THE

UNITED STATES REVIEW.

AUGUST, 1855.

TRIAL BY JURY.

THE institution of trial by jury is of very ancient origin. It has been traced back to the very foundation of civil government in England, and is probably of much older date. It existed, though in a crude and imperfect state, among the Saxon colonies; and its institution was, by them, ascribed to Woden, their captain, legislator, and patron-saint. Traces of the institution are found among all those nations which adopted the feudal system, as Germany, France, and Italy; and Sir William Jones quotes from one of the orations of Demosthenes to prove its existence among the Athenians.

By the ancient common law, a jury might consist of a greater number than twelve, but in the decision of causes it was necessary that a majority of twelve should agree upon a verdict, the votes of the others cancelling each other; so that if twelve only appeared they must all agree, to render an effective verdict. This is the probable origin of the rule requiring unanimity in a jury of twelve men. At one time a practice prevailed called afforcing the assize, that is, if a majority of twelve could not be obtained, of adding to the number till such majority could be procured.

In 1791, the institution of trial by jury was engrafted on

the French constitution. The form of the English institution was followed. A grand jury, or jury of accusation, was also established, consisting of eight persons, five of whom must agree upon an indictment. But either from some defect in its original constitution, or from some peculiarity of national character, the principle of unanimity was soon departed from, and the concurrence of seven made the verdict effective. If, however, the judges whose duty it was to deliberate on the questions submitted to them, agreed with the minority of five, they exercised a kind of veto-power which reversed or arrested the decision of the majority. And even now, trial by jury in France is confined to criminal cases, and juries decide causes by a two-thirds majority.

Trials by jury, anciently, were of two kinds, extraordinary and ordinary. One kind of extraordinary jury was organized by the sheriff summoning four knights who chose twelve other knights to unite with them. This form of a jury was called the grand assize. Another kind of extraordinary jury was composed of twenty-four knights who were summoned to try an attaint against a former jury, for bringing in a false verdict; and the ordinary, or common jury, was the jury of twelve men now known to our laws.

The time when juries were made to consist of but twelve men, and their unanimous opinion required, can not now be precisely ascertained. And the reason why this apostolic number was selected, is lost with the early history of the institution in the darkness of the past. That number seems to have been held in some veneration by the northern nations of Europe. 1 Lord Coke says: "The law delighteth herself in the number of twelve;" and refers, with becoming reverence, to its frequent occurrence in the Scriptures. The first account of a jury of that number in England was in the reign of William the Conqueror, in the beginning of the eleventh century; and during the reign of Henry II., it became a regular part of the English jurisprudence, and was afterwards expressly recognized by Magna Charta.

This institution has come down to us clothed with the veneration of antiquity, and loaded with the praises of legislators and jurists of every age. It has not only commended itself to the reason of the few who make and administer the law, but it has commanded the applause of all ages and nations. It is, and ever has been, essentially a republican institution. There is between jurors and parties a sort of political equality.

By the common law, a nobleman in criminal cases, must be

tried by his peers. In theory there is an equality among all persons not born peers, so that all below them in rank were to be tried by an ordinary jury. If either party, in civil actions, was an alien, six of the jurors were to be aliens. But if both parties were aliens, then the jury were all denizens, it being presumed, that in such cases, no partiality could be shown to either party from want of citizenship. By the laws of this State, however, no alien can serve as a juror, either in civil or criminal cases. The vast tide of immigration constantly flowing into our country may be a sufficient reason for the rule, especially in criminal cases.

In the ancient German courts, the principle of equality between jurors and parties, was recognized to nearly the same extent. No person could be tried by a jury of inferior, though he might be by a jury of superior rank.

By the Constitution of the United States, it is provided that the trial of all crimes, except in cases of impeachment, shall be by jury. This right is also secured in suits at common law where the value in controversy shall exceed twenty dollars: privileges not inferior in importance to any of those so sacred and dear, secured by that great charter of American liberty. In like manner the Constitution of the State of NewYork declares that the right of trial by jury, in all cases in which it has been heretofore used, shall remain inviolate for ever; and that no new court shall be instituted, but such as shall proceed according to the course of the common law, except such courts of equity as the Legislature is authorized by law to establish.

Closely analagous to the right, in England, of a peer of the realm to be tried, in criminal cases, by the House of Lords, is the right secured to all civil officers of the United States in cases of bribery or other high crimes and misdemeanors. In these cases, the House of Representatives is the grand jury of accusation, and the Senate is the tribunal before which the offender must be tried; and when the President is tried, the Chief-Justice of the United States must preside.

The reason that in England, a nobleman is entitled to be tried by his peers; or, in this country, a civil officer of the United States by the Senate, is not so much from any particular favor to the offender, as that those bodies may at all times be able to vindicate their own honor and protect the dignity of the government. Another reason may be, that those bodies may be supposed to be better acquainted with the facts and circumstances constituting the offense, in the same manner as