stood as an effectual barrier against the wrath and tyranny of kings, and which won for the petit jury so much of its prestige and glory in English history, are certainly likely at times to fail when confronting the outraged sentiment of that more potent and dangerous despot-an enraged democracy. Fortunately, such tempests of popular fury are very rarely directed against innocence, and other tribunals do not withstand their fury while the storm lasts, any better than the jury. Judges of the first instance, and even the local tribunals of appeal, have been found equally powerless to stem the tide. Study the reports of our own [New York] Court of Appeals in recent years, and you will find more than one instance of public wrath in our great metropolis, fanned into a devouring flame by some lawless newspapers and a somewhat lawless investigating committee, where the trial Court, unconsciously influenced and loudly sustained by public opinion, committed fatal errors against the prisoner, which were confirmed by the local tribunal of appeal, and it was only when the storm had passed and the atmosphere cooled, that the Court of last resort sitting in the remote capital corrected the error, and each time with the unfortunate result that an apparently guilty prisoner, who had been convicted upon illegal evidence or rulings, escaped altogether. One other charge against trial by jury in criminal cases is the The question of possibility of corruption and bribery of individual jurors. But bribery. in my judgment, the common estimate of the extent of this danger is greatly exaggerated. There are but a few well authenticated cases of such crimes in the jury box. I have had little to do with the trial of criminal cases, but in an experience of more than forty years in the trial of civil cases before juries, I cannot recall one case where I had reason to believe that corruption or bribery had reached a single juror. And if you can show me a few authentic cases of such infamy in the jury box, I will undertake to match them with an equal number of similar crimes committed by judges who have been properly exposed and punished. . . . Let me say what I understand by a jury trial. Well, the first and The judge in jury trial. The twelve men. The advocates. most essential element in a jury trial is a wise, learned, impartial And then there are the twelve honest and intelligent jurors drawn from the body of the community, sworn to pass upon the issue, and return whence they came when their task is done. If we say that the average citizen is not equal to the duty, we belie our American manhood, we contradict the whole course of judicial history, and we fail of our duty to the communities of which we form a part, which rely upon us implicitly for the legislative machinery by which juries are to be secured. And then you must have the earnest and loyal advocates, sworn to do their whole duty; which means to employ all their powers and attainments, and to use their utmost skill and eloquence, in exhibiting the merits each of his own side of the case. In doing so, as Mr. Justice Curtis well said, the advocate only does his duty, and if the adversary does his, the administration of justice is secured. I omit not the indispensable presence of the public, an ever essential feature in this great historic forum, for justice, though blind to the parties and to everything but the merits of the case, must never be secret. It is the sacred possession of the people in whose name and by whose authority it is done. Do you say again that this is an ideal picture? Who of you has not seen it? Who of you does not know that it is not only possible, but can be and ought to be the actual and everyday scene in our Courts? An attack was made on the jury in the New York constitutional convention in 1894, and it was met by a firm declaration against any innovations by Mr. Root: I do not now believe, notwithstanding the very able and forceful addresses which have been made to-night—that the people of the state of New York are dissatisfied with their time-honored institution of trial by jury. I am not dissatisfied with it, sir. I believe that it is one of the most important, most vital, most sacred of the institutions which maintain our free and popular government. I believe that it serves to bring the people not lawyers and judges, the plain people who vote, and who underlie the whole structure of our government, into immediate participation in the administration of law. I believe that it mitigates the severe logic of the law, and make its administration tolerable. I believe that it reaches correct results in fact and in reason, though not always by logic; and I believe, sir, that the very essential feature of this system is the requirement of unanimity. I think that the amendment which aims at permitting less than the entire body of the jury to render a verdict is aimed at the very heart of the jury system, and is nothing short of revolution.... I say that this is a most vital matter, because this is where the people are concerned in the administration of the law. It is the muniment of their title to control of that administration. It is the means by which they protect themselves against power, against wealth, and against the judge on the bench. I am not surprised that we should have expressions from judges which tend in derogation of the system of trial by jury, for the system of trial by jury was designed and has served always as a protection against judges, and the time comes often and again when the people need There is no popular opposition to the jury. The jury a popular institution. Theory against the jury; practice for it. The many processes involved in a lawsuit. that protection, when individual liberty needs that protection; and I will never consent, if I vote alone, against overwhelming majorities, to take away one jot or tittle of the strength, stability, and the perpetuity of that safeguard. (Applause.) Mr. President, I have said all that I have to say, with one exception: We have had read to us to-night a number of expressions of opinion from text-writers, from jurists, from learned judges, in England, in Illinois, in Michigan, in Iowa, and in New York; but in England, in Illinois, in Michigan, in Iowa, in New York, there still remains the system of trial by jury, with its essential characteristic of a unanimous verdict. Theory is against it, Mr. President, but the plain practical common-sense of the AngloSaxon race has wrought out and holds to, and I believe means to hold to this, their peculiar method of conciliating disputes and of ending litigation. The plain sense of the people, through hundreds of years in practical experiment, sets itself still against the theories of jurists. The plain sense of the people will have to pass upon this revised and amended Constitution. Not theorists, not jurists, not text-writers. To them we must appeal, and let us apply their good common sense to the work which we do. I hope, Mr. President, that this Convention will not attack the system of trial by jury. 196. The Law's Delays In 1884 the American Bar Association appointed a special committee to inquire into the possibility of reducing the number of delays which occurred in judicial processes, and this committee made a long and interesting report from which only a few extracts can be given here: The theory of a lawsuit is, to hear what the parties have to say, and to decide between them. In doing this, the simplest and most direct method is the best. The plaintiff must make his statement; that is the first step; the defendant must make his answer or be held to admit the truth of the complaint; that is the second; if they differ, the truth of the fact must be ascertained; that is the third; and then the law must be applied, which is the fourth step and the last if there be no appeal. These several steps may be shorter or longer. A short one is the best if it be a sure one. Some side steps may have to be taken, according to the circumstances of particular cases. But in all, not a single unnecessary step should be required or allowed. In other words, no form or proceeding should be permitted which is not necessary to ascertain or preserve the rights of the parties, no form or proceeding that cannot be understood by either party, none that causes needless delay or needless expense. There must, however, be a complaint, and if there be an answer there must be a trial of the fact, a judgment of the law, and an execution of the judgment, with occasional incidental proceedings, such as orders made in the progress of the cause to insure the efficiency of the judgment. In other words, there may be in civil actions these several processes -the complaint, the answer, possibly a reply, the provisional remedies of arrest, replevin, injunction, attachment, receiver or deposit, a trial of the facts in issue, the judgment of the law, the execution of the judgment and one or more appeals, twelve or fourteen distinct processes, most of which are or may become necessary in a severely contested law-suit. The problem is how to expedite them all, preserving at the same time every right of the parties, and to cut off, with an unsparing hand, whatever is not necessary to this design. . . . Let us take our seats as spectators of a severely contested jury trial in a court of general jurisdiction of one of our cities, say in the City of New York, and see how one of them at least is conducted. The hour of the sitting is fixed for eleven o'clock. At that hour a crowd of lawyers, suitors, witnesses, and spectators is in attendance ready for the judge. He comes, perhaps punctually, and perhaps not punctually, but after a few minutes, or a quarter of an hour, or half an hour, nobody can foretell which. At last he appears, and begins by asking what suits are ready, or rather by calling over the calendar, an unintended but real invitation to the parties, one or both of them, not to be ready. This Delay in started. getting |