The first step in the trial of a case is the securing of a jury. Where (as in the United States Constitution) a jury trial is guaranteed without any qualification, a common law jury of twelve men is meant,11 and trial by a jury consisting of a greater or less number will be a violation of this constitutional right. The same is true if a verdict is allowed to be rendered otherwise than by a unanimous vote.

The selecting of the jury is thus described by Mr. Thompson in his recent work:

"At common law no such thing was known as the preparation of a list of persons who were liable to be summoned to serve as jurors at a succeeding term of court; but the uncontrolled discretion was vested in the sheriff, in the coroner, or in officials called elisors, of summoning such 'good and lawful men' as they might choose under the command of the writ consent entered of record (Desche vs. Gies, 56 Md., 135), by a stipulation in writing signed by the parties and filed with the clerk that the case shall be tried by the court (Love vs. Hall, 76 Ind., 326), by failing to appear at the trial (Leahy vs. Dunlap, 6 Colo., 552); by not filing a notice under a statute of a desire at the trial (Bailey vs. Joy, 132 Mass., 356); by waiving a jury orally in open court (Gregory vs. Lincoln, 13 Neb., 352); by demanding a jury without specifying the issues to be tried by the jury where there are issues triable by the court (Greenleaf vs. Egan, 30 Minn., 316); by failing to take an appeal from the decision of a board of supervisors to the Circuit Court (Tharp vs. Witham, 65 la., 556). The prevailing opinion seems to be that a waiver of a jury at one term will not estop the party from claiming it at a subsequent term (Cross vs. State, 78 Ala., 430), or after a new trial has been granted (State vs. Touchet, 33 La. Ann., 1154); though there are holdings, influenced by statute, to the effect that a waiver once made is a waiver for all subsequent trials. (Heacock vs. Lubukee, 108 111., 641.) It has been held that, although in a case regularly triable by jury the parties waive a jury, the court is not bound by the waiver, but may refuse to perform the office of a jury, without assigning any reason therefor. (Biggs vs. Lloyd, 11 Pac. Rep., 831)." Thompson on Trials, Sec. 2. 11 Thompson vs. Utah, 170 U. S., 349; Maxwell vs. Dow, 176 U. S., 586.

of venire facias.12 This led to enormous abuses, chiefly in the packing of juries and the blackmailing of citizens'13 to remedy which, American statutes have generally provided, with more or less particularity, for the preparation, a given time before the commencement of any term of court, or at other stated periods, of a list of persons, within the county or other jurisdiction, from whom jurors are to be summoned. The preparation of this list is generally, though not always,14 confided to officials other than the sheriff, such as the judges of general elections, or the county canvassers of the votes polled at general elections,15 the trustees of the township or the councilmen of wards,16 other town officers,17 special boards,18 county courts,19 or jury commissioners.20 Penalties are frequently imposed upon the designated officers for the nonperformance of this duty,21 though in respect of the manner of performing it the statutes are sometimes, though not always,22 regarded as directory." 23

"In the Federal courts the practice is now chiefly regulated by a recent statute, which commits this duty to the clerk of the court, and to a jury commissioner appointed by the judge, who shall be a well known member of the principal political party within the district opposed to that to which the clerk belongs."

"From the general list thus selected of persons eligible or liable to serve as jurors at the succeeding term of court, the list of names actually to be summoned, called either the array or panel, is drawn by lot from a box or wheel, at a time and at a place, either in open court or otherwise, upon public notice, by the designated official or officials, and sometimes in the presence of other designated officials, in a designated manner, all the conditions and details of the proceeding being generally prescribed by statute.24 Although, as in the case of the general list,25 penalties are frequently prescribed for failing to make a drawing,26 yet a literal compliance with the terms of the statute is not necessary to the validity of the panel.27 On the contrary the statutes are generally regarded as directory,28 the object being to secure a proper apportionment of jury duty among those liable to perform such duty, as well as to secure impartial juries,29 and the usual presumption of right action on the part of the officials charged with this duty is generally sufficient to cure irregularities in its performance,30 though obviously a general disregard of the essential provisions of the statute may have the effect of vitiating the array." 31 32

12 See Thomp. & Mer. Jur., Sec. 44.

13 Rex vs. Whittaker, Cowp. 752.

14 Code Ala., 1876, Sees. 4732, 4733; R. S. La., 1876; Rev. N. J., 1877, page 532, Sec. 7.

15 R. C. Iowa, 1880, Sec. 234, et seq.

16 R. S. Ohio, 1880, Sec. 5164.

17 G. S. Mass., 1860, Chap. 132, Sec. 6, et seq.

18 Ge. Laws Colo., 1877, Sec. 1877; Sec. 1462.

19 R. C. Md., 1878, Art. 62, Sec. 2. 20 G. S. Ky., 1879, page 573, Sec. 4. 21 Comp. L. Kan., 1879, Sec. 2693. 22 Gladden vs. State, 13 Fla., 623. 23 Forsythe vs. State, 6 Oh., 19.

In order to secure a fair jury each side has the right known as challenging. