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we have not been as aggressive in presenting such measures as we approve and recommend, to the Legislature, and urging their adoption. We have, possibly, not been sufficiently specific in formulating the legislation we have recommended. We have not taken care to place in the Legislature men who are indentified with us, and imbued with the spirit of our work.
We must recognize the conservative forces of society, which breed caution in regard to all proposed changes of established customs or laws, and not expect results without labor persistent and continued. The fact thatwhile this Association has met with neither discouragement nor opposi. tion from others, members of our own profession have been exceedingly reluctant to take part in its deliberations, and in the discussion of legal propositions in which their private interests are in perfect harmony with their public duties, has given your executive committee no little concern in regard to the ultimate success and permanency of the organization. Some lawyers who habitually complain of the decline of legal business, when invited into this service, have found the earnestly desired excuse in business engagements and want of time. This has not been wise in them, even from the standpoint of selfishness. It enters into the experience of those who have attended these annual meetings, and participated in them, that they have returned to their offices better equipped for the discharge of their professional duties. The bonds of professional brotherhood have been lengthened and strengthened by their enlarged acquaintance with members of the profession in all parts of the State. Their views of professional duty and obligation have been improved. The standard of professional character has been elevated and dignified.
Especially is this so in the case of young men who hope for much and expect much of the future. For them, if they so will it, this organization has in store opportunities not found elsewhere, of improvement and promotion. To the young lawyers of Illinois, whether here present, or elsewhere, I will say that this is the hour and the occasion of great opportunity for you. You cannot stand still. You must advance with the civilization that surrounds you. Other professions are moving rapidly to higher planes, and you must keep abreast with them. You should lead them. All the other professions have their organized associations for mutual improvement and advantage, and you must have yours. Fill up the ranks of this Association, and in the unity which it gives you, you will find strength. Put the fresh warm blood and active brains of your young manhood into its service; cherish and keep in your hearts the living spirit of a true brotherhood. Look high for all your standards. Assiduously cultivate the science of jurisprudence; carefully, but with zeal and courage, promote every reform in the law that promises good to the community or State. Use all your professional skill and knowledge to "facilitate the administration of justice. Demand of those who enter the profession a "thorough and liberal legal education.” Bear aloft in public and private life the standard of spotless integrity, unsullied honor and knightly courtesy. “Keep innocence, and take heed to the thing that is right; for that shall bring a man peace at last.”
UNANIMITY OF JURIES.
SIGMUND ZEISLER, OF CHICAGO.
READ BEFORE THE ILLINOIS STATE BAR ASSOCIATION, JANUARY 14, 1890.
Mr. President and Members of the Bar Association :
That trial by jury, in theory, is an excellent method of determining controverted questions of fact, everybody will admit. That, in practice, it often results in a travesty upon justice, no observer can deny. That, in theory, it is a palladium of liberty, is the just boast of all English-speaking people. That, in practice, it often becomes a means of unjust conviction, but oftener a protection for the criminal, is the comment of all thinking people and lovers of fair play. That, in theory, it is a means of arriving at absolute truth, is the very essence of the institution ; but that, in practice, it is very often a snare and a delusion, is a fact to which we cannot shut our eyes.
The question then arises, what are the practical elements in our sytem of jury trials which so detract from their theoretical value, which so materially affect their ideal usefulness, and so frequently render them impediments to the attainment of justice? The question is one of supreme importance-one which concerns every lover of free institutions. For, unless we discover those defects which lie at the very root of the evil, and find appropriate remedies for the same, there is great danger that the already widespread dissatisfaction with trials by jury will assume more threatening proportions—that the whole institution, even now the subject of scorn and derision in many quarters, may fall into disrepute, and eventually be sacrificed to popular prejudice systematically engendered through the unsatisfactory results of its practical working.
It would far exceed the natural limits of an address upon an occasion like the present-in fact I might consume days instead of minutes-were I to discuss in detail the many directions in which our system of jury trials are open to, and needful of, reform. The method of making up jury lists and supplying the different courts with jurors, though it has recently been somewhat reformed in our State, is far from satisfactory; the material of men we usually get on juries is far below that standard of intelligence which the nature of many of the cases submitted to them seems to require ; the practice of summoning talesmen by special venire is vicious in itself, and a powerful aid to those who practice the art of jury packing; the rules regarding competency for jury service, and especially those disqualifying persons who have formed or expressed an opinion based upon information other than original evidence, are, in these times of rapid and easy dissemination of news, an absurd anachronism, a positive disgrace to the spirit of the age, and a reproach to the civilization of the country.
