The spirit of democracy. [volume] (Woodsfield, Ohio) 1844-1994, 1879-10-28
From the n Y. SUM-
Waiver Of Trial by Jury.

lSOutt VI tUo 'oeate VI AoWo 10 iCpoTlcV
IN the last number of the Albany Lao
Journal The defendant, by whom the
appeal was taken. had been indicted for
passing a forged note, tried by his own
consent before jury Of eleven men, and
found gullty. 1t appeared that twelve
Jurors were impaneled, but cne of them
fell sick after the trial had begun; that
this juror was discharged with the con-
sent Of the prisoner, who also consen.
ted to 90 on before the remaining jury
men; and that the trial vas thereupon
proceeded with and resulted in convic-
ton. Before the appellate court it was
contended thst no judgment could law.
fully be pronounced against the defen-
dant. inasmuch as It was uncenstitution-
al to try him with a jury of less than
twelve, even nv his own consent.
In Cancemi's case, decided in this
Stat. in 1858. our Court Of Appeals
held similar proceeding to he an in.
fringment Of that section Of the Con-
stitution which provides that the trial
by jury in all cases in which it has here
Ftofore been used shall remain inviolate
forever. Like decisions have been made
in Alabama and Indiana. The Supreme
Court of Iowa, however, refuses to fol-
low them The Constitution OF that
State contains the same provision as
ours. little differently expressed, de-
clairin2 that "tbe right of trial by jury
shall rem ain inviolate." The court holds
that this provision is Cor the benefit and
protection of persons charged with
crime, who may waive it just IS they
may decline to avail themselves OF any
other legal privilege.
Now in this Iowa case as well as in
that of Cancemi, it was assumed that
the Jury contemplated nv the Constitu
ton is a jury of twelve persons. In.
deed there can be no doubt on this point
Our Court Of Appeals declared that sit
would be highly dangerous innovation
in reference to criminal cases, upon the
ancient and invaluable institution Of
trial by jury and the Constitution and
laws establishing and securing that
mode of trial, for the cour. to allow Of
any number short Of full pannel Of
twelve jurors; and we think it ought
not to be tolerated" The Iowa tribu-
mai criticises this proposition because it
is not accompanied by a statement OF
the reasons which would make the inno-
vstion dangerous and intolerable; but
we think they can easily be given. 90
The Constitution of a State is it's
fundamental law. All Legislation which
conflicts with its provisions and is null
and void. The courts are bound to
maintain every right that it guarantees.
When it provides that the right Of trial
by jury shall remain inviolaie, it means
that right as it exists at the time of the
adoption Tof the Constitution and as it
has therefore existed. The system is
to remain unchanged 10 every essential
attribute. Certainly none of it's char
actsristics is more important than the
number OF persons who are to constl.
tute the triers II in the past procedure
of the criminal courts prior to the adop
ton of the Constitution an instance
could be found in which prisoner had
been PERMITTED to be tried for felony
before q Jury OF eleven. then there would
be some foundation for the contention
that the presence OF the twelfth juror
might be waived. BIT clearly any
waiver is unconstitutional which makes
trial by jury different thing from what
| it was when the people declared in their
| fundamental law that IL should remain
intiolate, b iass t'fa4a
Nor does It matter that the right is
violated with the consent or even at the
| instance of the person whom it vas de-
signed chiefly to protect. The Consti
tuition does not say that the right ol
trial by jury shall remain inviolate by
prisoners. The terms OF that instru'
ment require the courts to maintain the
| jury system in all its old integrity, nc
matter who may endeavor to change ii
Their duty is to uphold itagsinst pris
oner and prosecutor alike, In behalf o
the people. They fail to do this .wher
they permit the trial OF criminal cas'
before eleven Jurors only; and the limo
vation is properly characterized as bott
dangerous aud intolerable. because
disregard OF plain provisions OF consti
jtutional Law by the courts is subyet
sive OF free government and not to b
endured.
i We think the decision of the Suprem'
Court OF Iowa is wrong and ought no
to be approved or followed. a