THE JURY SYSTEM, 681 



by the disagreement of a jury, the State can afford to wait, and no ex- 

 pense should be balanced against the possibility of innocence. So I 

 think that justice will be best insured by retaining the rule requiring 

 unanimity in criminal cases, and in all civil causes permitting three 

 fourths to render a verdict. 



5. The fact that jurymen are chosen by lot has been the subject of 

 no little ridicule, and yet I think no other method would, on the whole, 

 prove as satisfactory. When juries were composed of those who 

 knew the facts in dispute, the panel must have been drawn from a 

 limited number, and often the whole number of witnesses were not 

 sufficient to make a complete panel. At that time, knowledge of the 

 matter in controversy determined who should be called to sit as jurors ; 

 but, when the jury became a tribunal for the trial of facts upon the 

 testimony of others, the jurors were called from the whole number of 

 citizens possessing the requisite qualifications. In most of the States 

 of the Union the qualifications of a juror are the same as those of a 

 voter, and the panel is chosen by lot. In this way the personal ele- 

 ment is, if not eliminated, at least restrained, and the impersonal ele- 

 ment blind chance that knows neither friend nor foe, decides who 

 shall be the arbitrators. In popular election Justice may be defeated, 

 but Fortune always gives her an even chance. 



Having described some of the leading characteristics of the mod- 

 ern jury, I shall now consider some of its advantages first, as a judi- 

 cial tribunal ; and, secondly, as a political institution. No one now 

 questions the utility of the separation of the legislative or law-mak- 

 ing power from the judicial or law-interpreting power. No less im- 

 portant is the separation of the power that decides upon the facts 

 from the power that applies the law to the facts when so determined. 

 The former is the province of the jury, and the latter that of the 

 judge. It is the duty, and the whole duty, of the jury to determine 

 whether certain facts do or do not exist. It is sometimes said that in 

 criminal cases the jury are the judges of the law as well as the fact. 

 This misapprehension arises, I think, from the nature and effect of the 

 verdict rendered in such cases. On all issues joined in criminal cases 

 the jury may bring in a general verdict of "guilty" or " not guilty," 

 and, if the latter, the defendant can not be tried again, no matter how 

 erroneous the verdict may be. And this, too, is the result, even though 

 the verdict be contrary to the express instruction of the court. The 

 jury are, however, bound to follow the instructions of the court in all 

 matters of law, and if they do not they are false to their trust, how- 

 ever remediless the state may be. If, on the other hand, the jury 

 return a special verdict, that is, that certain facts do exist, the court 

 is bound either to act upon those facts as true, or set the verdict aside 

 and submit the facts to another jury. Now, suppose the judge should 

 usurp the power of the jury, and should, notwithstanding the verdict, 

 declare the alleged facts untrue, or decide that the facts though true 



