# Popular Science Monthly/Volume 26/January 1885/A Glance at the Jury System

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THE
POPULAR SCIENCE
MONTHLY.
JANUARY, 1885.
* A GLANCE AT THE JURY SYSTEM.
By C. H. STEPHENS.
"Our little systems have their day; They have their day, and cease to be."
THERE is no one, I fancy, who is in the habit of reading the news-papers, or of witnessing the conduct of jury-trials, but has often had occasion to laugh at the vagaries of juries and their curious verdicts. A volume might be filled with them which would rival in interest Dean Ramsay's "Reminiscences" or Joe Miller's "jokes." "It seems a daring and presumptuous thing," says a learned writer, "to attack as useless an institution on which writers, both lay and legal, have bestowed so much eulogy." And not only does it seem daring and presumptuous, but one can hardly in imagination conceive a time when the jury, with all its record of past services, all its glorious battles for liberty, and all its memories of great pleaders, shall have passed away; when the jury-box, with its "twelve men all arow," shall have disappeared; and when the challenge to the array, and the challenge to the poll, the pathetic addresses of counsel, and the judge's charge, shall be heard of no more forever. Nevertheless, when we see, every month or two, fifty, sixty, or seventy men drafted from the industrial classes to supply what is called a ’petty jury," and a couple of dozen more from, perhaps, a somewhat higher class, to form what is called a "grand jury"; when we see the farmer leave his plow, the builder his building, and the shopkeeper his counter, and come together from places many miles apart; when we see them day after day idling about the courts and taverns; when we see them in the jury-box listening lazily to the proceedings before them; when we hear them delivering ​verdicts to which the judgments of Sancho Panza were, in comparison, as the judgments of Solomon; and when we learn that for all this the country pays their traveling expenses, their hotel bills, and so much per diem for their services—we can not but believe that the day is not far distant when the jury system, with all its glories and eccentricities, will be a thing of the past. It is rude, clumsy, and out of harmony with the progress of the world. It smacks of a former age and a cruder civilization. It reminds one of the clod of earth, and the lictor's rod; the trial by ordeal, and benefit of clergy. It belongs to these, and not to the age in which we live. With these it arose, and to these it will in time be gathered. The question is, Has not that time arrived now? Is not the world capable of a more perfect system to-day; and if so, what?
No system that can be suggested as superior to the jury can be positively shown in advance to be so. There are so many factors of uncertain quantity which enter into the calculation, that nothing like a perfect estimate of the respective merits of any two systems is possible. By what rule of mathematics can we arrive at the respective wisdom and sagacity of a jury of twelve men as compared with a bench of one, two, or three judges, or their respective honesty, impartiality, and so on? But more, perhaps, in the way of exact calculation is possible than has yet been accomplished. Something is possible, at least, by way of an exact estimate of the relative expense of any two systems. That is one item. Then, something may be done, though perhaps not much, by way of a comparison of the results of a certain term or terms of court in a certain district, where the jury system prevails, with those of a corresponding term or terms in a district where a judge alone decides the questions at issue. In the item of expense must be reckoned the loss to the country by reason of so many persons being taken from their natural employments, the temptations into which they are thrown, and the demoralizing influences to which they are subject. But these calculations pertain more to a commission of inquiry, and I do not propose to enter into them. Neither do I propose to enter, even theoretically, into the great question whether society would not be the gainer in point of morality by an administration of the criminal laws in which a jury would have no part, but merely, by way of introduction to these questions, take a brief glance at what the jury system really is.
It will be admitted, I think, that the jury of real life does not correspond to its ideal. There seems to be a vague, indefinable something about it, which is ever whispering in the ear of Civilization, "Hold fast by me, or you are lost!" But examine the phantom, and it disappears. Whatever of reality it may once have had, has passed away. The language of the old encomiasts would now seem foolish and extravagant. "The jury system," says one writer, "considered as a means of deciding contestations between individuals and of ​ascertaining the guilt or innocence of accused persons is, in England, the basis of public liberty, the bulwark of the people against oppression, the legal guarantee of life, of honor, and of the property of the citizens. A jury is the buckler of innocence against unjust accusations, and the sworn arbiter of those who have recourse to the tribunals in order to obtain justice. Under this institution the laws may be the means of protection or of destruction, of hope or of misery, according to the spirit, the firmness, and the integrity of the jurors." This is the language of a writer at the beginning of the present century. They are his opening words—the overture, so to speak, of his work. But the qualification he has seen fit to append to it seems, logically, to bring the wordy structure to the ground.
