Mr. Biddle to Mr. Fish.
San Salvador , April 15, 1873. (Received May 20.)
Sir: Referring to my dispatch No. 116, I have now the honor to present a copy and synopsis of the law regulating trials by jury, approved the 10th day of March last.[Page 815]
After a brief preamble alluding to Article 114 of the constitution creating the system, in cases of grave offenses against the person and properly, and in the exercise of the liberty of the press, it decrees, by Chapter 1, Article 1, that to be a juryman one must have passed thirty years of age, be in the full enjoyment of civil and political rights, know how to read and write, and bear a good character.
By Article 2 these qualifications are to be established before a committee of five reputable persons.
By Article 3 of these, the executive to nominate three and the judiciary two, in each of the departments of the republic.
By Article 4 this committee is to meet annually, on the third Sunday in December, but for present purposes three days after notification.
By Article 5 the committee to make these lists from the official register, &c.
By Article 6 three copies of the names of the qualified citizens to be made, one to be sent to the minister of justice, another to the supreme court, and the last to the judge of the first instance, at the capital of the department. These should express names and residences.
By Article 7 all such citizens are eligible as jurors.
Articles 8, 9, and 10 provide for correction of errors committed by the said committee in the exclusion of aggrieved citizens.
Article 11 excepts from the jury list civil, military, and ecclesiastical officials, the last of all denominations.
By Article 12 no citizen can be juryman in a case wherein he may have acted as police, witness, interpreter, expert, or party.
By Article 13 sufficient excuses from serving are: 1st. Public employment without compensation; 2d. Chronic ill-health; 3d. Being beyond seventy years of age; 4th. Great poverty, so as not to be able to abandon daily toil without great prejudice.
By chapter 2, Article 14, cases of grave crimes against the person and property, so designated in the penal code, and abuses of the liberty of the press are to be tried by jury.
By chapter 3, Article 15, the judge conducting these trials shall be that of the court of first instance of the district wherein the offense was committed.
Article 16 provides that this is not to exclude the usual preliminary action by justices of the peace, &c.
By Article 17 so soon as the judge has notice of the commission of a crime proper for jury trial, he is promptly to collect facts, view premises, and minutely to note every circumstance calculated to throw light upon the affair, under a penalty of ten dollars, &c.
By Article 18 the committing magistrate and the judge are to act in concert conformably to the penal code, solely abstaining from issuing writs for permanent imprisonment, discontinuance, or excarceration, (el anto de prision permanente, el de sobreseimiente, y el de excarceracion.)
By Article 19 the judge must have the compendium prepared at latest within thirty days, under a fine of one dollar for each day’s delay thereafter, &c.
Article 20 provides that legal counsel are to be supplied the prisoner, &c.
By Article 21 six days’ notice of these preliminaries are to be given to the fiscal or syndicate, and to the counsel for the defense, that proofs and allegations may be prepared.
By Article 22, in libel cases, the judge shall initiate process against the printing office, and shall cite the publisher, who may present the [Page 816] original article signed by its author, or person guaranteeing the same, in which event after procedures shall be had against the original writer.
By Article 23 a day is now to be fixed by the judge for the drawing of lots for the jury.
By chapter 4, Article 24, the time having come, the judge, in the presence of the culprit and his counsel and of the prosecutor and syndicate, shall deposit in a sack, on equal scrolls, the names of the jurors contained in the list referred to in article 6.
By Article 25 the omission of any of their names at the time of casting lots vitiates the whole.
By Article 26 ballots are then to be drawn for nine jurors, and five supplementary ones to form the tribunal.
By Article 27 each party in the ballotting can peremptorily challenge five jurors, &c.
By Article 28 the joint number of prosecutors or of defendants shall be considered as one person for the purpose of peremptory challenges, &c.
By Article 29 the above formalities having been executed, a formal statement thereof shall be signed by the judge and the parties, if they can write, certified by the notary public or secretary.
