New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1875-07-05
JURY FICTIONS.

lHtIc dIc tnOSC WIN, III 'hNhA '''D'>' 49,
likely to say that this Trial, which has stretched
to such preposterous length, has had but a
lame and impotent conclusion. Some time ago,
We endeavOred to point out the nature OF
moral verdcts, and we believe that this result
will Justify the considerations which we then
yentlred to offer. After an investigation which
promised to be endless, the case is at last re-
ferred to the great chancery of the people.
To those who are disposed to regard
this phase of it as unfortunate, VIC may
suggest, that under no circumstances cOuld
it have been different. A verdict at best would
after all have been pro .forma-plaintiif and de-
PENDANT would each have retained his constlt-
uency A jury verdict was necessary to the
legal enforcement of opinion which now must
work by slower, but still by sure methods.
The trial has done all which could be reason
ably expected. 1t has put the facts before the
world in a convenient form and in accordance
with the scientific laws. of evidence.
This, which could not help twelve
persons to an accord, will hardly make
twenty millions unanimous. Now we must rest
as patiently as possible until the weight OF
public opinion has declared itself. This Is all
the verdict which we shall ever have III TINS
case, and under the circumstances, the only
one which we can reasonably expect. IL his
tory, the nature of which favOrs research anu
decision, is full of unsettled problems, III spite
of full record and documentary facilities, we
can hardly hope for a categorical decision IN
a matter the elucidatiOn of which so much
depends upon personal veraclty.
The English and American people, greatly
~ ,f hn M
mon law, are equally fond of trial by jury
which is one of its features, and one Oh It's
fictions. The best part of this system Is OF
popular origin-its limitations are the result OF
legal timidity and distrust. Nothing, indeed,
in certain respects could be more arbitrary.
Such is the rule which fixes the number OF
Jurors at twelve. Such is the require
ment of absolute unanimity. Such Is
the nicely which demands that the
Juror SHALL in entering upon his duties, nave
no opnion-a Wecaution rigidly enforced III
theory. as if it were of the last consequence,
and yet inevitably, in the nature of things,
every day disregardcd in practice. Such was
the old plan, now happily abandoned, of starv-
ing and freezing jurors into an agreement. In
fact the system, in all its rigidity, was a bun
die of contradictions. 1t assumed strength OF
Judgment and perfect honesty in the juror, and
then treated him as if he were both childish
and venal.
The truth is, as lawyers have always known,
this attempt to limit fastidiously the knowledge
of Jury is hopeless from the beginning.
Counsel for instance frequently ask an M
proper question of a witness. and before the
other side can interpOse the answer is III.
Then there is little furry, at the end OF
which the Judge gravcly tells the jury that
the answer is not evidence, and that they are
to forget all about it. The only result OF this
is. TO impress it all the more forcibly upon
their memories. 1t may have been trifle to
begin with, but the juryman Immediately
thinks that it is of first-Iate Importance. After
he goes out il may be the one thing which he
will remember, partly because its discussion
broke the monotony of the trial We shall
have wiser ycrdicts when we cease to keep
jurors in leading strings.
Again, the whole theory of perfect agree
ment is so absolutely artificial, and SO little
consonant with the general arrangement of
human affairs, that unless we attribute Its
origin to some superstitious feeling it is diff
cult to understand how it ever became en-
grated upon a system, to all the other fca-
lures of which it is substantially abnormal.
In matters affecting the whole body polite,
we permit plurality or at least a majority
to decide, and in this way we manage
our elections, our legislation, our corporations
and associations, whether lay or ecclesiastical.
If absolute agreement, except to acquicsce in
the views OF the greater part, Were required,
society could not go on for day. Why, then,
is it necessary for verdict that the twelve
jurors should be of one mind Why is it any
more necessary in q petit than in a grand
jury? 1t is true that, theoretically, the former
is a body of last resort, but. practically, as
everybody knows, it is not so, since there are
appeals, new trials, and the setting aside of
verdcts. If four men think that A. B. should go
to Congress, and eight men prefer c. d., il is the
last who goes but if four men are for the plain
tiff and eight for the defendant the whole
case must he tried over again. The result is
that in ordinary suits juries generally agree,
and in extraordinary ones, enlisting the feel
ings or requiring nice thought, they generally
do not. Ii is like the lottery in which the truly
lucky ticket-hOlder must not only draw three
numbers, but three numbers in q certain
arbitrary succession. The consequence is that
he draws nothing. The idea of the plurality
it has been practiced for centuries. We do
not say that it is the true idea, but we suggest
that il is worth considering.
TIE MODEL MIN