I now proceed to offer some remarks on what is called a Special Jury. As to what is called a Special Verdict, I shall make no other remark upon it, than that it is in reality not a verdict. It is an attempt on the part of the Jury to delegate, or of the Bench to obtain, the exercise of that right, which is committed to the Jury only.
With respect to the Special Juries, I shall state such matters as I have been able to collect, for I do not find any uniform opinion concerning the mode of appointing them.
In the first place, this mode of trial is but of modern invention, and the origin of it, as I am told, is as follows:
Formerly, when disputes arose between Merchants, and were brought before a Court, the case was that the nature of their commerce, and the method of keeping Merchants' accounts not being sufficiently understood by persons out of their own line, it became necessary to depart from the common mode of appointing Juries, and to select such persons for a Jury whose practical knowledge would enable them to decide upon the case. From this introduction, Special Juries became more general; but some doubts having arisen as to their legality, an act was passed in the 3d of George II. to establish them as legal, and also to extend them to all cases, not only between individuals, but in cases where the Government itself should be the prosecutor. This most probably gave rise to the suspicion so generally entertained of packing a Jury; because, by this act, when the Crown, as it is called, is the Prosecutor, the Master of the Crown-office, who holds his office under the Crown, is the person who either wholly nominates, or has great power in nominating the Jury, and therefore it has greatly the appearance of the prosecuting party selecting a Jury.
The process is as follows:
On motion being made in Court, by either the Plaintiff or Defendant, for a Special Jury, the Court grants it or not, at its own discretion.
If it be granted, the Solicitor of the party that applied for the Special Jury, gives notice to the Solicitor of the adverse party, and a day and hour are appointed for them to meet at the office of the Master of the Crown-office. The Master of the Crown-office sends to the Sheriff or his deputy, who attends with the Sheriff's book of Freeholders. From this book, forty-eight names are taken, and a copy thereof given to each of the parties; and, on a future day, notice is again given, and the Solicitors meet a second time, and each strikes out twelve names. The list being thus reduced from forty-eight to twenty-four, the first twelve that appear in Court, and answer to their names, is the Special Jury for that cause. The first operation, that of taking the forty-eight names, is called nominating the Jury; and the reducing them to twenty-four is called striking the Jury.
Having thus stated the general process, I come to particulars, and the first question will be, how are the forty-eight names, out of which the Jury is to be struck, obtained from the Sheriff's book? For herein lies the principal ground of suspicion, with respect to what is understood by packing of Juries.
Either they must be taken by some rule agreed upon between the parties, or by some common rule known and established beforehand, or at the discretion of some person, who in such a case, ought to be perfectly disinterested in the issue, as well officially as otherwise.
In the case of Merchants, and in all cases between individuals, the Master of the office, called the Crown-office, is officially an indifferent person, and as such may be a proper person to act between the parties, and present them with a list of forty-eight names, out of which each party is to strike twelve. But the case assumes an entire difference of character, when the Government itself is the Prosecutor. The Master of the Crown-office is then an officer holding his office under the Prosecutor; and it is therefore no wonder that the suspicion of packing Juries should, in such cases, have been so prevalent.