By Article 30 the judge is immediately to issue an order directing that the jurors selected be cited, designating the place, day, and hour for assembling.
By Article 31 the jurors shall be cited through written and timely notices.
By Article 32 each delinquent juror shall be fined ten dollars for the first offense, twenty for the second, and fifty for the third. The fine to be imposed summarily and applied to the national treasury.
By Article 33 the fine can only be remitted by justification within the third day of unavoidable prevention, independent of volition.
By Article 34, in the event that one of the jury be detained, or may have been legally challenged, shall have died, or may not have assembled, he shall be re-emplaced by the supplementaries, according to the order in which they were designated by lot.
By Article 35, the jury having assembled to the number of nine, they shall proceed to elect from themselves a president and vice-president.
By Article 36 the notary or secretary of the judge shall act as secretary of the tribunal.
By Article 37, the court thus organized, the following oath is to be administered by the judge: “You do swear and promise before God and before men to examine with the most scrupulous care the charges which are preferred against N. N.; not to betray neither the interests of the accused nor those of the society which arraigns him; that you will not communicate with any individual until the rendition of your verdict; that you will not be influenced by hatred, by antipathy, by calumny, by fear, nor by affection; that you will determine according to the weight of evidence, following your conscience and conviction, with the impartiality and firmness which becomes a man, honorable and free.”
Each one of the jurors, commencing with the president, called individually by the judge, shall reply, raising the hand, “I swear it.”
By Article 38, thereupon the judge shall withdraw, and the president, occupying the post of honor, shall declare in a loud and measured voice that the trials (debates) are opened.
By Chapter 5, Article 39, at the commencement of the trials the culprit should be present in the prisoner’s dock, in due custody, with his [Page 817] counsel, and the prosecuting officer or syndicate, all having been cited by the judge.
By Article 40 the trials shall commence (which shall be public) by the reading of the process, which the secretary shall make with the greatest deliberation and clearness possible, to the end that the jurors may form an exact judgment of the facts therein contained.
By Article 41, the reading concluded, which may be repeated at the request of the president or of any other of the jury, the examination of the accused shall be proceeded with anew if the tribunal deems it convenient.
By Article 42 the president, as well as the other jurymen, may address questions to the accused which they may deem necessary for the better elucidation of truth. Also, through the medium of the judge, they may summons the witnesses and experts already examined, to interrogate them anew, extend their testimony, or confront them with each other or with the defendant, for which purpose the judge shall have cited them beforehand.
By Article 43, if the prosecuting attorney or the accused may have new witnesses to present, they shall be examined separately, without being allowed to communicate with each other, and a previous oath shall be administered to them by the president, in these words: “You do swear before God and men to declare, without fear or favor, the truth, and nothing but the truth, concerning such facts as you shall be questioned.”
By Article 44 the accused or his counsel may make such objections and observations as they may deem convenient regarding the depositions of the witnesses, but with due moderation, and without interrupting the deponent in the act of declaration; and to that end at the commencement of the trial he should make this intimation: “Neither you (the accused) nor you (the counsel) should say anything against your conscience, nor without the respect due to the laws, and you should express yourselves with decency and moderation.”
By Article 45 the president, in his own capacity or through the judge, may compel a reluctant witness to appear, or one who refuses to testify.
By Article 46, when a witness does not speak the Spanish an interpreter is to be used, &c.
By Article 47 every incident which may arise during the procedures, such as the hinderance or refusal of any of the jurors, insubordination of any witness, &c., shall be determined by the judge without necessarily interrupting the trial.
By Article 48, the examination of the new witnesses being concluded, the attorney-general, or whoever is acting in his stead, should read his statement of the case (alegato,) which should be succinctly framed, stating that he accuses N. of having committed such an offense, under such and such circumstances. Thereupon the defense of the culprit is read.
