Note F, Of the Trial by Jury, in Virginia

ALTHOUGH our system of jurisprudence seems to favor the trial by jury, yet there is no part of our code of laws, perhaps, so defective as those which relate to this important species of trial. The disregard to the characters and qualifications of jurors which every where obtains in the practice of our courts will in time, if not remedied, bring that most valuable mode of trial into disrepute. The most beneficial parts of the system in England seem to have been almost lost sight of here. In civil cases the jurors are summoned the instant that the trial is to take place, by persons too often the least qualified to determine upon their capacity, and the most indifferent about their characters. Where the courts are held in country places, the juries, after the first day or two, instead of being composed of the most respectable freeholders in the county, men above the suspicion of improper bias, or corruption; men whose understandings may be presumed to be above the common level, are made up, generally, of idle loiterers about the court, who contrive to get themselves summoned as jurors, that they may have their expenses borne: and are in every other point of view, the most unfit persons to decide upon the controversies of the suitors. The parties and their attorney are unprepared for a challenge, and the trial proceeds, not unfrequently, without a fourth part of competent jurymen to decide the question. Hence the number of new trials granted; because the jury have not understood or have misapplied the evidence. Hence in time, must result to the courts an influence in questions of fact which may become highly pernicious. Hence the number of special verdicts, demurrers to evidence, and points reserved; which the parties, mutually apprehensive of a decision by an incompetent jury, are ever ready to propose, or agree to. These inconveniencies might be greatly diminished, perhaps totally removed, were a due regard paid to the qualifications of jurors, not only in respect to estate, (which indeed is noticed by our law,) but in respect to the other more necessary qualifications of ability, integrity, and impartiality. The trial by jury would then merit every eulogium which has ever been bestowed upon it.

The technical forms, in which the mode of impaneling jurors in England appears to be involved, no doubt contributed to prevent it’s adoption in this country. Until the revolution there being but one superior court of common law jurisdiction, and that held at the seat of government, the want of competent jurors was not so obvious, nor so extensive as, at this day, when there are nineteen. The county courts rarely sat above a day or two. The most respectable freeholders of the county generally attended on the first day, and sometimes a tolerable jury might have been collected on the second day of the court. But the terms being now lengthened, to six days, the courts after the first and second days are but thinly attended. In the district courts after the trials of criminals are over, it is with difficulty a jury of any kind can be procured, except in the towns, where they are generally composed of one class of people, who cannot always be supposed to be perfectly free from some bias, however upright in their intentions. In small towns, such as ours are generally, the duty falls heavy upon the few who are summoned day after day, during the whole, or the greater part of a term, to attend the courts. In questions arising in the neighborhood an imperceptible influence is too apt to govern them according to their friendships, or dislikes: such questions are not unfrequently prejudged before the suit is commenced, according to the first impressions of the nature of the dispute; and these impressions the testimony of witnesses is rarely strong enough wholly to efface. In criminal cases, although the law seems to have been more provident, the objections to the present mode of summoning jurors appear to be important; in these cases, twelve persons (the numerical number required for the trial,) are summoned by a deputy sheriff, not unfrequently three, or four, or even six months, before the period fixed for the trial.

I have already said that this description of men are two often the least qualified to judge, and the most regardless of the characters and capacities of those whom they summon as jurors. If a criminal possesses an estate himself, or has friends who possess wealth, or influence, such persons employed as the summoners of jurors must not unfrequently invite the attempt at least to corrupt them.¹ The principle of the law is, not that those who are really guilty should escape punishment, but, that no innocent person shall be punished. But where the road to corruption is so broad and open, innocent persons will be the most likely to suffer; for, conscious of their innocence, they will neglect to take those steps which a corrupt officer, or a corrupt jury, may think they ought to have taken, but the guilty if they possess directly or indirectly the means of corruption, will be sure to escape. Whether to this cause is to be ascribed the number of acquittals against positive evidence, (more especially in cases of homicide and malicious mayhem,^ which an attentive observer might enumerate, the author of these pages cannot pretend to decide, but from the multiplicity of such acquittals, the inference to be drawn is, that there must be an infinite degree of perjury in the witnesses, or of unpardonable disregard to their duty in the jurors. How far the pica of humanity may be admitted to countervail the oath of duty, is a question which every juror ought well to consider, where evidence is positive, the characters of witnesses fair, and irreproachable, or the circumstances of the case such as admit of no rational solution, but by admitting the guilt of the party.

