The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1867-09-06
DIR. L1EBER ON JURY TRIALS.

DIR. LIEBER ON JURY TRIALS.
DR.. FRANCIS LIERER has sent memorial to
the New York Constitutional Convention, now
in session at Albany, on the question: t'Should
Juries be Unanimous q question that has
presented itself to every thinking mind, ever
since the first institution of this palladium of
personal liberty. DR.. LIEBER, perhaps of all
men on this continent is the one most eminent
ly qualified to give an authoritative opinion on
so important and delicate question. DR.. L..
is the first publcist in the country, learned in
the history of criminal Jurisprudence, and has
at all periods of his career endeavored to bring
the results of his Investigations to bear upon
the practical questions of the day.
That trial by jury has come more and more
into disrepute, is statement one does not like
to put on paper, but it is nevertheless true !;
and there are many reasons for it. From long
custom it has ceased to be regarded as priv
ilege. Jury duty, almost everywhere, is con-
sidered onerous, and its performance is shun-
ned by every possible subterfuge. The conse-
quence is that the burden falls upon the few,
who are either too conscientious or too ignorant
to avail themselves. Of the means by which the
more intelligent and less scrupulous circum-
vent the law and shirk their duty. And not
only is the discharge of this duty confined to
these two extremes of the members composing
the body polite, but as another coincident re-
suit, these same citizens are called upon for a
discharge of this duty much more frequently
than they should be, or would be, if the others
did their duty.
This has become so notorious everywhere
almost, where tho institution is in use, certain
ly in England and America, that lawyers and
others, competent to judge, have not hesitated
to say that trial by jury has proved failure.
Dr. LIEBER remarks: "Murmurs against the
jury trial have occasionally been heard among
the lawyers, and it is by no means certain
that, without some change like that which am
going to propose, the trial by jury, one of the
abutments on which the arch of civil liberty
rests, can be prevented from giving way in
course of time"
Whether or not Dr. LIEBER's suggestions are
adequate to full remedy Of the evil above
noted, and many others we could name in con-
nection with jury trials, We are unable to say;
but, at all events, these suggestions merit cor
sideration, and We therefore lay them before
onr readers this morning:
'NRw YORK, June 26, 1S67.-observing in the
papers TINT you have proposed in the Convention
to abolish the unanimty Of jurors as requisite for
verdict in civil cases, beg leave to address to
you few remarks on subject which has occupied
my mind for many years, and which consider of
vital Importance to our whole administration Of
justice. Long ago gave Tin my Civil Liberty and
Self Government) some Of the reasons which in
duced me to disagree with these jurists and states
men who consider unanimity necessary, and
even sacred element Of our honored jury-trial.
Further observation and.study have not only con-
frmsd me in my opinion, but have greatly
strengthened my conviction that the unanimity
principle ought to be given up, IL the jury-trial is
to remain in harmony with the altered circum-
stances 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 no means certain that without some
change like that which am going to propose, the
trial by jury, one Of the abutments on which the
arch Of civil liberty rests, can be prevented from
giving way in course OF time.
"The present Constitution of our State permits
ltigants to waive the jury in civil cases, If they
freely agreo to do 30. This would indicate that
the adoption Of verdicts by amaorty Of the jurors,
in civil cases, would not meet with insuperable df
ficulty but it seems to me even more important
and more consbnant with sound reasoning to aban-
don the unanimity principle in penal cases. The ad
ministration Of justice is q sacred cause in al
cases, and the decision concerning property and
rights, and, frequently, the whole career Of man
or the fste Of an orphan is, indeed, sufficiently i'm
porant not to adopt the majority principle in jury
trials, if it implies any lack Of protection, or il
there is an element Of insecurity in it; and fthere
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 Reflection a copy of
which has been laid by the New York Union League
Club before each member Of the Convention, I,
stated the different causes Of the failure Of justice
in the present time Circumstances obliged me to
write that pamphlet in great haste, in which for
got to enumerate among these causes the non-
agreement OF jurors. It would be useful piece
Of information, and an important addition to the
statistics Of the times, If The Convention could as
oka oficf no
per centage of failures of trials resulting from the
Of jurors in CIVIL in criminal, and
especially in capital cases. This failure Of agree
ment has begun TO show itself in England likewise,
since the coarse of forcing the jury to agree
by the strange logic Of hunger, cold and darkness
has boon 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 Of
legal changes, and by no means according to o
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 intellectual point of
verdict was taken from eleven jurors, il they
agreed, and the refractory juror was committed
to prisonl (Gude to English Juries, 1882. take
the quotation from Forsyth, History Of Trial by
Jury, 1922
"Under Henry II. it was established that twelve
Jurors ghould agree in order to determine ques-
tion, but the enforcement of the jury meant that
as long as twelve jurors did not agree, others were
added to the panel, until twelve out of this number,
no matter how large, should agree one way or the
other. This was changed occasionally. Under
Edward Ill it was decided that the verdict OF less
than twelve was nullity. At present, in England,
verdict from less than twelve is sometimes taken
by consent of both parties. There is nothing,
either in tho logic of the subject or the strict con-
,eption Of right, or in the historic development OF
he rule, that demands the unanimity of twelve
men, and the only twelve men set apart to try