is trial by jury successful in criminal cases? certainly it is popularly so regarded. even lawyers and prosecutors will usually agree that it "works substantial justice," but this does not answer the question. in about three cases out of five "judge lynch" himself works "substantial justice." the function of the jury is not to "work justice" at all, but to decide a limited question of fact. they are there for the purpose of determining the issue without prejudice on the one hand or sympathy upon the other, and having no regard for the consequences of their verdict; they must accept unquestioningly the law from the judge upon every point and base their conclusions solely upon the sworn evidence in the case. this they swear that they will do. yet they do not. why? is it want of intelligence, lack of regard for law, or vital misconception of their function?

certainly it is not from want of intelligence. there can be no question as to the capability of the ordinary juryman to perform his duties. the independent american is singularly adapted to just this form of investigation. if the english be "a nation of shopkeepers," we are a nation of natural cross-examiners. you will find fully as good verbal fencing in a new england corner grocery store about mail time as you will in most courts of justice. but the very innate capacity of the native american to per[pg 206]ceive the truth and get to the bottom of things, leads him to believe that he knows equally well, if not better than the judge, what ought to be done about it and what punishment, if any, should be inflicted upon the defendant under the circumstances. it is not that our jurors are incapable or uninterested, but, paradoxical as it may seem, that they are too capable and too interested. they want to be not only jurors, but district attorney, counsel for the defendant, expert witness, and judge into the bargain.

your shopkeeper in england makes a less intelligent, but a far more satisfactory juror. there they will empanel a jury in a few moments in a capital case, and so deeply implanted in the bosom of each juryman is a respect for the law as such and an inherited reverence for the judiciary, which its uniformly high character has done so much to foster, that, provided the facts are sufficiently established, the sex of the defendant, the condition of his or her family, the character of the motive for the act, will not be the subject of discussion or even of consideration in determining the verdict. it is enough that they are sworn to decide the facts and the facts alone. they are told by the judge what evidence they may consider, and what facts they may not consider, and did they not obey his instructions they would receive the severe censure of the public and the press.

there is an historical reason for this. in 1666, when a jury found a verdict of manslaughter after having been instructed that the evidence showed that it was murder, kelyng, c.j., promptly fined them five pounds apiece. on petition, he reduced it to forty shillings, "which they all paid." in 1667 he fined eleven of the grand jury twenty pounds apiece for re[pg 207]fusing to indict for murder. the judges of the king's bench said he was quite right, adding, "and where a petty juror, contrary to directions of the court, will find a murder manslaughter, ... yet the court will fine them" (king vs. windham, 2 keble, 180). for centuries it was the common practice to punish severely by imprisonment, fine, and attainder juries who refused to convict on what appeared to the court to be sufficient evidence. perhaps throckmorton's case in 1554, when the jury acquitted the defendant of treason, is the most famous illustration of this. the court committed the jury to prison, eight being confined from april 17 to december 12, and on their discharge fined them, some sixty and some two hundred and twenty pounds apiece. the reasoning under the circumstances was obvious. if a jury found a man guilty improperly, he could be pardoned, but "if, having pregnant evidence, nevertheless, the twelve do acquit the malefactor, which they will do sometime ... the prisoner escapeth...." it is refreshing to observe that even english juries "will do [this] sometime." all this naturally created, as it was designed to create, a tremendous regard for the judge and his instructions.

there is at the present time little of this wholesome regard for law in america. the jury realize that the judge's elevation to the bench is often a matter of politics alone, and sometimes have comparatively little respect for his character, learning, or ability. they frequently feel by no means confident that the punishment will fit the crime, and are anxious, so far as they can, to dispose of the case for themselves. for example, in one case where three defendants were found guilty of stealing in company[pg 208] a single article of value, the jury rendered a verdict of grand larceny in the first degree against one, grand larceny in the second degree against another, and petty larceny against the third. they did this because of the varying ages of the defendants, but in so doing obviously violated their oaths and usurped the functions of the judge. very likely "substantial justice" was accomplished.

there are hundreds of jurors who, having in all honesty taken the oath to "a true verdict find," will, once in the jury-room, frankly turn to their fellows and exclaim: "oh, let him go! he's only a kid. give him another chance!" "substantial justice," again at the expense of our regard for law.

