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mation of each individual possessing the further necessary requisites ? Is this to be done by the prefects, the counsellors of the prefecture, the members of the electoral college, the magistrates ? In all these I only see men more or less dependent on government, men to whom a coincidence with themselves in political opinions would be deemed the most necessary of all qualifications.
I should prefer applying for proofs of their ability to the same means as were employed for the choice of deputies and electors; that is to say, property, because property affords the most probability of education, and of course of information and integrity. But I would only suffer fortune to regulate my choice, in the first instance; and when no better guide was to be found, I would afterwards adopt a less hazardous mode of election.
I would fix the number of jurors necessary to each department according to the state of its population, and the number of sessions generally held in it. This would be from six hundred to three thousand six hundred.
I would again divide the number of jurors fixed for each district in its different departments, according to their wealth and population ; and in order to complete the number, in the first instance, I would call on the most respectable inhabitants of these districts. The lists of jurors thus formed, I would, in future, have the power of nominating to all places which became vacant, vested in the jurors of these districts; who should choose to fill. them, the persons deemed most fitting, without requiring from them any proof of eligibility, in order that any person, in whatever rank of life, capable of performing the duties of the office, may be appointed to it. By these means we should be certain of having jurors whose integrity, information, and, above all, whose independence could not be doubted.
If any inconvenience should be found to arise from granting to jurors the right of nominating to two or three places which became vacant among them every year; and it was judged that, granting this privelege would render the jury of each department a kind of aristocràtic corporation, accessible to private prejudice, the power might be vested in the electors of each district, who should be assembled for that purpose on a day fixed every year. If the only intention is to prevent incompetent persons from being chosen as jurymen, it cannot be denied, that the electors of each department, from the knowledge they have of men with whom they are in the habit of living, must be at least as likely as the prefects to select men of intelligence and probity; and the end proposed would thus be attained without the intervention of authority, an intervention which must be avoided with the greatest care in an institution, the principal aim of which is to repress its encroachments.
Whether this method or any other be adopted for forming the general lists, we must now consider how the sessions list is to be selected from the general list, and how the special jury is to be selected from the sessions list.
It must always be remembered that this is the important point on which the whole independence of criminal justice rests ; for it cannot be denied, that in whatever manner the general lists are formed, if the right of forming the sessions list is vested in the prefét, or any other functionary, there will always be found on the general lists a sufficient number of men ready to administer to their passions and espouse their animosities.
It is to avoid this danger that I think it necessary to have recourse to chance ; but how are the decrees of chance to be made known? who are to be the faithful ministers of this fickle goddess? who does not know with what audacity her decrees have been dictated, even down to the present moment ?
Let us, then, seek a mode of learning them secure from the influence of those employed to make them known. I would propose the following: let there be a book, in which should be written, either indiscriminately or in alphabetical order, the names of all the jurors of the department; this book must be composed of as many pages as there are jurors required for the service of each session ; each page must contain the same number of names, with the exception of the last, on which must be inserted the names remaining after the division of the general number of the jurors of the department, according to the number of pages which the book contains. The names of the jurors must likewise be numbered on each page, from number one to the last number
" This book should be printed and distributed to each juror.
The drawing should take place at a public sitting of the tribunal of accusation, after having been announced fifteen days before in the public prints. It must be performed by the president of the tribunal, in presence of the prefect, and of all the jurors who wish to be present; and it must be done in the following manner :
An urn must be placed before the pres dent, containing as many numbers as there are names in each of the pages of the book containing the names of the jurors; the president draws out one of the numbers, and the name of the juror corresponding on the first page with this number is to be the first juror of the sessions. The numbers must then be replaced in the urn, and the drawing repeated for the second, third, and successively all the pages of the book, except the last, which is to be drawn
separately, the numbers being put into the urn which are necessary to equal the number of names on this page. As a further precaution, the president, before opening the number drawn from the
of the page.
urn, might be directed to require any of the persons present who were strangers to the arrangement to name the page to which the number drawn should refer.
Let us take an example, in order that the simplicity of this method of drawing the names may be better understood, and suppose there are eight hundred and seven jurors in the depart
The book of the jurors will contain thirty-six pages, (this being the number of jurors necessary, according to law, for the service of each session, and each of these pages twenty-two names, with the exception of the last, which will contain the fifteen names remaining after the division of the general number of the jurors of the department by thirty-six; which will make the particular number of jurors on this page amount to thirty-seven,
All the names of the jurors must be numbered on each page, from number one to number twenty-two.
The urn will contain twenty-two numbers. The president will draw one, and, before opening it, begs one of the spectators to name any one of the pages of the book, excepting the last. The seventh page is named; the president opens the number, which proves to be nineteen, this makes the nineteenth juror on the seventh page the first juror of that session. The president replaces the number in the urn, mixes them, and draws out a second number; the page is then named as before, and the juror corresponding on that page with the number drawn is the second juror of the sessions ; this is continued in the same manner for the first thirty-five pages. With respect to the last, fifteen more numbers are put into the urn, in addition to those already there, making in all thirty-seven, to complete the number of jurors contained in this page; and as the page cannot be named, as in the former case, the president, or some one present, is to draw a number from these thirty-seven, which will determine the juror on this last page, who is to complete the sessions list.