How the jury can be "the basis of public liberty, the bulwark of the oppressed, the buckler of innocence," and so on, and yet depend for all these upon the character of the men who compose it, one can hardly imagine. If the jurymen were all wise, honest, and true—if, in short, they were perfect—we would, undoubtedly, have perfect verdicts. But, if all judges were perfect, the same result would be arrived at in a much simpler way. We can only look for perfect judges and perfect juries when all mankind are perfect; and, when all mankind are perfect, there will be no need of either. And though the jury may have been once all that is thus ascribed to it, how can it be so now? In what manner can it be said to be the basis of public liberty at the present day, and who are the oppressed?
The ideal juryman is not supposed to be more perfect than the ordinary run of mankind; but he is supposed to enter the jury-box free from all prejudices or predilections concerning the matter to be decided. He is supposed to be chosen according to a system which insures the highest degree of impartiality—a system which, in large communities at least, makes the selection of each juror a matter of pure chance. But in such communities there is a large amount of business to be disposed of, and a large number of persons, called a panel, is required, from which each particular jury is taken. This furnishes a considerable quantity of material—of raw material, it may be called—from which the actual twelve are to be selected. These persons are drawn from a class of society the most plastic, the most subject to prejudices and animosities; and it is a well-recognized part of the business of counsel to secure from among them those who may have leanings toward their clients.
Their success or otherwise in this particular is, in all cases of importance, made the subject of the closest calculation. And a counsel is not considered to have shown any marked aptitude if he has not upon the jury one or more upon whose sympathies he can count. The many interests of a national, religious, or friendly character which pervade all society aid in this.
The sympathies of coreligion, copatriotism or confraternity are all ​instruments with which the skillful counsel either openly or secretly works.
The ideal jury is unanimous. The unanimity of the real jury is, in the great majority of cases of any importance, a mere name. That they are required to be unanimous has been admitted from time immemorial to be a defect in the system. The absurdity of compelling men to be unanimous must be apparent to the crudest intellects. In olden times in England when the judges "went circuit" they used to carry the jury around with them in carts until they agreed. In our time we have not much advanced beyond this. We lock them up, with barely the necessaries of life, until they are unanimous. The value of a verdict obtained under such conditions is not very evident. In an old case eight of the jury agreed to find "not guilty" and the other four "would find it murder." The next morning two of the four agreed with the eight. At last the rest came to this agreement, viz., that they would offer "not guilty," and if the court disliked it, then they would change the verdict, and find it "guilty"!
The foreman pronounced "not guilty," but the court, "not liking it," examined every one of them by the poll, whether that was their verdict, and ten of them affirmed it, but the last two discovered the whole matter; to hereupon they went hack and then brought in "guilty." The ten were all fined in considerable amounts for their conduct. It is not wonderful that, recognizing, as they must do, the ineffectual nature of their proceedings, jurymen have resorted to the very simple and suggestive expedient of casting lots for their verdict. Several instances are recorded in the books of juries casting lots for it, and in a recent murder trial in England it was discovered that the jury had balloted for their decision. To a candid and independent observer the whole effect of a jury-trial must appear about equivalent to drawing lots. Its value as a means of discovering truth can be little if any beyond this. Any one who will reflect on the matter for a moment will, I think, be convinced that the proportion of correct verdicts can not be much, if any, more than fifty in a hundred, which is, of course, the average in every question of pure chance. Almost every jury trial is as though the parties acting in it went through a mock solemnity of greater or less duration according to the importance of the case, at the conclusion of which the judge said to the jury: "We have exhibited to you the spectacle of a trial; you will retire now, and cast dice as to what your verdict will be." And if this be true, a system which would dispense with the jury, and in which the court itself would throw the dice, should be quite as satisfactory. It is certain that under such a system the very highest degree of impartiality would be reached, while there would be a vast saving in time and expense. ​This is in cases where the decision is actually left in the hands of the jury. But, and this is another difference between the real and the ideal in the jury system, we have in a large number of cases the more extraordinary spectacle of a jury solemnly sitting though a trial for the purpose of listening to the evidence and forming their own opinion as to the guilt or innocence of the accused, and then being instructed by the court as to the verdict they shall find. It is, as every one knows, the most common of occurrences for the judge to lecture the jury upon their verdict and to refuse to receive it. That the judge should be more correct than the jury is not impossible, but then—wherefore the jury? In an English case in which the jury had brought in "guilty," Mr. Justice Maule addressed the prisoner as follows: "Prisoner at the bar, your counsel thinks you innocent; the counsel for the prosecution thinks you innocent; I think you innocent. But a jury of your own countrymen, in the exercise of such common sense as they possess, and it does not seem to be much, have found you guilty, and it remains that I should pass upon you the sentence of the law. That sentence is that you be kept in imprisonment for one day, and, as that day was yesterday, you may now go about your business." In a case the other day in San Francisco the judge made similar comments, though to the jury themselves. The real value of these two anecdotes is ordinarily overlooked. It is something beyond merely raising a laugh at the expense of the jury. The laugh is not necessarily at the expense of the jury at all. It is rather at a system which takes up the time of twelve men in hearing a case and rendering a verdict, and then takes it for granted that the one man who sits on the bench knows more about it than the whole twelve. If the "unanimous" verdict of the twelve is not equal in wisdom to that of the judge who lectures them, it is clear that they may be dispensed with, without any great loss to society.
