Page:The Green Bag (1889–1914), Volume 14.pdf/279

has previously investigated the matter. Nor are utterly incapable to pass upon a simple can a new trial be granted as in the United question of fact, to say nothing of the power States even though some error, in procedure vested in them to judge as well of the law or otherwise, has been committed. Redress ^ applicable to any case. may be obtained by petitioning the Crown Many faults of the system besides the in to grant pardon or commute the sentence, competency of the jurors could be men and this is also done upon the advice of the tioned, but our space will only permit us to discuss one or two, and we will speak first Home Secretary. of the requirement of a unanimous verdict. We have spoken of the construction of Perhaps one of the strongest arguments in the jury in criminal cases in England, and favor of this requirement is its history. It the method of procedure in other cases in is contended that its continued use for which it was employed in order to show the several centuries is sufficient ground for its differences and parallelisms of the juries in being retained, but if we go back to the the two countries—England and the United days of Ethelred, we find that this was not State. We may say that in civil cases the always insisted on. In some cases a decision structure of the jury in the two countries is of eight jurors was sufficient to render a ver practically the same, and in the structure of dict, and those who did not agree were sub the grand jury in criminal cases it is also ject to a fine. In fact we do not find a nearly identical. We have mentioned a few unanimous vote required on all occasions of the divergences in the petit juries of the two countries, but these divergences are very until the thirteenth century. From that few comparatively. In England we see the time on, however, it is required, and many tendency of the sovereign to retain certain means, such as depriving the jurors of food royal privileges, and in the United States we and fire, were, until within a short time, em see these entirely within the control of the ployed in order to compel the jury to render a verdict. Without going further into his people. On the whole we may say there is torical detail, let us see what some of our only slight variation. great legal minds have to say of it. Judge What are the practical defects which so Cooley characterizes it as "repugnant to all materially affect the theoretical usefulness of experience of human conduct, passions and trial by jury and so frequently render it an understanding," and in another place says impediment in the administration of justice? "It could hardly in any age have been in In the first place the jurors are much below troduced into practice by a deliberate Act the standard of intelligence which may be of the Legislature." A former Governor of justly expected of persons occupying such a Illinois calls it, " the illogical unanimity responsible position. Then, too, some of the system, which has become a great source of rules regarding their competency for service, corruption and consequent denial of jus such as that disqualifying those who have tice"; while a former Governor of Iowa has expressed an opinion previous to the trial, dubbed it "that antique absurdity which has are absurd in this age of easy communica too long fettered the administration of jus tion. It is almost impossible that an intel tice." We do not presume to say that these ligent man should have failed to express him estimates are correct, but we take them as self forcibly regarding the guilt or innocence showing in some measure the attitude of of an accused party in his vicinity, and conse progressive legislation. We have said that quently to serve as juror falls to the lot of the chief argument in its favor is its history, uneducated persons who have not had energy but can we really admit this to be called an enough to acquire a stock of general and argument? Did the continued use of the current information, and who, in most cases, stocks and pillory give us any proof of their