I am much deceived if this manner of drawing names admit of any unfairness. It offers besides an easy means of securing a juror from being called on a second time to serve, before it comes to his turn to do so; for after each drawing the name of the juror drawn should be carefully marked on the page on which it is inscribed, with a note of the time when he served, so that if his name should appear
any subsequent drawing, before the period fixed for his being exempt had expired, another number must be drawn for the page chosen.
As for what concerns the drawing for the jury of judgment, which is at present subject to so many abuses from the practice adopted by some of the judges at the assizes, of arranging the names of the jurors in the urn, so that the best informed and the most experienced always appear first,—this might be prevented by its being ordered that, in future, the judge should only draw the name of the first juror, and that the first juror should draw the names of his eleven colleagues.
Provision must likewise be made, in case the number of jurors declared necessary for drawing the jury of judgment should not be complete. The number now appointed is fixed at thirty, and the law commands that where a less number of jurors appear, the deficiency is to be supplied by a new drawing made by the judge among the inhabitants of the place where the assizes are held who are on the general list. If this method were to be exactly followed, the first day of the session would be scarcely sufficient to procure the jurors required; for most of those on whom the lot might fall would be out of town, or not to be found, at the time the messenger might be sent to make known their nomination. Those (and unfortunately there are too many) who had a particular dislike to being called upon, would take care to conceal themselves, or to be absent the first day of the assizes, and the whole morning would be passed in continued drawings, and running from door to door without finding a juror. A miserable expedient has from necessity been had recourse to. An arrangement is previously made with some of the inhabitants, that the lot shall fall to them if a fresh drawing takes place. They accordingly appear in court on the day it opens with the other jurors, to replace those who may be wanting. But it is not to be understood that this is done gratuitously; these
take care to make terms which consist in their being exempt from being called upon to fill any public office; in other words, their services are dispensed with on all occasions, but that of appearing when called upon by the judge.
These are the inevitable results of too strict laws which do not leave any discretionary power. Doubtless it would be desirable to have all the jurors present, or, that in case of the absence of some of them, there should be a sufficient number for the attorney-general and the accused persons to make their challenges; but where is the necessity that the number fixed should always be complete, and why should not the drawing take place from a less number when the accused and the attorney-general give their consent ? The embarrassment would be lessened by making a greater difference between the number of jurors cited, and those necessary for the drawing. The number of six jurors in thirty-six, which has, as we may say, been granted in all causes of absence, which
hinder the jurors from appearing at their post, is not sufficient; it should have been made fifteen in forty-eight, in which case the drawing of the jury of judgment would seldom have been impeded.
If the number of jurors, regarded as indispensable on this occasion, was not complete, and that the person to be tried or the attorney-general required it to be so, instead of having recourse to a new drawing, always fallacious, among the citizens of the place where the assizes are held, from the general list of the jurors of the department, it would be much easier to take them from those who might be in the court, or its vicinity. The English do so in similar cases by means of their tales. But why choose fresh jurors for each cause? Why not, as in England, bring out all the prisoners that can be tried in the course of a moruing, and choose in their presence twelve jurors respecting whom they should agree? These twelve jurors should remain, as the judges do, in court all the time, and if two or three should become actually fatigued, their places might be supplied by others. The time which is lost by continual changes would thus be saved. These details may appear somewhat tedious; but they are of the highest practical importance. In the institution of the jury more depends upon application and promptness than we may at first imagine. Many more remarks might be made upon the criminal code than the limits of this chapter will allow. I must content myself with pointing out the principles, and showing the manner in which we might appropriate to ourselves certain forms of the English proceedings which appear to me more expeditious and more congenial to the increasing gentleness of our manner than our existing institutions.
The greatest defect in our criminal institution is the difficulty with which it abounds; the weariness resulting from the slowness of the proceedings affects both the judges and the jurors, and inspires the latter with unconquerable disgust. Add to this the inconveniences arising from long absence from home, the expenses of residence, and the want of evening occupation in a town where they are strangers, together with the weight laid on their conscience, and we shall not be surprised at the little wish there is in jurors to be found at their post.
But let this heavy fatiguing system be abandoned ; let the discussion become animated and to the purpose ; let the understanding of the jurors no longer be shaken by artful speeches ; let no law prevent them by its rigor from giving their unbiassed opinion; let the trials succeed each other with rapidity ; let the sessions only last three or four days; and we shall see Frenchmen willingly form themselves into juries with the same enthusiasm which led them at the time of its institution to look upon it as one of their most valuable prerogatives, and perform the duties of the office with the same ardor, the same perseverance, and the same independence as their neighbours.