as an example of what may occur, the case of rosa di pietro, tried for murder before the recorder, in december, 1904, is illuminating. the defendant was a young italian woman of good repute charged with shooting and killing her brother-in-law, who, the evidence clearly showed, had endeavored to persuade her to yield to his desires. she claimed to have shot him in self-defence. her story was so obviously a fabrication that no jury could have believed her, and must have found (if they had considered the matter at all) that she pursued her would-be seducer down the stairs and shot him in a dark hallway, as he was leaving the building. a "special" jury of perfectly intelligent men promptly acquitted her. the writer presumes that after this all the italian residents will get their wives to do their killing for them.

in a well-known case the jury found the defendant guilty of manslaughter, instead of murder, because one of their number had read that the prisoner had[pg 209] been a "rough rider" in the cuban campaign. after they had returned their verdict they learned that he had been nothing of the kind.

the action of the new york county jury in a criminal case is right as to the defendant's guilt or innocence about four times out of five, but less frequently as to the appropriate degree of crime.[36] the percentage of proper verdicts differs, of course, in different varieties of crime. in cases of common felony, such as larceny, burglary, rape, robbery, arson, forgery, etc., it is usually high; in homicides and gambling much lower; and in commercial frauds and liquor-tax cases smaller still, the number of convictions being inconsiderable. making due allowance for the unconscious prejudices, sympathies, and idiosyncrasies of mankind, we have still, as citizens, a right to demand a far higher degree of accuracy in the verdicts of our juries—to expect the murderer to be found guilty of murder and the thief to be stigmatized as a thief. what is the explanation for this?

the fundamental reason for the arbitrary character of the verdicts of our juries lies not in our lack of intelligence as a nation, but in our small regard for human life, our low standard of commercial honesty, our hypocrisy in legislation, our consequent lack of respect for law, and the general misapprehension that the function of the jury is to render "substantial justice"—a misapprehension fostered by public sentiment, the press, and even in some cases by the bench itself, to the complete abandonment of[pg 210] the literal interpretation of the juror's oath of office.

the writer has heard judges from the bench congratulate juries upon having rendered a "merciful verdict"! they are popularly expected "to temper justice with mercy," "exercise a wise discretion," and "to be moved to magnanimity." but the jurors who satisfy their emotions at the expense of their honesty, and the judge who countenances the performance, are worse law-breakers than the defendant himself.

we carry upon our statute books laws which we have no intention of enforcing, and which, in our present state of development, are actually unenforceable. even law-abiding, law-loving, and (ordinarily) conscientious jurors will become lawless when compelled to sit in a case of this character. thus while the three judges of special sessions find guilty some sixty per cent of those brought before them for violations of various phases of the liquor-tax law, a conviction by a jury in the general sessions is practically unheard of. the grand jury have now reached the point where they practically refuse to indict at all in liquor-tax cases.[37] just as long as we have[pg 211] hypocrisy in religion, in business, and in legislation, so long shall we have hypocrisy in our courts of justice.

of course, as we live in an age when violence is found inconvenient and annoying, your jury naturally condemns by its verdict crimes of a violent character, and will make but short work of highwayman and thug. burglars are unpopular both with the public and with the juror; and it needs no burst of rhetoric to induce a jury to find a verdict against a "firebug" or a "cadet." but once step into that class of cases, the subject of which is commercial fraud, and the jury look upon the prosecution with[pg 212] averted eye. just so long as dishonesty of one kind or another is openly countenanced in business, just so long it will be practically impossible, except under unusual conditions, to convict the fraudulent bankrupt or the retailer who has secured goods and credit upon false representations. mayhap there is upon the jury some tradesman who has "padded" his own credit statement; some one who has placed a fictitious valuation on his stock, or has told alluring but unsubstantial stories as to his "orders on hand," "cash in bank," and "bills receivable." what chance under those circumstances of a conviction?

"the jury, passing on the prisoner's life,

may have in the sworn twelve a thief or two

guiltier than him they try."

"why," says a juror, "here they are trying to convict this fellow einstein of what everybody does every day in the year. rubbish! am i a thief! i don't have any criminal intent. he was just tryin' to boost his assets a little. he's no criminal." and out he goes to the jury-room and persuades the other eleven that the defendant is no worse than everybody. of course, everybody isn't a thief. the syllogism is irrefutable.

"i suppose you didn't believe that mr. einstein made those false statements?" says the writer, approaching him as he steps into the corridor. the juror pauses in lighting his cigar.

