Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1883-07-29
MldlPHIS
/: /: JULY 20, 1883.
TRIAL BY juicy.

legal fabric erected for the protection of 40
ciety, has become the subject of public criti-
olsm, and there is a growing doubt as to it,
nnalloyed excellence. Admirable as the sys-
tenn is, IL has its serious defects. The ques-
hou is now discussed with the view of cor
recting these defects. Not one proposes to
abolish the jury system. 1t has been recog-
nized by England for centuries, and was
brought over in the Msyfower by our pill
grim fathers. Trial by jury has taken no
step backward. 10 France it was born in the
revolution of 1889. Prior TO that time the
judges decided both law and facts. This re-
suited in the most un~miIigated expressions |
Of the people, and in the revolution of 1879
they threw off this system and substituted |
trial by jury, aud the people Of France have
chung to it ever since. Indeed, whenever
any people have had any experience of trial
by jury, they nave never thereafter been
willing to give it up. When the French dur.
ing the revolution made themselves % taste
Of the provinces bordering on the Rhine,
they introduced there trial by jury. The in
s~titution took vigorous root, and hourished
SO as to outlive the ephemeraI possession OF
the soil by the invaders. AT the close of the
war, part Of these PROVINCES were united to
Prussia, and the PrussiaDs, hating everything
that wAe Of French introduction, desired TO
abolish trial by jury; but the inhabitants OF
Rhineland chung to it with the affection OF
men who knew by experience the benefits 1t
conferred, and il is retained to this day. Our
forefathers fought the war OF independence
to secure representation in Parliament; but,
says Lord John Russell, sit is 70 trial by
jury, more even thin TO representation,
that the people owe the share they
have in the government of the coun-
Try" Trial By jory, then. considered as .
political institution, lie almost an essential of
free government; it is the natural and I'M
compromising foe of arbitrary power. In
altering, revising or amending an institu.
tion so vital and so venerable, the people
should "hasten slowly" One Of the great
defects in our jury system.is the exclusion OF
intelligence, the readers OF newspapers, and
substituting in their place stupidity and ig-
Dorance. In the recent trial of NJ. T. Polk
at Nashville, Davidson county had to be
ransscked before the necessary twelve fools
could b. found. The law which excludes
men from the jury box because they read the
newspapers is an absurdity and a mockery
of justice. This everybody comedies, but no
change nag been proposed until a week
ago, when the Supreme Court of Indiana
decided that the reading Of a newspaper
account Of a crime or Of a civil case, and the
formation Of an opinion from it constituted
no bar 10 service on a jury. This decision is
10 harmony with public sentiment. In in
dorsiDg it the Philadelphia Times says:
The continued usefulness OF the jury sys-
tenn Is dependent upon the destruction OF the
fiction which has confined the selection OF
these bodies 10 the most ignorant portion oil
our population. Such men are notoriously
untitled 10 form Just conclusions on the sim
plest Of question:, much less TO carry in their
minds the details of important cases embrsc.
ing evidence, objections, argument aud the
charge Of The judge. 1t is Of little credit 10
the achievements OF our common school sys
TEN aud 10 our universal dependence upon
the newspapers that courts should still
be subject TO the control and direc-
ton OF persons who have not felt the
influence Of either Of these a~gencie;
of intelligence. Great interests and ques'
tions cannot long be intrusted to that ignoT
ance which may tear down in a day VIVA
knowledge and energy nave built up alter
years Of effort. Every decision which over
throws this old and narrow view should be
welcomed as a step in advance and as sound
ing a warning that ignorant jurymer
must co.
Another defect 10 the jury system is thu
universal rule requiring uuanimity in the
verdict of a jury. 10 no other tribunal in
this country is ananimity essential in order
that its decision may be valid. 10 our SD
prems Courts, State AMI Federal, the maj Dr.
ity rule prevails. Mr.. Hallsm, in a note tC
his Middle Ages, while he speaks of The
jury system itself as "the grand principle oil
the Saxon polity," yet pronouuces the re-
auirement of unanimity a "preposterous rule
of barbarism." Prof. Christian, in his notes
TO Blackstone, expresses the opinion that the
"uuanimity of twelve men, 30 repugnant to
all experience of human conduct, passions
and Understandings, could hardly in ans
age nave been introduced into practice by
a deliberate act Of the Legislature, and i
remains to be seen whether the Legislature
will much longer tolerate such an anomaly
In England, in 1880, commissioners were ap-
pointed to report upon the courts OF com.
mon law, and, in their report to the Crown
signed by some Of the most distinguished
lawyers of the day, they say: at is difirnll
to defend the justice or wisdom of the rule
recurring uusnimity in the verdict i
seems absurd that the rights of a party il
Questions of a doubtful and complicated ma
ture. should depend upon his being able tc
safely twelve persons that a particular stats
of facts is the true one. The interests o.
Justice seem manifestly TO require a change
of law upon this subject" and accordingly
these commissioners recommended the adop
ton Of a three-fourths rule. That eminen
Scotch lawyer, Cockburn, in bis Memorials 0
his Time, thus forcibIy gives his opinion
npon the %subject:
at believe the requirement of unanimit,
absurd; and thai, whether a bare maiorit.
ought 10 be allowed to decide or not, AWAY
recurring unAnimity is nonsense. Expe
risnce has not 10 the lesst diminished on
Scotch aversion to it," Forsythe, in his His
tory of Trial BY Jury, after an exhaustive re
view OF ali the confederation pro aud con
arrives at the conclusion Chat il will b.
found impossible much longer 10 justly o
rei4in a rule which is opposed to both jus
lice and expediency."
Many who advocate the abolition OF tn
unauimity rule in civil cases, yet think tina
it should be retained in criminal. This dis
tinctiou is prompted by commiseration 70
persons accused of crime, and is based upoI
the principle that it is better 100 guilty me
should escape, than that one innocent ma
should be convicted. These are cons der
atoms that appeal to US all with much bret
but we think the adopting of the maj rii
rule in civil cases, and the three-fourth- raj
a criminal, would be 10 strike the lopp
medium. 1t is evident the smaller the I'm
Der who can render 8 verdict, the G ate
must be the Efficiency OF the system. We therc
fore are unqualifedly nfavor of the m; rit
rule in civil cases. If a. msjority CT rot
houses of our Legislature is sufici t I
secue, unless vetoed, the passing Of 8 la
which affects the destinies of the who pee
pls,~hy may not Amsinrity detern ne
question Of civil right between mao an
man? If, however, the majority rrl, b
adopted, it would neeessitate an odd NJ ibt
of jurors in order to prevent a tie, an hi
we would have to depart from the tin OF
ored number, twelve. The reason f.: Ii
se,sction of the number twelve is sta; J b
.oma to be thst the jurors originally } in
witnesSes, this was the minimum OF ro'
established by the policy of the law. Lar
somers, however, in his Guide to 7 iii
Juries By a Person Of Quality, publis d j
1882, accounts for the selection q Ii
number twelve by analogy. Say hi
stu analogy, of late, the jury ! +
duced TO the number of twelve, like as II
Prophets were twelve, to foretell the at
the Apostles twelve, to preach the trui q
DISCOVERIES twelve, sent into Cana
seek and report the truth, and the = on
twelve, that the heavenly Hisrusalem | 5ui
on" 1t is evident that the jury systsni CT
be improved by allowing Intelligent ! Ade
~ vsnapers 10 ait on iuriee, and by abe