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JULY, 1884.


"When the English adopted trial by jury they were a semi-barbarous
people ; they have since become one of the most enlightened nations of the
earth, and their attachment to this institution seems to have increased with
their increasing cultivation ; . . . . many of its offspring have founded
powerful republics; but everywhere they have boasted of the privilege of
trial by jury."

THUS wrote De Tocqueville, fifty years ago. I do not
believe the weight of opinion of the Anglo-Saxon race has
shifted since. But murmurs against this time-honored institu
tion are, no doubt, more frequently heard of late years than
formerly. And they come not merely from disappointed liti
gants, but from intelligent journalists, whose quick eyes take in,
as at a single glance, all the anomalous verdicts of the day 5 from
doctrinaires, who look at all questions from their theoretical
side alone ; and from men of large business interests, who view
with misgiving some of the men in the jury-box who are to pass
upon their rights. No Anglo-Saxon institution is doomed, how
ever, by a mere consideration of its imperfections. It is the
genius of our race to look before and after, and to see what are
the perils and inconveniences of the new before it displaces
the old.

But, before considering the comparative merits of trial by
judges or by jury, viewed as a question simply of the adminis-

VOL. cxxxix. NO. 332. 1


tration of justice, every statesman-like mind will recognize the
educational influence of the jury system. It is by no accident
that this system has been associated with free institutions. And
although we may not go as far as De Tocqueville when he says
that " the practical intelligence and political good sense of the
Americans are mainly attributable to the long use which they
have made of the jury in civil causes"; yet we shall agree with
him that "it teaches men to practice equity; every man learns
to judge his neighbor as he would himself be judged ; . . . .
and this is the soundest preparation for free institutions."

Addressing ourselves now more particularly to the compara
tive value of this system as a means of determining legal
controversies, we are impressed with the fact that the common
law itself has grown up alongside of, and has been established
in its principles with a reference to, the trial by jury ; so that
the latter has become a congruous part of the former. Certain
elementary rules of law are so closely associated with this system
of procedure that change in one would require alteration of
the other. Let us take an illustration from the criminal, and
also one from the civil law. Conviction of a crime can only be
had when the jury are satisfied of the truth of every essential
allegation of the Government beyond "a reasonable doubt."
Define this term, or leave it as a phrase, the meaning of which
is better felt than explained; in either case one sees that the
reasonable doubt of twelve jurors is a different thing from the
reasonable doubt of a judge. "Where there is a strong trend of
opinion in a jury toward the guilt of a defendant, each man's
conviction naturally strengthens that of his fellow, and makes a
doubt seem unreasonable which might seem otherwise, if there
was no comparison of opinion. So, too, the reasonable doubt of
a judicial temperament trained to an appreciation of all the
possible aspects of evidence, and with a morbid sense of respon
sibility, causing even resolution to be "sicklied o'er with the
pale cast of thought," is one thing, and the reasonable doubt
of a plain man of action, accustomed to decide upon quick
impressions, and not upon subtle reasoning, is quite another.

It is one of the familiar principles of the law of negligence
that a plaintiff in order to recover must show that he himself
exercised due care ; and that is defined to be " such care as men
of ordinary prudence and capacity would take under like circum
stances in the conduct and management of their own affairs."


Is it not clear that a jury composed of men of various ages,
temperaments, and habits of life, and largely conversant with
the busy activities of the day amid which accidents mostly
occur, is better qualified to determine what the average man
would do, than a single judge, of sedentary pursuits, of cautious
habits of life, accustomed to the exercise of foresight, and
with a prevision of accidents? And is it not also clear that
twelve men can best eliminate that disturbing element which the
psychologist calls " the personal equation ? "

One of the serious consequences of compelling the court to
try all questions of fact as well as law is the danger of thus
impairing the confidence of litigants in its impartiality. All
understand that the judge does not make, but declares the
law; and so has no room for choice or personal bias. But
in deciding facts he must necessarily judge and weigh parties
and witnesses; and as the most ignorant think that they can
decide readily as to facts while they know nothing of law, they
assume to revise the judgment of the court; and what seems to
them patent error they are apt to attribute to latent prejudice.
Another serious objection to the proposed change would be
the additional labor imposed on the judiciary. And it is im
portant to observe, that it is not simply the amount of added
labor that is to be taken into account, but the kind. The
investigation of a mass of tangled facts and conflicting testi
mony is at once more foreign to the mental habits of the judge,
more wearisome, and accompanied with less intellectual satis
faction than the solution of questions of law. Besides this,
the judge who presides at jury trials must " gird up the loins of
his mind " to decide at once the legal questions that arise ; and
then his duty is done. The responsibility ends there, and if
parties are dissatisfied the question goes to a full court of
appeals. But as to questions of fact, the decision of a single
judge is final ; and how oppressive this sense of responsibility
sometimes becomes before a decision is reached, only those who
have experienced it can estimate.

