Essay on the Trial By Jury Part 18

It is true, the ancient common law required the jurors to be freeholders; but the term freeholder no longer expresses the same idea that it did in the ancient common law; because no land is now holden in England on the same principle, or by the same tenure, as that on which all the land was held in the early times of the common law.

As has heretofore been mentioned, in the early times of the common law the land was considered the property of the state; and was all holden by the tenants, so called, (that is, holders,) on the condition of their rendering certain military and civil services to the state, (or to the king as the representative of the state,) under the name of rents. Those who held lands on these terms were called free tenants, that is, free holders meaning free persons, or members of the state, holding lands to distinguish them from villeins, or serfs, who were not members of the state, but held their lands by a more servile tenure, and also to distinguish them from persons of foreign birth, outlaws, and all other persons, who were not members of the state.

Every freeborn adult male Englishman (who had not lost his civil right" by crime or otherwise) was ent.i.tled to land of right; that is, by virtue of his civil freedom, or membership of the body politic. Every member of the state was therefore a freeholder; and every freeholder was a member of the state. And the members of the state were therefore called freeholders. But what is material to be observed, is, that a man's right to land was an incident to his civil freedom; not his civil freedom an incident to his right to land. He was a freeholder because he was a freeborn member of the state; and not a freeborn member of the state because he was a freeholder; for this last would be an absurdity.

As the tenures of lands changed, the term freeholder lost its original significance, and no longer described a man who held land of the state by virtue of his civil freedom, but only one who held it in fee-simple that is, free of any liability to military or civil services. But the government, in fixing the qualifications of jurors, has adhered to the term freeholder after that term has ceased to express the thing originally designated by it.

The principle, then, of the common law, was, that every freeman, or freeborn male Englishman, of adult age, &c;., was eligible to sit in juries, by virtue of his civil freedom, or his being a member of the state, or body politic. Rut the principle of the present English statutes is, that a man shall have a right to sit in juries because he owns lands in fee-simple. At the common law a man was born to the right to sit in juries. By the present statutes he buys that right when he buys his land. And thus this, the greatest of all the political rights of an Englishman, has become a mere article of merchandise; a thing that is bought and sold in the market for what it will bring.

Of course, there can be no legality in such juries as these; but only in juries to which every free or natural born adult male Englishman is eligible.

The second essential principle of the common law, controlling the selection of jurors, is, that when the selection of the actual jurors comes to be made, (from the whole body of male adults,) that selection shall be made in some mode that excludes the possibility of choice on the part of the government.

Of course, this principle forbids the selection to be made by any officer of the government.

There seem to have been at least three modes of selecting the jurors, at the common law. 1. By lot. [7] 2. Two knights, or other freeholders, were appointed, (probably by the sheriff,) to select the jurors. 3. By the sheriff, bailiff, or other person, who held the court, or rather acted as its ministerial officer. Probably the latter mode may have been the most common, although there may be some doubt on this point.

At the common law the sheriff's, bailiffs, and other officers were chosen by the people, instead of being appointed by the king. (4 Blackstone, 413. Introduction to Gilbert's History of the Common Pleas, p. 2; note, and p. 4.) This has been shown in a former chapter. [8] At common law, therefore, jurors selected by these officers were legally selected, so far as the principle now under discussion is concerned; that is, they were not selected by any officer who was dependent on the government.

But in the year 1315, one hundred years after Magna Carta, the choice of sheriff's was taken from the people, and it was enacted:

"That the sheriffs shall henceforth be a.s.signed by the chancellor, treasurer, barons of the exchequer, and by the justices. And in the absence of the chancellor, by the treasurer, barons and justices." 9 Edward II., st. 2. (1315.)

These officers, who appointed the sheriffs, were themselves appointed by the king, and held their offices during his pleasure.

