Western Reserve chronicle. [volume] (Warren, Ohio) 1855-1921, 1867-10-09
DR.. LeIber ON Jury Trials.

q
tional Convention on the subject G
requiring unanimity in juries in orde
to render s verdict. The memoris
contains important suggest tons whicl
are well worthy Of consideration, ant
We therefore publish it entire: ss
5. H. New YoRK, June 26, 1857.
observing in the papers that yoI
have proposed in the Convention t.
abolish the unanimity = of jurors as re
quisite for G,Terdiet IN civil cases, 1 bel
leave to address to you q few remark
on the subject which has occupied m!
mind for many years, and which ! con
slider of vital importance tosour Who'll,
administration of Justice. Long ago
gave lin my Civil Liberty and Self
GoFeFnment( some Of the reasons which
induced me to- disagree with thost
jurists and statesmen, who considel
lnanimity 8 necessary, and even sa
cred element of our honored jury
trial. Further observation and study
have not only confirmed me in ny
opinion, but have greatly strengthened
ny, conviction that the unanimity
principle ought to be given up, if the
jary-trial, is to remain in harmony with
the altered circumstances which result
from the progress and general change
Of things Murmurs against the jury
trial have occasionally been :. heard
among the lawyers, and it is by nc
means certain / that, without some
change like that which ]. am going tc
propose, the trial by jury, one of the
sbutments on which the arch of civil
liberty rests, can be prevented from
giving way in course of time. Ia e g
"The present Constitution of ouI
state permits litigants to waive the ju.
~ in civil cases, if they freely agree to
do so. This would indicate that the
adoption of yerdicts by q majority ol
the jurors, in civil cases, would not
meet with insupsrsble difficulty; but
il. seems to me even more important
and more consonapt with sound reas-
oning 10 abandon the unanimity prin-
eiple in penal cases., The, administra-
ton of justice IS q sacred cause in all
cases, and the decision concerning
property and rights, and, frequently,
the whole career of man or the fate of
an orphan is, indeed, sufficiently i'm
portant not to adopt the majority pFin-
ciple in jury trials, if it implies any
lack Of protection, or if there is an ele-
ment Of insecurity, in it and if there
Is not, then there are many reasons, as
we shall see, why it ought to be adopted
in criminal cases as well as in civil.
cat the beginning Of my :Rehecr
tions,' copy of which has been laid by
the New York Union League Club
before each member of the Convention
/ stated the different causes of the
failure of justice in the present time.
C Circumstances obliged me towrite that
pamphlet IN great haste, in which l
forgot 10 enumerate among these caus-
es the enlargement of jurors. 1t
would be useful piece of information,
and an important addition to the statis-
tics Of the times, if the Convention,
could ascertain, through our able ststis-
tician, the percentage of failures of
trials resulting from the non-agreement
of jurors in civil, in criminal, and es-
pecially in capital cases. This failure
of agreement has begun to show itself
in England likewise, since the coarse
means of forcing the jury to agree by
the strange logic of hunger, cold and
darkness, has been given up.
= SIN Scotland no Unanimity of the
jury is required in penal trials nor in
France, Italy, Germany, nor in any
country whatever, except England and
the United States; and in the English
law it has only come to be gradually
established IN the course illegal chang
es, and by no means according to q
principle clearly established from the
beginning The unanimity principle
has led TO strange results. Not only
were formerly jurors forced by physical
means to agree in moral and intellec-
tual point of view, but in the earlier
times it happened that verdict was
taken from eleven jurors, if they agreed
and sthe refractory jurors was COM
mitted to prisonl (Guide to English
Jurors, 1862. 1 take the question from
Forsyth, History of Trial by Jury, 1852. J
~ 'fUnder Henry Ii, it was established
that twelve jurors should agree IN or
der to determine a question, but the
,afforoement of the jury meant that as
long as twelve jurors did not agree,
others were added to the panel, until
twelve ont of this number, no matter
how large, should agree one way or the
other. This was changed occasionally.
Under Edward III, it was decided
that the verdict of less than twelve
wasiainullity, Al present, in England,
a verdict from less than twelve is some
times taken by consent of both parties.
There is nothing, either in the logic of
the subject or the strict conception of
right, or in the historic development of
the rule, that demands the unamity
of twelve men, and the only twelve
men set apart TO try a cause or case.
: SAT first the jurors were the judges
Themselves, but in the course of time
the jury, as judges of the fact, came to
be separated from the bench as judges
of the law, in the gradual develop
ment Of our aecusatorial triRl, as con-
tradistinguished from the inquisitorial
trial. 1t was a fortunate separation,
which in no other country has been so
clearly perfected. The English trial
by jury is one Of the great acquisitions
In the development Of our race, but
everything belonging to this species of
trial as it eqists at present is by no
means perfect; nor does the trial by
jury form the only exception to the
rule that all institutions needs must
change or be modified in the course of
time, if they are intended to last and
outliYe centuries, or if they shall not
become hindrsnces and causes of all
ments instead of living portions Of a
healthy organism.
"The French and German rule, and,
l believe, the Italian also, is that if sew
en- jurors are against FIVE, the Judges re-
tire, and if the bench decides with the
five against the seven, the verdict is
on the side of the FIVE. If eight Jurors
agree against four, it is a verdict, in
capital as well as in common criminal
cases. There IS no civil jury in France,
Germany and Italy.
'This seems to me artificial and not
in harmony with our conception of the
Judge, who stands between the parties,
especially so when thestate, the crown, A.,
or the people, is one of the sTo parties;
nor in harmony with the important
idea (although we Americans have un-