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often does perform acts that amount to the same thing. He can prevent the administration of justice; he can nullify the honest efforts of his brethren, and render of no avail all their disposition to do right; he can save from the gallows or the penitentiary the criminal whose punishment is essential to the well-being of society ; in short, he can, by his own stupid sic volo, set aside not only all the interests of the community, but he can abrogate all the laws of the land. He not only holds a veto on the entire criminal code, but he has in his hands the power of perverting the course of justice in all its channels. Every contract between man and man, every issue on which depend the rights of individuals, is at his mercy. An Englishman or an American has very little reason for the boast that he finds safety and protection in the juries of his country. He finds no such thing. Juries, as juries, are utterly powerless in the premises ; for eleven of the number are completely controlled by any duodecimal fraction that may choose to make itself of more arithmetical consequence than the whole number.
Of the utter absurdity of this system as it regards the trial of all causes, it seems to us there can be but one opinion, at precisely the moment when the mind will divest itself of the prejudices which education and tradition have thrown around it. Its manifest injustice in the adjudication of civil suits, may be argued without any great fear of encountering either the demagogue or the quite as formidable folly of the tremblingly scrupulous. The barbarism may be met in that aspect without being obliged to combat the ad captandum hobbies of the liberty-lovers. We can speak of a jury decision affecting the right of citizen A. to 'four acres of arable' unjustly withheld from him by citizen B., without any special peril of the wrath of the electioneerer. We suppose most people who have thought at all, will be willing enough to think with us, that seven out of twelve men are about as likely to be right in giving their opinion on the validity or invalidity of an alleged act, as five; and that eleven jurors who should say on their oaths that C. signed a promissory note to D., were quite as much entitled to respect, as one juror who believed no such thing.
But, it is in criminal proceedings that people cling most tenaciously to their prejudices. They will agree with you in the absurdity of requiring unanimity in the jury, in the trial of civil causes, but where the life or liberty of the citizen is involved, they cannot consent that any less than the whole jury shall assent, or at least two-thirds. Let us look a little into the soundness of this notion. It is our purpose to show its utter absurdity in one case as well as the other — its absurdity, in fact, in all possible cases.
If it be an object of the laws to provide impunity for their own transgression, and if legislators, while they enact punishments for crime, have at heart at the same moment the wish of furnishing facilities for
from them, we know of no mode more effectual than that of appointing twelve men to go through the farce of sitting in judgment on the criminal, while any one of the number has the power of putting his own opinion in opposition to all the rest, in deciding the case.
If there be any philosophy in the science of government, and if
there really is any thing in modern improvement,' it must be found, it appears to us, in the doctrine that the decisions of the larger number shall guide the actions of the smaller ; that the majority shall regulate the minority. This is the only true principle; the only one that has the sanction of common sense and common justice. Why, in the name of reason, should it be discarded in the most important department of our civil polity? Why should we refuse to recognize the authority of a town constable, unless he receives a majority of votes at the election, while we permit the minority principle to prevail in the jury bux? If it be important to give the largest number the liberty of electing legislators, is there any sense in suffering the smallest number
- even a single individual - to control the tribunal which passes upon the life and death of the citizen ? Is it good policy to place the entire power of punishment and impunity in the hands of one man, and make him the sole arbiter of the rights and the safety of society ?
It may be very sublimated benevolence to guard with extra tenderness and solicitude the scoundrel whose business it is to prey upon the public, and it is doubtless deemed exceedingly statesmanlike in certain quarters, to superintend the safety of the burglar, the incendiary, and the murderer ; but if such interests must be attended to at the expense of those who disapprove of their respective callings; if the bad must be considered before the good; we would never leave the dispensation with juries; certainly never put such a power into the hands of one juror !
Our jury system is out of all analogy with the genius of the government. It recognizes a principle utterly at war with the primal considerations
upon which that government was founded, and breaks in wantonly upon the symmetry of its proportions. If there be any one feature more to be admired, and more sedulously to be cherished, than another, in the frame-work of this government, it is the principle that we are under the guidance of majorities; that we have here provided for that most rational, the only rational regime, in civil government, the preponderance of the major opinion; the doctrine that the few shall submit to the many. In other words, we have come to the conclusion in this country, that the balance of equity is rather likelier to be found in the majority than in the minority. At all events, it is a principle pervading every department of our polity, (save the one under consideration,) that it is somewhat safer to confide power to ten men, than to one. So at least we understand the genius of our institutions ; such we believe to be its scope and tendency; and so we know are they recorded in the written evidences of the popular will; so do they stand in the constitution of the United States, of the several states of the union, in the respective statute-books of the states and of the nation; and in every other muniment which the people have thrown around their political household for the defence of their rights and their liberties. Do they see any sense in placing the juridical jurisdiction on a different footing ? Are they of opinion that the lesser voice is safest in a court of justice, while every where else it is only looked upon as wrong, because it is the lesser voice? Is there so much magic in a jury-box, that men actually change their
natures as soon as they enter? Is it the opinion that one man there is worth a dozen ?