I advance nothing against the system which allows a choice
to parties of their forum. In Massachusetts this works satis
factorily. The cases where neither party asks for a jury are
generally either cases mainly of law or trivial in their nature, and
though it is work rather to be shunned than sought, by alterna
tions of brief service it is found not to be excessively wearisome.


In Boston about one-fifth of the cases are on the " court list."
But if juries are to be retained as a necessary part of the
judicial system, may they not be greatly improved? I think so;
and I believe that the question as to how this may be done is one
of great practical importance.

The theoretical qualifications of jurors in all the States are
reasonably high. Thus, in Massachusetts, jurors are to be taken,
from the voters, and must be "persons of good moral character
and of sound judgment " ; and to make selection necessary it is
provided that the list shall not include " more than one for every
sixty inhabitants " ; while in New York, the description of the
citizen juror is that he should be " of fair character, of approved
integrity, of sound judgment, and well informed" ; and a slight
property qualification is also annexed. But everything depends
on the administration of this law; if "the good moral char
acter " is as laxly interpreted as the same phrase practically is
in the naturalization proceedings, it affords but little guaranty.
The preparation of the jury lists is entrusted to various local
tribunals or officers in the different States. It may not be well
to interfere with this ; but I venture to suggest that for the
county courts, where the most important causes are tried,
there should be some specially qualified supervising board, who
should revise and reduce, and also have power to add to, the
local lists. The clerks of the county courts, together with the
high sheriffs, where they have not been degraded by political
scrambles, might constitute such a board, as their action would
be that of conspicuous public officers with a somewhat broad
constituency, and, from their connection with the business of the
courts, having a natural pride in the character of juries and a
sort of responsibility to the judges under whose immediate eye
their work would come.

The present selection of jurors is often heedless ; sometimes
even worse. Thus I have known men put on the lists who were
unable to write, who so far from being of " sound judgment n
were "feeble-minded," who were of intemperate habits, who
were habitual violators of the law, and who had even been
sentenced to the House of Correction for grave offenses. Such
exceptional cases, of course, give no idea of the general compo
sition of juries; nor when such men are on the juries, do they,
in civil causes, where their lower passions and prejudices are
not aroused, cause the mischief which might be anticipated, as


they are apt to be controlled by the stronger and better minds
of their fellows. On the civil side the community suffers more
from the low average which often fills the jury-box. "While any
attempt to give this popular institution an aristocratic cast
ought to be resisted, yet, on the other hand, to be a truly
representative body, the business and educated classes ought
to share in it. The trouble is that such men are too largely
out of the jury-box by their own procurement.

I have taken some pains to analyze the composition of juries
in the city of Boston, because it is not unreasonable to suppose
that they will compare well with those of any of the large cities
of our country. And in the city of Boston there has been a
perceptible improvement since the preparation of the lists has
been taken from the City Council where an Irish politician
once succeeded in adding at one stroke four hundred of his
clansmen and committed to the Board of Eegistration of
Voters. The Superior Court has exclusive jurisdiction of the
great bulk of jury trials $ and taking at random the list of jurors
returned to serve at one of its late sessions, I find the aggregate
number to be forty-seven. Of these, five are described as clerks
(a nomen generalissimum, and vague enough to cover various
capacities), three as grocers, two as in the liquor business, two
as teamsters, two as unknown, one each as of the following
occupations: agent, collector, commission merchant, compiler,
constable, contractor, employment agent, engineer, hotel keeper,
real estate agent, and superintendent; while the different
branches of mechanical industry are represented by one black
smith, bleacher, book-binder, box-maker, carpenter, gold-plater,
laborer, molder, painter, paver, printer, stove-mounter, tailor,
and upholsterer ; and the traders have one dealer in each of the
following: cigars, flo\vers, glass, pictures, produce, provisions,
soda, and stoves. I give these details that we may have a more
realistic impression of the actual jury. But in order to be sure
that our facts are numerous enough to support our inductions,
I have taken the pains to analyze six recent lists of jurors in
Boston, returned to serve at terms of the Superior Court with
the following classified results. The whole number aggregate
212. The few occupations highest in numbers are these : clerks
75, grocers 11, liquors 9, carpenters 7. All classes of traders
are represented by 71, or about 34 per cent, of the whole ; all
classes of mechanics by 60, or about 28 per cent. There were


a great variety of clerical and miscellaneous occupations, but
only two are described as merchants, two as commission
merchants, three as brokers, four as real estate dealers, and
one as lumber dealer and bank president (who, I remember, im
mediately claimed exemption as being over age). The profes
sional classes are represented by a solitary physician. There is,
in fact, no substantial representation either of the mercantile,
banking, insurance, railroad, commercial, or large manufacturing
interests of the city, and hardly a trace of the liberally educated