"sure, he made 'em!" he remarks. "of course he made 'em! but, h—l, he's no criminal!" this is an actual experience.

our distaste for physical violence has had a rather paradoxical result so far as the jury is concerned,[pg 213] for it appears to be coupled with a small (and what seems to be a decreasing) regard for human life. verdicts of murder in the first degree are exceedingly rare, and it requires a crime of a peculiarly atrocious character to induce the jury to send the defendant to the electric chair. this is due in part to cowardice and in part to the misconception of their function already dwelt upon, since in almost all murder cases the jury regard themselves as fixing the penalty. inasmuch as most persons who meet death from violence are themselves of violent character, the jury frequently seems to believe that the defendant is entitled to a certain amount of consideration for ridding the community of his victim, and this often finds joyful expression in a verdict of manslaughter.

totally distinct, however, from this trifling with justice, whether it be wilful or voluntary, is the unconscious bias of each member of the human family due to race, religion, education, and character. hence jurors are examined with an elaborate care and minuteness of investigation which in practice is often shown to be ridiculous. in fact certain maxims having almost the force of legal doctrines have grown up about the selection of a jury. a defendant's counsel will invariably challenge an irishman if his client be a negro, and vice versa. this is likewise apt to be the case if the client be an italian. talesmen with wives and children are generally supposed to be more susceptible to arguments directed to their sympathies. hebrews are presumed to make particularly undesirable jurors for the defence where the crime charged is one of violence or arson, and are likewise usually challenged when the defence[pg 214] is self-defence. old men are popularly supposed to make indulgent jurors, although the writer's own experience is to the contrary, and he has noticed that persons with long, drooping mustaches are invariably excused. neither side as a rule cares for missionaries or persons engaged in philanthropic enterprises, since the prosecutor feels instinctively that their eleemosynary tendencies will extend to the prisoner, while the defence has a presentiment that they will lead him to favor the damaged complainant. writers, editors, and publishers are generally excused by the defence as too intelligent, i.e., too prone to theoretic arguments as distinguished from a "broad view," which from the prisoner's standpoint means one including every sympathetic reason that can be suggested. artists are distrusted by prosecutors as romantic and imaginative. butchers, coffin-makers, sextons, grave-diggers, undertakers, and dealers in electrical supplies are invariably excused for obvious reasons by the defendant in homicide cases. liquor dealers are believed to be prone to take a lenient view of the shortcomings of humanity in general, while persons of brisk, incisive manners naturally suggest heartlessness to the cowering defendant. the writer knows an assistant who will not try a case if there is a man with a pompadour on the jury, and neither prosecution nor defence cares for long-haired jurors of the "yarb doctor" variety, while the dapper little man with the "dickey" and red necktie is invariably excused by the defence unless the defendant be a woman.

the frivolous character of these rules needs no comment. almost every lawyer and every prosecutor believes himself to be a past master in the study[pg 215] of character from external evidence, and upon the most trivial and unnatural of pretexts will challenge a talesman so unfortunate as not to suit his fancy. yet when all is done and when, after the most exhaustive examination and cross-examination of several hundred special talesmen, wrenched from their places of business or the bosoms of their families, twelve men have been finally selected and sworn, it is probable that they are in no respect superior to the first twelve who might have been chosen.

in murder cases each side may challenge peremptorily thirty talesmen, and numerous are the legal "jumps" over which they must successfully ride before they can qualify for service. thus it is unusual in a homicide case to select a jury in less than two days, and in some instances it has taken two weeks. on the other hand, equally satisfactory juries have occasionally been selected in such cases in less than an hour.

the general futility of trying to secure a jury of particular capacity or intelligence, or one which will contain no juror of pronounced idiosyncrasies, is rather well illustrated by the following incident: the defendant's counsel, a man of considerable repute at the criminal bar, had spent over two days in the elaborate selection of a jury. it had taken him two hours to get a foreman to his fancy, but at last he had accepted a solid-looking old german grocer. after a trial lasting several days the jury convicted the defendant in short order, greatly to the disgust of the eminent lawyer, who vented his indignation rather loudly in the presence of the foreman as he was leaving the box. the old german leaned over good-naturedly and remarked, pointing to the door[pg 216] in the back of the court-room leading to the prison pen: "vell, mr. ——, if you vant to know vat i tinks, i tells you. ven i see him come in through dot leetle door back dere, den i knows he's guilty!"

this lawyer now selects a jury in thirty minutes.

of course, some examination into the general qualifications of jurors and their possible bias in the case is imperative, and frequently the interposition of a peremptory challenge is not only justifiable, but absolutely necessary. a talesman will sometimes betray by an inflection of his voice a sentiment or prejudice which his words deny, or suggest to the vigilant counsel for the defendant the juror's susceptibility to the insidious flattery of the prosecutor in making him a part of the "organization of the court."

during the selection of a jury to try moran, the dynamiter, in march, 1906, before judge foster, in the general sessions, a little old man took the stand who qualified satisfactorily as a juror so far as the prosecution was concerned. daniel f. cohalan, attorney for the defendant, then took him in hand somewhat as follows:

"have you any prejudice against a man accused of crime?"