Their appointment of sheriffs was, therefore, equivalent to an appointment by the king himself. And the sheriffs, thus appointed, held their offices only during the pleasure of the king, and were of course mere tools of the king; and their selection of jurors was really a selection by the king himself. In this manner the king usurped the selection of the jurors who were to sit in judgment upon his own laws.

Here, then, was another usurpation, by which the common law trial by jury was destroyed, so far as related to the county courts, in which the sheriff's presided, and which were the most important courts of the kingdom. From this cause alone, if there were no other, there has not been a legal jury in a county court in England, for more than five hundred years.

In nearly or quite all the States of the United States the juries are illegal, for one or the other of the same reasons that make the juries in England illegal.

In order that the juries in the United States may be legal that is, in accordance with the principles of the common law it is necessary that every adult male member of the state should have his name in the jury box, or be eligible as a juror. Yet this is the case in hardly a single state.

In New Jersey, Maryland, North Carolina, Tennessee, and Mississippi, the jurors are required to be freeholders. But this requirement is illegal, for the reason that the term freeholder, in this country, has no meaning a.n.a.logous to the meaning it had in the ancient common law.

In Arkansas, Missouri, Indiana, and Alabama, jurors are required to be "freeholders or householders." Each of these requirements is illegal.

In Florida, they are required to be "householders."

In Connecticut, Maine, Ohio, and Georgia, jurors are required to have the qualifications of "electors."

In Virginia, they are required to have a property qualification of one hundred dollars.

In Maine, Ma.s.sachusetts, Vermont, Connecticut, New York, Ohio, Indiana, Michigan, and Wisconsin, certain civil authorities of the towns, cities, and counties are authorized to select, once in one, two, or three years, a certain number of the people a small number compared with the whole from whom jurors are to be taken when wanted; thus disfranchising all except, the few thus selected.

In Maine and Vermont, the inhabitants, by vote in town meeting, have a veto upon the jurors selected by the authorities of the town.

In Ma.s.sachusetts, the inhabitants, by vote in town meeting, can strike out any names inserted by the authorities, and insert others; thus making jurors elective by the people, and, of course, representatives only of a majority of the people.

In Illinois, the jurors are selected, for each term of court, by the county commissioners.

In North Carolina, "the courts of pleas and quarter sessions shall select the names of such persons only as are freeholders, and as are well qualified to act as jurors, &c;.; thus giving the courts power to pack the juries." (Revised Statutes, 147.)

In Arkansas, too, "It shall be the duty of the county court of each county * to make out and cause to be delivered to the sheriff a list of not less than sixteen, nor more than twenty-three persons, qualified to serve as grand jurors;" and the sheriff is to summon such persons to serve as grand jurors.

In Tennessee, also, the jurors are to be selected by the county courts.

In Georgia, the jurors are to be selected by "the justices of the inferior courts of each county, together with the sheriff and clerk, or a majority of them."

In Alabama, "the sheriff; judge of the county court, and clerks of the circuit and county courts," or "a majority of" them, select the jurors.

In Virginia, the jurors are selected by the sheriffs; but the sheriff's are appointed by the governor of the state, and that is enough to make the juries illegal. Probably the same objection lies against the legality of the juries in some other states.

How jurors are appointed, and what are their qualifications, in New Hampshire, Rhode Island, Pennsylvania, Delaware, South Carolina, Kentucky, Iowa, Texas, and California, I know not.

There is little doubt that there is some valid objection to them, of the kinds already suggested, in all these states.

In regard to jurors in the courts of the United States, it is enacted, by act of Congress:

"That jurors to serve in the courts of the United States, in each state respectively, shall have the like qualifications and be ent.i.tled to the like exemptions, as jurors of the highest court of law of such state now have and are ent.i.tled to, and shall hereafter, from time to time, have and be ent.i.tled to, and shall be designated by ballot, lot, or otherwise, according to the mode of forming such juries now practised and hereafter to be practised therein, in so far as such mode may be practicable by the courts of the United States, or the officers thereof; and for this purpose, the said courts shall have power to make all necessary rules and regulations for conforming the designation and empanelling of jurors, in substance, to the laws and usages now in force in such state; and, further, shall have power, by role or order, from time to time, to conform the same to any change in these respects which may be hereafter adopted by the legislatures of the respective states for the state courts." St. 1840, ch.

