# Popular Science Monthly/Volume 24/March 1884/The Jury System

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* THE JURY SYSTEM.
By HENRY H. WILSON.
THIS is an age in which ancestral faiths, traditional customs, and primitive institutions alike, are receiving the attacks of iconoclasts. These attacks are always vigorous, usually just, frequently learned, but sometimes hasty and ill-considered. There was a time when institutions which had become quite useless were still continued and revered simply because they were ancient. In our day there is danger that institutions whose origin, growth, and practical utility are little understood may be swept away amid the general assault, merely because they bear the marks of age. Institutions are not the inventions of individuals, but are the outgrowth of the general sentiments and impulses of the time and place of their origin. Every institution, however absurd or worthless it may seem to us, must, at one time, have supplied the actual wants of a part of the human race. It is, therefore, but reasonable to presume that every institution which we have inherited contains some principle that may still be useful. Before assuming to pass judgment upon the merits or demerits of the jury as an element of our judicial system, it may, therefore, be well to inquire into its distinguishing features, and to ascertain, as far as may be, the origin of its several characteristics. Most prominent among the peculiar features of the modern jury are—1. That they are called from the vicinage, or from a limited territory, over which the court in which they sit has jurisdiction. 2. That they possess no previous knowledge of the merits of the case which they are impaneled to try. 3. That they consist of a definite number previously determined, usually twelve. 4. That unanimity or consent of all is necessary to render a verdict. 5. That they are chosen by lot from a certain number of qualified citizens previously selected. Of these in their order let us inquire the origin, growth, and present utility.
1. When, in its earliest stages, the jury was composed of the witnesses who knew more or less about the facts in dispute, it was natural and indeed necessary to call them from the vicinity where the transaction occurred. This reason becomes the more apparent, when it is remembered that the ordinary commercial transactions among our rude ancestors were accompanied with great ceremony and publicity. For example, if a man wished to go abroad to buy a horse, he must first announce his intention to do so to his neighbors, and upon his return he must give all the circumstances of the purchase, that the requisite number of witnesses, or men who knew the facts, could be had to form a jury, should his title ever be questioned. Should he fail to observe these precautions, he was presumed to have stolen the horse, or to have obtained it in some unlawful way. While, in this ​commercial age, when "business extends over such wide territories, and when commercial transactions are usually evidenced more or less by written instruments, a debtor may be sued wherever he can be found, except in a few special cases, yet, on the other hand, crimes which, from the nature of the case, are evidenced usually and almost wholly by living witnesses, must still be tried in the vicinage or county where they were committed. While most civil actions may now be brought wherever the defendant may be found, yet the jury must be called from the vicinity of the forum in which they are tried. In the early history of the jury, vicinage meant simply the immediate neighborhood, while the same term is now used to denote the whole territory over which the court has jurisdiction. Calling the jury from the vicinage would seem to have the advantage of strengthening local self-government. Litigants usually have the assurance that their rights are to be determined, not by strangers who may be used to different customs and habits of life, but by their neighbors, upon whose rights they in turn may be called upon to adjudicate. And this feature of the jury has the further advantage that, while the jurors know nothing about the facts of the particular case, yet the parties have the benefit of whatever good repute they may sustain among their neighbors. So, while the reasons that gave rise to this restriction in calling a jury no longer exist, yet, when reasonable provisions are made for a change of venue in cases of violent popular feeling, there are some advantages derived from it, and there seems to be no good reason for a change.
2. We are next to consider the jury with reference to their previous knowledge of the facts in dispute. As before intimated, in the early stages of the system the jurors were called because they knew more or less about the facts in the case, and if, upon examination, it should be found that any one who was called was entirely ignorant of the facts to be tried, he was excluded, and another was called in his stead. This process was continued until all those who could add nothing to the jury's knowledge of the case were excused, and the requisite number of those possessing such information were found. They were then sworn to render a true verdict, not upon the evidence produced in court, but upon the knowledge they themselves possessed, or upon the words of their fathers. This explains the seeming anomaly of attaint for a false verdict. Should either party be dissatisfied with the verdict, he could demand a jury of double the usual number, to try the truthfulness of the former verdict. This was simply trying the whole panel for perjury because they possessed the requisite knowledge, and had sworn that they would render a true verdict upon that knowledge.
