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

| III session nj Albany, on the question ''Shoul1
| luries be Unanimous7 question that has
presented itself TO evory thinking mind ever
since The first institution Of this palladium Of
personal liberty. DIR. LIEBER, perhaps Of oil
men IN this continent. is tho one most eminent
| iy qualified 10 give un authoritative opinion OIL
so Important and delicate question. DR.. L.
is tho first publicst in the country, learned in
the history Of criminal Jurisprudence, and has
ut all periods Of his career endcayored to bring
the results of his Investigations 10 bear upon
The practical questions of tho day.
Tint trial by jury has come more and more
into disrcpute, is q statement one does not like
to put on paper, but il is nevertheless true
and II ere are many reasons for it. From long
custom il has ceascl to bo regarded ns n priv
ilegc. Jury duty, almost everywhere, is con-
sidorod onerous, and its performance is shun-
ned by every possible subterfugo The conso-
quonco is that tho burden falls upon tho few,
who arc either too conscientious or too ignorant
TO avail themselves Of the means by which the
more intelligent and loss scrupulous circum-
vent the law nnd shirk their duty. And not
only is the discharge of this duty confined to
these two extremes Of tho members composing
the body polite, but as another coiucident re-
| suit, these same citizens arc called upon for q
discharge of this duty much more frequently
than they should be, or would be, if the others
did their duty.
| This hns become SO notorious everywhere
almost, where the institution is in use, certain
ly in England und America, that lawyers and
others, competent TO judge, haro not hesitated
to say that trial by jury has proved failure.
Dr. LiEDER remarks: "Niurmurs against tho
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, tho trial by jury, one Of the
nbutmcnts on which the arch of civil liberty
rests, can he prevented from giving way in
| course of time"
Whether or not DR.. LIEBER's suggestions arc
adequate 10 n full remedy of the evil above
noted, and many others We could name in con-
\ nection with Jury trials, wo are unable to say;
but, at all events, these suggestions merit con-
sld0ration and we therefore lay them before
our readers this morning.
"NEw ioRK, Juno &c. 1s67.-Obsoyyipa in tho
papers that vow al L. REQUISITE for
yon Tow remarks on subject which has occupied
my mind for many yoars, and which consider Of
vital importance to our whole administration OF
Justice Long ago gave lin my Civil Liberty and
Selfdoyernmont) somo or tho reasons which in
duccd mo 10 disagreo with thcss jurists and states
mon who consider unanimuy necessary, and
eSon sacrod element Of our honored jury-triaI
Further observation and study hayo not only con-
hrnicu mo Ill my opinion, but hayo greatly
strengthened my conviction TINT tho unnpimty
pr'nc'po ought to bo giyon up il tho jury-trial is
to rcman in harmony with tho nlterod crcum
stances Which result from tho progress and general
change OF things. Mnrmurs against the jury-trial
have occasionally beon heard among tho lawyors
anu 1t IL by no means certain that, without some
change iiko that which am going to propose, tho
trial by jury, one OF the abutments on which tho
nr"h OF civil liberty rests, eau be prevented from
giving way in course Of tiino.
''rho present Constitution OF our stato nennts
tiSatts to wavo tho jury in civil cases, II they
'-eely agree to do 3d. ThIs would Indicate that
lo adoption Of rortiots by majority Of tho Jurors
III civil cases, would not meet with insuperube djt
iieulsy; but it soems TO mo oyon moro inportant
and moro consonant with sound reasoning To eban-
don tho uhanimty principle in penal cnses The nd
mnstration OF Justice is sacred cause in al
cnscs, ana the doniaion concerning property and
ilghta, and, frequently, tho whole carcor of man
OF tho fato OF an orphan is, indeed, sufficiently i'm
porlant not to adopt the majority principle in Jury
irials IL it implies any lack Of protection. or IL
thero is al element OF insecurity in 1t; and il there
ID mol, Then there are many reasons, az no shall
aoo, why II ought TO be adopted in criminal csses
as well as in civil.
"At tho beginning Of my reflections COPY OF
which hos been laid by tire New York Union Ieapus
Club before oach member Of tho Convention T
stated tho different causes Of tho failure Of Justice
IN the present time. circumstances Obliged me- TO
write that pamphlet in great haste, In which for
got 20 enumerato among these causes the nom
agreement Of Jurors. It would be useful piece
OF information, and an important addition to the
statistisH Of the times, If the Convention could as
certain, through our able state statisticsn. the
per conage OF failures of trials resulting from the
n-aRreement OF jurors in civil, in criminal and
especially in capital caSes. This failure OF agree-
ment has begun to show itself in England likewise
anco the coarse means Of forcing the Jury TO agree
by tho strange logic OF hunger, cold and darkness
has boon given up. l#
I'm Scotland nounanimity Of the jury is reouired
III penal trials; nor in France, Italy, Germany. nor
in any country whatever, except England and the
United States; and In tle English Law It has only
como to bc gradually established In the oourae NJ
legal changes, and by no means according to a
principle clearly established from the beginning,
The unanmty principle has led to strange reaults.
Rot only were formerly Jurors forced by physical
means to agrso in moral and intellectual point Of
WOW, but in tho oarlior times IL happened that |
verdict was takon from eloven Jurors, il thoy |
agreed, and tho refractory juror wsn committed
to prison Guido to Engltsh Jures 1881 Itske
tho quotation from Forsyth, History Of Trial by
Jury, 1881
"Under Henry II. it was established that twelve
Jurors should agree in order to determine aues.
tion, but the enforcement OF the jury meant that
10 long as twolyo Jurors did not agroo others vero
ded to tho panel until twolvo out Of this number.
m nattor how lnrge, should agreo ono wsy or the
otl.or. This was changed occasionally. Under
Edward III. 1t WAS decided that tho verdict of less
thai twelve was nullity. At present, In England,
q 'ordlct from iess than twoIYo is sometimes takon
bs consent Of both parties. Thore Is nothing,
etor in tho logic Of tho subject or tho strict con-
orption OF right In tho historic development of
tho rule, that demands the lnanimity OF twelve |
men. and tho only twelve men set apart to try . |
Gauso Or. caso. 5..
" hrst the jurors were the julges Themselves,
but in tho course Of tmo tho jury Judges Of tho
iacs, came TO be separated from tho bench ns
judges OF tho law, in tho gradual development Of
our accusatoria trial, as coutra-distsnRuIshed TO
the inqaisitoria trial. It was fortunate separa.