cases was established in 1887, and a majority may render a verdict. In Russia, since 1864, they have a jury system, but poorly executed. In Switzerland, all crimes against the confederation must be tried by jury, and it is said, upon good authority, that the jury system is in vogue in all the South American states, in criminal cases, their civil jurisprudence being based on the Roman law. The Hawaiian Islands provide for a jury of twelve in both civil and criminal cases, nine of whom may render a verdict. In France, no civil jury or grand jury exist, while in criminal cases trial by jury is constitutionally guaranteed. In Prussia, the law provides a jury in criminal cases, and a verdict of the majority of a jury composed of twelve.

It is claimed, and there are many interesting articles written upon this subject, that the right of trial by jury originated in the Magna Charta, which, in the popular version, is usually rendered that "No man shall be deprived of life, liberty or property, save by the judgment of his peers and the law of the land." High authorities, as Blackstone and Coke, disagree upon this proposition; but the later modern authorities and writers upon this subject agree that the trial by the judicium parium is of far greater antiquity than that by the jury, for it was brought over from the continent by the Anglo-Saxons and had flourished for long years afterwards; and Forsyth, in his modern work upon jury trials, says: "That it is a popular and remarkable error that the stipulation for the judicium parium in Magna Charta referred to the trial by jury." It was a phrase perfectly understood at the period of Magna Charta, and the mode of trial had been in use long before in France, and in all parts of Europe where feuds prevailed. It was essentially different from the trial by jury, which could never be accurately called judicium parium. We read frequently in the records of those times (and even in Magna Charta itself), of juratores, of veredictum, all of which expressions refer to a jury; but not a single instance can be found in any charter in which the jury are called pares or their verdict judicium.

Hence that term, pares, properly applies to the members of the feudal and county Courts. And it seems, from the weight of authority upon this proposition, that trial by the judicium

parium, as mentioned in the Magna Charta, had no connection whatever with the trial by jury, but, according to Judge Cooley, "was the peculiar and well-known feudal process, by which the lord with his vassals sat to try questions of title between others of his vassals" (pares). It is quite probable, however, that the alternative phrase, per legem terræ, was intended to

include trial by jury.

I have thus far, in the limited time given me, attempted to trace the original history of the jury system down to the present time, and in doing so I have been greatly aided by the work of M. A. Lesser, of the New York bar, on Jury Trials, published in 1894.

The study of the origin and development of this wonderful system is a most interesting one, and one which should receive the attention of every lawyer of the present day; and it seems from an investigation that the institutions of the Normans, as introduced into England, really furnished the foundations for our present jury system.

Canon Stubbs, in his Constitutional History of England, says: "Many writers of authority have maintained that the entire jury system is indigenous in England, some deriving it from Celtic tradition, based upon the principles of Roman law, and adopted by the Anglo-Saxons and Normans from the people they had conquered; others have regarded it as a product of that legal genius of the Anglo-Saxons, of which Alfred is the mythic impersonation, or as derived by that nation from the customs of primitive Germany, or from their intercourse with the Danes. Nor even, when it is admitted that the system of recognition was introduced from Normandy, have legal writers agreed as to the source from which the Normans themselves derived it. One scholar maintains that it was brought by the Norsemen from Scandinavia; another, that it was derived from the processes of the canon law; another, that it was developed on Gallic soil from Roman principles; another, that it came from Asia through the Crusades." An American authority insists that it is "undoubtedly a development of English institutions and civilization." Again, it is suggested that it was borrowed by the Angles and Saxons from their Slavonic neighbors in northern Europe; it has been traced to the assises

de Jerusalem of Godfrey de Bouillon; it is even claimed to be of divine origin; and finally, a French scholar despairingly exclaims: "Son origine se perd dans la nuit de temps." (Its origin is lost in the darkness of the ages.)

There is at this time, among attorneys and writers, a great difference of opinion as to whether the present jury system should continue to be maintained as a part of our jurisprudence, or whether it should be abolished entirely, or whether it should be modified. While many arguments can be advanced, and are advanced, and plausible arguments at that, showing why the jury system should be abolished, still I believe that a system which has been maintained in this country and in England for so many years, and against the results and operation of which so little can really be said, must have such merit that it should remain a part of our jurisprudence.

It is claimed that juries, summoned as they are from the body of the county, and from all walks of life, and brought into the court-room to hear the testimony, cannot give it the consideration it deserves, and that it would be much better to have the evidence in a case submitted to persons whose minds are trained to listen to arguments and testimony, and to weigh and distinguish between what is material and what is not.