And, if unlike its ideal, still less is the jury of to-day like its original. A glance at the history of the jury system will show this. The original notion of a jury was not as a protection to anybody. It was not established as a bulwark of popular liberty. The jurymen were witnesses rather than judges of the matter in issue. The modern jury grew by a process of slow and gradual development out of customs which were part of the life of the Anglo-Saxons and other early inhabitants of Great Britain. These customs were perfectly characteristic of a rude, unlettered people. They were perfectly natural. They were based on no recognized legal principle. They had no set purpose in view beyond the purpose of the hour. They were almost utterly devoid of judicial forms. There was no such thing known as a writ. For the hearing of a complaint a messenger was sent personally to ​summon the people of the hundred in which the dispute arose or the crime was committed. They were to be of the vicinage or neighborhood of the parties. It was necessary that they should know something of the matters in dispute, or the persons accused. They were to decide of their own knowledge. Witnesses in the modern sense were unknown. The parties stated their grievance in the presence of this rude assemblage, which, by a species of acclamation, or preponderance of lung-power, which often terminated in an appeal to brute force, determined the question in issue.
Among the northern tribes something more nearly approaching to a court and jury is said to have existed, but among the Anglo-Saxons judicial forms were of the rudest possible description. By a law of Ethelred twelve men with the sheriff were to go out and discover all who had committed offenses and accuse them. Later grew the practice, introduced by the clergy from the canon law, of swearing the witnesses (as the jury were termed), and of requiring sworn evidence in all cases, both civil and criminal. And by the laws of Edgar it was provided that in every hundred there should be twelve sworn men to be appointed as witnesses, some of whom were to witness every transaction, that they might be afterward called to decide concerning it. The refinements of the ecclesiastical law, and the clergy, who only could read and write, did much to soften the asperities and barbarities of the customs which were in process of time molded into the common law of the country.
The modern jury is no more than the tumultuous assembly of the Anglo-Saxons molded into judicial form by the introduction of sworn evidence, by the separation of the grand and petty juries, and by the establishment of the number twelve—a number common for many purposes among the northern tribes of Europe. In its early stages it had no reference to a dread of monarchical aggression. Witness the fact that Alfred caused forty-four justices to be hanged in one year for delivering false judgments and sentences contrary to the verdict of the jury. From this time the jurisprudence of England rapidly improved. Under the Normans, who succeeded, the jury system showed marked signs of development. In the reign of William II occurred the first instance of twelve men sworn to render a verdict in anything like the modern sense. That was in a cause between the Bishop of Rochester and the sheriff. The jurors, awed by the influence of the sheriff, decided in his favor, which the bishop suspecting, he commanded them to choose twelve men who should.confirm it on oath. In this we see the first rudiments of the petty jury.
Another cause which led to the differentiation of the petty jury from the general body of jurors (or witnesses) was what is known in English law as the presentment of Englishry. By a law of the Norman kings, the people of the hundred in which a murder was committed were bound to discover the murderer or pay a fine, unless they proved ​that the person murdered was English. As this last was a task usually attended with great difficulty, it became the practice of the people of the hundred to discover the criminal, and, when found, to accuse him of the crime; but as these accusers, when they bad apprehended the accused, were found liable to be prejudiced against him, the custom grew of choosing twelve, who might be taken, not only from the hundred, but from the whole body of the county, whose functions were to decide as to the guilt or innocence of the accused. Under the first Henry the jurors, though still witnesses, and deciding exclusively from their own knowledge, began to be called judges—a fact which seems to indicate that the office of deciding began to be recognized as the principal part of their duty. In the following reign, Henry II recognized the value of the jury system as a check upon the power and rapacity of the barons; and, consequently, in the tenth year of his reign, was enacted the first legislation on record establishing the right of trial by jury. In the constitutions of Clarendon, passed in that year, it was provided that laymen should not be accused unless by certain legal accusers, the witnesses, and that if the offenders were such whom no one wished or desired to accuse, that then twelve men should be sworn "who should declare the truth according to their conscience."
