The right to a jury trial is in civil actions often waived by both parties, in which case the facts as well as the law are determined by the judge. If not expressly claimed, it is by the rules of practice in some States treated as waived. The number of civil causes tried to the jury, taking the country as a whole, is declining. The decline is generally found to be quite accurately proportioned to the confidence felt by the bar in the ability and independence of the judge,[Footnote: See Paper by Justice Henry B. Brown, in the American Bar Association Report for 1889, p. 265, on "Judicial Independence.">[ or perhaps to that confidence in the case of a former generation. Tradition and custom have a large influence on whatever pertains to the practice of law. In several of the States a majority of the civil causes which might be tried to the jury are not: in Louisiana very few are.[Footnote: See Chap. XXIV.] The tendency in England is also toward dispensing with the jury in ordinary civil trials. Over a million cases are brought every year in the English county courts, and in not one in a thousand of them is there a jury trial, although if the matter in demand is over £5 in value either party may claim it.[Footnote: Maitland, "Justice and Police," 28, 29, 54. For small cases the jury is one of five, but their verdict must be unanimous.]
Criminal trials, except in case of trivial offenses, it is generally necessary to hold before a jury, by express provisions of the Constitution.[Footnote: See Cooley, "Constitutional Limitations," 389.] During the colonial era the defendant was allowed in Massachusetts to waive a jury, even in capital cases.[Footnote: Proceedings of the Colonial Society of Massachusetts, VI, 95.] Statutory permission to the same effect has since been given in some States where there is no constitutional provision to the contrary.[Footnote: State v. Worden, 46 Connecticut Reports, 349.] In civil causes, the right to demand a jury in petty cases has been restricted in a number of States.[Footnote: In New Hampshire, for instance, a constitutional amendment was passed in 1877 denying it in cases involving less than $100, unless title to land is involved.]
At common law the judges were accustomed and allowed to put great pressure upon juries, if necessary, to force them to unite in rendering a verdict. They could be kept together without food or beds all night, and even carted about from one court town to another until they were ready to report an agreement. Very little of this practice remains in the United States. In some States they are allowed to separate and go to their homes at night during the trial even of a capital case, and while deliberating over their verdict they are generally supplied with food and other comforts.
The right of trial by jury was limited at common law to trials of what are called "issues of fact;" that is, of the truth of a statement of material facts made by one party and denied by the other. If, therefore, in a civil cause a judgment has been ordered for the plaintiff without a verdict, as where the defendant has failed to appear and answer, it is for the court to say for the recovery of what amount of damages the judgment shall be rendered. It may inquire into this by the aid of a jury, but such a jury need not consist of twelve. The inquiry may also be conducted by the judge alone.[Footnote: Dyson v. Rhode Island Company, 25 Rhode Island Reports; 57 Atlantic Reporter, 771.]
In most of our States this common law practice has been abandoned, and damages, in cases of the kind above described, would be assessed by a jury of twelve. This is because otherwise a defendant who did not dispute his liability for the act complained of and only wished to reduce the amount of damages claimed in the writ might, after declining to appear and plead, come forward with a motion to be heard by the court on the question of damages. A motion of that kind would naturally be granted, and the effect would be to transfer the decision of the only actual controversy between the parties from a jury to a judge. In Connecticut the old practice was maintained until 1907, and the courts held that on the hearing as to the damages, in actions where there had been no contract between the parties to fix the rule of assessment, the defendant might show, if he could, that only nominal damages should be given, because really the plaintiff had no cause of action at all.[Footnote: Lennon v. Rawitzer, 57 Conn. Reports, 583; 19 Atlantic Reporter, 334.] The result was that many suits arising out of railway accidents in that State were brought against the company in fault in other States in which process could be served to compel its appearance, and where a full jury trial could be secured. The legislature finally interposed and gave the plaintiff a right to claim a trial by jury, notwithstanding a default.[Footnote: Public Acts of 1907, 665.]
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CHAPTER XIII
FORMALITIES IN JUDICIAL PROCEDURE
The sessions of a court of record of general jurisdiction are daily opened by a formal proclamation made, at the command of the judge, by the crier or sheriff's officer in attendance. In many States the ancient English style of expression has been preserved, which dates back to the Norman conquest, and begins with a cry of "Oyez, Oyez, Oyez." These proclamations are often closed with such words as (for instance) "God save the Commonwealth of Rhode Island and Providence Plantations." The adjournment from day to day is announced in a similar but less elaborate manner.
Many courts hold a certain number of stated "terms" annually, the first day of which is fixed by statute, and each of which is adjourned whenever the business that may come before it is finished, lasting sometimes but a few days and sometimes months. In a number of States such terms are opened by prayer offered by a minister of religion, invited in for the purpose by the sheriff or court attendant. No regular chaplain is employed, and one term may be opened by a Presbyterian minister and the next by a Roman Catholic priest.