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In the same discussion I read that Judge Dillon in reply made a most eloquent and enthusiastic defense of jury trials as a part of our liberties and as the right of the citizen in the administration of law. This last consideration is of great moment and value. It would be most unfortunate if the day should come when, by the abolition of jury trials, the people of this land should have no part in the administration of the courts of law-not simply because of the loss to them from no longer having the privilege of taking part in the trial of cases, but still more from the loss that would come to the great body politic, in that the courts would then be looked upon as something separate and apart, with which the citizen had no con
It would also be a loss to the lawyer, for it is a valuable training to him when he is called upon to convince a jury as well as to convince the court. Judge Dillon also added that in his long experience he had known of few instances where there had been a wrong result if in the trial before the jury an intelligent judge faithfully did the duty that was incumbent upon him. Lord Bacon best expressed this duty of the judge: “That
you be a light to jurors to open their eyes, and not a guide to lead them by their noses.” Certainly, very much is to be said in favor of two tribunals: the one to determine the facts, the other to determine the law applicable to those facts as found by the jury. A distinguished ex-President of this Association, Joseph H. Choate, said in 1898: “I cherish, as the result of a life's work nearing its end, that the old-fashioned trial by a jury of twelve honest and intelligent citizens remains today, all suggested innovations and amendments to the contrary, the best and safest practical method for the determination of facts as the basis of judgment of courts, and that all attempts to tinker or tamper with it should be discouraged as disastrous to the public welfare.”
I do not suppose very many of us remember what we read in Blackstone. I once heard a well-read lawyer make the remark that all he could recall of Blackstone was the statement that every gentleman should know the law; but I think there is
something said there about trial by jury being the glory of the English law; and, if anyone here recalls the long struggle which took place in England to establish trial by jury, and recalls the many occasions when trial by jury served as a bulwark and protection against cruel laws and the wrath of kings, and sometimes against tyrannical and despotic judges, he must admit that this statement in Blackstone is not very far from the truth.
It is beyond doubt that trial by jury is likely to be with us, at least during our lives; whether any change is to come in the future or not I do not know, but during such time as we take part in affairs a part of the administration of the courts is likely to be found as of old in trial by jury. And this is true, not only because of the merit of that system, but also because the people of the country have an affectionate regard for trial by jury as something which has come down to them by inheritance and as something in which they have faith as a bulwark and protection of their possessions and liberties. Indeed, one English writer has gone so far as to say, “Kings, lords, commons and the statutes of the realm find their end when they succeed in placing twelve men in the jury box.” Why twelve is somewhat of a mystery. Blackstone, if I remember rightly, says that the number had some reference to the number of the patriarchs or the number of the apostles. I was told this morning that in one state, Florida, only six jurors are required for a civil trial, while twelve are necessary in a criminal trial. It is not of much moment whether the number of jurymen is a little less or a little more than twelve. We happen to have twelve, and, therefore, conservatively have adhered to that number.
It is interesting to observe that in the older states there is a closer adherence to trial by jury than in the newer states. In many of the latter they have been willing to try the experiment of having some other tribunal than a jury determine
In Massachusetts we have had trial by jury from the very beginning; and, in the convention which assembled in 1788 to determine whether or not Massachusetts should give its adherence to the proposed Constitution of the United States, the strongest objection which was urged against that course was based upon the fear that the federal Constitution would not properly protect trial by jury. Probably the proposed Constitution would not have been accepted had it not been agreed that certain amendments relative to jury trials should be made thereto. Articles V, VI and VII of the amendments therefore establish jury trials forever, both in criminal and civil causes, as a part of our national jurisprudence. The first draft of the Constitution of Massachusetts gave the right of trial by jury in maritime as well as in civil causes.