It is noted as a curious fact that the jury system, whose great value has always been as a means of checking the encroachments of the crown upon popular liberty, should thus have been first officially introduced to the world as a means of strengthening the crown in its endeavors to check the encroachments of others. And it may be noted as an equally curious fact that the importance of the jury, as thus first established, was in gaining convictions rather than in evading them. Jurors, however, were still witnesses—"deciding by what they had seen and heard." Indeed, it was not until the reign of Henry VI (fifteenth century) that jurors were of sufficient intelligence to listen to and decide upon extraneous evidence; and not until the reign of Anne (eighteenth century) that it was enacted that the want of "hundredors" should not be a cause of challenge to the jury.
From this brief recital it will be seen that the last stage in the development of the modern jury was reached when, in the fifteenth century, the jurors began to listen to the evidence of others, and ceased to rely upon their own. The importance of the jury prior to this period has been very much overstated. The reference to it in Magna Charta does not warrant all the eloquence that has been expended upon it. The events which gave rise to Magna Charta and the condition of the people of England at that time preclude the idea that the jury system owes its existence, or at any rate its place in Magna Charta, to the "freedom-loving instincts of the Anglo-Saxons." A proper conception of the jury itself, as it then existed, equally precludes the idea that it possessed the importance, even in the eyes of those who obtained the charter, which people in later times have been ​wont to attach to it. Among the phenomena of human life is this, that in all countries and ages certain ideas or beliefs have been found so pleasing to the national vanity as to be regarded as the most fundamental of truths. They have descended from generation to generation as a sort of popular inheritance. They have formed part of the education of youth and the entertainment of maturer age. They have been placed, so to speak, in the national Pantheon, and worshiped as at least half divine.
No one ever thought of doubting them, because to do so-would be sacrilege; to deny them, a crime. Instances of this will occur to every one, and no more marked instance can be found than this, that we owe trial by jury to the wisdom, courage, and foresight of the Anglo-Saxons of the reign of John. A reference to the circumstances of that period will make this evident.
In consequence of their miserable condition, the hardships and exactions of the feudal system, and the cruelty and rapacity of those above them, the Anglo-Saxons, who constituted the lowest orders of the people at that time, were crying out for a return to the laws and customs of the Anglo-Saxon period. These customs included, as we have seen, a sort of trial by jury of the crudest and most rudimentary kind. But it was not for this they cried. This, such as it was, they had never lost. Under the Norman kings it was encouraged rather than suppressed, and in the reign of John had advanced far toward a regular judicial system. To this extent only can the reference to trial by jury in Magna Charta be ascribed to the Anglo-Saxons—viz., that it was one of the customs of the English people descended from the Anglo-Saxon period, confirmed by many subsequent charters, and enrolled in the great charter as part of the national constitution. To understand this it is indispensable to remember what the great charter was, and how little in reality the lower orders had to do with it. The struggle out of which it arose was not with them at all. It was a contest between the king and the barons, who set at naught his authority, who hanged his officers, and who rebelled against his outrages and abuses. It was they, the greatest enemies of the Anglo-Saxons, whose interest was in framing the laws so that they might ravage the common people with impunity, and at the same time escape similar treatment on the part of the king, who compelled the latter to sign Magna Charta. And so clearly were their interests opposed to the system of trial by jury, that it has been confidently asserted that the famous jury clause was due to the king himself. It seems more reasonable, however, to ascribe it to the archbishop and the clergy, by whom the document was undoubtedly drawn, and to whom its peculiar phraseology is undoubtedly due. But what is more credible, and, if true, more important, is the assertion on high authority that the words judicium parium, or judgment of peers, which are supposed to embody the great central principle of trial by jury, do not refer to ​criminal matters at all—the decision in which was never termed judicium, but veridictum. So that the most that can with safety be asserted of these two famous words is this, that out of them was evolved the great principle which in after-years was to stand in the breach in many a bitter struggle between law and force, and to play so important a part in the history of civilization.