"i have not," replied the little old man.

"or against this defendant?"

"i have not."

"do you think you would make an absolutely fair and impartial juror?"

"i do."

"do you know of any reason to the contrary?"

"i do not."

cohalan turned to another line of examination.

[pg 217]

"do you read the papers?"

"yes. yes."

"what paper do you read?"

"what paper?"

"yes. what paper do you read in the morning?"

the little old man settled himself in his chair and, eyeing cohalan suspiciously, replied:

"i read the herald, times, world, journal, sun, tribune, press, staats zeitung, telegraph——"

"stop!" cried cohalan feebly; "that's quite enough. don't you do anything but read the papers?"

the little old man regarded the lawyer scornfully.

"i spend six hours a day keeping myself informed of what is going on. i flatter myself that there is nothing in the whole world with which i am not fully acquainted. knowledge is power!"

cohalan collapsed into his seat.

"that is all. you are excused. you know too much for us!"

as the little old man shuffled off he whispered to the prosecutor:

"i'd have given the —— twenty years!"

on the other hand, the hyper-sensitiveness of counsel renders it easy for talesmen to escape who do not wish to serve. the writer knows an estimable man who is regularly drawn about four times a year upon the special jury. he has never served. his method is as follows: having taken his seat upon the witness-stand he wrinkles his forehead and looks fiercely at the defendant. when asked if he has any objection to capital punishment he thrusts out his under jaw and exclaims: "i should say not! i think hangin's too good for 'em!" in reality he is the[pg 218] mildest, the most sympathetic and the "easiest" of human beings. another observant talesman who appears periodically has learned, the writer believes, his trick from the first. his stock reply to the same question relative to capital punishment is, "i have not. i believe in the biblical injunction of 'an eye for an eye,' and 'a tooth for a tooth,' and, 'whoso sheddeth man's blood by man shall his blood be shed.'" needless to say, he leaves the stand with the same alacrity as the other. jurors readily enter into friendly relations with the prosecutor and defendant's counsel, but rarely with any effect upon their verdicts. in the first trial of mock duck, a chinaman indicted for murder, where the defence interposed was an alibi, to wit, that the prisoner had been buying a terrapin in fulton market at the time of the commission of the crime (whence the prosecutor claimed that it was the case of a mock duck with a mock turtle defence), a juryman met the defendant's counsel during recess and told him that there was no further need for him to call any more witnesses for the defendant, as the jury "understood the situation perfectly." the lawyer took the hint, and upon the reopening of court closed his case, feeling sure of an acquittal or at least of a disagreement. when the jury had retired the talesman in question made a long speech in favor of murder in the first degree, and refused to vote for any other crime. such performances are rare. of course, it not infrequently occurs that a juror by his manner of asking questions shows plainly his state of mind. the feelings of a prosecutor can be easily imagined when a juror turns in disgust from one of the people's witnesses, or those of a defendant's counsel when another,[pg 219] looking towards the prisoner, grinds his teeth as the evidence goes in and ejaculates, "brute!"

the jury offers a fertile field for the study of human nature, and lawyers and prosecutors learn to look regularly for certain characters. of these may be mentioned the too officious juror who asks hundreds of incompetent and irrelevant questions to which the lawyers are naturally afraid to object, and whose inquisitiveness has to be curbed by the court itself. such a juror usually shows much conviction one way or the other in the early stages of the case, and before he has heard the evidence. unfortunately his executive abilities usually fill the balance of the jury with such disgust that to have a juror of this sort on one's side is more of a misfortune than a boon.

jurors of this variety frequently at inopportune moments interrupt counsel during their addresses. in one case an aggressive talesman broke in upon a burst of carefully prepared eloquence with the brutal interrogation: "how about the knife?" the counsel stopped, bowed to the juror, smiled, and said calmly: "thank you, mr. smith, i'm glad you spoke of that. i am coming to it in a moment." the juror, satisfied, leaned back contentedly, but the lawyer has not "come" to the knife yet.