It often happened that controversies would arise when twelve men ​could not be found who possessed the information necessary, and so, to those who knew the facts, were added others who joined in the verdict, relying on the knowledge and good faith of their fellow-jurors. From this the step was short and easily taken to that stage where witnesses not on the panel were called to give testimony concerning facts within their knowledge. Here we find a jury, composed of informed and uninformed jurors, all joining in a common verdict. Those who knew the facts in issue were, however, finally separated from those who did not, and while the former gradually assumed the character of the modern witnesses who simply detail the facts under the sanction of an oath, the latter became the modern jury essentially as we now have it—that is, triers of facts upon evidence produced by others. So, while we challenge a juror because he knows too much about the facts to be tried, our ancestors objected to him because he did not know enough about them. Perhaps no other feature of the whole system of trial by jury has called forth so much adverse criticism as this. It is justly said that to rigorously enforce this rule in an age of newspapers and telegraph would exclude every intelligent citizen from juries called to try cases of any considerable notoriety. To meet the demands of our changing civilization, most if not all the States of the Union have, by statute, relaxed this once universal rule of the common law. An opinion founded on rumor or newspaper-reading will not now exclude a juror, and several of the States have gone to the doubtful length of authorizing the presiding judge to permit a juror to sit even though he have a decided opinion as to the merits of the case, provided he will swear that, notwithstanding such opinion, he believes he can render a fair and impartial verdict. It would be mere mockery to submit facts to a man who would not agree to determine them fairly and impartially; and if there be any place in which this rule is rigidly enforced it ought not to be urged against the whole system, when it can be remedied so easily without detracting at all from what is of real value in it. The reasonable application of the rule excluding from the jury those who have formed opinions upon ex-parte statements of the facts to be tried, certainly tends to insure a true verdict. No evidence should be laid before those who are to weigh it, except that which can be subjected to the crucial test of cross-examination. The frequent instances of a smooth, plausible, persuasive narrative in chief being totally contradicted by a shrewd cross-examination of the same witness shows how unreliable would be any decision made by either judge or jury upon statements heard out of court.
3. As to the origin of the number requisite to form a jury, it is impossible now to say anything definite. The number twelve of which ​the jury is composed in all probability came from the accustomed number of compurgators whom the plaintiff or defendant brought into court in early times, before the jury was known, to vouch for his veracity. This being the quantum of proof required to render a party's testimony credible, it was natural that the same quantum of proof—that is, the verdict of twelve jurors possessing the necessary information should be required to establish the existence or non-existence of the alleged facts. Thus determining the number of jurors necessary to render a verdict was simply fixing the amount of proof necessary to establish a fact if disputed. When jurors gradually ceased to be witnesses the number twelve was still retained, probably because there was no particular reason for changing it. Why there should have been twelve compurgators, why that was fixed upon as the quantum of proof necessary, it is impossible to say with any degree of certainty. Various reasons have been given by various antiquaries, none of which seem to have much more than speculation to support them.
Whatever may have been the origin of the number twelve, the reasons which gave rise to it have doubtless long ceased to exist, yet it may be difficult to point out why it should be changed. Should a majority be able to return a verdict, it would be an advantage to have the jury composed of some odd number, but so long as the law requiring unanimity remains, or should two thirds or three fourths be allowed to render a verdict, there seems no sufficient reason for changing the number. Should any change in this respect be made, it would seem expedient to make the number of jurors in some degree correspond to the importance of the issues to be tried.
