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| [1]On the English Constitution. |
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| 143 |
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1. That all the freemen, or adult male members
of the state, shall be eligible as jurors. [2]
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Any legislation which requires the selection of jurors to be made from a less number of
freemen than the whole, makes the jury selected an illegal one.
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If a part only of the freemen, or members of the state, are eligible as jurors, the
jury no longer represent "the country," but only a part of "the
country."
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If the selection of jurors can be restricted to any less number of freemen than the
whole, it can be restricted to a very small proportion of the whole; and thus the
government be taken out of the hands of " the country," or the whole people, and
be thrown into the hands of a few.
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That, at common law, the whole body of freemen were eligible as jurors, is sufficiently
proved, not only by the reason of the thing, but by the following evidence:
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1. Everybody must be presumed eligible, until the contrary be shown. We have no
evidence, that I am aware of, of a prior date to Magna Carta, to disprove
that all freemen were eligible as jurors, unless it be the law of Ethelred, which requires
that they be elderly [3] men. Since no specific age is
given, it is probable, I think, that this statute meant nothing more than that they be
more than twenty-one years old. If it meant anything more, it was probably contrary to the
common law, and therefore void.
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2. Since Magna Carta, we have evidence showing quite conclusively that all freemen,
above the age of twenty-one years, were eligible as jurors.
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The Mirror of Justices, (written within a century
after Magna Carta,) in the section " Of Judges"
– that is, jurors – says:
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| "All those who are not forbidden by law may be judges (jurors).
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[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."
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[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.
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| 144 |
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To women it is forbidden by law that they be judges; and thence it is, that feme
coverts are exempted to do suit in inferior courts. On the other part, a villein cannot be
a judge, by reason of the two estates, which are repugnants; persons attainted of false
judgments cannot be judges, nor infants, nor any under the age of twenty-one years, nor
infected persons, nor idiots, nor madmen, nor deaf, nor dumb, nor parties in the pleas,
nor men excommunicated by the bishop, nor criminal persons. * * And those who are not of
the Christian faith cannot be judges, nor those who are out of the king's
allegiance." – Mirror of Justices, 59 – 60.
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In the section " Of Inferior Courts," it
is said:
"From the first assemblies came consistories, which we now call courts, and that in
divers places, and in divers manners: whereof the sheriffs held one monthly, or every five
weeks according to the greatness or largeness of the shires. And these courts are called
county courts, where the judgment is by the suitors, if there be no writ, and is by warrant of
jurisdiction ordinary. The other inferior courts are the courts of every lord of the fee,
to the likeness of the hundred courts
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There are other inferior courts which the bailiffs hold in every hundred, from three
weeks to three weeks,
by the suitors of the freeholders of the
hundred. All the tenants within the fees are bounden to do their suit there,
and that not for the service of their persons, but for the service of their fees. But
women, infants within the age of twenty-one years, deaf, dumb, idiots, those who are
indicted or appealed of mortal felony, before they be acquitted, diseased persons, and
excommunicated persons are exempted from doing suit." –
Mirror
of Justices, 50 – 51.
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In the section "Of the Sheriff's Turns,"
it is said:
"The sheriff's by ancient ordinances hold several meetings twice in the year in every
hundred; where all the freeholders within the hundred
are bound to appear for the service of their fees." –
Mirror
of Justices, 50.
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The following statute was passed by Edward I., seventy years after Magna Carta:
"Forasmuch also as sheriffs, hundreders, and bailiffs of liberties, have used to
grieve those which be placed under them, putting in assizes and juries men diseased and
decrepit, and having continual or sudden disease; and men also that dwelled not in the
country at the time of the summons; and summon also an unreasonable number of jurors, for
to extort money from some of them, for letting them go in peace, and so the assizes and
juries pass many times by poor men, and the rich abide at home by reason of their bribes;
it is ordained that from henceforth in one assize no more shall be summoned than four and
twenty; and old men above three score and ten years, being continually sick, or being
diseased at the time of the summons, or not dwelling in that country, shall not be put in
juries of petit assizes." –
St. 13 Edward I., ch. 38.
(1285.)
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| 145 |
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Although this command to the sheriff's and other officers, not to summon, as jurors,
those who, from age and disease, were physically incapable of performing the duties, may
not, of itself, afford any absolute or legal implication, by which we can determine
precisely who were, and who were not, eligible as jurors at common law, yet the exceptions
here made nevertheless carry a seeming confession with them that, at common law, all male
adults were eligible as jurors.
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But the main principle of the feudal system itself, shows that all
the full and free adult male members of the state – that is, all who were free born,
and had not lost their civil rights by crime, or otherwise – must,
at common law, have been eligible as jurors. What was that principle? It was, that the
state rested for support upon the land, and not upon taxation levied upon the people
personally. The lands of the country were considered the property of the state, and were
made to support the state in this way: A portion of
them was set apart to the king, the rents of which went to pay his personal and official
expenditures, not including the maintenance of armies, or the administration of justice.
