The Washington critic., 1885-06-30
LuDGEs AND JURORS.

In recent number of Tinsloys Mdgd.
zinc there appears an article upon "The
Jury in America" by Albany Fonblanque,
which, from the generally accurate char
acter of its criticisms, shows the writer to
have made himself somewhat familiar
with the subject and disposed to be inn
partial in his treatment of it. But he is
not altogether correct in his conclusions.
The system of criminal trials by jury in
the United States is so much diversified
by statutory regulation in different States
that il is vast field to cover without long
and careful investigation, such as few
foreign observers have time to devote to
it, and it is not surprising, therefore, that
the writer in this instance has been led
into some errors
1t is true, as he says, that in America
"every State tries its own criminals ac-
cording to its own laws before judges who
are either elected by the people or nomi-
mated by authorities so chosen;" but it is
not invariably or even largely true, as he
further says, and to use his own language,
that "the political lawyer, who has gone
through the process by which alone poll
tical office can be obtained, never loses his
identity, nor has his personality absorbed
into system so that the sentences he
passes are regarded as its DEGREES and not
his own"
1t sometimes happens, even in the case
of so august tribunal as the Supreme
Court of the United States, that, as Vice
President Hendricks said at Yale the other
day, it passes beyond the sphere of ordi-
nary judicial inquiry into the field Of
craftsmanship" which is too often but
another name for partisanship, but as a
rule, and especially in criminal cases, the
decisions of our courts, considering the
elective nature of their constitution, are
singularly free from political bias.
The writer is also in error when he says
that in this country "there is no public
opinion in the sense of force which will
promote good and condemn evil on the
general merits of case, or prevent an
official, or set of officials, from doing what
they have the power to do, because it is
wrong" There may not be here, as in
England, with its small area, its dense
population and comparative homogeneity
of race, such compact and controlling
force, for in the United States public
opinion is grouped, as it were, by differ
ences Of locality, education, social condi-
tions and other multiform circumstances
peculiar to the new world; but the force
exists nevertheless, and it asserts itself on
occasions with an energy that is abso-
lutely resistless
1t was seen at Cincinnati in the popular
outbreak against the laXity into which
the administration of justice had tempo
rarily fallen, and the influence of that
demonstration was felt from sea to sea.
1t was the will of the people rising to n
grave emergency, local in its origin but
national in its character, and the heart OF
the whole country answered to its vibra-
tions. 1t has been seen many times since
in the swift retribution which has over
taken not only the ordinary criminal, but
conspicuous violators of fiduciary trusts
1t is perceptible in the universal approval
with which the verdict and sentence in
the case of the late president of the Ma.
rine National Bank has been received. II
is noted in the careful determinations
with which the exercise of the pardonine
power is coming to be exercised.
But there is one thing in which Mr.
Fonblanque is clearly right--his con
demnation OF the American theory that {
juryman is incapable of giving verdic
according to the law and the evidence /
he has previously formed an opinion, ant
the fallacy that in the eye Of the law al
opinion is Interchangeable. This is one o
the most serious faults of our system, fo
the reason that in many cases it prohibits
from jury service the most intelligent ele
ment in the communicative elemen
which forms opinions without prejudice
and supplies its place with the least intel
ligent which forms prejudices wthou
opinion. "This," says our writer zap
pears TO strike at the root of the object 70
which trial is held; that is disputiy
discussion in which contradictory state
ments are weighed and the balance O
credibility struck"