4. The fourth characteristic feature of the jury which I shall consider is the requirement of unanimity in the verdict. This, like the number, is due to the fact that the ancient jury was composed of witnesses. Twelve lawful men must declare upon oath the existence of a fact before a verdict could be rendered. But, should they disagree, others were added until twelve out of the whole number were of one mind, which process was called afforcing the jury. This process resulted in allowing a bare majority to render a verdict whenever that majority consisted of twelve. From this it is clear that it was the quantum of proof required, and not the probability of correctness arising from unanimity, that gave rise to the rule that twelve men must consent to the verdict. Since jurors are no longer witnesses, the rule has survived the circumstances that gave it birth.
Laws affecting millions of people are enacted by a mere majority and are equally binding on all; courts of last resort frequently decide by a bare majority as to the validity or proper application of those laws; and it is exceedingly difficult to understand why the unanimous verdict of twelve men is necessary to establish the existence of the facts to which such laws apply. When we remember how differently ​men are impressed by the occurrence of things that transpire before their eyes, how impossible it is for us always to agree upon the most ordinary affairs of life, when we remember that the jury is called only because two men, who are the litigants, can not agree, we will see the absurdity of putting twelve men into the jury-box to hear the most contradictory evidence of a particular fact, and then say that they must all agree! In many cases this agreement, when reached, is only apparent, and occasionally a false verdict is doubtless procured by the tenacity of some determined juryman. And still more frequently are juries discharged because they can not agree, and the parties and the public are subjected to the expense of another trial.
To give moderate room for honest difference of opinion, to disarm occasional prejudice and render corruption fruitless, I think in all civil causes three fourths of the jury ought to be able to return a verdict. It has been urged that the rule requiring unanimity is necessary to insure that every juror shall be heard and the grounds of his opinion considered. Indeed, this has been defended as the only redeeming feature of the whole system of trial by jury. If, after hearing all the evidence adduced, after counsel have exhausted their powers in presenting their respective sides of the case, after the presiding judge has pointed out the issues to be determined and laid down the rules of law applicable to them—I say, if, after all this, nine out of the twelve are agreed and are ready to render a verdict without the advice of the other three, it is very probable that the preponderance of evidence is on their side. In Nevada the three-fourths rule in civil cases has been in successful operation nearly twenty years, and bench, bar, and people alike, seem to be well satisfied with the result. Although this provision is in their State Constitution, yet the Legislature by a two-thirds vote might introduce the rule of unanimity. That no attempt has been made to do so speaks volumes for the practical workings of the three-fourths rule. While I think that three fourths may safely be allowed to return a verdict in civil causes, I am inclined to believe that in criminal causes considerations of humanity demand, and the State can afford to grant every individual, such a strong presumption of innocence that only a unanimous verdict of twelve of his peers shall be able to overcome it. In civil causes, where a preponderance of evidence entitles either party to a verdict, it is illogical to require unanimity, but in criminal cases, where the defendant must be proved guilty beyond a reasonable doubt, it would be absurd to say that he may be convicted while a single voice from the jury-box is heard protesting that he is innocent. Should it be impossible for a jury in a criminal case to agree, they are discharged, and the defendant is put on trial again before another jury. So justice can be defeated only by the unanimous consent of twelve sworn men of the neighborhood, and, if justice may sometimes be delayed and extra expense incurred ​by the disagreement of a jury, the State can afford to wait, and no expense should be balanced against the possibility of innocence. So I think that justice will be best insured by retaining the rule requiring unanimity in criminal cases, and in all civil causes permitting three fourths to render a verdict.
5. The fact that jurymen are chosen by lot has been the subject of no little ridicule, and yet I think no other method would, on the whole, prove as satisfactory. When juries were composed of those who knew the facts in dispute, the panel must have been drawn from a limited number, and often the whole number of witnesses were not sufficient to make a complete panel. At that time, knowledge of the matter in controversy determined who should be called to sit as jurors; but, when the jury became a tribunal for the trial of facts upon the testimony of others, the jurors were called from the whole number of citizens possessing the requisite qualifications. In most of the States of the Union the qualifications of a juror are the same as those of a voter, and the panel is chosen by lot. In this way the personal element is, if not eliminated, at least restrained, and the impersonal element—blind chance—that knows neither friend nor foe, decides who shall be the arbitrators. In popular election Justice may be defeated, but Fortune always gives her an even chance.
