Evening journal., 1891-03-23
JURY TRIAL C0ND EMNED
History OF It's Inception and
Injustice.
HOW TWELVE WAS SELECTED

HOW TWELVE WAS SELECTED !
Jury Trials Began Hundreds Of Years
Ago and IS Relic OF Barbarism-Tbs
UnanimIty Rule Works Contrary to the
Principles Of Justice-sFany Objections
Stated rsiority Principle Favored.
The Louisville Courier Journal reports
the following speech Of Mr.. Washington,
a member Of the Constitutional Con
vention now in session:
ut has been said, began Mr.. Wash
| ington, with surprising gravity, and
even by persons who believe themselves
thinkers, that time consacrates, and
what is gray with age becomes religion
Had this observation, so pleasing TO the
superficial, antiquity loving ear, been
su omitted TO the immortal Captain
Bunsby he would probably have fxeo ais
stationary eye on the coast of Greenland
and granted that its bearings lays on its
application Aud the captain weuld have
been rights for it is plain that the postu
late is not true, except as to those things
which have their origin in some enduring
principle II is not within the power Of
time to consecrate folly"
How the fraud Was Fixed.
The speaker declared that so 1t was
with the unanimous verdict in all trials
by jury. He then entered upon an Inter
estine sketch Of the origin Of the unapi-
nous rule, claiming that there was
nothing in it emitting IL to our respect
Precisely how the fraud came to be fixed
at twelve was involved in some doubt.
An old work, Trials per Pals, written
by Giles Duneourt, had stated that If tho
| twelve apostles on their twelve thrones
must try us In our eternal state the law
had good reason to appoint twelve to try
us in our temporal, going on to say the
tribes of Israel were twelve, the patri-
archs twelve. and Solomon's officers
twelve An old tract, "Guide to English
Juries, published in 1882 gave similar
reasons. These authorities, however,
had been regarded as fanclful by iu-
dicious writer's; and Forsyths ''Trial by
Jury" was quoted to show that the origin
was from the facts that twelve was q
favorite number for constituting court
amongst the Scandinavian nations, aud
j that she Apglo-Sa Saxon polity OF twelve
senior Thames going out with the reeve
and swearing that they would accuse no
innocent man Long habit taught men TO
regard that number as the proper amount
| OF evidenca to establish the credulity Of
q person accused of an offense; and IL
was natural that the same number should
be- required when the witnesses came
forward, not to speak Of character but OF
fact.
Testimony of witnesses.
At its inception the jury system was
nothing but the testimony of witnesses,
ard 20 require twelve men to be uneni
nous was simply to FIX the quantum Of
evidence which the law deemed to be con
elusive. Twelve were deemed necessary
to the establishment of o fact In the
same sense that two are now necessary to
7 sustain an indictment for treason or to
sustain the charge Of adultery. The
Z twelve witnesses constituted what was
Z termed the jury, aud they were drawn
from the immediate neighborhood be-
cause they were the mora likely to have
y a personal knowledge Of the fact to be
: investigated which knowledge was the
! basis Of their actions as Jurors.
Twelve Were Required to agree.
d "Things have become inverted since
b those days, said Mr. Washington. Nov
e we select jurors, in the main, because OF
y their ignorance Of the faetsD From all
3 Of the foregoing be argued that there was
no occult virtue in the number twelve
The number Of jurors was not limited tC
twelve; but it merely took twelve TO prove
the fact, and, therefore, twelve were re-
d quired TO agree. Here was doubtless,
10 the origin of the unanimity, principle
% The speaker then traced the steps by
,e which the present jury of twelve who
D. hear witnesses instead Of being them
k selves witnesses was reached how, e.
r. FIRST, unanimity was attained by am
ID ming the refractory" Juror into prison
s. until he agreed Under Edward Ill.
se however, It was formally decided that
" verdict of less than twelve was a nullity
m but the court said that ths judges of as
rs size ought to carry the jury witt
re them in a cart until they agreed
D. Mr.. Washington dwelt upoi
o these early methods of securing unanim
CT ity, making numerous historical quota
1T tions TO show how disagreeing juror
to were starved, imprisoned, etc, unit
lie they could reach a settlement Flai
Jeremy Benthan had denounced 1t as g
system Of perjury enforced by torture
Lord Chief Justice CockbuFn had trul
declared that "our ancestors insiste
he on upanimity, as Of the essence Of th
nd verdict, but were unscrupulous how thI
10 unanimity was obtained.
en- "Now, all this being 80, said I'll
b. speaker, Il think / am warranted in IL
st assertion that there is nothing in I'll
ed history OF the rule Of unanimity whiS
eli gives it any claim whatever to our r
We spect. On the contrary, it is well caicJ
n lated to have just the opposite effect, az
is to arouse our suspicion as TO it's utility
n Abolition OF the Jury.
eai AS far back as 1880 Emlyn had ma,
~, a strong appeal for the abolition Of d
elr rule. Lieber, the learned author
iae civil Liberty and Self Government
eh also advocated its abolition, and poin
out that In Scotland unanimity 10 q
required even in penal cases; nor
France, Italy, Germany or any 9th
country whatever except in Englal
-he and the United States; and that there
ner no Jury in civil actions In France, Gt
The many Italy, Belgium, or any country
til the continent Of Europe In scotial
led the Jury Ia criminal trials consists
hat fifteen, and the verdict Is returned by
Re bare majority, in civil cases thre
i've fourths verdict is the rule.
can British India when as many as six Of I
uld jury agree and the judge concurs
7 IS penal cases, judgment is rendered. I
lrst a decision adverse TO the accused upoI
ical question Of guilt simple majority is 81
fcient in France, Italy and Germany.
Austria, at least eight votes are require
In no country in the world was unanim
to- required except ia England and most
IDLY the States of the Union. That gri
ure Englishman, John Lock. framed
len n. 1. fI...ef4,,tso,, wwbfrh roufu a.