Mr. Yeaman to Mr. Seward.
Sir: An interesting question discussed at the present session of the Danish Rigsdag has been the proposal to introduce and adopt the trial by jury for the administration of justice in criminal causes and political offenses. Here, as in France and some other countries of Europe, the custom is adhered to of questioning the accused, a practice so inadmissible under the reasoning of the common law. And here, in the ancient cradle of the jury system, the accused depends upon the judges before whom he is tried for his acquittal or condemnation. The jury system, which had been falling into desuetude for some time previous, almost entirely disappears from the Danish code of 1683. The present course of justice in Denmark is so careful, painstaking, and in the main so impartial and satisfactory, that the proposal to restore trial by jury is believed not to be made so much with the expectation of improving its administration, as on account of the supposed value of the trial by jury as a political element and safeguard. The party of advanced liberalism in Europe are not mere levellers, undiscriminating and frantic worshippers of equality, suffrage, and democracy. Many of them are learned jurists, duly conservative as well as liberal. They know the political influence which trial by jury has exercised in developing, and, at times, saving liberty in the countries where that mode of trial had been introduced by Scandinavian invaders and immigrants many centuries ago; and it would now be a curious historical incident, an almost unexampled restoration of a jurisprudential polity once changed or abandoned, if Denmark should now borrow or rehabilitate that which she had given to others and lost to herself.
The new constitution of Denmark, adopted in 1866, provides for trial by jury in criminal causes and political offences. The French text in the published translation authorized by government is: “Le jury sera applique en matiere criminelle et pour les delits politiques.” I can form no opinion of the original Danish text, but it appears that the present government regards the constitutional provision as enabling, as being a grant of legislative power, and not as an obligatory command. The cabinet feel disinclined to sudden and material alterations in the forms and means of judicial procedure, alterations which certainly should be received with great caution in every country, and, without rejecting the proposal to introduce trial by jury, they do not feel prepared to indorse any formulation of it which has been offered, and while there is a considerable party advocating the measure in the Rigsdag, it seems probable that no proposition can be adopted without ministerial support. The discussion has ended in such way as to indicate that nothing more will be done this session.
The jury system, in different forms, can be traced among the Gothic Scandinavian nations as far back as there is any authentic history or tradition of their institutions. It is not improbable that the germs of it [Page 82] were brought from central western Asia, between the north bank of the Indus and the eastern shore of the Caspian sea, as a tribal institution, by the followers of Odin. This can never be known with certainty, though contended for by learned scholars. But it is known that for centuries after the arrival of these fierce, liberty-loving people in northern Europe, personal combat and vengeance, family and hereditary feuds, natural and individual warfare, were so common as to be deemed an evil even by tribes who deemed it disgraceful for a man to die a natural death—falling in war being the surest admittance to their mythological heaven. The “price” paid for wounds and various other injuries, the origin of our fines and damages, and the judgments of the “Things,” said to derive their name from the function of speaking or pronouncing, are the first rude points around which civil law and social order, as distinguished from organizations for predatory warfare, began to form themselves, and by means of which the unbridled natural remedy of personal warfare was gradually taken from the individual and consolidated into the right and duty of society to punish for all offences. Things were of different sorts; some political, some judicial, but more generally, as the Althing, combining the two capacities. The judicial Thing was nearly always composed of men who acted both as witnesses and jurors, being preferred on account of their knowledge of the facts, though the requisite qualifications of disinterestedness, and being a “housekeeper,” are as old as the faintest lights of northern history.