Having described some of the leading characteristics of the modern jury, I shall now consider some of its advantages—first, as a judicial tribunal; and, secondly, as a political institution. No one now questions the utility of the separation of the legislative or law-making power from the judicial or law-interpreting power. No less important is the separation of the power that decides upon the facts from the power that applies the law to the facts when so determined. The former is the province of the jury, and the latter that of the judge. It is the duty, and the whole duty, of the jury to determine whether certain facts do or do not exist. It is sometimes said that in criminal cases the jury are the judges of the law as well as the fact. This misapprehension arises, I think, from the nature and effect of the verdict rendered in such cases. On all issues joined in criminal cases the jury may bring in a general verdict of "guilty" or "not guilty," and, if the latter, the defendant can not be tried again, no matter how erroneous the verdict may be. And this, too, is the result, even though the verdict be contrary to the express instruction of the court. The jury are, however, bound to follow the instructions of the court in all matters of law, and if they do not they are false to their trust, however remediless the state may be. If, on the other hand, the jury return a special verdict, that is, that certain facts do exist, the court is bound either to act upon those facts as true, or set the verdict aside and submit the facts to another jury. Now, suppose the judge should usurp the power of the jury, and should, notwithstanding the verdict, declare the alleged facts untrue, or decide that the facts though true ​do not constitute a crime, although by express statute they do, and suppose the judge so deciding, however erroneously, should discharge the defendant, would not the result be the same, and the state equally remediless? To this it will hardly be answered that judges can always be depended upon to do their duty, while jurors can not. The truth is, that the sole duty of the jury is to find the facts, and that of the judge to apply the law, and when either does more, except in those cases where the judge tries both, it is a usurpation of power.
Bearing in mind the fact that the only work of the jury is to determine the truth or falsity of certain alleged facts, let us inquire whether or not and how well it is adapted to this purpose. It is well known that technical training in any branch of learning has a peculiar influence on the mind. The mind by such training develops certain idiosyncrasies, and nothing is more common than to see an eminent specialist whose judgment is quite untrustworthy out of his specialty. A mind so trained usually adopts certain more or less artificial tests of truth, to which every proposition is submitted with a predetermination as to the relative weight of certain classes of evidence. Nothing is more boundless than the variety of facts that may be submitted for judicial determination, and these facts do not usually belong to any specialty, but arise out of the ordinary transactions of all men. No trade or profession can claim a monopoly of facts, and I am of the opinion that twelve men, coming to the work unbiased and untrammeled by any technical rules or artificial tests, are more likely to arrive at the truth in the ordinary affairs of life than any one, or indeed any number of specialists.
Perhaps the most frequent error alleged in appeals to the superior courts is that the verdict of the jury is against the weight of evidence, which is the nature of an appeal from the verdict of the jury on the facts, and yet it is safe to say that not one case in fifty is reversed on that ground. And, for every case reversed because the jury were wrong, more than a score are reversed for some error committed by the presiding judge in matters of law. I am aware that it is often said that only those who have the bad side of cases want to try them to a jury. This statement has little or no foundation in fact. Recently one of the foremost jurists of this country, who certainly is not overmuch attached to the jury system, said: "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 such clearness, precision, and brevity as will present their duty in bold relief, are rarely mistaken in regard to the facts which they are called upon to find." I think experience has shown what reason would ​suggest, that the jury, with the modifications I have pointed out, is well adapted for its special work—the finding of facts.
