglo-Saxon history. Its origin is lost in obscurity. Blackstone says that it has "been used time out of mind in this nation, and seems to have been coeval with the first civil government thereof." Some traces of the jury were found in nearly all the nations of Northern Europe which adopted the feudal system, and it probably came into its present form only by slow growth. But, however it arose, no one can doubt that it has a strong hold on the affections of all English speaking people. "In Magna Charta it is more than once insisted on as the principal bulkwark of our liberties"; and though some eulogies may seem extravagant, it has been one of the most valuable institutions in our history. Today it has become the object of attack and criticism. By not a few it is thought to have outlived its usefulness; they believe that it is the part of wisdom to abolish it entirely and to substitute. some other mode of trial,—more, as alleged, in harmony with the spirit of the age. I do not agree with these radical views. Doubtless, in some respects, it may wisely be changed; but it is one Copyright, 1902, by Frederick A. Richardson. thing to modify and an entirely different thing to destroy. The impatient radical, when he finds defects in the actual workings of an institution, is apt to think that the only remedy is to abolish it. He sees only the defects, and fails to perceive the great substantial worth, or that some, perhaps even slight, changes may eliminate the one and preserve the other. It may be well to note some of the essential elements in the jury system as it came to us from the mother country,-elements which have hitherto been generally preserved in their integrity by constitutional enactments, both State and national. And I am speaking only of the petit jury, as it is called, to distinguish it from the grand jury; the latter being the body which presents charges in criminal matters, and the former the one which, in both civil and criminal cases, is the trier of questions of fact. And, first, the jury was composed of twelve persons. Why this number was selected is a matter of speculation. There is no magic in the number twelve. Yet we all know that certain numbers have had special recognition, particularly the numbers seven and twelve. There were the seven wise men of Greece, the seven wonders of the world, the seven deadly sins, the seven penitential psalms, the seven churches of Asia, the seven seals, seven trumpets, seven plagues, and seven golden bowls spoken of in Revelation. So, there were the twelve tables of Roman law, twelve tribes of Israel, twelve Apostles, and we number our months as well as our hours by twelve. Whether the number required for a common law jury was suggested by any of these uses of the number twelve or determined by any other fact or simply arbitrarily fixed, is a matter of speculation. Secondly, the jurors were to be the peers of the party accused, or the parties litigant. No slave was summoned to sit on the trial of a freeman. In the times of Edward III. and Henry VI., the statutes provided that in a trial between a citizen and an alien the latter was entitled to a jury half of whose members were aliens, provided that number were to be found in the community; but these statutes long since fell into disuse. The peers of the realm claimed the right to be tried by the House of Lords. A recent instance occurred in the trial of Lord Russell by the House of Lords on a charge of bigamy. Thirdly, they were to be residents of the county in which the trial was had. They were to be from the "vicinage," and so rigorously was this rule enforced that for a while some of the jury were obliged to be returned from the hundred in which was the "Vill" or place where the cause of action was laid in the declaration. Coming from the neighborhood of the parties, they, as Blackstone says, "were supposed to know beforehand the characters of the parties and witnesses, and therefore they better knew what credit to give to the facts alleged in evidence." Fourthly, they were not to be related to the parties, or interested in the result of the action. Fifthly, they were to be free from prejudice or predetermined opinion of the merits of the controversy. Sixthly, the decision was the unanimous conclusion of the twelve jurors. Other matters were also taken into consideration, but these are all I deem necessary to mention. So far as the second, third, and fourth elements are concerned, they have not been the basis of much criticism, and are not open to any substantial objections. With reference to the second, it will not be forgotten that in this country all are on an equality. We have no slaves, no hereditary peerage; and there is no impropriety in requiring an alien, like all others, litigating in the courts of this country, to submit his controversy to the ordinary tribunal. As to the third, it is well that jurors should be citizens of the county or district. It would be an unnecessary expense to summon them from a distant part of the State, and there is no good reason therefor. As to the fourth, of course justice requires that they who are to decide a controversy should not be related to the parties or interested in the result of the litigation. The first, fifth, and sixth are therefore the three elements which give rise to the main criticisms of trial by jury. And, first, as to the number twelve. As I have already stated, there is no magic in that number, no mysterious reason why there should be twelve rather than eight or sixteen. The purpose in requiring a jury to be composed of several persons is to ascertain the average judgment of the community on the merits of the controversy. Through representations of the different vocations and different classes such average judgment will probably be secured. It is not likely to be expressed in the opinions of twelve doctors or twelve merchants or twelve farmers. But it would be futile to attempt to secure upon a jury even one representative of every form of industry and every class in life. Practically, the number should be large enough to secure a fairly average representation of the great body of citizens and not so large as to be unwieldy or expensive. It may well be that where a man's life is at stake or where the amount in controversy is large, twelve should not be regarded as excessive, but where lighter offences are charged or the amount in controversy is small, it would seem that the ends of justice would be subserved were there but six or eight jurors; and certainly time and money would be saved thereby. The fifth has been the subject of much criticism—not that one can object to its principle, but only to the mode in which the desired result of impartiality is secured. It will be conceded that a juror should be impartial, that he should have neither bias nor prejudice for or against either party, that he should enter upon the trial of the case without fixed convictions as to the merits of the controversy and ready to be guided by the testimony and the law. But the time which is spent, not infrequently, in inquiring as to a juror's past life, in searching his present mental condition, and in ascertaining the extent of the information he has received concerning the case, has justly provoked severe criticism. In important cases weeks and weeks have been occupied in securing a jury. Especially has this been true in criminal cases. When one hears or reads about a case, he is apt to form an opinion, more or less fixed and definite, concerning it or some feature of it. Whether such opinion is so strong and settled as to make him unfit to serve as a juror or is only a casual general opinion-a |