REFORM IN THE ADMINISTRATION OF

THE CRIMINAL LAW IN THE STATE OF ILLINOIS. II.

THE JURY SYSTEM AN ESSENTIAL PART OF OUR FREE INSTITUTIONS.-We consider trial by jury an essential part of our political system which belongs to free institutions. It is protected from legislative violation by the federal and State Constitutious, and in the estimation of some jurists so sacred is this right that it is impossible to be waived by any person charged with a felony.

In criminal cases there is no substitute that would be accepted by the profession or endured by the people. A jury represents the people and when acting under the guidance of a capable judge their verdicts can generally be relied upon.

In civil controversies the verdicts of juries are much less satisfactory and are in many instances subject to just complaints. But the causes are obvious.

1. Jurors should be composed of the best citizens in respect to intelligence, moral character and business experience, but they are not.

2. Judges in this State have been deprived of much of the power necessary to enable them to secure a true verdict. Here in this State they are not allowed as they are in England and in most of the old States; to sum up a case or express any opinion as to the value of the testimony, but are required to confine themselves to marking "given" or "refused," instructions which the counsel in the case have drawn up for them, and which, if not designed to befog the jury, in nine cases out of ten have that tendency.

3. The condition of affairs was bad enough in this State prior to the last session of the General Assembly, but at that time a law was passed providing for "special findings," the result of which is, in many cases, to reduce all trials to a farce, and to create error and thereby lay the foundation of reversing the case. There is no objection to a jury rendering a special verdict in a case, that is, finding the facts from all of the evidence and then letting the judge apply the law-but that is not what this new law provides for at all. It provides for a special examination of the jury in advance by putting to them a series of interrogatories, something like the ancient examination of persons charged with crime in the Court of High Commission in the days of the Stuarts, called an examination ex officio mero, and if not as disastrous in its results, is attended by many inconveniences and is a burlesque on the whole jury system.

The trial by jury in civil cases will not be satisfactory until our judges are restored to the position that they occupied at common law, and are invested with such legal discretion as they are justly entitled to in carrying out the real object and design of a jury trial.

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TRIAL BY JURY IN THE UNITED STATES COURTS.-Justice Gray, in deciding the case of the United States v. the Reading Railroad, 123 U. S. 114, says: "Trial by jury in the courts of the United States is a trial presided over by a judge with authority, not only to rule upon objections to evidence, and to instruct the jury upon the law, but also, when in his judgment the due administration of justice requires it, to aid the jury by explaining and commenting upon the testimony, and even giving them his opinion upon the question of fact, provided only he submits those questions to their determination.”—(Vicksburg & Meriden Railroad Co. v. Putnam, 118 U. S. 545. St. Louis Railway v. The Vickers 122 U. S. 360.) We would like for some one to define what a court is in Illinois under our practice. We think that a short definition of a court in Illinois may be as follows:. A court is composed of an individual called a judge assisted by a clerk whose chief duty and functions are to look wise and keep order. He has no power to sum up

a case or explain anything to a jury and the only aid or assistance that he can render them is to mark "given" or "refused" on all instructions or conundrums presented to him by the attorneys in the case.

AMENDMENTS TO THE JURY LAW.-1. We think that the jury law should be amended so as to make it incumbent upon some particular person or persons to prepare a jury list of all persons qualified to serve and have them ready to be drawn from in order to supply the courts with the requisite number for the trial of cases both civil and criminal. The best law that was ever devised may be rendered inoperative by incomIt is not petent persons or by neglecting to execute the same. so essential who shall do this, but somebody should do it, whose mind cannot be distracted by other pursuits or other engagements.

2. We would change the limit of the age of jurors and instead of fixing 60 years as the limit, make it 65. This city, like most of our older cities, is beginning to have a class of men who have through toil and industry obtained a competency at that early period, and are ready to retire although possessed of all their faculties, sound in mind and body, who would be perfectly willing and perfectly capable of performing the duties of jurors. The time has gone by when jurors are treated with unbecoming brutality and made to endure hunger and thirst, heat and cold, without rest or sleep; and therefore we believe that hundreds of men could be found who would be able to render most valuable services to the State and their fellow men, who are now entirely excluded from all participation in the administration of the laws.

