One of the most “sacred” rights of the ancient American was the trial of an accused person by “a jury of his peers.”  This, in America, was a right secured to him by a written constitution.  It was almost universally believed to have had its origin in Magna Carta, a famous document which certain rebellious noblemen of another country had compelled their sovereign to sign under a threat of death.  That celebrated “bill of rights” has not all come down to us, but researches of the learned have made it certain that it contained no mention of trial by jury, which, indeed, was unknown to its authors.  The words judicium parium meant to them something entirely different—­the judgment of the entire community of freemen.  The words and the practice they represented antedated Magna Carta by many centuries and were common to the Franks and other Germanic nations, amongst whom a trial “jury” consisted of persons having a knowledge of the matter to be determined—­persons who in later times were called “witnesses” and rigorously excluded from the seats of judgment.

It is difficult to conceive a more clumsy and ineffective machinery for ascertaining truth and doing justice than a jury of twelve men of the average intelligence, even among ourselves.  What, then, must this device have been among the half-civilized tribes of the Connected States of America!  Nay, the case is worse than that, for it was the practice to prevent men of even the average intelligence from serving as jurors.  Jurors had to be residents of the locality of the crime charged, and every crime was made a matter of public notoriety long before the accused was brought to trial; yet, as a rule, he who had read or talked about the trial was held disqualified to serve.  This in a country where, when a man who could read was not reading about local crimes he was talking about them, or if doing neither was doing something worse!

To the twelve men so chosen the opposing lawyers addressed their disingenuous pleas and for their consideration the witnesses presented their carefully rehearsed testimony, most of it false.  So unintelligent were these juries that a great part of the time in every trial was consumed in keeping from them certain kinds of evidence with which they could not be trusted; yet the lawyers were permitted to submit to them any kind of misleading argument that they pleased and fortify it with innuendoes without relevancy and logic without sense.  Appeals to their passions, their sympathies, their prejudices, were regarded as legitimate influences and tolerated by the judges on the theory that each side’s offenses would about offset those of the other.  In a criminal case it was expected that the prosecutor would declare repeatedly and in the most solemn manner his belief in the guilt of the person accused, and that the attorney for the defense would affirm with equal gravity his conviction of his client’s innocence.  How could they impress the jury with a belief which they did not themselves venture to affirm?  It is not recorded that any lawyer ever rebelled against the iron authority of these conditions and stood for truth and conscience.  They were, indeed, the conditions of his existence as a lawyer, a fact which they easily persuaded themselves mitigated the baseness of their obedience to them, or justified it altogether.