The American Judiciary

by Simeon E. Baldwin

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Lawyers of one State have no right to practice in any other. By courtesy and on motion of a member of the bar, it is customary for the courts of other States to allow them to participate in the conduct of any particular cause. In some States, lawyers who have removed their residence into them from another may in the same manner be admitted to their bar; in most there is a standing rule on the subject which requires proof of their having practiced in the courts of their original State for a certain number of years, and otherwise provides for an examination into their legal attainments.

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CHAPTER XII

TRIAL BY JURY

To have a trial by jury is, as a general rule, the right of every man who sues or is sued in court on a cause of action not of a kind to be disposed of in a court of equity or admiralty. The American colonies did not all adopt this mode of procedure at first, and few of them ever practiced it precisely on the English plan. In the colony of New Haven there were no juries. In all the New England colonies, later, there were juries, but verdicts in civil causes had not the conclusive force given them by the common law. The defeated party had what was styled the privilege of a review. This was a new trial before another jury, either in the same court or a higher one. If he lost his case again, it was the end of the litigation. If he gained it on the second trial, the other party could demand a third, and the event of that decided the cause forever.[Footnote: Bissell v. Dickerson, 64 Conn. Reports, 61, 65; 29 Atlantic Reporter, 226.] In criminal prosecutions a similar right was sometimes conceded to the defendant in case of conviction.[Footnote: Statutes of Connecticut, ed. 1715, p. 131.] South of New England there was no such radical departure from the common law, but there were before the Revolution variations of considerable importance.[Footnote: The Federalist, No. LXXXIII.]

Instead of sending a case before an ordinary jury, the court has power, at the request of the parties, to direct a special jury to be summoned to hear it. This is seldom asked or granted unless the matter in controversy is of peculiar importance and difficulty. Such a jury is more carefully selected, with the assistance of the parties, so as to make it sure that it will be composed of men exceptionally competent to decide a cause and such a cause. They are generally paid a larger compensation than ordinary jurors receive, the parties furnishing the additional sum required. Prepayment of these sums may be and often is made a condition of granting a trial before such a jury.[Footnote: Eckrich v. St. Louis Transit Co., 176 Missouri Reports, 621; 75 Southwestern Reporter, 755; 62 Lawyers' Reports Annotated, 911.]

The requirement of unanimity on the part of the jury in civil causes, which we have inherited from England, is indefensible in principle. In practice, it has saved the institution from destruction. No one would feel himself safe if a majority of twelve men, of no special training in the study of legal rights, could strip him of his property. But among that number of persons there can hardly fail to be one or two of superior character and intelligence. These, with the aid of the judge, if he be one who fulfills properly his part of the proceeding, can generally lead the rest to a just conclusion. If the verdict is for the plaintiff, they may have to yield to some compromise as to the amount of damages. Not infrequently this has been arrived at by calling for the separate estimates of each juror, adding them together and dividing them by twelve. It is a rough way, and not the fairest, but the wiser heads may consent to it to secure the concurrence of the weaker.

In criminal cases, the importance of a verdict to the defendant is so great that unanimity may well be required. While there is a legal presumption that he is innocent until found guilty, this in practice is of little avail to him with the jury. They know from their every-day observation of affairs that there are few prosecutions which reach the final stage of a trial on the merits, under which there ought not to be a conviction.

In several States verdicts in civil causes by a three-fourths vote are permitted. This radical change is not likely to become general.