On the other hand, innocence can never be so safe, as in the hands of men of sound understandings, sound hearts, and clear consciences. The expense of a better system is the only reason that I have ever heard alleged in favor of the present: no country deserves to be free or happy that grudges the expense of wholesome regulations, especially, where the peace and happiness of society may be at stake on the one hand, and the life or liberty of a citizen on the other. But the expense is actually incurred although the burden of it is most partially distributed: the man who is compelled to serve as a juror without recompense serves the state for nothing, loses his own time, and pays, that expense out of his own pocket which his fellow-citizens ought, by a joint contribution, to pay out of theirs. Is it more reasonable that five hundred men should serve the state without recompense, and at the same time bear their own expenses; or that five hundred thousand, who derive benefit from their services, should not only reimburse their expenses, but pay them also for their services? The present system seems, therefore, to be not only extremely defective, and inadequate for the purposes of distributive justice, but partial and oppressive, as it relates to those who are compelled to discharge the duty. All these circumstances appear to cry aloud for reform. To suggest a perfect plan may not be very easy: but to offer one which might promise an amendment to this mode of trial, would not be a very arduous task. The following draft of a bill for amending the law concerning juries was prepared some years ago: as no plan more practicable, more cheap, or more likely to be productive of the same beneficial effects has suggested itself, the editor submits it to the consideration of his countrymen, with an earnest hope that cither that, or some better plan, may be speedily adopted.

“The trial by jury being one of the most important pillars of a free government, and the preservation of it in it’s punt), the greatest security to the lives, liberty, and property of the citizens, by the due administration of justice, as well as to the peace and good order of society; and the legislature being desirous to make such provisions respecting the same, as may contribute most effectually to answer the end of it’s institution.

Section 1. Be it therefore enacted by the general assembly, that the several county courts within this commonwealth at their respective quarterly sessions in the months of May or June, in every year, shall cause their clerk to lay before them the list, or lists of taxable property as well real as personal within their county for the preceding year, and from the list, or lists so produced, they shall cause their clerk to form an alphabetical list or roll of the names, surnames, callings, occupations, or other additions, -and places of abode of all free male white persons residing within the county, who shall not be under the age of twenty-one years, nor above fifty, whose property or estate within the county, whether real, personal or mixed, shall be rated on the said list of taxable property to one hundred pounds, or mope, to serve as jurors for such county. Which list shall be fairly entered and kept in a well bound book, and shall from time to time be corrected, in such matters as may be necessary for rendering the same, a complete list of persons qualified to serve as jurors, according to the directions of this act. Provided always, that, if any person above the age of fifty, shall through inattention of the justices be summoned to attend as a juror, in the manner herein after mentioned, he shall not, for that reason alone be exempted from attending agreeably to such summons.

Section 2. The justices of the said courts respectively, at their quarterly sessions next preceding every district court to be held for that district to which their county belongs, shall select from the whole roll of persons qualified to serve as jurors, as aforesaid, thirty-two honest, discreet and intelligent yeomen, freeholders, merchants and traders, citizens of this commonwealth, not being clergymen, practitioners of physic, or surgery, or attorneys of any court, sheriffs, or their deputies, collectors of the public taxes, county-levies, or poor rates, overseers of the poor, county surveyors, or their deputies, inspectors of tobacco, ferry-keepers, or constables, nor tavern-keepers, distillers, or venders of spirits by retail, overseers or managers of plantations or mills for others, merchants’ clerks, or shopkeepers, journeymen, or apprentices; nor such as be, or be reputed conspirators, barretors, champertors, embracers, maintainers or movers of suits, swindlers, gamblers, idle haunters or frequenters of taverns, breakers or disturbers of the peace, or other disorderly persons, or person, whatsoever; but altogther such as be of the best fame, reputation, and understanding, and credit, in their county, whereof three of the least, shall be justices of the peace, in and for their said county. And furthermore, the said justices shall not select any person, as aforesaid, whom the said justices, or any of them, shall know, or have good reason to believe, to be a party, prosecutor, plaintiff or defendant in any indictment, information, suit, or controversy whatsoever depending in, or about to be brought before the said district court. And if any such conspirator or reputed conspirator, barretor, champertor, embracer, maintainer or mover of suits, swindler, gambler, haunter or frequenter of taverns, or other disorderly person, by chance or otherwise, be of the panel for the trial of any issue joined upon any indictment, information, suit or controversy, whatsoever, in any district court, it shall be good cause of challenge, before the person so liable to be challenged be sworn, but not after, unless such person be indicted, or convicted of any such conspiracy, barretry, or other misdemeanor.²