But even stronger are the reasons for retaining the jury as a political institution. Some one has tersely said that it is not so necessary that the people get justice as that they should think they do. While this is, perhaps, putting it a little too strongly, yet there is much truth in it. Judges are usually chosen from a rank far above the mass of litigants, and the latter doubtless often feel that they are appealing for justice to one who has but little in common with the class to which they belong. And at this time, when there is a strong tendency to lengthen the tenure of judicial offices, it would be dangerous to cut off the popular branch of our judicature. The question that most threatens this country at present is the question of capital and labor. The tyranny that menaces us is not the tyranny of kings, but that of corporate capital. Whether the bench is really corrupted by the vast moneyed interests of the country is not material to the issue, if there is a deep-rooted suspicion of it in the minds of the people. Most men would feel safer, in a contest with one of these modern leviathans, to submit the facts in dispute to twelve men called from the vicinage, but what twelve no one could point out until the litigants had made the last challenge and the jury is in the custody of a sworn officer and beyond the reach of corrupting influences. Juries are doubtless sometimes corrupt, and sometimes go wrong by mistake, but the verdict of a jury, however erroneous, affects only one case, and neither establishes a bad precedent nor materially lessens our confidence in the system. The verdict deciding only the facts of the particular case has no influence upon the rights of any but the parties to that suit, and it is altogether improbable that the same twelve men will ever be called upon to sit together to try another case. So, however erroneous may be the verdict, and although every one may concede that it is wrong, no serious consequences follow, and the litigants in the next case proceed with the usual confidence in the justice of their fellow-men. It is only those who have a bad cause, or have lost confidence in mankind, that fear the jury. But how is it with the judges? Instead of their power ending with a single case, in the Federal courts and in seven States of the Union they hold their offices during life, and in the others for a term ranging from six to twenty-one years; and our present cumbrous method of impeachment, which can be effectual for nothing less than a "high crime or misdemeanor," affords but slight protection against ignorance, tyranny, or even corruption on the bench. If through ignorance or prejudice a judge has arrived at a wrong conclusion in one case, and from that conclusion there is no appeal, how can he be trusted in the next. And, still more, if he has yielded to the corrupting influences of power, or, what is practically the same thing, if the people believe he has so yielded, in one case, who but the powerful can trust him afterward? Ignorance ​or corruption in a jury may affect a particular case, but ignorance or corruption of a judge affects the whole system upon which depend the rights cf all. If a corrupt jury taints the waters for a moment, to become pure again the next, a corrupt judge poisons at its head the fountain from which all must drink. I am inclined to think that the corrupting influences of corporations upon our courts is greatly exaggerated, but it would be idle to underrate the strength of public opinion on this subject. When so many suspect the purity of the bench, we should consider well before we eliminate the popular element from our courts of justice. Let us do nothing to exclude in fact or alienate in feeling the people from one of our most important institutions lest the evil spirit should whisper in the ear of poverty the all-too-powerful argument of Romeo:
And fear'st to die? famine is in thy cheeks, Need and oppression starveth in thy eyes, Contempt and beggary hang upon thy back, The world is not thy friend, nor the world's law; The world affords no law to make thee rich;
What do the opponents of the jury offer in its stead? The only substitute that has yet been proposed is an increase of judges and trial to the court in all cases. We have already seen that one of the most useful features of the system of trial by jury is the separation of the power that tries the facts from that which decides the law. A question of fact is tried upon evidence, in the weighing and considering of which the mind should be trammeled by no artificial tests or technical rules. On the other hand, to determine questions of law requires long experience and accurate knowledge of rules and principles evolved from the common experience of mankind. The judge must be learned in the common law scattered through thousands of volumes of reported cases, as well as thoroughly acquainted with the statutory and constitutional law of the land. A finding of fact in one case can not, from the nature of the circumstances, be any aid in determining another set of facts upon different evidence in another case, and hence a finding of fact, or a verdict of a jury, can have no authority as a precedent. On the other hand, a determination of a principle of law is final not only in that particular case, but in all similar cases in that jurisdiction thus a court of last resort, in deciding a