Part 18 (2/2)

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 a.n.a.logous to the meaning it had in the ancient common law.

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.”

In Connecticut, Maine, Ohio, and Georgia, jurors are required to have the qualifications of ”electors.”

In Virginia, they are required to have a property qualification of one hundred dollars.

In Maine, Ma.s.sachusetts, 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.

In Maine and Vermont, the inhabitants, by vote in town meeting, have a veto upon the jurors selected by the authorities of the town.

In Ma.s.sachusetts, 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.

In Illinois, the jurors are selected, for each term of court, by the county commissioners.

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.)

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.

In Tennessee, also, the jurors are to be selected by the _county courts_.

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.”

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.

In Virginia, the jurors are selected by the sheriffs; but the sheriffs 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.

How jurors are appointed, and what are their qualifications, in New Hamps.h.i.+re, 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.

In regard to jurors in the courts of the United States, it is enacted, by act of Congress:

”That jurors to serve in the courts of the United States, in each state respectively, shall have the like qualifications, and be ent.i.tled to the like exemptions, as jurors of the highest court of law of such state now have and are ent.i.tled to, and shall hereafter, from time to time, have and be ent.i.tled 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 rule 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.

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.

Congress have as much const.i.tutional right to give over all the functions of the United States government into the hands 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.

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 const.i.tution.

These facts show how much reliance can be placed in written const.i.tutions, to control the action of the government, and preserve the liberties of the people.

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.

Probably the best mode of appointing jurors would be this: Let the names of _all_ the adult male members of the state, in each towns.h.i.+p, be kept in a jury box, by the officers of the towns.h.i.+p; and when a court is to be held for a county or other district, let the officers of a sufficient number of towns.h.i.+ps 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.”

[Footnote 79: On the English Const.i.tution.]

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