I have made no such study of the jury lists of other counties
as of Suffolk. But the reader may be interested to see the result
of an inquiry as to the jurors at the last term of court in the
county of Bristol. There were nine farmers, two machinists,
two manufacturers, two carpenters, two traders, and one each
of other occupations as follows : Blacksmith, builder, butcher,
capitalist, carriage-maker, jeweler, marble- worker, mechanic,
merchant, nailer, saloon-keeper, shoe-maker. Bristol is partly
an agricultural county, and we see its farming interests ade
quately represented; but it contains the three cities of Fall
Kiver, New Bedford, and Taunton, in which are seventy per
cent, of the whole population ; and these cities have large and
diversified manufacturing and commercial pursuits, yet how
feebly are they represented. Everywhere it seems to be assumed
that men of active business are to be excused from jury duty,
while they are the very ones who are not only the most apt to
complain of the quality of the jury, but who have the largest
interests to protect, and are most affected by unwise verdicts,
which tend to unsettle the law as a practical guide.

There are many cases on trial which call to mind the remark
of Fitz-James Stephen in regard to English juries :

" The position in life and mode of selection of the jurymen certainly
present a striking contrast to the character of the duties expected of

England, however, makes provision for special juries in par
ticular cases. Mr. Forsyth says :

" It may well be doubted whether Lord Mansfield would have been able to
elaborate the noble system of mercantile law which has immortalized his
name without the assistance of juries of merchants."

But in Massachusetts, and in many other of the States, there
is no provision for what are called " struck juries," as there is in


England and in New York. The Code of the latter State pro
vides that whenever it appears to the court that an impartial
trial cannot otherwise be had, or " that the importance or intri
cacy of the case requires such a jury," it shall be ordered ; and
in such case the clerk selects forty-eight jurors from the whole
jury list whom he deems best qualified, and therefrom the
counsel of each party alternately strike out one till twenty-four
are left ; and from these the jury of twelve are selected and im
paneled in the usual way. I doubt whether this is as wise or as
consonant with the spirit of our institutions as it is to furnish
to all litigants the best practicable juries, and to have them
trained to act together in the course of common service. Such
juries would not fail as a body to give due weight to the special
knowledge of any of their members. It is apparent, however, that
something ought to be done to secure in our larger cities a due
proportion of jurors conversant with the important and com
plex questions growing out of modern business life.

It is a current notion that the reason why so few first-class
business men are found upon our juries is that they are excused
by the courts. The returns we have given show that such men
rarely get upon the jury lists. In the exceptional cases where
such men are returned to serve, it is no doubt one of the most
important duties of a judge to brace himself up against yield
ing to any but the best of excuses. Boards of trade would do
well not only to inculcate it as a point of honor that none of their
members should seek to shirk this grave public duty, but also to
see to it that their class be properly represented. And here let
me add that the general hardship of jury duty is overestimated.
I have repeatedly had business men at the end of a term con
fess to me not only the satisfaction they have felt in performing
this function, and the interest they have felt in their work, but
their surprise that it was so little onerous.

Connected with the elevation of the character of the jury is the
question of their better treatment. The two reforms go hand in
hand. It is no doubt essential to preserve the strict control of
the presiding judge over the conduct of the jury ; but it is now
the aim of thoughtful judges to exercise this control with the
utmost courtesy that circumstances allow. The jurors are, in
truth, a part of the Court, sitting under the same solemn obliga
tion, and engaged in the same serious duty. Respect from
others tends to increase their self-respect. I cannot but feel
that the more they are treated as gentlemen, the better will they


respond to the call upon them to act as such. I particularly
object to the uncomfortable and unsanitary arrangements of
most of our jury-rooms. This constitutes to many persons of
delicate health or refined tastes the most serious objection to
jury service ; while to those in good health, and who are less
fastidious, it is still an annoying discomfort, which disturbs the
considerate and calm judgment so important in reaching im
partial and accurate verdicts. In this suggestion of better
accommodations for jurors, I am sure that I shall carry the
assent of all reasonable men.