It is true that since then the legislature has tried to restrict jury trials. It first provided that one can waive a jury, and when this provision did not very much diminish the number of cases tried before a jury, the legislature provided that, if a litigant wanted a jury he must claim it within a limited time. Notwithstanding this legislation, while one session of the Superior Court in Boston is sufficient to dispose of the causes tried without a jury, it requires seven sessions of the court to dispose of the causes tried by jury, although in all these cases a jury must have been claimed. In one state, and I am not sure but that in three states of the union, not only must the parties claim a jury, but they also must make a deposit of a fixed sum of money in order to meet the expenses of the jury.
Can something be done to improve the jury? The first suggestion would be that something may be done in the way of the selection of the jury. Ordinarily the qualifications for a juror are the same as for a voter; the man who is entitled to vote is entitled to serve on a jury. Would it be well to make any rule of law which would make a juryman of a different grade from a voter? I think not, since there would be introduced, by such a plan, a distinction-one class of citizens being called to serve as jurors, and another and very much larger class to vote. Such a plan would be an unfortunate one to adopt in any community. The better way
is to apply an intellectual test for the voter, and in that way also raise the grade of the juryman. In New York a few years ago a law was enacted providing for two boxes in which the names of jurymen could be put. In one box was placed the names of all citizens who took part in elections; in the other box was placed the names of those citizens who had a right to vote, but who did not exercise that right at electionsone known as the “ Voters' box,” the other as the “ Non-voters' box.” It was provided by this law that all jurymen should be first called from the non-voters' box, and only when the names in that box were exhausted should they be taken from the voters' box. This was hardly a way to improve the quality of the jury-providing that when a man became a member of the jury he was looked upon by that very fact as being in a measure a criminal, and that his service on the jury was, in part at least, a punishment because he had not exercised the right of franchise or performed some other duty which was incumbent upon him as a citizen.
It has been suggested that it would be a good idea to provide that a different number than the whole jury should render a verdict; in some states a less number than twelve do so, in some states two-thirds of the jury, and in some states a majority of the jury. In all these states, if I am right in my recollection, while a less number than twelve may render a verdict in a civil cause, the entire twelve must agree in a criminal cause. Such a distinction I believe to be a misfortune. It is not a good idea to teach a citizen that when be comes to take part in serving on a jury there is any different rule to be applied when considering a criminal wrong from that which should be applied when determining a civil controversy. The law is a whole, and all parts of it should be consistent; and for us to teach the people that there is some different rule to be applied in one case from that which would be applicable in a similar case on the other side of the court is a wrong administration. In the constitutional convention in New York a few
when it was proposed to
man on a
change the Constitution so that unanimity should not be required of a jury, many of the ablest lawyers in New York opposed it, and the proposition was not adopted. They were right. There is a gain when one jury has a veto, and his associates cannot treat him with indifference, as they might if they could render a verdict without his vote; they cannot render an hasty verdict, but are bound to reason with him and to convince him if possible. It is true, of course, that occasionally there is a stupid or an obstinate man on a jury who stands out because of that fact, but it is rare that such a man is long permitted to serve as a juryman. Generally, it is the case that the man who is in the minority is the ablest and strongest man of the panel, and the one whose reasons often carry conviction and bring the other jurymen over to his way of thinking. Is it not true, gentle
your experience that the number of causes where there comes a disagreement of the jury is exceedingly small in comparison with the whole number of causes tried before juries where they do agree upon a verdict? About three per cent. of all jury trials end in a disagreement. Besides, a second trial always is possible, and it is better there should be a right decision than a quick decision. A verdict determines and passes money and property, and it is not too much to require that the whole jury shall be convinced before one man's property shall be taken from him and given to another. Very much could be done by removing some of the annoyances which accompany service on a jury, many of them petty, but some of them serious, and, whether petty or serious, inconsistent with an high administration of justice, and unworthy of our civilization and the freedom of our country, and without other support than tradition from circumstances and times unlike our own. Why should a man performing that part of his duty as a citizen which relates to service on a jury be excluded from the world when he is asked by the court to take part in the deliberations ? A few years ago I was waiting in the Superior Court of Connecticut for a case to be reached which I was to try. A cause