By Article 49 replications by either side may be made, after which the president shall declare in a loud voice, “The trial is ended,” (terminados los debates.)
By Article 50, the procedures closed, the court-room shall be cleared, the culprit returned to his prison under the usual custody, and the judge shall have charge of the court-room, so that the jury may deliberate without communicating with others outside and without leaving the room until the rendition of a verdict.
By Article 51 the secretary shall record in the process the whole procedure of the trial with the greatest possible accuracy.[Page 818]
By Article 52, when the jury are alone in order to commence their deliberation, the president shall make to them the following intimation, which should be printed in large characters in the court-room, (salon de los debates:) “The law does not exact account from juries of the means through which they have reached their conviction; the law does not prescribe for them the rules by which they are to determine the establishment and sufficiency of a proof; it prescribes to them to interrogate themselves in silence and abstraction, and to seek in the sincerity of their conscience what impression has been made upon their reason by the proofs adduced, both for and against the accused. The law does not say to them, you shall take as truth such a fact, verified by a certain number of witnesses; it asks but one question, which girdles the whole range of their duties, ‘have you a strong conviction?’”
By Article 53, juries shall deliberate concerning the principal fact, and afterward of all its accessories.
By Article 54 the trial, once commenced, shall be uninterruptedly continued until the pronunciation of the verdict.
By Chapter 6, Article 55, the deliberations of the jurors having closed, the president shall propound to them, in their order, the following questions:
- Is the accused guilty of the commission of such a crime? (Naming it.)
- Has the accused committed the crime under such and such circumstances? (Those comprised in the accusation or in the final statement of the prosecuting officer.)
- Has the accused committed the offense under these or those circumstances? (This question is only to be put when in the course of trial circumstances have developed not contained in the accusation.)
- Does such a fact appear proved? (This question is only to be asked when the accused has plead by way of excuse a fact admitted as sufficient by the law.)
- Has the accused acted with understanding in the perpetration of the crime? (This question is to be asked by the president whenever the culprit may be less than fifteen and older than eight years of age.)
- Is such printing abusive of the liberty of the press? (This question should be the first in libel cases.)
By Article 56 the answers to the above questions are given in secret examination.
By Article 57 the decision of the jury, be it in favor of or against the accused, shall be determined by the absolute majority of the votes.
By Article 58 there shall not be expressed in the verdict the number of votes which form the majority, and much less the names of those voting.
By Article 59, after having given in their votes, the jury shall re-occupy their seats, and the president, standing and placing his hand upon his heart, shall say: “Upon my honor and my conscience, before God, and before men, I declare that the verdict of the jury is: Yes, the accused, &c; or, No, the accused, &c.”
By Article 60 the verdict shall be signed by the president and secretary, and be remitted, jointly, with the process and the record of the trial, to the judge.
By Article 61, if the verdict has been absolvatory of the accused, the judge shall issue a writ declaring him free from the charge, and directing that he be placed in actual liberty, if he be detained for no other reason. This writ, as well as the verdict, shall be notified to the parties.[Page 819]
By Article 62 one thus acquitted cannot be again tried for the same act.
By Article 63, if the accused has been found guilty by the verdict, the judge shall inform the parties thereof, and emit the order for imprisonment, &c., without appeal.
By Article 64, within the third day after the making of the notification, as by the preceding article, the prosecuting officer shall ask of the judge the application of the public penalty and the personal indemnification. The judge shall give hearing to the defendant and his counsel concerning this petition for three days.
By Article 65 neither the accused nor his counsel can allege in their contestation that the facts are false, since the verdict has foreclosed that manner of defense; but if they can maintain that the act or acts are not crimes under the law, that the punishment asked by the prosecutor is greater than the offense deserves, that there is no obligation to pay pecuniary indemnifications, &c.
By Article 66, the parties being heard, the judge, within twenty-four hours following, shall assemble the parties and pronounce sentence conformably to right.