From the whole number of the said yeomen, freeholders, merchants and traders, so selected by the justices aforesaid, whose names shall be written upon separate pieces of paper of the same size, and rolled up alike, by the clerk of the said county-court, the high sheriff of the county, or in case of his inability to attend, the court, his deputy, in the presence of the said justices, and of the suitors, and others, attending the said court, shall draw by lot the names of sixteen of the said yeomen, freeholders, merchants and traders, to serve as jurors for their county at the next succeeding district court: and every name so drawn shall be immediately pronounced aloud by the said sheriff, in the presence and hearing of the court, and of all persons there attending. Provided always, that where the number of counties in any district shall not exceed three, the number of jurors which shall be chosen to attend at the next district court, shall not be less than twenty-one jurors from each county within such district. The clerk of the said court shall immediately issue a writ of venire facias, wherein shall be written at full length the names surnames, callings, occupations, or additions, and the places of abode of the persons so chosen, directed to the sheriff’ of such county, and commanding him to summon the persons therein named, to attend accordingly, which writ the sheriff shall accordingly execute, under penalty of ten pounds for every person whom he may neglect to summon, unless good cause for such ‘omission be shown by him at the next district court, and under the like penalty, in case he shall return any person as summoned, who shall not have been actually summoned by him. Every person so chosen to serve as a juryman, shall be summoned at least five days before the sitting of the district court which he shall be required to attend, and the sheriff shall return his writ to the office of the clerk of the district court, one day, at the least, before the sitting of the court, under penalty of fifty pounds…. Every juror who shall be summoned pursuant to this act, and shall fail to attend, without a reasonable excuse for so doing, or attending and afterwards departing without leave of the court, shall be fined, at the discretion of the court in any sum not exceeding thirty dollars.

Section 3. The clerk of the district court shall enter the names of all persons, summoned to attend as jurors, in a well bound book to be kept for that purpose, with their surnames, callings, occupations, additions, and the names of their counties and places of abode, distinguishing such as make default, or depart without leave of the court, from such as give their attendance; and noting their times of service respectively. And, at the expiration of the term, or when at any time a juror shall be dismissed by the court, he shall be entitled to receive from the clerk a certificate of his traveling distance, ferries, and attendance, for which he shall be paid at the like rate that witnesses summoned and attending a district court are, or shall be paid, to be levied and paid by the county wherein he resides. But no juror who shall depart without leave of the court, or being summoned as a witness, shall charge for his attendance as such, shall be entitled to receive any certificate for compensation for his services as a juryman.

Section 4. Out of the whole number of jurors who shall attend on the first day of any district court, the court shall by lot elect not less than sixteen, nor more than twenty-three, to serve as a grand jury for the body of the district, choosing as near as may be, an equal number from each county within the district, who shall be sworn to inquire of and prevent all treasons, murders, felonies, and other offenses and misdemeanors whatsoever, which shall have been committed or done within the district for which they are impaneled, and such grand jury shall not be discharged until the end of the term.

Section 5. If any person, other than a slave, shall be brought to such district court to be tried for any crime, the punishment whereof by the laws in force on the 25th day of March, 1800, did extend to .life or member, the court shall direct the jurors from that county from which the person about to be tried shall be sent, to appear; and a list of their names, if he require it, shall be given him, and if there be no challenge to -any one of them; on the part of the prisoner, nor for good cause shown to the court, on the part of the commonwealth, such jurors, not exceeding twelve, or so many of them as appear, shall be sworn to try the prisoner; and if there be not a sufficient number attending from such county to make a full jury, the clerk shall, by lot, call so many others summoned from the other counties in the district, as herein before mentioned, as shall be necessary to constitute a full jury.