We are aware that some of the foregoing remarks may appear to prove too much. It may seem, or seem to seem,' to the caviller, for instance, that it is undermining the main proposition, to say, as we have said, that it is next to impossible to get any three men to agree on a given subject, and that therefore we ourselves reason against a fundamental element of our own argument; since if that number can never be brought to exact coincidence of opinion, it is preposterous to suppose that seven out of twelve men can do so. Sofily and soothly, Monsieur Sophist, if it is perfectly convenient for
You, instead of ourselves, are probably upon an 'erroneous scent.'
It strikes us that seven men are rather more likely to agree, than twelve; at any rate, less likely to agree to disagree,' by reason of the utter impossibility of agreeing, when even a single individual of the number holds full control over the entire panel. So long as it is understood that any number, no matter how much short of the whole, hold the verdict in their own hands, there is of course no hope, no inducement, for that matter, to modify opinion, or concede sentiment. Eleven jurors may in vain have done their best to reconcile minor discordances of view, if the twelfth man has made up his mind to decide the case according to his own arbitrary (perhaps corrupt) determination. If he chooses to do so, there is no power on earth to prevent him. He is the 'palladium of liberty,' not the jury ! It is idle to prate of 'twelve peers ;' it is one 'peer' who sits in judgment. The trial per pais, or by the country, of which we boast so much, is simply a trial by a single individual blockhead; or at best a trial in which the law gives to a few boobies the power of overruling a majority of sensible men. Let it be remembered that in the trial of a criminal cause, there can be but two propositions submitted to the jury the guilt or innocence of the prisoner; and any given number of the triers, knowing that the majority of voices must govern the decision, may make up their own minds without difficulty, and without embarrassment, while knowing to the contrary, they find the exercise of mind useless and nugatory altogether. Aware that the accused must be convicted or acquitted by the largest number of the panel, all that is to be done, is, for every juror to give an honest opinion. He is not either to be starved or worried in
way into compliance with the caprices of the minority; and even if no two arrive at the same conclusion, by the same consideration of the testimony, or by the same process of reasoning, one or the other propositions will be agreed upon by the largest number, and a verdict be found. If a majority doubt, and the doubt prevents them from pronouncing the accused guilty, he is acquitted of course; and if, on the other hand, the majority do not doubt, their opinion is not controlled and annulled by the scruples of the lesser number. We do not think, therefore, that the argument comes within the category of what lawyers and logicians call 'proving too much.' It proves precisely what we proposed. Where is it possible to find, in any department of civilized polity, an absurdity more gross, more thoroughly ridiculous, or fraught with more manifest mischief, than this same
requirement of our laws ? It contradicts all our professions of respect for republican government, and contravenes one of its wisest axioms.
If any number less than the largest, in a given body, is to govern, it were as well at once to acknowledge ourselves monarchists, and discard the doctrines which we profess to cherish. Let us say,
honestly and above-board, that the sic jubeo of Russia and of Turkey is preferable to the democratic principle of our own government. Let us elect our law-givers, our presidents, governors, and all subordinate magistrates, on that blessed plan; declaring every candidate who is lucky enough to receive the least number of votes, duly chosen to office. Having secured a minority, the presumption is clearly in favor of his fitness! This would be carrying out the principle consistently, and fully in accordance with the sentiment of the juror, who complained of the stupid obstinacy of his eleven brethren, who refused to find such a verdict as he insisted on, against the views of him, the said single juror. The eleven thought differently, to be sure, but the unit very considerately looked upon the eleven as so many mules, because they could not agree that his individual opinion was worth more than that of all theirs !
If we had not already extended these remarks much beyond the limits we had prescribed in commencing them, we would go farther into the absurdity of our present jury system. There are other aspects of the case, capable of being made still more pointedly ridiculous; but we must close, at least at present, with the simple recurrence to the first proposition stated in this article ; viz., that there is nothing in the number twelve which gives any value to the trial by jury. On the contrary, if there be any soundness in the objections to unanimity in jury decisions, it is quite clear that any even number - six, eight, ten, twelve, or fourteen – should be avoided; for it is desirable, in this as in all other cases, to steer clear of a tie. A tie' is always a consummate rascal; one who does more mischief than any other vagabond in society. He is your most egregious delayer of justice in creation, and one who works more inconvenience to the community than any score of varlets who happen to judge wrong Much better is it that a mooted point be decided erroneously, than that it be not decided at all.
A MAN may easily reckon upon his fingers' ends the few good deeds, as they are termed, that it has fallen to his share to perform; but there is a huge volume of mischief, which it is alike his destiny to fill, that must ever be to him in this world a Sibylline book of mystery. Feelings of others hurt by inadvertence; by want of attentions that have never occurred to him; by quickness of manner, ungracious tones of voice, incautious words, that have been well-meant but ille chosen; impatient or uncomfortable looks while he has been thinking, honest man, rather of King David, than of the subject supposed to occupy his thoughts; all these things are put upon record against him, under their appropriate heads; and whether he laugh or cry about it, he may be sure that in each page of that mystic volume, he is shown to have been the author of more harm, than his whole life has ever done of good. Old Priam, of Troy, had fifty children, one of whom killed five hundred men with his own hand, and another, by his love-affairs, caused the death of five hundred thousand; and this I take to be the proportion that exists between the good we do, and the evil that we are the unconscious authors of. It was a good-enough deed, at least it would seem a harmless one, to bring up a family of fifty children; but what shall be said to the source of two such Rivers of Death and Depopulation !
Well, my friend Ġ - at the close of his mortal career, had in