single case, may settle a principle of law upon which scores of other cases depend. Now, it is this separation of the trial of the law and the facts—functions essentially different in their nature and requiring entirely different kinds of training and preparation—that has enabled our courts to build up, develop, and unify our system of jurisprudence. This division of labor, which has had much to do in producing the certainty, completeness, and symmetry of our law, would be wholly lost by the ​proposed change. It is suggested that, instead of a jury of twelve untrained men, three or five judges experienced in the law should determine both the law and the fact, and that such decision be final. This would certainly have the virtue of producing speedy justice, if justice at all. But what would be the result? Let us suppose a case. The Legislature passes a law which the judicial tribunal of one county holds to be unconstitutional, while that of another county declares it constitutional, and in two other counties it is construed to mean two quite different things, and so on through fifty counties, each of which has an independent, distinct, and final judicature. We see at a glance that there must be one supreme judicature whose jurisdiction is conterminous with that of the Legislature, whose will it interprets. The confusion now existing between the thirty-eight States in this regard is the source of much regret, and might have been fatal to the existence of the Union had it not been for the Federal Supreme Court, whose silent but constant influence gradually overcame the violence of contending factions. Then, by whatever tribunal cases are first tried, we must always have one Supreme or Appellate Court, and it is fair to presume that about as many cases would find their way into the higher courts, if first tried to the court, as if tried by a jury. And the proposed system would have the further disadvantage that, the higher a case were carried through the successive tribunals, the less would be the probability of a correct determination of the facts. While the appellate tribunals are usually best qualified to settle a question of law, they are, from their technical training and tendency to generalize, least qualified to determine a question of fact. Nor can we reasonably expect a reduction in expense by employing high-salaried specialists to do that which the ordinary laymen can do much better.
It is suggested, however, that justice would more certainly be meted out to litigants if the whole subject of controversy were in the hands of a few experienced men. Might not the same be said of the legislative branch of our Government? A score of well-trained lawyers could doubtless enact a more consistent and probably a better code of laws than any of our heterogeneous Legislatures, yet this would scarcely induce the people to make the change. Indeed, the strongest, cheapest, and best government is an absolute despotism in the hands of a strong, wise, good man. But the character of an institution ought to be estimated by its effects on the people, and that is on the whole the best which produces the best results. It is not only what people are called upon to actually do, but also the possibilities that lie before them, that affects their character. The occasional deposit of a ballot is not of itself much of a public education, but the possibilities and responsibilities that the elective franchise brings with it can scarcely be overestimated in their influence on the character of a people. Much the same is the influence of the popular branch of our system of judicature. While the direct influence of sitting ​pccadionally as a juror ought not to be underestimated, yet I think still greater good comes from the increased responsibility of the people at large. There will be fewer criminals when every citizen feels that he is in some sense a conservator of the peace. The direct educating influence of trial by jury has often been remarked by those who have studied the influences that mold the character of nations. Bentham, who certainly will not be charged with venerating anything because it is old, in speaking of the jury as a public educator says: "Every judicatory, of which a jury forms a part, is a school of justice; without the name, it is so in effect. In it the part of master is performed by the judge; the part of scholars by the jurymen; and what takes place, takes place in a company more or less numerous of spectators. The representation there given is given by a variety of actors, appearing in so many different parts." I believe that the people will not willingly give up an institution to which they owe so much of their self-reliance and ability to govern themselves until stronger reasons than any yet suggested are presented.
* ↑ Forsyth, "Trial by Jury," p. 71.
* ↑ Forsyth, "Trial by Jury," p. 105.
* ↑ Stubbs, "Constitutional History," vol. i, p. 616.
* ↑ Forsyth, "Trial by Jury," p. 149.
* ↑ Bigelow's "History of Procedure in England," p. 336.
* ↑ Forsyth, "Trial by Jury," p. 128.
* ↑ Stubbs, "Constitutional History," vol. i, p. 620.
* ↑ Forsyth, "Trial by Jury," p. 62.
* ↑ Stubbs, "Constitutional History," vol. i, p. 616.
* ↑ Constitution of Nevada, Article I, section 3.
* ↑ Judge Miller's address before the New York Bar Association, "Albany Law Journal," vol. xviii, p. 409.
* ↑ Bentham's works, vol. ii, p. 125.