practically the thing most desired by prosecutors and lawyers who are both convinced of the justice of their cause is homogeneity of some sort in the jury-box. naturally antagonistic elements are undesirable, and a wise selector of juries will try to get men of approximately the same age, class in society, nationality, religion, and general character. of course, this is a difficult matter, but without a[pg 220] friendly and helpful spirit among the jurors cases will result frequently in disagreements. this is naturally less objectionable to the defendant than to the people, for ordinarily it may be said that "two disagreements are equivalent to an acquittal."

the common idea that juries are prone to leave their decisions to chance, as by flipping a coin, or to act upon impulse, whim, caprice, or from a desire to get away, is grossly exaggerated.

it was pope who sang in the "rape of the lock":

"the hungry judges soon the sentence sign,

and wretches hang, that jurymen may dine."

unfortunately, if the jury is hungry or exhausted and anxious to dispose of the case, the defendant invariably gets the benefit of it. the "wretches" don't "hang," but instead are turned out with a rush. instances of verdicts being determined by such considerations are in fact rare.

much of the seeming misguidedness of juries in criminal cases is due, just as it is due in civil cases, to the idiosyncrasy, or the avowed purpose to be "agin' the government," of a single talesman. in an ideal community, no matter how many persons constituted the jury, provided the evidence was clear one way or the other, the jury would always agree, since they would all be honest and reasonable men. but just as a certain portion of our population is mentally unbalanced, anarchistic, and criminal, so will be a certain portion of our jurors. in addition to these elements there will almost invariably be found some men upon every panel who are so obstinate, conceited, and overbearing as to be totally unfit to serve, either from the point of view of the[pg 221] people or the defence. it is enough for one of these recalcitrant gentlemen that eleven other human beings desire something else. that settles it. they shall go his way or not at all.

the writer believes, therefore, that some allowance should be made for the single lunatic or anarchist that gets himself drawn on about every fifth jury, for if he once be empanelled a disagreement will inevitably follow. this could be accomplished by reducing the number necessary for a verdict to eleven.[38] hundreds of juries have been "hung" by just one man.[39] the trouble, as professor thayer points out, began a long, long time ago in a case reported in the book of assizes in 1367.

"in another assize before the same justices at northampton, the assize was sworn. they were all agreed except one, who would not agree with the eleven. they were remanded and stayed there all that day and the next, without drink or food. then the judges asked him if he would agree with his associates, and he said never,—he would die in prison first. whereupon they took the verdict of the eleven and ordered him to prison, and thereupon a day[pg 222] was given upon this verdict in the common bench.

... and afterwards by assent of all the justices it was declared that this was no verdict. it was therefore awarded that this panel be quashed and annulled, and that he who was in prison be enlarged, and that the plaintiff sue a new venire facias.... note, that the justices said they ought to have taken the assize with them in a wagon until they were agreed."

how much happier would not only the eleven, but the twelfth juror, who swore he would "die first," have been if, unanimity not being required, they could comfortably have agreed to disagree and yet returned to court and rendered a verdict.

a jury naturally tends to lean towards the defence—to let the accused go if they can conscientiously do so; to find somewhere a reasonable doubt as to the prisoner's guilt—and it is only because the cases are so well sifted before they come to trial at all, and the wheat separated from the chaff (the defendants in very weak cases being frequently discharged on the recommendation of the district attorney himself), that the percentage of acquittals is not vastly greater.

this natural feeling of sympathy for the accused makes it all the easier for juries to be affected consciously or unconsciously by considerations they have sworn to disregard. then if the defendant be a woman, or a poor man with a large family, or his crime has injured no one's purse, or restitution has been made, or if the offence charged is merely that of swindling by means of false representations as to credit, or the defendant is very young or very old, or wears a clean collar, or has an attractive person[pg 223]ality, or, better, a beautiful wife, he is turned out with a cheer.

