The Wrongs of the Juryman

THE jury is a part of our judicial system, established among us by the traditions of the past and by our descent from Anglo-Saxon stock, and also because of the general recognition by the people of its value, not alone as an ancient institution, but as a safeguard of our liberties, our possessions* and our lives. An English author lias said that the whole establishment of king, lords, and commons, and of the statutes of the realm, has only one great object, and that is to bring twelve men into the jurybox.

It is interesting to observe how much more favorably jury trials are regarded in our Eastern and older States than in those of the West. Throughout New England. the right to a jury is everywhere recognized, as is true also of the Middle and of the older Southern States. In the Commonwealth of Massachusetts the system has been established from the very beginning; and in the debates of the Convention of 1788 we find that, the most earnest arguments against the Federal Constitution were based upon the fear that it denied trial by jury. Itisworthy of notice, too, that the first draught of the Constitution of Massachusetts provided for jury trial, in maritime as well as in civil causes. It is true that the legislature lias tried repeatedly torestrict jury trials, though without avail in most instances. It began by providing that both parties could waive the right by written agreement; and then, finding this provision did not diminish the number to any large extent, it enacted that it must be claimed within a limited time, under which restriction we now practice. The effect, however, remains about the same, as litigants so generally make the claim that while, in Suffolk County, there is ordinarily only a single session of the Superior Court (the trial court of the Commonwealth) for the hearing of causes without a jury, and that sitting but three hours and a half a day, there are four or more sessions of the same court for jury causes, sitting during the whole day.

In some of the Southern States there is a curious restriction, springing undoubtedly from the wish of the legislature to lessen taxes ; as. for example, in Texas, not only must there he the claim, hut the claimant must make a deposit of a fixed sum for the payment of the jurymen. This is the law in Michigan and Wyoming, also.

In the AYestern States, provision is made frequently for the rendering of a verdict by a less number than the whole panel; for instance, in Washington and Utah, nine or more in civil causes. But in the settled and more wealthy portions of the Union unanimity is always required ; and this is considered to be of so much value that recently, when in the Constitutional Convention of the State of New York it was proposed to make possible the giving of a verdict in civil causes by a less number than all, the suggestion was opposed vigorously by the most eminent lawyers. They were right. In practice it is found that the dissent of one of the jurymen forces the remainder to consider and hear his opinion, and prevents their treating it with contempt and indifference, as they might do if they could bring in a verdict without him. Inasmuch as he has an absolute veto on their action, they must convince him or yield to him. However inexpedient such a provision might seem if this were a new matter, it works exceedingly well, and the number of failures on the part of the twelve jurymen to agree upon the verdict, one way or the other, is extremely small.

The inconsistency in practice upon this subject, however, is most remarkable. A solemn oath is administered to the juryman that he will determine his verdict only upon the testimony and the instruction of the court. Moreover, it is a matter of general recognition and experience that the dissenting juryman usually is the stronger man, with the better reasons on his side. Nevertheless, if he hold faithfully to his oath and to his conscience, and persist in not agreeing with the majority, because he is not convinced and does not consider the proposed verdict right and proper, he becomes a marked man, and means are found quickly to oust him from further service. There is more than one instance known of careful and upright men, exactly of the kind required for jury service, who have been rendered extremely uncomfortable in the performance of their duties, and finally driven there from, because they would not look lightly upon the oaths of office which they had taken.

In other respects, also, the juryman is subjected to petty annoyances, altogether inconsistent with the important place which he holds in the administration of justice, unworthy of a free and civilized people, and without other support than tradition from circumstances and times unlike our own. Why, for example, should he be secluded from ordinary intercourse with the world, while performing that part of his duties as a citizen which is comprised in jury service ?

