instruments with which the skillful counsel either openly or secretly works.[1]
The ideal jury is unanimous. The unanimity of the real jury is, in the great majority of cases of any importance, a mere name. That they are required to be unanimous has been admitted from time immemorial to be a defect in the system. The absurdity of compelling men to be unanimous must be apparent to the crudest intellects. In olden times in England when the judges "went circuit" they used to carry the jury around with them in carts until they agreed. In our time we have not much advanced beyond this. We lock them up, with barely the necessaries of life, until they are unanimous. The value of a verdict obtained under such conditions is not very evident. In an old case eight of the jury agreed to find "not guilty" and the other four "would find it murder." The next morning two of the four agreed with the eight. At last the rest came to this agreement, viz., that they would offer "not guilty," and if the court disliked it, then they would change the verdict, and find it "guilty"!
The foreman pronounced "not guilty," but the court, "not liking it," examined every one of them by the poll, whether that was their verdict, and ten of them affirmed it, but the last two discovered the whole matter; to hereupon they went hack and then brought in "guilty." The ten were all fined in considerable amounts for their conduct. It is not wonderful that, recognizing, as they must do, the ineffectual nature of their proceedings, jurymen have resorted to the very simple and suggestive expedient of casting lots for their verdict. Several instances are recorded in the books of juries casting lots for it, and in a recent murder trial in England it was discovered that the jury had balloted for their decision. To a candid and independent observer the whole effect of a jury-trial must appear about equivalent to drawing lots. Its value as a means of discovering truth can be little if any beyond this. Any one who will reflect on the matter for a moment will, I think, be convinced that the proportion of correct verdicts can not be much, if any, more than fifty in a hundred, which is, of course, the average in every question of pure chance. Almost every jury trial is as though the parties acting in it went through a mock solemnity of greater or less duration according to the importance of the case, at the conclusion of which the judge said to the jury: "We have exhibited to you the spectacle of a trial; you will retire now, and cast dice as to what your verdict will be." And if this be true, a system which would dispense with the jury, and in which the court itself would throw the dice, should be quite as satisfactory. It is certain that under such a system the very highest degree of impartiality would be reached, while there would be a vast saving in time and expense.
- ↑ The Cincinnati riot, which occurred some time after this was written, would appear to lend additional force to this observation, as it was undoubtedly to one of these causes that the extraordinary verdict which led to the riot was due.