"for twelve honest men have decided the cause,

who are judges alike of the facts and the laws."

yes, the jury system in criminal cases is a "practical success"—and it "works substantial justice." it works the exact justice that we want—the exact justice that we deserve. as we grow to have a greater respect for human life and a higher regard for law and honesty, the verdicts of our juries will continue to keep pace with our condition. then we shall want something better, and we shall have it. the day will come when dishonesty in business will lead to the ball and chain as assuredly as arson and rape. but the time is not yet.

then juries will decide the issues submitted to them upon the evidence alone, without prejudice or sympathy, in accordance with the laws which they are sworn to uphold, without truckling to popular sentiment or fear of newspaper disapproval; then they will allow the judge to perform the functions vested in him by law without usurpation by their verdicts; and will "true deliverance make" between the people on the one hand and the defendant on the other. then there will probably be no need for juries—for there will be no criminals.[40]

footnotes:

[36] this estimate does not apply to the actions of juries outside of new york county. in other cities and in other states, particularly in rural districts, the percentage of convictions is often shockingly small.

[37] the following figures may be of interest to those readers who are interested in the question of amending the laws governing the sale of liquor:

in the year 1907, out of a total of 1,237 cases which came before the court of special sessions, there were 334 convictions, 7 pleas of guilty, 223 acquittals, 18 discharges and 116 transfers to the general sessions. during the last eight years, out of a total of 7,416 cases, there were 3,129 convictions, 244 pleas of guilty, 2,143 acquittals, 395 discharges, 361 demurrers allowed and 1,144 cases transferred, on the defendants' motion, to general sessions, to be tried under indictment. during this period, very nearly half the cases have resulted in convictions.

these cases were tried, as the reader is aware, by a bench of three judges, who decide both law and fact. compare this record with the result of 91 transfers, taken as illustrative, from the special to the general sessions in 1905. of course, each case had to be taken first before the grand jury. eighty-four of these cases were summarily dismissed by that body. in the remaining seven instances, indictments were secured. four of these seven defendants pleaded guilty, two were acquitted by the jury, one was discharged on his own recognizance and none were convicted. in other words, out of the whole bunch of transfers, less than four per cent of the defendants were convicted, as against nearly fifty per cent of convictions in the special sessions, in all liquor-tax cases in the last eight years. in the same period, out of a total of 1,241 cases presented to the grand jury, 987 were dismissed by that body. of the balance, viz., 254 in which indictments were secured, 25 pleaded guilty, 36 were discharged on their own recognizances, in 12 cases the bail was forfeited, and of the 181 cases which actually were tried before juries, 165 defendants were acquitted and 16 were convicted.

in 1906, out of 85 cases transferred, 79 were dismissed, and of the remaining six, 5 defendants were acquitted and 1 was discharged. in 1907 there were 98 transferred and all were dismissed by the grand jury.

the significance of these figures becomes evident when it is realized that the defendants whose cases are thus transferred are those who are the actual holders of licenses. they can afford to pay for the services of counsel, and their conviction is of vastly more importance to the community than that of their hirelings who actually sell the liquor over the bar. the barkeeper who violates the law and is caught, comes to trial in the special sessions, either pleads guilty or is convicted, and receives a fine which his employer promptly pays. the owner of the saloon thereupon discharges the defendant from his service and secures another barkeeper. this process can be continued indefinitely. but when the owner himself is caught and convicted, he is either driven out of business or has got to operate under another name. these are the men who apply for and are apparently able to secure transfers of their cases to the general sessions, although any judge granting such motions is, or, at least, should be, aware of what the practical result of his action will be. the transfer of a liquor-tax case upon the order of the judge sitting in part i of the general sessions is practically tantamount to a dismissal of it.

[38] whatever the actual origin of the number twelve for this purpose there certainly lingered in olden times a feeling that it had a sacred or foreordained character, and in duncomb's trials per pais, the following illuminating explanation is to be found:

"and first as to their number twelve: and this number is no less esteemed by our law than by holy writ. if the twelve apostles on their twelve thrones must try us in our eternal state, good reason has the law to appoint the number of twelve to try our temporal. the tribes of israel were twelve, the patriarchs were twelve, and solomon's officers were twelve. therefore not only matters of fact were tried by twelve, but of ancient times twelve judges were to try matters in law, in the exchequer chamber, and there are twelve counsellors of state for matters of state; and he that wageth his law must have eleven others with him who believe he says true. and the law is so precise in this number of twelve, that if the trial be by more or less, it is a mistrial." (cf. thayer's preliminary treatise, as cited, p. 90.)

[39] cf. "criminal law and its administration," by robert earl, 2 columbia law rev. 144.

[40] many cases result in mis-trials owing to the sickness or death of a single juror. in persecutions which it can be foreseen will be long the swearing of an extra juror would obviate this difficulty. cf. "newspapers and the jury," clarence b. smith, 17 greenbag 223.