These Gothic Things, so long existing among the Normans, Danes, Jutes and Angles of Scandinavia, (all of whom may correctly be called either Goths or Norsemen,) the custom of selecting “good men,” at first to hear the law recited and then decide the facts, but later to decide both law and facts, then to declare or ascertain the law, then again to amend the law, to “swear” (adjudge) the truth in disputed cases, and at times to grant, not to levy taxes or subsidies, are indisputably the origin of the English and American grand and petit juries, and are nearly as plainly the mother germ from which has sprung our entire system of organized representative government. The convention or parliament of selected twelves, called by the conqueror to ascertain and authenticate the Saxon laws in force previous to his advent, the House of Commons, Congress, every State legislature, every township council or board, are the political fruits of this ancient Gothic institution. The ethnological term “Anglo-Saxon” may be correct enough for general designation when applied to the mass of the people of England and the United States; but as a political term applicable to English and American institutions, it is not accurate. The Saxons were certainly allied, both in blood and institutions, to the pure Goths of Scandinavia. But among the Saxons on the continent, and even among the Anglo-Saxons when they had succeeded the Romans on the island, there was more of aristocracy, more of slavery, less of the jury system, less of vox populi than existed during the same ages among the Northmen, Danes and Jutes, and who, by their irruptions, settlements and temporary conquests, planted their institutions among the people of England. As an institutional or political term, Anglo-Gothic, Anglo-Norman or Anglo-Scandinavian, would either of them be more accurate than Anglo-Saxon.
The unanimity required in the verdicts of English and American juries was not required among the Gothic nations, where majorities rendered the verdict, except among the Normans after they went to Normandy in France, but was very probably borrowed from that other and quite different institution, the “wager of law,” by which the accused could acquit himself by procuring a certain number of men, selected by himself, [Page 83] to swear unanimously that he was not guilty, which generally meant that they did not believe he was guilty, a form of trial made more common among the Saxons than the jury, and was also known in Scandinavia, where it was not deemed so “lawful;” that is, not having so much of the force of a law as the verdict of a jury had.
In Sweden the jury exists to-day as it has for a thousand years or more. A verdict is given by one-half the jury, or any greater proportion, and the judge, or by a unanimous jury against the opinion of the judge, there being no verdict when a majority are opposed to a minority and the judge. From Norway the jury was carried by emigrants in the ninth and tenth centuries to Iceland, and by Rollo and his followers to Normandy. In the Sagas, the repositories of the history, the law, the tragedy, the poetry and the literature of the Icelandic republic, the freest and most cultivated community of the dark ages, there are regularly, reported trials a century before Hastings was fought, and several centuries older than the oldest Year Book of English cases. In these curious and mixed records the summons of the jury, arraigning the accused or the defendant in a civil action, challenge of the panel, challenge for cause, the declaration, pleas, demurrers, non-suits, outlawry and shrewd objections to the competency of witnesses and of evidence, all distinctly appear, delivered orally by men learned and renowned in the land. The replication, the rejoinder, the rebutter and sur-rebutter do not appear, but enough is seen to indicate unmistakably where our system of common-law pleadings comes from. It is known that some of the neighboring provinces and cities in France borrowed their intricate but accurate pleadings from Normandy, while the Normans were learning to dress their own law and pleas in the rude French dialect of that province, the conquerors, as usual, imposing their own laws and learning a new language.
If the jury system of Scandinavia has not performed the pointed part which it occasionally has in England, as in the trial of the seven bishops and the prosecution of the publisher of the North Briton, No. 45, it has yet sown the seeds from which have sprung and been slowly developed all the most valuable of modern political institutions. In most of the states we have discarded the English custom of the judges “summing up,” sometimes artful, sometimes insolent, generally fair, and seldom of any real service to justice. We could now consider whether absolute unanimity may not safely be dispensed with; whether, alter all, the value of the jury is not mainly political and not judicial; whether it is not less a necessity in a perfectly free community than in one composed of the three orders; whether its functions have not in great part been discharged, and that in future it is to be simply a preservation and safeguard instead of a forming and guiding influence—that is, whether its future function is not conservative instead of progressive, and therefore whether we may not well limit its application to penal, criminal, and political causes and actions arising in tort, leaving all matters of account, contract, title, and estates to the courts.
I beg your pardon for the great length of this paper. Strict official duty did not require it; but in giving an account of an interesting question here, confessedly of a semi-political character, I was naturally led into some observations upon the origin and history, the uses and defects, of the jury system.
I am, sir, very respectfully, your obedient servant,
Hon. William H. Seward, Secretary of State, Washington, D. C.