War and the administration of justice were provided for in the following manner. The
freemen, or the free-born adult male members of the state – who had not forfeited
their political rights – were entitled to land of right,
(until all the land was taken up,) on condition of their rendering certain military and
civil services, to the state. The military services consisted in serving personally as
soldiers, or contributing an equivalent in horses, provisions, or other military supplies.
The civil services consisted, among other things, in serving as jurors (and, it would
appear, as witnesses) in the courts of justice.
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| 146 |
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For these services they received no compensation other than the use of their lands.
In this way the state was sustained; and the king had no power to levy additional burdens
or taxes upon the people. The persons holding lands on these terms were called freeholders – in later times freemen
– meaning free and full members of the state.
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Now, as the principle of the system was that the freeholders held their lands of the
state, on the condition of rendering these military and civil services as rents for their lands, the principle implies that all the freeholders were liable to these rents, and were
therefore eligible as jurors. Indeed, I do not know that it has ever been doubted that, at
common law, all the freeholders were eligible as
jurors. If all had not been eligible, we unquestionably should have had abundant evidence
of the exceptions. And if anybody, at this day, allege any exceptions, the burden will be
on him to prove them. The presumption clearly is that all
were eligible.
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The first invasion which I find made, by the English statutes, upon this common law
principle, was made in I285, seventy years after Magna Carta. It was then enacted as
follows:
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"Nor shall, any be put in assizes or juries, though they ought to be taken in
their own shire, that hold a tenement of less than the value of
twenty
shillings yearly
. And if such assizes and juries be taken out of the shire, no
one shall be placed in them who holds a tenement of less value than forty shillings yearly
at the least, except such as be witnesses in deeds or other writings, whose presence is
necessary, so that they be able to travel." –
St. 13
.Edward I., ch. 38. (1285.)
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The next invasion of the common law, in this particular, was made in 1414, about two
hundred years after Magna Carta, when it was enacted:
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"That no person shall be admitted to pass in any inquest upon trial of the death
of a man, nor in any inquest betwixt party and party in plea real, nor in plea personal,
whereof the debt or the damage declared amount to forty marks, if the same person have not
lands or tenements of the yearly value of
forty shillings above
all charges of the same." – 2 Henry V., st. 2, ch. 3. (1414.)
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| 147 |
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Other statutes on this subject of the property qualifications of jurors, are given
in the note. [4]
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[4] In 1485 it was enacted, by a statute entitled " Of what credit and estate
those jurors must be which shall be impaneled in the Sheriff's Turn."
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"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 )
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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.)
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| A statute passed in 1494, in regard to jurors in the city of London, enacts: |
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"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.)
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The statute 4 Henry VIII, ch. 3, sec. 4, (1512)
requires jurors in London to have
"goods to the value of one
hundred marks."
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In 1494 it was enacted that "It shall be lawful to every sheriff of the
counties of Southampton, Surrey., and Sussex, to impanel and
summons twenty-four lawful men of such, inhabiting within the precinct of his or their turns, as owe suit, to the same turn, whereof every one hath lands
or freehold to the yearly value of ten shillings, or copyhold
lands to the yearly value of thirteen shillings four pence,
above all charges within any of the said counties, or men of less livelihood, if there be
not so many there, not withstanding the statute of
1 Richard III.,
ch. 4.
To endure to the next parliament." –
11
Henry VII., ch. 24. (1494.)
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This statute was continued in force by
19 Henry VII., ch. 16
(1503.)
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In 1531 it was enacted, "That every person or person being the king's natural
subject born, which either by the name of citizen, or of a freeman, or any other name,
doth enjoy and use the liberties and privileges of any city, borough, or town corporate,
where he dwelleth and maketh his abode, being worth in
moveable
goods and substance
to the clear value of forty pounds,
be henceforth admitted in trials of murders and felonies in every sessions and gaol
delivery, to be kept and holden in and for the liberty of such cities, boroughs, and towns
corporate, albeit they have no freehold; any act, statute, use, custom, or ordinance to
the contrary hereof notwithstanding." – 23 Henry VIII., ch. 13. (1531.)
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In 1585 it was enacted, "That in all cases where any jurors to be returned for
trial of any issue or issues joined in any of the Queen's majesty's courts of King's
Bench, Common Pleas, and the Exchequer, or before judices of assize, by the laws of this
realm now in force, ought to have estate of freehold in lands, tenements, or
hereditaments, of the clear yearly value of forty shillings,
that in every such case the jurors that shall be returned from and after the end of this
present session of parliament, shall every of them have estate of freehold in lands,
tenements, or hereditaments, to the clear yearly value of
four
pounds
at the least." –
27 Elizabeth, ch. 6.
(1585.)
