The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1867-09-06

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nor docs tho trial jury form. the only exception
TO tho ruio that all Institutions needs must clIaugo
or DO modified in tho Of tino il tacy arc in
tended to last and outliyo centuries, or il ihoy
siiaii not become hiJraucus and ":wscs ar all
mcnls instead OF living portions OF healthy or
gsnism.
Tho Frcnch and German rulo, and, 1 believe,
tho Italian ALSO is that II Boyen jurors arc against
hyo, tho judges retire, and II tho bench decides |
with tho hyo against tho sovou, tho verdict is on
tho side of the ayc II Koight jurors agree against
four, 1t Ia verdict, in capital we'll as in common
criminal Cases. There il no civil jury in France,
Germany and Italy.
"This seems to bo artificial md not in harmony
with our conception Of tho Judge, who stands bo-
twoen tho parties, especially 80 when tho state,
the crown, or tho people, ia Of the Two par
tosi nor in harmony NTH tho important idoa tnl-
though wo Americans have unfortunately gvon IL
ZIP in many cascs) thut tho judges Of tho fact and
those OF tho law must bo distinctly separated.
Tho judge, in tho prencl trial. rtos purL In tho
trying, frequently oaensyely no. Ilo il the chief
interrogation; ho ntilnates, mud not unfrclucntly
insinuatos. This wouid bo wholly ropugnant to
our conceptions and fooIings, and may tho judge
forever keep, with the American and tho English
poopo, his Independent, high position between
and nboyo tho parties!
'on tho other haul, what is unaunlity worth
when it is enforced, or whom tho Jury is out uuy
iength OF timo which proves that tho formal una
rimity, tho outward agreement, Ia moroiy nc
commolatiyo unanimity, il may mako word2
Such verdict is not intrinscalIy truthful one;
tho unanimity is real 'alor or artificial.
Again, tho unanimity principle puts It in tho
power OF any refractory juror, possibly sYmpa-
thizing moro with crimo tlnn with society and
right, to defeat tho cnda Of justice by holding
OUT Every ono remembers cases OF tho plainest
and OF vol proved atrocity going unpunshcd be-
Cause OF ono or two jurors resisting tho othors.
aithor from positively wicked motives or somo
| mawkish reasons which ought to have prevented
them from going into the jury box altogether.
II ask, thon, why not adopt this rule Each
jury shall consist Of twelSo jurors, tho agreement
OF two-thirds Of whom shall be sufficient fol
verdict in NIL cases, both civil and ponal, o1copt
in capital cases, whom throe-foIrths must agrcc
to mako verdict valid. But tho foreman, in rom
| dering tho verdict. shall state how many jurors
| havo ngroed.
81 lsve never heard nor aeon in print any OBJ
lection to tho passage above alluded to- In which
have suggested tho abandoning. Of unanimity,
| than this: that people, the criminal included,
would not bo satisfied will, verdict it they know
that aomo jurors did not agrt,o. AS to tho crimi-
iet us iehfe uitn nlono. Gun assure oil per-
Hons who hayo investigated tlis subject less than
have, that thore nre worry fow convIcts satisfied
with their rerdict Tho worst among thom will
| acknowledge that thoy havo committed crimes in
doed, but not the ono for which thoy arc sen
tencod; or they will insist upon tho fnlsuhooi Of
great deal OF the testimony OH which they con-
Ucted' or the ileBahty OF the Vordiot. sAh2
''Tho objection to the non-uuanimity principle
| is not founded on any psychologist ground. How
| much stronger s not tho fact that all Of us have
| to abide by the decision OF the majority in tho
| most delicate cases, when supreme courts decide
constitutional questions and no do not only know
that thero has boen no unanimity in the court hut
when VIC actually receive tho opinions Of the mi
| nority, aud their whole arguments, which always
soem tho bettor ones to many, sometimes to ma
jority Of the pooplo2 Ought wo to abolish, thon
the publication Of tho fact that majority Of the
judges only, and not tho totalty Of them, agreed
with the dociaion2 By no means. DANIEL WE'D
srER said. in my presence. that the study OF the
protests in tho House OF Lords thaving boon pub
lished in a separate Yolums) was to him tho most
instructive reading on constitutional law and his
! tory. May No not say something similar concori,-
ing many opinions OF the minority Of our supreme
benches2
"By tho adoption OF tho rule which have pro-
posed, the great principle that mans ito, bor-
ty or properly shall be joopardod twico hy trials
in tho court Of justice, would become reality.
At least the contrary would become rare eIcop-
tion. Why do all our constitutions lay down tho
principle that shall bo tried twico for the
same oGonco? Because IL Ii ono OF the means by
which dcspot;c governments harass citizen, I'm.
der disfavor, to try him over and oveI again; and
because civil liberty demands that man shall not
bo put twice to tho ye1aton, expense and anxiety
tho jury ands no verdict it is no trial, and the
indicted porson may bo tried over again. In
reality, however, it is tantamount to repeated
trial whensa person undsrgoes tho trial less ouly
tho verdict, and whom ho romains unprotected
against most Of the evils and dangers against
which tho bill Of rights or constitution intended
to secure him. The poiat-nan,ely, the making OF
tho noblo principle in Consultation q reality
and positive aotuality-seems to me most i'm
portant motive why wo should adopt tho measure
which respectfully, but very urgently, ro,om-
mend to tho Convention.
I'm Legislation, in politics, in all organizations
tho unanimity principle savors of barbariBm, or
indicates at least lack OF DEVELOPMENT Tho
United States OF tho Netherlands could pass no
law OF Importance except by tho unanimous con.
sent of the Statos General. single voice in the
nnciont Polish Dict could yoto measure. Does
not, porhapu, something OF this sort apply to our
Jury unanimity2
""hether it bo or not for ono nm con-
Nnced that VIC ought to adopt the other rule, in
order to give our verlicts tho character Of perfect
rnthfulness, aud to proYent the frequent failures
OF finding verdict ut all.
II am, with great respect, your obediont,
"FRANClS LlEBERn