AFTERNOON SESSION.
FREE SCHOOL BOOKS.
Mr. GILMAN offered a resolution that the Committee on Education be instructed to report to the House a bill providing that the school books to be used in our Common Schools shall be uniform throughout the State, and providing that their publication shall be free He said: Under the present law there has existed a monopoly on the sale of school books, and he thought the people would save more money than is asked for by all the Educational Institutions of the State each year. Publishers can charge any price for books and the people can not help themselves. By passing a bill of this kind it would break down these monopolies. He wanted no copyright to exist but have free publications, and after books are introduced, keep them in use for a specified period of time.
The resolution was adopted.
Mr. Wright's bill [H. R. 122] to amend Section 8 of an act prescribing certain duties of officers of elections, being read the third time--
Mr. Wright said this was a bill to amend Section 8 of the act of 1877, which requires incorporated towns of this State to hold the town elections in each Ward in the town.
Under the law of 1852, town elections were held at a single place of voting and it worked well. He thought it an advantage to towns to hold elections at a single place.
Mr. SMELZER entered a motion to reconsider the vote by which the bill [H. R. 252]--female suffrage--failed to pass.
By consent, Mr. AKIN introduced a bill [H. R. 411] for an act to amend Sections 1 and 2 of an act fixing the per diem and mileage of the members of the General Assembly, and providing that they shall provide their own stationery, approved June 9, 1872, and approved March 5, 1875.
The bill passed yeas, 75: nays, 0.
Mr. Ryan's bill [H. R. 191] to amend Section 120 of an act concerning Justices of the Peace; their general jurisdiction and mode of proceeding before them, approved June 9, 1852, was read the third time and passed--yeas, 79; nays, 0.
Mr. KERR'S bill [H. R. 192, see page 77] to amend Section 8 of an act concerning Justices of the Peace, was read the third time and passed--yeas, 75; nays, 0.
Mr. Gibson's bill [H. R. 194] to tax the ownership of property held for school purposes was read the third time and passed--yeas, 75; nays, 0.
Mr. Lindsay's bill [H. R. 198] to amend Section 8 of an act to enable trustees to receive lands and donations and convey the same for the use of Churches, schools and Religious Societies, etc of June 17, '52, being read the third time--
Mr. LINDSDAY said this bill makes no change in the old law except that a certificate to the Trustee elected shall Mnly be necessary when the Board is changed and no new Trustees are elected.
The bill passed--yeas, 70; nays, 1.
THE JURY SYSTEM.
Mr. Lindsay's bill [H. R. 114] to provide for trial by Jury, and fixing the number that shall concur in mading a verdict was read the third time.
Mr. LINDSAY moved to amend by inserting in place of the word "Six" where it occurs [referring to the number of Jurymen] the word "Seven;" where the word "Four" occurs insert thle word "Five." The object of this change is to accomodate the bill to cases where the parties agree upon a less number than nine Jurymen.
The amendment was agreed to.
Mr. NEFF said he was not in favor of the passage of the bill, and challenged the author to present arguments in favor of its passage.
Mr. LINDSAY--We have been accustomed for a long time to trying our causes with a Jury of twelve, and requiring a unanimity for a verdict. Our Jury system is so old that I doubt if any member on the floor could say just when on where it originated. Many undertake to say it is as old as the race; that it existed long before the Norman Conquest. There never was a reason why twelve men should make a more just verdict than any other number, or that their verdict should be any nearer right than a verdict made by any other number. One individual has said because there were twelve Tribes of Israel and twelve Apostles sent to preach the Word, the number twelve was fixed upon as the number which should decide all our questions in Court. There are three objects in presenting this bill: The first one is, it facilitates the trial of cause in Courts. Second, it obtains just, fair and equitable justice. I am willing to appeal to the experience of every lawyer whether Jury verdicts are not in a majority of cases compromises. By looking up cases tried by Jury you find that Juries were locked up in a room without food or drink, fire or light, and compelled to make a verdict. In olden times it is said they used to take the Jury in a cart and haul them from one Court to another until they were compelled, by unanimity, to agree to make a verdict. I appeal to every lawyer this body if they do not believe that were nine out of a Jury of twelve allowed page: 220[View Page 220] to make a verdict,the facility of trying cases would not be increased.
Another object (the third) is to obtain a verdict nearer right and nearer justice than where you require twelve men to agree. The passage of this bill would save a large expense, and by that means you can increase the pay of Jurors. The pay of Jurymen is so meager and trifling that all the good men that are worth anything or fit to serve on a Jury make every possible excuse to get out of serving, because the fees will hardly pay expenses. I want to increase the pay of Jurors so that we will have a better class of men to act willingly.
