678 THE POPULAR SCIENCE MONTHLY. 



could not be found who possessed the information necessary, and so, 

 to those who knew the facts, were added others who joined in the ver- 

 dict, relying on the knowledge and good faith of their fellow-jurors. 

 From this the step was short and easily taken to that stage where wit- 

 nesses not on the panel were called to give testimony concerning facts 

 within their knowledge.* Here we find a jury, composed of informed 

 and uninformed jurors, all joining in a common verdict. f Those who 

 knew the facts in issue were, however, finally separated from those 

 who did not, \ and while the former gradually assumed the character 

 of the modern witnesses who simply detail the facts under the sanc- 

 tion of an oath, the latter became the modern jury essentially as we 

 now have it — that is, triers of facts upon evidence produced by others. 

 So, while we challenge a juror because he knows too much about the 

 facts to be tried, our ancestors objected to him because he did not 

 know enough about them. Perhaps no other feature of the whole sys- 

 tem of trial by jury has called forth so much adverse criticism as this. 

 It is justly said that to rigorously enforce this rule in an age of news- 

 papers and telegraph would exclude every intelligent citizen from 

 juries called to try cases of any considerable notoriety. To meet the 

 demands of our changing civilization, most if not all the States of the 

 Union have, by statute, relaxed this once universal rule of the com- 

 mon law. An opinion founded on rumor or newspaper-reading will 

 not now exclude a juror, and several of the States have gone to the 

 doubtful length of authorizing the presiding judge to permit a juror 

 to sit even though he have a decided opinion as to the merits of the 

 case, provided he will swear that, notwithstanding such opinion, he 

 believes he can render a fair and impartial verdict. It would be mere 

 mockery to submit facts to a man who would not agree to determine 

 them fairly and impartially ; and if there be any place in which this 

 rule is rigidly enforced it ought not to be urged against the whole 

 system, when it can be remedied so easily without detracting at all 

 from what is of real value in it. The reasonable application of the 

 rule excluding from the jury those who have formed opinions upon 

 ex-parte statements of the facts to be tried, certainly tends to insure a 

 true verdict. No evidence should be laid before those who are to 

 weigh it, except that which can be subjected to the crucial test of cross- 

 examination. The frequent instances of a smooth, plausible, persua- 

 sive narrative in chief being totally contradicted by a shrewd cross- 

 examination of the same witness shows how unreliable would be any 

 decision made by either judge or jury upon statements heard out of 

 court. 



3. As to the origin of the number requisite to form a jury, it is 

 impossible now to say anything definite. The number twelve of which 



* Bigelow's " History of Procedure in England," p. 336. 



f Forsyth, " Trial by Jury," p. 128. 



X Stubbs, " Constitutional History," vol. i, p. 620. 