And indeed that is the light in which the whole of this great act is to be regarded. It is all of a piece with the judicium parium and habeas corpus clause, the assertion of the supremacy of law in all ranks and orders of society. Laws had existed before the time of John, but they were but additional instruments in the hands of the strong to oppress the weak. Under the Saxon kings the laws were neither understood nor regarded. Every man was a law unto himself, and the result was anarchy and barbarism.
Under the Norman kings law was recognized and partially understood, but it was enforced only against those least powerful to violate it. Each Norman king in turn granted and confirmed the laws to the people, but himself outraged every law, both human and divine. The feudal lords right nobly imitated their example; and, so great grew their exactions that, like the Hebrews of old, the people cried aloud for a deliverer. The deliverer came in the person of a king more sensual, more vile, and more tyrannical than any who had preceded him; a king who ground the faces of the rich as well as of the poor; who outraged the noble as well as the base-born; who oppressed the strong as well as the weak. And the rich and the noble and the strong stood up; the barons turned against the king, and the king against the barons, and out of the contest arose the supremacy of the law. Law became the sole arbiter of right and wrong among all classes, and force and violence and the savage instincts of man became subject thereto.
For upward of five centuries the principles of Magna Charta have governed the Anglo-Saxon world, and among them the principle of trial by jury has held its place. The tyranny of absolute monarchy is gone, and the brutality of the barons has long since passed away, but the jury system remains. Since the days of William HI, when the supremacy of the law was finally vindicated, and the judges were made independent of the crown, trial by jury has been little more than a form; yet English-speaking people everywhere cling to it as a lately bereaved wife clings to the form of him who through many long years has been her shield and protector.
In this age all men are peers and equals in the eyes of the law, yet a jury of twelve, with all its ancient crudities, and all its modern anomalies, is still considered essential to a fair and impartial trial.
Time was when the jury were judges of the law as well as the fact. To-day they are in fact judges of neither. They are but the echo of the court, and their principal office is to relieve the court of the ​responsibility of what is done. "When a judge sentences a prisoner, he says, in effect: "Do not blame me, I pray you. You have been condemned by the 'unanimous' verdict of twelve of your fellows. I am but the mouth-piece of the law to pass sentence according to their verdict." Of course this is not so. In a great proportion of cases the very reverse is the case. The jury are, in fact, but the mouth-piece of the judge to render a verdict, the responsibility of which he wishes to be relieved of.
Let us ask ourselves if there really is anything to be gained by the continuance of a system so full of incongruities. People are commencing to ask this question now. One authority says, "Apart from any incidental defects, it may be doubted whether, as an instrument for the investigation of truth, the jury deserves all the encomiums that have been passed upon it." But the same writer goes on to point out that, while the jury might with advantage be dispensed with in civil cases, "opinion in England is unanimously against subjecting a man to serious punishment without the verdict of a jury, and the judges themselves," he adds, "would be the first to deprecate so great a responsibility." But that public sentiment is in favor of the jury system does not prove it to be the best, even in criminal cases. Mere sentiment is not an argument for the continuance of any system, and moral cowardice is not even an apology for one. Every system, every institution, however useful in the past, whatever may be its claims on the reverence or affection of mankind, must, sooner or later, be brought to the test of present and practical worth. In the Bank of England one is shown a very delicate and ingenious instrument for weighing coins. The coins pass up a tube, at the top of which they pause for a moment and are weighed. If good, they drop into a receiver on the one hand; if bad, they infallibly go to the other. No human agency is visible, yet each in its turn which does not come up to the standard of this remorseless little instrument is cast aside and rejected. All the institutions of the past are coins for which the age has invented weighing-machines. Each must come up to the standard of actual value, of undoubted utility, or be cast aside. The jury system will be no exception to these. In several countries it is now only used in civil matters. Throughout the Austrian Empire it has been abolished entirely. Law everywhere is undergoing a process of simplification. In English speaking countries in particular it has, during the last few years, been purged of many abuses, stripped of much that was useless, and, in a few years more, trial by jury will also be swept away.
* ↑ The Cincinnati riot, which occurred some time after this was written, would appear to lend additional force to this observation, as it was undoubtedly to one of these causes that the extraordinary verdict which led to the riot was due.
* ↑ A notable instance of a judge's overruling the decision of a jury has just occurred in England. In the suit of Adams against Coleridge a verdict was rendered for the plaintiff, and was immediately reversed by the presiding judge.—[Editor.