47, Statutes at Large, vol. 5, p. 394.

In this corrupt and lawless manner, Congress, instead of taking care to preserve the trial by jury, so far as they might, by providing for the appointment of legal juries incomparably the most important of all our judicial tribunals, and the only ones on which the least reliance can be placed for the preservation of liberty have given the selection of them over entirely to the control of an indefinite number of state legislatures, and thus authorized each state legislature to adapt the juries of the United States to the maintenance of any and every system of tyranny that may prevail in such state.

Congress have as much const.i.tutional right to give over all the functions of the United States government into the hand of the state legislatures, to be exercised within each state in such manner as the legislature of such state shall please to exercise them, as they have to thus give up to these legislatures the selection of juries for the courts of the United States.

There has, probably, never been a legal jury, nor a legal trial by jury, in a single court of the United States, since the adoption of the const.i.tution.

These facts show how much reliance can be placed in written const.i.tutions, to control the action of the government, and preserve the liberties of the people.

If the real trial by jury had been preserved in the courts of the United States that is, if we had had legal juries, and the jurors had known their rights it is hardly probable that one tenth of the past legislation of Congress would ever have been enacted, or, at least, that, if enacted, it could have been enforced.

Probably the best mode of appointing jurors would be this: Let the names of all the adult [male] [9] members of the state, in each township, be kept in a jury box, by the officers of the township; and when a court is to be held for a county or other district, let the officers of a sufficient number of townships be required (without seeing the names) to draw out a name from their boxes respectively, to be returned to the court as a juror. This mode of appointment would guard against collusion and selection; and juries so appointed would be likely to be a fair epitome of "the country."

[1]On the English Const.i.tution.

[2] Although all the freemen are legally eligible as jurors, any one may nevertheless be challenged and set aside, at the trial, for any special personal disqualification; such as mental or physical inability to perform the duties; having been convicted, or being under charge, of crime; interest, bias, &c;. But it is clear that the common law allows none of these points to be determined by the court, but only by "triers."

[3] What was the precise meaning of the Saxon word, which I have here called elderly, I do not know. In the Latin translations it is rendered by seniores, which may perhaps mean simply those who have attained their majority.

[4] In 1485 it was enacted, by a statute ent.i.tled " Of what credit and estate those jurors must be which shall be impaneled in the Sheriff's Turn."

"That no bailiff nor other officer from henceforth return or impanel any such person in any shire of England, to be taken or put in or upon any inquiry in any of the said Turns, but such as be of good name and fame, and having lands and tenements of freehold within the same shires, to the yearly value of twenty shillings at the least, or else lands and tenements holden by custom of manor, commonly called copy-hold, within the said shires, to the yearly value of twenty-six shillings eight pence over all charges at the least." 1 Richard III., ch. 4. (1483 )

In 1486 it was enacted, " That the justices of the peace of every shire of this realm for the time being may take, by their discretion, an inquest, whereof every man shall have lands and tenements to the yearly value of forty shillings at the least, to inquire of the concealments of others," &c;., &c;. 3 Henry VII, ch. 1. (1486.)

A statute pa.s.sed in 1494, in regard to jurors in the city of London, enacts:

"That no person nor persons hereafter be impaneled, summoned, or sworn in any jury or inquest in courts within the same city, (of London,) except he be of lands, tenements, or goods and chattels, to the value of forty marks; [5] and that no person or persons hereafter be impaneled, summoned, nor sworn in any jury or inquest in any court within the said city, for lands or tenements, or action personal, wherein the debt or damage amounteth to the sum of forty marks, or above, except he be in lands tenements, goods, or chattels, to the value of one hundred marks." 11 Henry VII.

ch. 21. (1494.)