Many eminent lawyers and jurists have written articles and papers containing strong arguments that the jury system should. be abolished. In 1882, Albert Stickney, a prominent lawyer of the New York bar, wrote a strong article, which was published in the November number of the Century Magazine, entitled, "Is the Jury System a Failure?" which was followed later, in April, 1883, by a very caustic letter in reply to criticisms upon his former article.

Mr. William L. Scott, of the St. Louis bar, in Article XX., American Law Review, page 661, also attacks the system in a strong letter. And from an investigation it will be found, I think, that opinion is very evenly divided, whether the jury system, in its present form in this country and England, should be either abolished or at least amended.

It is claimed by many that the rule of unanimity of verdicts should be changed, so that a majority verdict, in civil actions at least, should be received. But Mr. Stickney, in his article,

claims that unanimity in verdicts is regarded as one of the strong points constituting the jury system. Mr. Justice Miller, of the United States Supreme Court, on the other hand, in a very strong article, in the 21 American Law Review, advocated a reform in the jury system by permitting three-fourths to give a verdict. And Pomeroy, in his Methods of Jury Trials, says: "Were unanimity abolished generally as an essential element in our jury system, the most serious reproach thereto would be removed, its merits would stand out in bold relief, and ampler recognition once more be accorded an institution which for ages has served as a potent promotor of the dispensation of justice, and for which, in the opinion of many eminent jurists, no substitute more perfect and efficacious has as yet been devised."

One fault found with a jury system is, that a jury selected from the body of a community, from men of different walks of life and different characters of business, are more likely to be bribed, or their decision affected by either passion or prejudice; but I am of the opinion that a body of men taken from all classes are less apt to be swayed by either passion or prejudice than a like body of judges or one judge. It is true that a judge is fitted by his education and knowledge of law to better weigh matters pertaining strictly to the law, but I doubt if they are as well qualified to judge of matters of fact pertaining to every-day business as laymen and men engaging themselves in every-day business affairs. Neither do I believe that a judge, by his education and learning, is less subject to be influenced by passion, prejudice or financial considerations, nor do I believe that his moral qualifications are any greater than those of the body of the people.

It is claimed by De Tocqueville, in his work on Democracy in America, that the jury system is a great educator of the people, and that, to use his own words, "It may be regarded as a gratuitous public school, ever open, in which every juror becomes familiar with the laws which are brought within reach of his capacity by the members of the bar." And I am inclined to the opinion that the education given to the general masses by their experience as jurymen is of great benefit and good to them; and, while it is true that Courts are not supposed to be, strictly speaking, educational institutions, still, if in the admin

istration of justice the same end can be obtained by educating the masses in this way, it is certainly wise to do so. I do not believe that with lawyers and judges of experience there is a prevalent opinion that jury bribing or unlawful influencing of juries prevails to any extent, either in this country or in others where this system is in vogue. It is true that in ancient as well as modern times it has been talked of more or less, and I find, as early as the time of Cicero, that in his letter to Atticus concerning the trial of Catiline, he says, as liberally translated: "At this time I am thinking of defending Catiline, my rival; I have secured the jurors I wanted, with the full consent of the prosecutor." Upon the matter of what is called "jury packing." I believe that if the provision requiring unanimity of the jury in civil cases was dispensed with, this difficulty would entirely be done away with. Bentham, on The Art of Packing Juries, Chapter V, Section 1, says in this connection: "Any one juror gained and properly armed with the necessary degree of patience suffices."

Under the Constitution of the State of Washington, the Legislature, in civil cases, can provide that a verdict may be rendered by a less number than the whole jury, and the Legislature at its last session passed a law providing that ten out of the twelve might render a legal verdict. I would favor that this law be changed, so that in civil cases nine could render a verdict. I believe that if this change was made, merchants, professional men, and others, who are now so apt to desire exemption from jury service, would be more inclined to waive any excuses they might have, and serve as jurymen; and I believe that there would be fewer mistrials, and fewer verdicts which are afterwards set aside.

I am in favor of having verdicts in all criminal cases, of degrees less than that of felony, rendered in the same manner. This, of course, cannot be done under our present Constitution. I also think that the system of jury trials would improve if the Courts were obliged to instruct the jury on the law in writing, and that the jury should take with them to their jury-rooms the instructions of the Court; and I would also favor the practice that the attorneys should have ample time to make exceptions to these instructions; and at the same time of a motion for