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In 1664-5 it was enacted "That all jurors (other than strangers upon trials per medietatem linquae) who are to be returned for the trials of
issues joined in any of (his) majesty's courts of king's bench, common pleas, or the
exchequer, or before justices of assize, nisi prius, oyer and terminer, gaol delivery, or
general or quarter sessions of the peace from and after the twentieth day of April, which
shall be in the year of our Lord one thousand six hundred and sixty-five, in any county of
this realm of England, shall every of them then have, in their own name, or in trust for
them, within the same county, twenty pounds, by the year, at
least, above reprises, in their own or their wives right, of freehold lands, or of ancient
demesne, or of rents in fee, fee-tail, or for life. And that in every county within the
dominion of Wales every such juror shall then have, within the some,
eight
pounds by the year
, at the least, above reprises, in manner aforesaid. All which
persons having such estate as aforesaid are hereby enabled and made liable to be returned
and serve as jurors for the trial of issues before the justices aforesaid, any law or
statute to the contrary in any wise notwithstanding," –
16
and 17 Charles II., ch. 5. (1664-5,)
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By a statute passed in 1692, jurors in England are to have landed estates of the
value of ten pounds a year, and jurors in Wales to have
similar estates of the realm of
six pounds a year. – 4 and 5
William and Mary, ch. 24, sec. 14, (1692,)
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By the same statute, (sec. 18,) persons may be returned to serve upon the tales in any county of England, who shall have within the same
county, five pounds by the year, above reprises, in the
manner aforesaid.
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By St. 3 George II., ch. 25, sec. 10, 20, no one is to
be a juror in London, who shall not be "an householder within the said city, and have
lands, tenements, or personal estate, to the value of
one hundred
pounds.
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By another statute, applicable only to the county of Middlesex,
it is enacted,
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"That all leaseholders, upon leases where the improved rents or value shall
amount to fifty pounds or upwards per annum, over and above
all ground rents or other reservations payable by virtue of the said leases, shall be
liable and obliged to serve upon juries when they shall be legally summoned for that
purpose.," – 4 George II., ch. 7, sec, 3. (1731.)
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| [5] A mark was thirteen shillings and four pence. |
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| 148 |
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From these statutes it will be seen that, since 1285, seventy years after Magna
Carta, the common law right of all free British subjects to eligibility as jurors has been
abolished, and the qualifications of jurors have been made a subject of arbitrary
legislation. In other words, the government has usurped the authority of selecting the jurors that were to sit in judgment upon its
own acts. This is destroying the vital principle of the trial by jury itself, which is
that the legislation of the government shall be subjected to the judgment of a tribunal,
taken indiscriminately from the whole people, without any choice by the government, and
over which the government can exercise no control. If the government can select the
jurors, it will, of course, select those whom it supposes will be favorable to its
enactments. And an exclusion of any of the freemen
from eligibility is a selection of those not excluded.
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| 149 |
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It will be seen, from the statutes cited, that the most absolute authority over the
jury box – that is, over the right of the people to sit in juries – has been
usurped by the government; that the qualifications of jurors have been repeatedly changed,
and made to vary from a freehold of ten shillings yearly,
to one of
"twenty pounds by the year at least above
reprises."
They have also been made different, in the counties of
Southampton, Surrey, and Sussex, from what they were in the other counties; different in
Wales from what they were in England; and different in the city of London, and in the
county of Middlesex, from what they were in any other part of the kingdom.
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But this is not all. The government has not only assumed arbitrarily to classify the
people, on the basis of property, but it has even assumed to give to some of its judges
entire and absolute personal discretion in the selection of the jurors to be impaneled in criminal cases, as the following statutes show.
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" Be it also ordained and enacted by the same authority, that all panels hereafter
to be returned, which be not at the suit of any party, that shall be made and put in afore
any justice of gaol delivery or justices of peace in their open sessions to
inquire for the king, shall hereafter be reformed by additions and
taking out of names of persons by discretion of the same justices before whom such panel
shall be returned; and the same justices shall hereafter command the sheriff, or his
ministers in his absence, to put other persons in the same panel by their discretions; and
that panel so hereafter to be made, to be goodand lawful.
This act to endure
only to the next Parliament " –
11 Henry VII., ch. 24,
sec. 6. (1495.)
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This act was continued in force by
1 Henry VIII, ch. 11,
(1509,)
to the end of the then next Parliament.
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It was reenacted, and made perpetual, by
3 Henry VIII., ch.
12. (1511.)
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These acts gave unlimited authority to the king's' justices to pack juries at their
discretion; and abolished the last vestige of the common law right of the people to sit as
jurors, and judge of their own liberties, in the courts to which the acts applied.
