Page:Popular Science Monthly Volume 24.djvu/694

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676
THE POPULAR SCIENCE MONTHLY.

THE JURY SYSTEM.
By HENRY H. WILSON.

THIS is an age in which ancestral faiths, traditional customs, and primitive institutions alike, are receiving the attacks of iconoclasts. These attacks are always vigorous, usually just, frequently learned, but sometimes hasty and ill-considered. There was a time when institutions which had become quite useless were still continued and revered simply because they were ancient. In our day there is danger that institutions whose origin, growth, and practical utility are little understood may be swept away amid the general assault, merely because they bear the marks of age. Institutions are not the inventions of individuals, but are the outgrowth of the general sentiments and impulses of the time and place of their origin. Every institution, however absurd or worthless it may seem to us, must, at one time, have supplied the actual wants of a part of the human race. It is, therefore, but reasonable to presume that every institution which we have inherited contains some principle that may still be useful. Before assuming to pass judgment upon the merits or demerits of the jury as an element of our judicial system, it may, therefore, be well to inquire into its distinguishing features, and to ascertain, as far as may be, the origin of its several characteristics. Most prominent among the peculiar features of the modern jury are—1. That they are called from the vicinage, or from a limited territory, over which the court in which they sit has jurisdiction. 2. That they possess no previous knowledge of the merits of the case which they are impaneled to try. 3. That they consist of a definite number previously determined, usually twelve. 4. That unanimity or consent of all is necessary to render a verdict. 5. That they are chosen by lot from a certain number of qualified citizens previously selected. Of these in their order let us inquire the origin, growth, and present utility.

1. When, in its earliest stages, the jury was composed of the witnesses who knew more or less about the facts in dispute, it was natural and indeed necessary to call them from the vicinity where the transaction occurred. This reason becomes the more apparent, when it is remembered that the ordinary commercial transactions among our rude ancestors were accompanied with great ceremony and publicity. For example, if a man wished to go abroad to buy a horse, he must first announce his intention to do so to his neighbors, and upon his return he must give all the circumstances of the purchase, that the requisite number of witnesses, or men who knew the facts, could be had to form a jury, should his title ever be questioned. Should he fail to observe these precautions, he was presumed to have stolen the horse, or to have obtained it in some unlawful way.[1] While, in this com-

  1. Forsyth, "Trial by Jury," p. 71.