Everywhere in Europe, England excepted, the idea that it requires twelve men to make a verdict has given way, and to-day England and the United States are the only countries in the world in which that number is required to make a verdict. You can not impress twelve men exactly alike. If that is true, ought we to require twelve for a verdict? Is it not easier to bribe one man than three? Under this bill contemplates it would require three to be bribed in order to make a Jury fail to render a verdict, thus throwing an impediment in the way of buying off one man out of twelve to defeat the rendition of a verdict, as is often done under existing laws. Four States and three Territories of this Union have laws similar to this one. If we pass this law to-day, and it does not work well, in two years' time it can be repealed.
Mr. NEFF looked upon this measure as one of more than ordinary importance, and thought it might accomplish much good, but he felt alarmed lest it would effect much evil instead of good. He thought one argment made by the gentleman from Howard was rather against his bill--that is this number being required to make a verdict only in civil cases. The gentleman from Howard favored the agreement of twelve men to render a verdict in cases where life or liberty was at stake. There are some some rights that are dearer than life or liberty, which are tried in civil cases, such as the question of character. He considered this measure an invasion upon the time-honored principle of the law, which carried with it too great a risk to adopt, and gave it as his judgment that when a case is submitted to a Jury of twelve men, when they agree it is more likely to end litigation than to leave it to twelve Jurors and let nine find a verdict. Such proceedings would incite the losing party to appeal to a higher Court. He considered the measure dangerous, and one that ought not to pass.
Mr. TETER said:
Mr. TETER said: The hand of time marks many centuries upon the dial since the commencement of the right of trial by Jury; but sir, I worship not the institution as it is, simply because of its age. There are many things which exist at this day that are held to with great tenacity by some people, which are notorious only for hoary headed nonsense. For instance, witchcraft. The gentleman who opened the argument upon this proposition says England alone, of all the countries of Europe, is in favor of unanimity of the Jury. Then the United States of North America and England are the only two countries, so to speak, on earth who to-day-stand firm for the uanimity of the Jury. I appeal to this House look well before you forsake and leave the principles that have been so long advocated by the great men of England, and the still greater men, if possible, of the United States.
The results of trial by Jury have been such, occasionally, that even in England and here voices have been raised against it. Men feel the existing evil only; they seem not to see those evils that would result a hundredfold from an opposite state of things. Nor are those who feel irritated at some results of the trial by Jury acquainted with the operation of trials without Jury. So is, occasionally, the publicity of trials highly inconvenient. Yet, should we desire secret trials? Liberty, as it is generally understood in this country, can no more exist without the trial by Jury, that "buttress of liberty" as Chatham called it, and as our ancestors worshiped it, than without the representative system.
The Declaration of Independence specifies, as one of the reasons why this country was justified in severing itself from the mother country, that Americans have been "deprived in many cases of the benefits of trial by Jury." And, according to Constitutional law, "the right of trial by Jury shall be inviolate."
It may not be improper to enumerate, briefly, some of the advantages of so great an institution, whether they are directly connected with the liberties of this country or not. The right of trial by Jury, then, if properly and intelligently administered, divides the labor of the administration of justice, and permits each part quietly to find the truth in the sphere assigned to it. It allows the Judge to stand, as the independent organ of the law, not only above the parties hostilely arraigned against each other but also above the whole practical case before the Court. It enables plain, common and practical sense properly to admix itself with keen, professional and scientific distinction in each sngle case, and thus prevents the effect of that disposition to sacrifice reality to flimsy theory, to which every individual is liable in his own profession, and peculiar pursuit, the worship of the means, forgetting the end.
Are not almost all complex cases, such as require in a high degree, good, strong, common sense, the tact of practical life, tqgether with the law, to be decided? Are not, perhaps, the greater part of civil cases such? The English and Americans seem to think they are. They believe that close logical reasoning is indeed necessary in the application of the law, and they assign this to the law officers; but they believe also that a high degree of plain, common sense, unshackled by technicalities, is necessary to decide whether, "upon the whole," "taken all in all," the individual case in hand is such as to bring it within the province of specific law, with reference to which it is brought before the Court, and they assign this part of the trial to the Jury, that is to non-professional citizens. It is done to insure the continuous and necessary admixture of common sense in the decision of causes.
The trial by Jury makes the participation of the people in the administration of justice possible without the serious evil of Courts consisting of mobs, or the confusion that would otherwis ensue. Aristotle said that many person are more just than one, although each of the many were less so than the one. It makes the administration of justice a matter of the people, and awakens confidence; it teaches law and liberty, order and rights, justice and government, and carries this knowledge over the land; it is the greatest school of free citizenship.
