could not be found who possessed the information necessary, and so, to those who knew the facts, were added others who joined in the verdict, relying on the knowledge and good faith of their fellow-jurors. From this the step was short and easily taken to that stage where witnesses not on the panel were called to give testimony concerning facts within their knowledge. Here we find a jury, composed of informed and uninformed jurors, all joining in a common verdict. Those who knew the facts in issue were, however, finally separated from those who did not, and while the former gradually assumed the character of the modern witnesses who simply detail the facts under the sanction of an oath, the latter became the modern jury essentially as we now have it—that is, triers of facts upon evidence produced by others. So, while we challenge a juror because he knows too much about the facts to be tried, our ancestors objected to him because he did not know enough about them. Perhaps no other feature of the whole system of trial by jury has called forth so much adverse criticism as this. It is justly said that to rigorously enforce this rule in an age of newspapers and telegraph would exclude every intelligent citizen from juries called to try cases of any considerable notoriety. To meet the demands of our changing civilization, most if not all the States of the Union have, by statute, relaxed this once universal rule of the common law. An opinion founded on rumor or newspaper-reading will not now exclude a juror, and several of the States have gone to the doubtful length of authorizing the presiding judge to permit a juror to sit even though he have a decided opinion as to the merits of the case, provided he will swear that, notwithstanding such opinion, he believes he can render a fair and impartial verdict. It would be mere mockery to submit facts to a man who would not agree to determine them fairly and impartially; and if there be any place in which this rule is rigidly enforced it ought not to be urged against the whole system, when it can be remedied so easily without detracting at all from what is of real value in it. The reasonable application of the rule excluding from the jury those who have formed opinions upon ex-parte statements of the facts to be tried, certainly tends to insure a true verdict. No evidence should be laid before those who are to weigh it, except that which can be subjected to the crucial test of cross-examination. The frequent instances of a smooth, plausible, persuasive narrative in chief being totally contradicted by a shrewd cross-examination of the same witness shows how unreliable would be any decision made by either judge or jury upon statements heard out of court.
3. As to the origin of the number requisite to form a jury, it is impossible now to say anything definite. The number twelve of which
- Bigelow's "History of Procedure in England," p. 336.
- Forsyth, "Trial by Jury," p. 128.
- Stubbs, "Constitutional History," vol. i, p. 620.