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

nor dSse the trial by jury form the on,y exception
to the rule that al institutions needs must change
or be modified in the course Of time il they arein-
tended to last and outlive centuries or IL they |
shall not become hindrances and causes OF all |
ments instead Of living portions OF . healthy or
ganism.
'The French and German rule and, I believe,
the Italian also is that If seven jurors against
five, the judges retire, and if the bench decides
with the Ave against the ssyen the verdict is on
the side of the Eve. II eight jurors agree against
four, 1t is verdict in capital well as In common
criminal cases. There is no civil jury in France,
Germany and Italy. -
'srhis seems to be artificial, and not in harmony
with our conception of the judge. who stands be-
tween the parties, especially so when the state,
the crown, or the people, is one of the two par
ties; nor in harmony with the important idea (al-
though We Americans have unfortunately given it
up Ia many cases) that the judgeB Of the fact and
those OF the law must be distinctly separated.
The judge, in the French trial, takes part in the
trying, frequently oifensivey 80. He is the chief
interrogation; he intimntes, and not unfrequently
insinuates. This would be wholly repugnant to
our conceptions and feelings, and may the judge
forever keep, with the American and the Enghsh
people, his Independent, high position between
and above the parties!
"On the other hand, what is unanimity worth
when it is enforced, or when the jury is 'out any
length OF time, which proves that the formal una
n1mity, the outward agreement, is merely ac-
commodative unanimity, if I may make word?
2r1Nh 10 tooIu I'm
the unanimity is real 'aforcement or artificial.
Again, the unanimity principle puts it in the
power OF any refractory juror, possibly sympa-
thizing more with crime than with society and
right, to defeat the ends of justice by holding
| out Every one remembers cases Of the plainest
| and OF we'll proved atrocity going unpunished be-
cause OF one or two jurors resisting the others,
either from positively wicked motives or some
| mawish reasons which ought to have prevented
them from going into the jury box altogether.
81 ask, then, why not adopt this rule: Each
jury shall consist of twelve jurors, the agreement
| of two-thirds Of whom shall be sufficient for
verdict in all cases, both civil and penal, except
l in capital cases, when three-fourths must agree
to make verdict valid. But the foreman, in rem
dering the verdict, shall state how many jurors
have agreed.
| 'Thsve never heard nor seen in print any OBJ
lection to the passage above alluded to, in which
have suggested the abandoning Of unanimity,
than this: that people, the crimiRal included,
would not be satisfied with verdict if they knew
that some jurors did not agree. As to the crimi-
nal, let us leave him alone. can assure all per-
sons who have investigated this subject less than
have, that there are very few convicts satisfied
with their verdict. Tho worst among them will
acknowledge that they have committed crimes in
deed, but not the one for which they are SEN
fenced; or they win insist upon the falsehood OF
great deal Of the testimony on which they are con-
victed, or the illeganty of the verdict. xxa
.The objection to the non-unanimity principle
is not founded on any psychologist ground. How
much stronger is not the fact that all of us have
to abide by the decision of the majority in the
most delicate cases, when supreme courts decide
constitutional questions, and we do not only know
that there has been no unanimity in the court but
when we actually receive the opinions Of the NIL
nority, and their whole arguments, which always
seem the better ones to many, sometimes to ma
jority of the people2 Ought we to abolish, then,
the publication Of the fact that majority OF the
judges only, and not the totality Of them, agreed
with the deciaion? By no means. DANIEL WEB
srER said. in my presence, that the study OF the
protests in the House OF Lords (hsying been pub
Hshed in separate volunie) was to him the most
instructive reading on constitutional law and his
tory. May we not say something similar concern
ing many opinions Of the minority of our supreme
| benches? as T.
"By the adoption Of the rule which have pro-
posed the great principle that no mans fe iiber-
ty or properly shall be jeoparded twice by trials
/ in the court Of justice, would become reality.
At least the contrary would become rare excep-
| ton. Why do oil our constitutions lsy down the
principle that no one shall be tried twice for the
same offence2 Because it Ia one Of the means by
which despotic governments harsss citizen, un
der disfavor to try him over and over again; and
because civil liberty demands that q man shall not
be put twice to the yexation, expense and anxiety
| for the same imputed offence. Now, the law says
il the Jury finds no verdict it is no trisl and the
indicted person may be tried over again. In
| reality, however it is tantamount TO repeated
trial when person undergoes the trial, less only
| the verdict, and when he remains unprotected
against most of the evils and dangers against
which the bill Of rights or constitution intended
/ to secure him. The point-namely, the making OF
the noble principle in our Constitution reality
and positive actually seems to me most inn
portant motive why We should adopt the measure
which respectfully, but very urgently, recon-
mend to the Convention.
SIN legislation, in politics, in all organizations,
the unauimity principle savors Of barbarism, or
indicates at least lack Of development The
United States of the Netherlands could pass no
law OF Importance ezcspt by the unanimous con-
sent of the States General. A single voice in the
ancient Polish Diet could veto measure. Does
not, perhaps, something Of this sort apply to our
jury unanimity
| ''Whether it be 500 not, I for one am con-
vinced that we ought TO adopt the other rule, in
order to give our verdcts the character Of perfect
truthfulness, and to prevent the frequent failures
of finding verdict at all.
'Tam, with great respect, your obedient,
'FRANCIS L1EBER."