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Yet, as matters of law, these statutes were no more clear violations of the common law,
the fundamental and paramount "law of the land," than were those statutes which
affixed the property qualifications before named; because, if the king, or the government,
can select the jurors on the ground of property, it can select them on any other ground
whatever.
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| 150 |
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Any infringement or restriction of the common law right of the whole body of the
freemen of the kingdom to eligibility as jurors, was legally an abolition of the trial by
jury itself. The juries no longer represented "the country," but only a part of
the country; that part, too, on whose favor the government chose to rely for the
maintenance of its power, and which it therefore saw fit to select as being the most
reliable instruments for its purposes of oppression towards the rest. And the selection
was made on the same principle, on which tyrannical governments generally select their
supporters, viz., that of conciliating those who would be most dangerous as enemies, and
most powerful as friends – that is, the wealthy. [6]
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These restrictions, or indeed any one of them, of the right of eligibility as jurors,
was, in principle, a complete abolition of the English constitution; or, at least, of its
most vital and valuable part. It was, in principle, an assertion of a right, on the part
of the government, to select the individuals who were to determine the authority of its
own laws, and the extent of its own powers. It was, therefore,
in
effect
, the assertion of a right, on the part of the government itself, to
determine its own powers, and the authority of its own legislation, over the people; and a
denial of all right, on the part of the people, to judge of or determine their own
liberties against the government. It was, therefore, in reality, a declaration of entire
absolutism on the part of the government. It was an act as purely despotic, in principle, as would have been the express abolition of
all juries whatsoever. By "the law of the land," which the kings were sworn to
maintain, every free adult male British subject was eligible to the jury box, with full
power to exercise his own judgment as to the authority and obligation of every statute of
the king, which might come before him. But the principle of these statutes (fixing the
qualifications of jurors) is, that nobody is to sit in judgment upon the acts or
legislation of the king, or the government, except those whom the government itself shall
select for that purpose. A more complete subversion of the essential principles of the
English constitution could not be devised.
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[6] Suppose these statutes, instead of disfranchising all whose freeholds were of
less than the standard value fixed by the statutes, had disfranchised all whose freeholds
were of greater value than the same standard – would anybody ever have doubted that
such legislation was inconsistent with the English constitution; or that it amounted to an
entire abolition of the trial by jury? Certainly not. Yet it was as clearly inconsistent
with the common law, or the English constitution, to disfranchise those whose freeholds
fell below any arbitrary standard fixed by the government, as it would have been to
disfranchise all whose freeholds rose above that standard.
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| 151 |
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The juries of England are illegal for another reason, viz., that the statutes cited
require the jurors (except in London and a few other places) to be freeholders.
All the other free British subjects are excluded; whereas, at common law, all such
subjects are eligible to sit in juries, whether they be freeholders or not.
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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.
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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.
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Every freeborn adult male Englishman (who had not lost his civil right" by crime
or otherwise) was entitled 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.
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| 152 |
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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.
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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.
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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.
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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.
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Of course, this principle forbids the selection to be made
by
any officer of the government.
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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.
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[7] Lingard says: "These compurgators or jurors * * were sometimes * * drawn
by lot." – 1 Lingard's History of England, p. 300.
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| 153 |
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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.
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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:
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"That the sheriffs shall henceforth be assigned 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.)
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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.
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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.
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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.
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| [8] Chapter 4, p. 120, note. |
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| 154 |
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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.
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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 analogous to the meaning it had in the ancient common law.
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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."
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In Connecticut, Maine, Ohio, and Georgia, jurors are required to have the
qualifications of "electors."
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In Virginia, they are required to have a property qualification of one hundred dollars.
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In Maine, Massachusetts, 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.
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In Maine and Vermont, the inhabitants, by vote in town meeting, have a veto upon the
jurors selected by the authorities of the town.
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In Massachusetts, 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.
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In Illinois, the jurors are selected, for each term of court, by the county
commissioners.
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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.)
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| 155 |
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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.
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In Tennessee, also, the jurors are to be selected by the
county
courts
.
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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."
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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.
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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.
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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.
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In regard to jurors in the courts of the United States, it is enacted, by act of
Congress:
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"That jurors to serve in the courts of the United States, in each state
respectively, shall have the like qualifications and be entitled to the like exemptions,
as jurors of the highest court of law of such state now have and are entitled to, and
shall hereafter, from time to time, have and be entitled 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.
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| 156 |
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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.
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Congress have as much constitutional 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.
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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 constitution.
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These facts show how much reliance can be placed in written constitutions, to control
the action of the government, and preserve the liberties of the people.
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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.
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Probably the best mode of appointing jurors would be this: Let the names of all the adult [male] [8] 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."
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[8] With the ratification of Article XIX of amendment to the Constitution for the
United States, August 20, 1920, women were fully enfranchised with all rights of voting
and jury service in all states of the Union.
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