It throws a great part of the responsibility upon the people, and thus elevates the citizen while it legitimately strengthens the Government; it does not only elevate the Judge, but makes him a popular magistrate, looked up to with confidence and favor; it is the great bulwark of liberty in Monarchies against the Crown, and in Republics it is as Committee of the people between the accused and the people themselves--a more exacting king, when excited, than one that wears a crown.
It alone makes it possible to reconcile, in some degree, old and cruel laws, if the Legislature omits to abolish them, with a spirit of humanity which the Judge could never do without undermining the ground on which he alone can have a firm footing. It is, with the representative system, one of the greatest institutions which develop the love of the law, and without this love there can be no sovereignty of the law in the true sense; it is part and parcel of American self-government, and is alike usefully applicable in civil as well as in criminal cases.
page: 221[View Page 221]The unanimity of the Jury should be retained, notwithstanding that Locke was against the unanimity principle, for in his Constitution of South Carolina there is this provision: "Every Jury shall consist of twelve men and it shall not be necessary they should all agree, but the verdict shall be according to the consent of the majority." The "Duke's Laws" in New York, generally ascribed to the Lord Chancellor Clarendon (the father-in-law of the Duke of York), demanded seven Jurors, and unanimity only in capital cases.
One of the first steps to be taken in order to destroy the Jury system entire is to strike down the principle of unanimity; for if we commence the work of destruction, others may soon carry it on to completion.
There is nothing more deceptive or more dangerouos than the pretense of a desire to simplify Government. The simplest Governments are despotisms; the next simplest limited Monarchies, but every free Government is necessarily complicated, because all such Governments establish restraints, as well on the power of the Government itself as on that of individuals.
If we will abolish the distinction of branches and have but one branch, if we will abolish Jury trials and leave all to the Judge, and if we will then ordain that the Legislator shall himself be the Judge, and if we then place the executive power in the same hands, we may readily simplify Government.
We may easily bring it to the simplest of all possible forms--a pure despotism.
The bill failed to pass.
Mr. STEWART was opposed to the bill because he feared it would fail to accomplish the good intended by its friends, and further that it was one step toward striking down the mode of Jury trial altogether. He considered one argument offered by the gentleman from Howard [Mr. Lindlay] directly in favor of the the existing custom, as there was no other country on the globe that had as good a Jury system as England and the United States.
Mr. KENNER thought it very difficult to break in upon an old mode. The United States country having Americanized everything else, he thought this could be done for the general good.
Mr. BERRYMAN thought if a Jury of twelve could render a verdict in a civil case, they would be able to do so in a criminal case, as he considered cases where reputation and character were at stake more important than life in many cases, and was strictly opposed to this new departure, as he thought it would work bad results in many ways.
Mr. CAUTHORNE questioned the constitutionality of this bill if it should pass. He read from Section 10 of the Constitution as follows: "In all civil cases the right of trial by Jury shall remain inviolate" This provision of the Constitution he considered would render the bill, if passed, inoperative.
Mr. LINDSAY thought the law would stand if passed by the Legislature. He said: This bill requires twelve men, if they can get them, but allows nine men to render a verdict.
The bill failed to pass--yeas, 38; nays, 43, as follows:
Yeas--Messrs. Baker, Bartlett, Beatty, Carr of White, Cauthorne, Cotton, Fancher, Floyd, Franklin, Fuller, Furnace, Gardner, Gilman, Gregory, Hamilton, Kenner, Kerr, Lindley, Lindsay, Marshal, McSheehy, Meredith, Miles, Murray, Null, O'Brien, O'Neal, Roberts, Robinson of Decatur, Robinson of Ripley, Sinclair, Smelser, Sulzer, Sumner, Taylor of Lagrange, Thompson, Waiz and Mr. Speaker--38.
Nays--Messrs. Akin, Barnett, Berryman, Bryant, Cabbage, Carr of Whitley, Carter, Chandler, Cooper, Compton, Cummins, Davis, Edwins, Frazer, Gillam, Hammond, Hargrove, Hinton, Hottell, Iddings, Jackson, Johnson, Kain, Lee, Mason, McClure, McCormick, McDowell, McIntosh, Melrath, Miller, Neff, Roelker, Schweitzer, Shields, Stewart, Teter, Vawter, Walker, Weaver, Wheeler, Wilson of Montgomery and Wright--43.
The House adjourned till 9 o'clock to-morrow.