By Article 67 the judge’s sentence should conform to the general distributions.
By Article 68, from the verdict of the jury no recourse can be had, save under the plea of nullity before the court of the second instance.
By Article 69 there is only nullity in the verdict of a jury in the folio wing cases:
- For the omission to place in the wheel (insacular for the judge one or more of the names on the list which comprises the jurors selectable.
- When the jurors have not taken the oath prescribed by law.
- When the jurors have communicated with outside persons before verdict.
- When the defendant has been deprived of legitimate modes of defense.
- When any of the jurors is incapable to act according to Article 1 of this law.
- When the verdict extends to other points which may not be included ‘in the questions of Article 55; and
- When five votes do not unite for the verdict—the necessary number.
By Article 70, in case of the verdict being declared void by the chamber of the second instance, the judge will cite anew the parties before whom he will verify the names of the selectable jurors, omitting only those whose verdict was declared void, and the same process as before shall be continued, as if nothing had been done.
By Article 71, from the decisions of the judge all ordinary and extraordinary recourses are admitted which the law permits, recourses which are sustained with the same limits prescribed by the criminal code for the other causes not subjected to the jury system.
By Chapter 7, Article 72, when the present law is defective in regard to some procedures, or has not provided the mode of settling some contingencies, the judge shall conform to the dispositions of the codes in force.
By Article 73, in places where there is no prosecuting attorney (fiscal) the municipal syndicate shall act as such.
By Article 74, when a cause has been initiated by the judge of first instance, he not being of the capital of the department, he will remit to [Page 820] the judge there, so soon as he has finished the summary, the accused, with a requisition so that he may conduct the further proceedings until the jury pronounces its verdict, and then the case is to be returned to the judge making the requisition.
By Article 75, when in the capital of the department there may be two judges of the first instance, the senior judge shall act unless legally prevented.
By Article 76, all the procedures in these trials shall be written on white paper, and the costs, upon condemnatory sentence, shall be paid in the same form as in other criminal causes.
By Article 77, when the verdict is absolvatory, although the plea of nullity should be interposed, it will still be executed by the judge, the accused being only held to bail, while the court of second instance decides as to the nullity.
By Article 78, all criminal jury cases pending before the court of first instance at the time of the publication of the present law, not having been finally disposed of, will be submitted to the jury system established by this law.
By the 79th Article, in the secret balloting referred to in Article 59 each juror will receive two tablets, on one written Yes, and on the other No. On voting each juryman will deposit in its receptacle the tablet which in his conscience answers to the question asked. The remaining tablet after the balloting will be placed in the bag with similar precaution.
By Article 80, the balloting over, the president, with his secretary, and in the presence of the other jurors, will proceed to the inspection of the votes.
By Article 81, if the offense is for the abuse of the liberty of the press without meriting official procedure, all process will be made through the private prosecutor.
By Article 82, whatever be the nature of the offense for which official procedure is instituted, the accuser’s legal representatives or relatives have the right to co-operate in the accusation, forming one party with the prosecuting attorney.
Article 83 suppresses certain expressions in the 14th Article of the law for the press.
By Article 84, if some of the proofs in the summary should be rejected as null before the jury for the non-observance of the required formalities by the code, and if they cannot be rectified immediately, they may yet be considered by the jury.
By the 85th all laws inconsistent herewith are repealed.
Thus has Salvador been the first of the states of Central America to introduce into her jurisprudence trial by jury, although it is limited to prosecutions for public wrongs and to cases involving the liberty of the press.
The law above sketched has its peculiar features—a jury with president, vice-president, and secretary, composed of nine members, of whose votes a majority only being necessary to a verdict.
The principle of the common law that in criminal and libel cases juries are the judges both of law and facts, seems to be pretty well interwoven with this statute, and its main features correspond with those of the great system which has satisfactorily dispensed justice to so many millions from the days of Alfred to this hour.
I have, &c.,