Several of the States are much in advance of Massachusetts in this regard. It is a matter of discretion in Kansas and Louisiana whether jurymen shall separate during the trial and after the cause is submitted to them, and usually they are allowed so to do. In West Virginia and in the Indian Territory they are kept together in criminal causes after the matter has been submitted to their decision, but in civil causes they separate temporarily at night and for their meals. In Connecticut, jurymen are seldom kept together continuously for any length of time after a cause has been submitted to them, in either civil or criminal matters. This subject was presented to the highest court in the State, by motion on the part of a prisoner, who had been found guilty on an indictment for murder, for an arrest of judgment on the ground that after the cause was committed to them the jury were not confined under the custody of an officer appointed by the court until they had agreed upon a verdict, but were immediately permitted to separate and go to their respective places of abode, and did not meet again until the next morning, when they agreed on and brought in a verdict of guilty. In giving the opinion of the court, the chief justice said, “ As to the objection that the jury were permitted to separate before they agreed upon a verdict, it may be said that such has been the universal practice in this State, and the practice has been sanctioned by usage in this court.” In North Carolina, the jurymen may separate at their own will, except in capital causes, when the consent of the prisoner is necessary. In Indiana, whenever a cause is submitted finally to a jury, they may decide in court or retire for deliberation. If they retire, they are allowed to separate temporarily and at their meals. So also in Illinois. In Mississippi, the jurymen may separate in all civil causes and in trials for misdemeanors, though upon demand by either party they are kept together ; but this demand is not often made. In Texas, the jurymen are not kept apart in civil causes, but are in criminal causes from the beginning. In Arkansas, the jurymen are allowed to separate for meals and sleep, from the time of impaneling until the verdict, in the United States courts, but not as a matter of right in the state courts. In Alabama, the statute does not require jurymen to be kept together in civil causes nor in minor criminal causes ; but the judge, upon request of both parties, may in his discretion keep the jurymen together, after the cause has been submitted to them, until they have agreed upon a verdict or have been discharged.

It would be difficult to give a good and sufficient reason why jurymen should be treated with suspicion, and deprived of the ordinary privileges which are given as a matter of course to other people. The present practice in Great Britain, and in most portions of the United States, is, practically, to say to them, "You are weak and untrustworthy men, and in order to preserve you from temptation we must shut you up.” This is not a practice conducive to strength and manliness, nor is it an efficient barrier against corruption, since, if this be intended, a dishonest juryman can be seen before the charge of the judge, or even before the trial shall begin. Many subjects of dispute go to referees, and frequently the investigation of an insolvent’s affairs, or the determination what settlement shall be made with him, is left by his creditors to a committee ; and in neither of these cases would any one think of asking to seclude the referees and the committee men until after they had come to a conclusion. They would look upon it, and rightly, as an insult to their honor and integrity to propose so to do ; and yet these same men, called to similar duties under the statutes as jurymen, and for the decision of questions no more important, are subjected to this unworthy suspicion and distrust. It has been learned in the administration of schools, and learned slowly and after long trial of the opposite course, that it is far better and more efficient to trust to the manliness and honor of the scholars than to seek to compel discipline by minute and restrictive regulations. We may expect stronger and better jurymen when we come to treat them as if we had some confidence in their uprightness and honesty.

This seclusion from the outside world is at times inhuman. In a recent cause, the wife of one of the jurymen became suddenly ill during the progress of the trial, and this juryman was not permitted to see her before her death, and in fact might not have had opportunity to look upon her remains before burial, had not a verdict been reached before the burial took place. It is not strange that men look with aversion upon jury service, and will resort to every possible expedient rather than submit, even during a limited period, to be cut off from all knowledge of affairs of the outside world, and especially of what affects their families.

Again, jurymen are not permitted regular hours of employment; and while ordinarily they are released at the adjournment of the sitting for the day, it frequently happens that they are kept late into the night, and sometimes until the following day. This uncertainty makes another of the valid objections to a citizen’s submitting himself to jury service. In all other employments we may count with some certainty upon stated hours, but here a man does not know, when he leaves his home in the morning, whether he can return at the close of the day, or at some later hour. While of course it may happen in any vocation that one may be called upon, unexpectedly, to give extra hours, he ought not, in the public service at least, to be placed habitually in a position where he can make no engagements with reasonable expectation of ability to meet them. In the State of Connecticut, jurymen serve no longer than the other officers of the court, and at the close of the sitting, if they have not agreed upon a verdict, they go from the jury-room to their homes, as other men do, and return to the room the next morning to take the matter before them again into consideration, exactly as the judges themselves do. There is no more reason why jurymen should be kept in continuous session until the termination of a matter entrusted to them than there is for the keeping of other people in such a situation. These same men deal differently with other affairs in life. They consult together, and, when the time comes, they separate, and come together again; and were it not that a different method has been established among us by usage, we should take the same course in the decision of controversies which have reached the courts that we follow without question in the decision of other controversies wherein suit has not begun.

