JURY CHALLENGE.
A RECENT daily newspaper of New York City contained the following edi torial paragraph : — "Here's a funny thing : The New York City Consolidation Act of 1882 says as fol lows : ' To be qualified to serve as a juror a person must be in the possession of his natural faculties, and not be infirm or de crepit; intelligent, of good character and able to read and write the English language understandingly.' This being the law, why is it that in the selection of a jury the effort is made to obtain only the least intelligent, least-informed men in the community to fill the box? An intelligent jury is a rarity." Now the slur embodied in the concluding sentences could not apply to any other State than New York, in which the usage of courts — neither positively sanctioned by any stat ute nor by rule of court — have created a system of challenges to petit jurors that is foreign to the common law; arid has become an excrescence upon it. If any reader has had occasion to notice the recently published proceedings had in a New York trial of al leged conspirators against trade and com merce — popularly known over the whole Union as the Tobacco Trust case — he must have observed the curious workings of the excrescent system referred to, and which drew forth the editorial comment just quoted. In this case more than ten days of a June term were consumed in preferring and deter mining challenges to the several hundred talesmen who had been duly summoned. They had been preliminarily singly sworn "true answers to make to all such questions as should be put to you touching your com petency to serve as true jurors." The pros ecution and the defense were each represented by three able counselors; and among the defenders was Joseph II. Choate, who in many respects has caught the esprit, tact and
alertness of his famous uncle Rufus. It seemed to be agreed between court and counsel that challenges should exist by im plication rather than by express averment, as applicable to each juror as his name was drawn from the box. As the latter appeared he was alternately catechised by each side as to his age, his eligibility, his business, his habits, and especially as to any bias, impres sion or opinion regarding the merits of the case formed upon newspaper reports, or hearsay or gossip. It was notable that only such jurors as had refrained from read ing newspapers or cared little about them were most acceptable to both parties. The range of inquiry seemed to be tacitly allowed to exist as widely and extendedly as possible, and without any objection to form of ques tion among counsel. Now such unlimited range of interrogation was absolutely un known to the common law which continues to be really the guide toward jury challenges in New York State beyond any detail of procedure in its code of criminal jurispru dence, which is very scant. From the stat ute editorially quoted as above it would ap pear that every juror appearing had been already adjudicated upon by the enrolling and summoning officials as to fitness. Of a juror's impartiality in New York State the presiding judge is made by statute exclusive arbitrator, although exceptions may be taken to his decisions. This statute was a departure from common law procedures and from those in matters affecting criminal trials as practiced in England and in the majority of our States in the Union. By the common law, challenges were of two kinds — and this division the code yet maintains in New York State — viz. .challenge forprincipal cause and challenge to the favor. As a juror was called under common law procedures, either side had the option of preferring a challenge and
