were: 1, that the jury must be chosen by lot from a wheel containing the names of the whole body of citizens of the vicinity, instead of from a selected panel; 2, that it must be judge, not only of the facts, but of the law and the justice of the law; 3, that it must decide, not only the guilt or innocence of the accused, but, in case of guilt, the nature and severity of the penalty.
It appears from the charge of Judge Gary to the jury in the trial at Chicago that Illinois law has restored, nearly, if not quite intact, the second and third of these features. Said the judge:
If the accused, or any of them, are found guilty by the jury, they shall fix the punishment by their verdict.
And further:
The jury in a criminal case are, by the statutes of Illinois, made judges of the law and the evidence, and under these statutes it is the duty of the jury, after hearing the arguments of the counsel and the instructions of the court, to act upon the law and facts according to their best judgment of such law and such facts. The jury are the judges of the law and the facts, and you, as jurors, have a right to disregard the instructions of the court, provided you, upon your oaths, can say that you believe you know the law better than the court.
It is evident that in the hands of an unprejudiced jury endowed with such powers as these the life and liberty of a person unjustly accused would be well-nigh secure. The trouble in Chicago was the prejudice of the jury. And this jury was made up wholly of prejudiced men, simply because the first of the three safeguards referred to was not restored along with the second and third. If the twelve men composing it, instead of being sifted from a selected panel by a method of examination that enables the prosecution to practically pack the jury, had been chosen by lot from all the citizens of Chicago, there would have been a large percentage of workingmen among them, some or all of whom would undoubtedly have seen to it that no such fate was meted out to the eight prisoners as that under the awful shadow of which they now rest. But, as it was, the whole twelve men were men whose sympathies and interests ranged them on the side of capital and privilege, and they were determined from the start to hang the men who had questioned the sacred prerogatives of constituted power. It is needless to say that the State will never sound its own death-knell by restoring the safeguard that is still lacking, and that it never will be restored until the people themselves restore it by boycotting the State.