A more irksome grievance than the seclusion from the outside world is the treatment of jurymen in reference to food and sleep. After a matter has been committed to them to determine upon their verdict, no one of them can know how long he will be kept without food and without sleep. Nearly always they are permitted to have their meals, though often at irregular hours ; but frequently they are kept late into the night, and sometimes all of the night, in a room where there is no provision whatever for sleep. The only excuse ever offered therefor is that by this means jurymen can be brought to agree. The people, however, have gone to the expense of the maintenance of courts not for the purpose of starving or coercing jurymen into an agreement, nor for the dispatch of business, but for the administration of justice, and that the truth may be ascertained, and wrong detected and punished. Many a man has been made seriously ill by the want of food and sleep, and by the breaking-up of his accustomed routine of life ; and there is no necessity to expose any one to these risks. It is worth consideration and trial, at least, to discover whether men who now shrink from jury service would not be willing to perform this duty if they knew they would not be exposed to these unnecessary hardships.

In olden times the courts went even further in the effort to secure verdicts from unwilling jurymen. Bishop Burnet tells of a jury in his time who were shut up a whole day and night, and those who were for acquittal yielded only to the fury of the remainder, so that they might save their lives, and not die from starvation. In the case of Alice Lisle, the jury twice brought her in “not guilty,” and the lord chief justice threatened them, so that, overcome with fear, the third time they brought her in “guilty,” and she was executed. In the Throckmorton cause, the jury deliberated several hours, and returned into court with a verdict of “ not guilty.” Thereupon the lord chief justice remonstrated with them in a violent tone, and committed them to prison. Four were discharged on humbly admitting that they had done wrong, but the remaining eight were dragged before the Star Chamber and dealt with severely. In a Quaker cause the jury disagreed, and the judge said to one of them, “You are the cause of this faction, and I shall set a mark upon you.” He sent them back to reconsider their verdict, and when, after considerable time, they returned to the court-room, not bringing in a verdict acceptable to the court, they were told, “ You shall not be dismissed until we have a verdict which the court will accept, and you shall be locked up without meat, fire, drink, or tobacco. You shall not think thus to abuse the court. We shall have a verdict, by the help of God, or you shall starve for it.” They finally brought in a verdict of “ not guilty,” and each man was fined forty marks, and imprisoned until the fine was paid.

It is not possible now to use jurymen so barbarously, but there is no difference in principle between coercing them into agreement, under the old practice, and, under the present practice, of depriving them of food and sleep, with the result often that the strongest stomach instead of the wisest head carries the day. Indeed, in some respects the old practice was the more humane, since in those days it was possible to add to the panel a sufficient number until twelve men were found to agree upon the same conclusion ; while now, if one differs from the rest, he must either assent to a verdict against his own conscience, or suffer from want of food or rest.

We are a patient people, and permit many things to go on, which have no support from reason or conscience, simply because they have been, until some striking instance brings the whole subject forcibly to our attention. Then the abuse comes to an end. So will it be with this matter of jury service. It is not the fault of our judges that these inhumanities remain in practice. In fact, it is owing to them that so many alleviations have already been introduced and adopted. It is necessary that the judges shall proceed slowly and cautiously in making changes, but we cannot doubt that they would welcome the passage of acts by the legislature which would extend to jurymen the same considerate and humane treatment that is given to all men when called upon for other like public service.

There is much complaint of the quality of our jurymen, and especially in cities, a good deal of which I believe to be without sufficient foundation, and it will be worth a trial to learn whether we might not cause a decided improvement if we should make jury service easier. For it is not strange that men should look with aversion upon this service, and be possessed of a most earnest desire to escape it, when they are exposed to trials like these. In following his ordinary vocation, one grows used to regular hours for work and for food and for sleep. It is no light thing to break in suddenly upon these. For no other duty in life, either public or private, except of course in case of war or extreme urgency, should we think of compelling men to sit hour after hour, without food, in a close room, filled perhaps with tobacco smoke, so that their hunger or inability to go longer without rest will drive them to an agreement. It is not consistent with our high civilization to contemplate an agreement obtained in this way; and were it not that we have become used to it as something of daily occurrence, we should look upon it as barbarous, and a custom to be found only among savage peoples. Let us treat jurymen as reasonable men, with the ordinary privileges of obtaining their food at the usual hours, and giving no more time to their duties in court than other officers of the law are required to give, and some of the objections in the minds of business men to jury service will have been removed.

Harvey N. Shepard.