a majority verdict or for a verdict of a specified number of jurors more than a majority but less than all, but any such provision constitutes a modification of the common-law jury trial.

The conclusion of the jury as to the facts reached under the direction of the court as to the law is a final and conclusive determination of the case which the judge must recognize and embody in the final judgment to be rendered by the court as the result of the trial. If it is manifest that the jury has not followed the direction of the judge in applying the law, the verdict may be set aside by the judge and a new trial granted. If the judge is satisfied that in some essential respect there is no competent evidence to support the verdict of the jury, he may set it aside as not supported by the evidence. If the judge is satisfied that the jurors have rendered their verdict as the result of passion or prejudice and not through a full and fair consideration of the evidence submitted, he may set it aside on that ground. If the jurors have been guilty of some misconduct such as conversing with persons outside of court with reference to the merits of the case while it is being tried, or have allowed other persons to be present during their deliberations, or have heard statements by fellow-jurors as to facts not shown by the evidence and calculated to influence them in reaching a conclusion, or have determined the result otherwise than by a consideration of the evidence, as by casting lots to determine what their verdict shall be, then the judge will set aside their verdict for such misconduct. The result of setting aside the verdict is in all cases that a new trial is ordered. No irregularity on the part of the jury in reaching a verdict will justify the judge in rendering a decision for one party or the other. The judge may also set aside a verdict and grant a new trial if he is convinced that he himself has committed an error in material rulings on the admission of evidence or in instructing the jury as to the law. In criminal prosecutions the rule that the accused shall not be twice put in jeopardy for the same crime makes a verdict of "not guilty" con

clusive regardless of any error of law or misconduct of the jury, but if the verdict is against the accused then the same judicial discretion may be exercised by the judge as in a civil case in setting aside the verdict and granting a new trial.

Constitutional provisions as to jury trial are in general applicable only to courts of general jurisdiction. Inferior courts may be provided for in which questions of fact may be tried before a jury of less than twelve, or even without a jury, the right of jury being sufficiently preserved in such cases if an appeal from the judgment of such a court to a court of general jurisdiction is provided for in which a jury trial may be had (Capital Traction Co. v. Hof). In limiting the requirements as to jury trial to cases where the value in controversy shall exceed twenty dollars, the intention evidently was to allow Congress to provide if it saw fit for the trial of petty cases in the federal courts without a jury; but as a matter of fact no provision is made for such trials.


The jury is a very venerable institution, the origin of which dates back to the twelfth century. But despite its long history and the veneration with which the jury is regarded by most lawyers, there are some who venture to criticise severely some of the practices which have grown up in this country in connection with jury trials. Among these critics is Mr. James E. Babb, who makes the following objections to present methods: [1907].

A theoretically perfect trial is no more to be expected by a jury than theoretically perfect government is to be expected in a democracy, unless the democracy be one ideally perfected in intelligence and morality. From such trials and from such government we get the product, not of the most skilled, but only of the average man, the development and perfection of whom is the chief object of our institutions.

We find, therefore, perhaps no more of error and wrong taking place in trials by jury than are found in our legislatures, executive and administrative officers. In the largest

sense, therefore, fundamentally the difficulties which we meet in the jury system are met in every department of government, and the fundamental remedy for these defects is the intelligence, morality and fidelity of the people, for which we must look to the home, the school and the church. No class can be immune from the effects of the votes of electors and jurymen. The production of a high grade of average man is our salvation.

Coming directly to the machinery applicable to the jury system alone, the evils are a combination of defect in regulation and administration, and the chief of these, which in some instances is a defect of regulation, and in others of administration, is the desertion of jury duty.

In many, and doubtless most, of the States men occupying the higher positions in all lines of activity have successfully, and practically totally, evaded jury service, and from this class has come the main criticism upon jury trials. They seem to have overlooked the fact that the criticism aimed at others must necessarily rebound upon themselves; that if they had discharged their duties, almost every jury would contain upon it sufficient of them to prevent, in any case, a verdict representing in an extreme sense, class, corporate or social prejudice, or bias, or misconception of the evidence. While the law contemplates a fair distribution of jury service, it will be found that the officers having to do with its execution, find themselves under severe criticism if they force upon the jury list a man whose time is of unusual value, and at the same time these officers selecting such a man for jury service would receive additional criticism from the professional juryman, who has been watching for the place and who has thus been displaced. The officials having to do with the selection of jury lists have found the burden of double criticism too much endangers success at the primaries and elections, and aided, as well, by a spirit of accommodation, have drifted into the practice of passing over the names of those who would be offended at being called, and of placing upon

the lists those who would consider the opportunity one of comfort, satisfaction and profitable employment, and occasionally, perhaps, there is always a possibility that considerations much more dangerous control the officer's discretion. In this way we have the chief cause of current failure in jury trials. This disloyal, and rather discreditable desertion of public duty has found excuse, not only in serious interference with important business duties, but in the almost barbarous, as well as unhealthful, treatment to which the juror in service is subject, also in the insufficient compensation which attaches to the service.

The service is one, unavoidably, most arduous, and inconvenient. It comes of a sudden, it is so temporary as not to justify sufficient preparation for its interferences with other duties, and at times it subjects to a life practically of imprisonment. It is a duty, however, fundamental and essential and not to be evaded, any more than military service in time of war. This desertion of jury duty is similar to that of electors in failing to register and vote. In a popular government the discharge of these duties is vital and must be exacted. In time of war all expect, and readily submit to the propriety of the most instant and severe punishment of the smallest infractions of military duty. We have failed in the conception that there is ordinarily as much of importance dependent upon the proper discharge of the duty of elector and of juryman as there is upon the discharge of picket and other military duty in the time of war. Our government never can meet its responsibilities until there is a common understanding and recognition that the duties of jurymen and electors are as sacred, as important, to be enforced as instantly and with punishment as adequate, as that administered for the enforcement of military duty. This evasion of service has created and brought into existence the professional juryman.

The difficulty must be reached by an amelioration of the conditions of jury service and the prevention of its further evasion. There is not in the realm of public questions any

thing of more importance than this feature of the subject under consideration. Beneficial influences upon the bench and the bar would result from the improvement of the personnel of the jury box. Would not the judge and the lawyer, the witness and the client, be more attentive to their conduct and proceedings if they found in the jury box a representation of the intelligence, the wealth and the power in the community? Would not the bench, the lawyer, and the other participants in court proceedings be made to feel, from this class in the jury box, their open resentment of everything smacking of shystery or dilatoriness in the proceedings of the court?

In this way the questions in the discussion of which the public is arrayed, involving class and social and other strife and prejudice, would come up for consideration in the jury room when all classes were represented and the education and understanding growing out of the discussions there to be had, hand to hand and face to face, could not but help to bring about an easier solution of the refractory questions in our social, commercial and public life.

The conviction is general among lawyers that many verdicts are rendered upon considerations entirely foreign to the evidence and law of the case. It is not unlikely that many verdicts have been produced by an indisposition of jurymen to be kept out all night, sleeping upon the floor or upon benches, in order to reduce the amount of damage or punishment that may be imposed upon some individual or corporation they dislike. There are many considerations that arise from the peculiarities of cases that are submitted to jurymen which give large opportunity for influence of collateral considerations, in the way of preconceptions, biases, prejudices and matters of expediency. The verdict of the jury is general in terms, rendering it impossible to determine what considerations have produced it. In a number of the States statutes have been passed requiring jurymen in returning a general verdict to answer specific questions as to their findings on particular facts, such questions to be

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