I might mention other defects perhaps equally significant, but the one that I have chosen for the subjects of my paper, seems to me to deserve more especial consideration, because if it can be done away with, all others will lose a considerable portion of their evil effects. Another reason why it commands our special attention, is the fact that the requirement of unanimity cannot be abolished except by a popular vote in favor of an amendment to the State constitution, while all other vices of the present system are properly remediable by acts of the legislature of the State. What I have to say on the subject is addressed to you, in your capacity as educators of the people in the various communities in which you practice our noble profession; is addressed to you as men who, by their active interest in the work of our State Bar Association, manifest an interest in the science of jurisprudence and the propagation of law reforms outside of, and in addition to, the practice of the law as a business pursuit. If the arguments against the requirement of unanimity should convince your minds, it will be your duty to agitate the necessity of reform at every opportunity, to awaken the people to a clear and proper understanding of the problem, so as to help root out that prejudice or superstition in favor of the rule of unanimity which seems to possses the minds of so many unthinking people.
And first, let us examine for a few moments the historical background of the unanimity rule. One of the strongest arguments commonly advanced in favor of the rule is its anciency. The judicial wisdom and legislative policy of five centuries ago, are cited as reasons for its retention. It strikes me that in no other department of human pursuits--intellectual, moral, political or industrial—is the march of progress so slow as in the field of law. Would any dream of citing the views of the philosophers, political economists or masters on statecraft, the writings of scientists on chemistry, astronomy, physics or technology of five hundred years ago, as authorities upon these various subjects ? For our rules of law and our legal institutions, however, we constantly go back to the middle ages for ideals and authorities. And while in all other fields of human thought the antiquity of an idea is hardly ever considered an evidence of its soundness, we find that the anciency of a principle of law or of a legal institution, is usually cited as a strong argument of its wisdom and correctness.
Be that, however, as it may, an investigation into the history of the rule of unanimity demonstrates the fact, that the verdict of juries on English soil was originally not required to be unanimous. In Etheldred's laws we find the provision : "that a remote be held in every wapentake, and that the twelve senior thanes go out and take the reeve with them, and swear on the relic that is given them in hand, that they will accuse no innocent man, nor conceal any guilty one. And let doom stand where thanes are of one voice; if they disagree, let that stand which eight of them say, and let those who are there outvoted pay, each of them, six half marks."
It should not be forgotten that originally the jurors were not what they are today, but witnesses, cognizant of the facts which formed the basis of the action. This is the reason why the jurors had to come from the vicinage of where the cause of action arose. It is true that the concurrence of twelve men was required for a
verdict, but where twelve men could not agree upon a verdict, those who disagreed from the majority were supplanted by others by a process called affortiatio, until the required number was obtained to render a verdict. Bracton, in his work, “De Legibus et Consuetudinibus Angliæ,” book 4, c. 19, gives the following explanation of this process : “It often happens that jurymen, when they come to deliver their verdict, appear to be of different opinions, eo that they cannot bring in a unanimous verdict. In these cases the court must order the assize or jury to be reinforced or increased by the addition of as many new members as there are in the majority of the jury who already agree in one opinion and differ from the minority, or at least by the addition of four or six new members. And these additional members of the jury shall join with the former jurymen in considering and debating the matter in question. Or they may, if the court shall so direct, consider and debate the matter by themselves, without any such conjunction with the original jurymen, and give their answer concerning the matter in dispute separately and by themselves, and the verdict of those inembers of the original jury with whom these new jurymen shall agree in opinion, shall be allowed and hold good.”
Only about the middle of the 14th century, in the reign of Edward III., this practice was superseded by the requirement of unanimity on the part of the original twelve men, as a more convenient and expeditious process, so as to save the necessity of having the evidence repeated over again by the witnesses to the additional jurymen. The idea was, that where a majority of the jurors related their own knowledge of a state of facts, and the minority did not agree with them, such minority was willfully disregarding the truth; hence the jury were forced to agree unanimously on their verdict, and effective means of compelling the jurors to agree were soon devised. They were locked up without meat, drink, light or fuel until they were unanimous. The principle was, that a jury once properly constituted for the trial of a cause, could not be discharged until they had arrived at a unanimous verdict. Mr. Forsyth, however, in his History of Trial by Jury, states that the verdict was sometimes taken from eleven, and the refractory juryman committed to prison. The latter practice, however, was declared illegal, not by any statute, but by a decision of the Court of Common Pleas, reported in the Year Book, 11, Edward III., 31 a. Blackstone, in his Commentaries, Book 3, p. 376, says, that “if the jurors do not agree in their verdict before the judges are about to leave the town, though they were not to be frightened or imprisoned, the judges are not bound to wait for them, but may carry them around the circuit from town to town in a cart.”
Without going into further details, I simply desire to state it as the result of my examination, that the requirement of unanimity grew out of the anomaly of having the characters of jurors and witnesses united in the same persons. But the rule was retained, even after the adoption of the principle that the jurors should be judges of facts, and should have no prior knowledge of any matters of evidence.
From the time of Edward III. to the present day, the rule of unanimity has been retained in England; it always has been and still is the prevailing rule in the United States of America, with the exception of a few States, which we will presently notice. The rule, however, has been so far relaxed, that where, after the lapse of a reasonable time for deliberation, it appears that the jury cannot unani