BND OF FIRST LOVE.'

THE TRIAL BY JURY.

It is not our purpose in this article to go into any profound investigation of our subject, either as to its origin or its general history. If we were writing for lawyers such a course would be worthless, for it would be asking them to travel over ground already familiar; and to others it might be worse than worthless, because it would necessarily involve a great deal of technical learning which they have no desire to study, and which would be of very little practical advantage after it was acquired. Our main object is to touch upon its prominent feature, and if possible to unsettle some of the prejudices which have, in our opinion, done infinite mischief to the system; so far forth, we verily believe, as to endanger its stability.

In common with every friend of well-regulated freedom, we claim the right to appreciate the value of a trial by our peers. We look with as much reverence on the trial by jury,' as the most enthusiastic of its admirers. We think it capable of becoming the safe-guard of the citizen, and we believe, furthermore, that it has been a shield of protection to the unjustly accused. It is, for aught we know, the 'palladium of liberty.' Sure we are, that it may be, under rational regulations. It has undoubtedly rescued the innocent from undeserved punishment, and if it has too frequently interposed between justice and the rogue; if it has very often stepped between the gallows and the most deserving candidate for its first honors,' the circumstance is not ascribable to the general character of the system, but to its faults. The system is excellent, but its blemishes are to be blamed with the more freedom, as they do harm in a good cause, and render even a praiseworthy institution odious, by doing all they can to discredit what is in itself worthy of all praise. In short, the trial by jury is a privilege of inestimable value, but our mode of conducting it is in the highest degree absurd.

It is not our wont to quarrel with antiquity, or to feel favor for modern innovation, in any shape. The march of improvement' is too rapid altogether, to suit either our tastes or our habitudes; and as a lawyer, loving the profession to which we were bred, it must be a very glaring defect in the common law principles and practices of the science, which could lead us, at any rate, into the desire, or even the willingness, to see them superseded by any change of form, or novelty of administration. We shall claim, therefore, at least the merit of sincerity in the remarks we make, and we hope at the same time so to conduct the discussion, as to convince the reader that our propositions have been well considered.

Our present business is with the principle, or rather desecration of principle, which requires UNANIMITY IN THE VERDICT. That principle has been rotten, from its first adoption, and is abundantly more so now than ever. The very reasons that might have been urged in its favor some half a dozen centuries since, are among the strongest that could be adduced against it in the present state of society, and under the meliorated and more enlightened' ideas of modern times.

While government was arbitrary, and while the prince and his

minions were in constant warfare with the people; when regal power, and regal power alone, made up the main spring of authority; it was undoubtedly of great consequence to the subject to hold this barrier between himself and the royal prerogative. It was a protection of potent force. He could not be punished for crime, real or imaginary, against the crown, but by the unanimous decision of his peers; and of course the chances of unjust conviction were very much diminished by the requirement that the whole pannel of twelve men should pronounce upon his case, instead of a majority. In such times, it is conceded that the system was favorable to liberty, and the circumstance may in some measure justify the eulogium bestowed upon this mode of trial; especially when it is contrasted with the absurdities of other modes in vogue during the darker ages of English jurisprudence. Compared, for instance, with the 'wager of battle,' with the fire and water ordeal,' by which Queen Emma singed her slippers; compared with the peine forte et dure, in which the prisoner was pressed to death, upon the presumption that he was guilty because he chose to stand mute under the accusation against him, the trial by jury may very well have been claimed as a 'palladium ;' under whatever form of absurdity it may have been framed or conducted. It is our object, however, to prove that the principle has no possible application to our state of civilization, and our modifications of legal polity; and in carrying out our views on this subject, we shall confine ourselves strictly to two points.

FIRST, that there is no magic in the number twelve; but that a jury composed of nine, eleven, thirteen, or fifteen, would be abundantly preferable; and,

SECONDLY, that the requirement of unanimity in making up a verdict, is alike at war with common sense, common justice, and with the well known operations of human nature; involving a profound absurdity upon its very face, and calling upon mankind for the performance of a moral impossibility.

The primary proposition is only necessary to be hinted at, and is merely mentioned first, for the sake of an orderly consideration of the subject. If we succeed in establishing the second branch of the argument, we carry the other with it, of course. If it be true that the unanimous voice of a jury ought not to be required, it will follow that the number twelve has no particular virtue in it, and that the Nembda of the Teutons has more of antiquity than of intrinsic value about it. The English writers, and especially Sir William Blackstone, in tracing the history of the system, show us clearly enough how it happened that this particular number chanced to be hit upon, and none of them seem to insist upon it as essential to its constitution. We intend ourselves to show that it is an essential defect.

Should unanimity be required?

In the first place, such a requirement is directly in the teeth of human nature itself. No twelve- no three men, were ever yet congregated upon the globe, whose minds coincided. They may chance to agree upon an isolated point; they may come together on a given proposition; but no plurality of mere men can interchange opinions during half an hour, with an honest concurrence in each others' views;

and however courtesy and good feeling may seem to assimilate them, they differ; deferentially, perhaps, but still they differ. To suppose that a dozen men may come to the same conclusion on the clearest case that may be submitted to their judgment, is to look for a mental phenomenon which the law exhibits very little wisdom in calling for. Who of us can converse with one of our best friends, on any but the simplest subject, without differing with him? Who ever yet communed with the most congenial minds, without encountering discrepancies of opinion? Has it fallen to the lot of any three of our friends to discuss a topic of interest, involving a question of any complication, with entire unanimity of view? We venture to say they never did; and it is hardly possible they ever can. How then, let

us ask, is it to be expected that twelve men, brought together at random, without any congeniality of thought; discordant in disposition, wide apart in all their modes of looking at things; different in mental temperament, in education, association, and habit, can perform a miracle in the jury box, and there jump at once to the same conclusion on a case involving probably every complication of consideration? The supposition is preposterous, and so is the system that depends upon it for the due administration of justice! But, these are abstractions; let us look at the subject in a less general view. What is the practical operation of our jury system?

We hesitate not to say that it is equally militant with the republicanism which we profess so much to reverence, and with all the ends of substantial justice; alike repugnant to the general spirit of our institutions, and to the wholesome dispensation of equal laws. What is the character of this system? How does it work in practice? Is the verdict of the jury the judgment of the twelve peers' who compose the panel, or is it the major voice of those men? It is neither the one nor the other, except by the merest accident; and it rarely speaks, even nominally, the opinion of the whole body, without the exercise of a gambling resort to chance, or a fraudulent compromise with conscience. Wretches sometimes

'hang, that jurymen may dine.'

In other words, juries are urged into unanimity by their appetites, and agree to think alike, lest their dinner should get cold. They coincide rather than go hungry, and under the judicial dread of starvation, sometimes substitute a concurrence of stomach for the identity of opinion required of them in the rendition of a verdict; or rather, they make the exigencies of the one, a legal excuse for endangering the salvation of their souls in pretending to the other. It were strong language to use, we acknowledge, but, it is a settled opinion with us, that as much felony is committed WITHIN the jury boxes, as is brought before them for trial! At any rate, more perjury is there perpetrated, than is ever put regularly on trial before courts of justice; and most of this is brought about by the obstinacy or stupidity of the minor number. It is not often that the jury decides the case. It is perhaps a single one of the number!

A single juror cannot, to be sure, give a substantive verdict against the opinions of his eleven compeers, but he can always, and very