I cannot expect the same concurrence in my next suggestion,
which is that in civil causes the presiding judge shall be per
mitted, in his discretion, to allow a jury to separate at night
during their deliberations, and resume the case the next morn
ing. The practice of the law begets conservative tendencies,
and I fear the weight of opinion of the bar and bench may be
against this innovation. I feel satisfied, however, that the change
would be productive only of good results ; and it is surely in
the same direction as changes already made. Notwithstanding
all just criticisms upon the composition of juries, I have no
doubt that in the main they have improved in manliness and
integrity with the general elevation of public morals j and that
wise policy and the interests of justice require for them different
treatment from that which jurors received in the olden time,
when they were kept without fire or food till they agreed, or
the judge relented ; and were liable, if they did not seasonably
agree, to be carted from town to town as the Court traveled
the circuit. So till a modern date the jury were not allowed to
separate during any part of the time of a criminal trial, even in
cases of misdemeanor simply. Gradually the rule was relaxed
as to these, then even in felonies, but continued as to capital
cases. New York has parted with this relic of an old civiliza
tion, while it still exists in many of the States.*

In the case cited these remarks of the Court have a pertinent
application to the general question :

" There were reasons for these rules at an early day which do not now
exist. The jury were then comparatively ignorant, subject to the control of
their superiors, and easily led astray. They had but faint notions of popu
lar rights, and submitted to restrictions which would not now be tolerated.
Trials were brief, seldom occupying an entire day."

* See Stephen vs. People, 19 N. Y. 550.


The only objection that can be made against this indulgence
to the jury in civil causes while considering their verdict is the
supposed danger of approach in some way by interested parties.
This danger can be but slight. To the credit of human nature,
as well as to the credit of human sagacity, attempts to influence
jurors are of the rarest occurrence. To be successful there must
be concurrent depravity in two persons ; and while failure is ig
nominious and dangerous, success is hardly less so. The sum
mary power of courts to punish, as for a contempt, the slightest
interference with a jury, induces a wholesome fear of such action.
Besides, if it is contemplated, there are ample opportunities for it
during the progress of the trial when juries are always allowed to
go home at the adjournment, instead of postponing the attempt
until it may chance to be too late. To be consistent, we should
go back to the old rule in criminal causes, and keep the jury
under constant surveillance from first to last. The advantages
of such a change of practice are obvious. A great part of the
discomfort of jury service is removed, and men whose business or
family cares press so heavily on them when they are not sure of
an hour in the twenty-four at home, would find it quite possible
to serve with equal mind if the public would leave to them the
usual rest from labor. But the main argument for the change
is that in this way a result is reached not by the pressure of any
physical discomfort, nor by anxieties for others, but as the result
of calm deliberation. And if a night could be spent away from
the heated disputation of the jury-room, it would not infrequently
happen that a dissentient juror would, as the result, perhaps, of
what Dr. Carpenter calls " unconscious cerebration," see things
in a clearer light on the morrow.

The rule requiring unanimity in a jury, so far as it applies to
civil cases, has long been disapproved by very eminent author
ities. Bentham, with a coarse vigor of expression outrunning
the truth, describes it as a system of " perjury enforced by tor
ture." Forsyth more mildly says : " A more lax view of the in
dividual obligation of each is adopted on account of the mischief
which results from a final disagreement n ; while Hallam bluntly
calls it " that preposterous relic of barbarism." It is more to the
purpose to notice the conclusion and the reasoning of that body
of experts appointed by the English Parliament on the Courts of
Common Law in 1830. They say : " It seems absurd that the
rights of a party in questions of a doubtful and complicated


nature should depend upon his being able to satisfy twelve per
sons that one particular state of facts is the true one." And they
propose that after twelve hours the opinion of nine shall author
ize a verdict. Lord Campbell many years after introduced a bill
to carry such a measure into effect. But hitherto all efforts at
disturbing the rule have failed.

Professor Robertson, in the ninth edition of the " Encyclo
pedia Britannica," while indorsing the theoretical views to
which we have alluded, suggests the reason of the failure of all
projects for change in England :

" We rarely hear of juries disagreeing or of jurors agreeing under com
pulsion. When civil juries were established in Scotland, this was one of the
arguments used against the experiment ; but it has been stated by the judge
under whom the system was started, that he only knew of one instance of
disagreement during a period of twenty years. English experience is much
the same, and a reform which twenty or thirty years ago was pronounced
absolutely necessary by conservative jurists is now hardly ever heard of."

I do not know how accurately he has stated the fact as to Eng
land, but I am sure that in America disagreements are far more
frequent. Combining my own experience with information from
others, I should say that in Massachusetts the average number
of disagreements would be about five per cent, of the whole num
ber of cases tried. It is also well to remember that the cases in
which juries disagree are apt to be those of most importance and
of the longest duration.

It were an interesting speculation to seek the causes of this
difference in the frequency of disagreements in England and
in America. Both Prof. Robertson and Mr. Forsyth lay great
stress upon the influence of the judge in his charge toward the
determination of the verdict. The latter says : " The presiding
judge has, by the tendency and bias of the remarks which he
makes in summing up, the means of influencing and guiding
them to a right result ; and they have generally the good sense
to avail themselves of all the help afforded by his perspicuity."
Although the practice may differ somewhat in the different States

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