3. We would repeal the law making it incumbent upon courts in criminal cases to grant continuances and changes of venue whenever one charged with crime wishes to postpone the day or select his judges. We would leave that matter where it rightly belongs, and that is to the wise discretion and humane instincts of the trial judge, who acting under the solemnities of his oath, is bound to see that each and every human being receives not only a speedy, but a fair and impartial trial. Also that he has compulsory process for bringing his

witnesses into court, and every right which the Constitution and Bill of Rights entitle him to. To say that such a discretion may be abused, is no argument against its use, because every power with which a court is endowed may be subject to abuse.

We would have every nisi prius judge who presides in the trial of a criminal case, invested with the absolute power of controlling the examination of jurors and impanelling the same, and not allow the attorneys in any case to control this matter. Of all the abuses of the present day in the trial of criminal cases, especially capital cases, the abuse of privilege with which an attorney at law is invested, is the greatest. Those who understand this matter know that their main object is to educate the jury to their theory of the case, and to pledge them in advance to act in their behalf. The vast interests of the public are no concern of theirs. They are there to win, and to win at all hazards, and under all circumstances, whether their client is innocent or guilty of the crime with which he stands charged.

5. In order to have a jury trial, as known and understood by the common law, we would allow a judge to take some part in it. In other words we would make it a trial by judge and jury, and when the evidence is all in and counsel has addressed the jury, we would then have the judge take his appropriate place in this great drama, and would have him sum up the case and analyze the evidence. We would have him state the issues, and explain to the jury the relation of the several parts of the case, and the rules of law by which they are governed. We would have him fulfill the high mission which society has appointed for him, and see to it that justice is done between the prisoner at the bar and the people of the State. Let him so execute his office that the jury may, in the language of the oath which has come down to us from three centuries' use, "well and truly try and a true deliverance make between the people of the State, and the prisoner at the bar, so help them God."

6. The law in regard to charging an habitual criminal in an indictment, ought to be so changed, that if the direct statement and averment is made in the indictment that said party

is charged as an habitual criminal, it shall be sufficient. The provisions of the New York Code upon this subject, are well worth considering.

7. The law making juries judges of the law and the facts should be repealed. Almost every one that has given this subject any attention, agrees that it is absurd and should no longer be continued. As Chief-Justice Shaw said in the case of the Commonwealth v. Auther, "In my judgment, the true glory and excellence of the trial by jury is, that the power of deciding fact and law is wisely divided; that the authority to decide questions of law is placed in a body well qualified by a suitable course of training to decide all questions of law, and another body well qualified for the duty, is charged with deciding questions of fact definitely; and while each within its own sphere performs the duty intrusted to it, such trial affords the best possible security for a safe administration of justice and the security of public and private rights."

In the case of United States v. Battiste, 2 Sumner, 243, Mr. Justice Story says:

"My opinion is that the jury are no more judges of the law in a capital or other criminal case, upon the plea of not guilty, than they are in every civil case tried upon the general issue. In each of these cases their verdict, when general, is necessarily compounded of law and fact and includes both. In each they must necessarily determine the law as well as the fact. In each they have the physical power to disregard the law as laid down to them by the court. But I deny that in any case, civil or criminal, they have the moral right to decide the law according to their own notions or pleasure."

8. The distinction between misdemeanors and felonies should be more clearly defined, and it should be declared in unmistakable terms that all persons who occupy any fiduciary relation, office of trust or emolument, and who enter into any conspiracy to defraud the public, shall upon conviction be declared guilty of felony, and punished by imprisonment in the penitentiary, not less than one nor more than twenty years. In such cases, and in fact in all criminal cases, writs of error should be taken directly to the Supreme Court, and nowhere else. To take any criminal case to the appellate court, where, if the case is reversed the State has no right of appeal or right