Section 6. And for the trial of all other indictments and prosecutions in behalf of the commonwealth, as also of all civil suits in such courts, the name of each and every person summoned and impaneled, as-before directed, (except such of them as may be of the grand jury) shall be written on several and distinct pieces of paper, with his addition and place of abode, and being rolled up by the clerks, as near as may be, in one and the same manner, and of equal size, shall be deposited in a ballot-box for that purpose to be kept: and when any cause is brought to be tried, the clerk or the court shall draw out twelve of the said papers one after another; and, if any of the persons whose names shall be so drawn, do not appear, or be challenged and set aside, such further number shall be drawn as shall make up the number twelve, who do appear and be approved as indifferent, who shall thereupon be sworn of the jury to try such cause. The names of the persons so drawn and sworn, shall be kept apart by themselves, in another box or hat, until such jury shall have given their verdict, and the same be recorded; or the jury, by consent of parties, or by leave of the court, be discharged; and then the said names shall be again rolled up and returned to the former box. If any other cause shall be brought on to be tried, whereupon the jury shall have brought in their verdict, the jurors for such trial shall be drawn, in like manner, from the residue of the names in the ballot box. Any juror, who, being solemnly called, shall not appear and answer to his name immediately, may be fined,’in the discretion of the court, not exceeding ten dollars, for his contempt: and if he shall do the like a second time, it shall be considered as a departure without leave of the court.

Section 7. Every juror summoned and attending any district court, who shall thereof obtain a certificate in the manner directed by this act, shall thereby be exempted from the like duty for the space of three years next ensuing, unless every other person on the roll of jurors for the same county, qualified according to the purview of this act, shall have been summoned, and have attended within the like period, and shall be moreover exempted from serving on any jury in the county court, and also from attending musters of the militia, except in case of insurrection or invasion, and from serving on patrols for the space of one year. And, that the rotation of duty may be more easily known, the clerk of the county shall carefully enter against the name of every person in the jurors’ roll, or list, the time and times when he shall have been summoned pursuant to the directions of this act.

Section 8. The justices of the several county and corporation courts at their monthly session next preceding every quarterly court to be held for their county or corporation, shall, by ballot, choose forty eight persons whose names are entered on the jurors’ roll, who have neither served as jurors in the district court, nor in the county or corporation court for one year next preceding, if so many there be as to admit of such exemption, to serve as jurors for the county at the next succeeding quarterly court, who shall be summoned in like manner as is directed in the former case. And the sheriff to whom such writ shall be directed, and every person by him summoned, shall, in case of neglect or disobedience to such writ, be subject to the same penalties as are herein before imposed, in case of neglect or disobedience to a summons commanding their attendance in a district court.

Section 9. Of those who shall attend in obedience to such summons not less than sixteen, nor more than twenty shall be impaneled as a grand jury for such county, who shall be sworn to inquire into the breach of the penal laws, and make presentment of the offenders. And the residue of the said jurors, together with those sworn of the grand jury, when not necessarily acting as such, shall serve as petty jurors,’and shall be impaneled, elected, tried, and sworn, in the same manner as herein is before directed. But no grand juror shall be of the petty jury on the trial of any indictment found by a grand jury of which he was a member.

Section 10. Every person summoned to attend any court as a juror, and attending accordingly, shall be exempted from arrests and all other process in civil cases, except writs of subpoena for witnesses, during his attendance, and one day for every twenty miles that he shall necessarily travel in going to and returning from court.

Section 11. Bystanders may be impaneled on a jury, if a sufficient number of those summoned do not appear.

Section 12. The county of Northampton shall furnish twenty four jurors to attend the district court, and the county of Accomack thirty-six, any thing herein to the contrary notwithstanding.

Section 13. So much of the act concerning grand juries, etc. as also of the act directing the method of proceeding against free persons charged with certain crimes, etc. as is contrary to this act, shall be repealed.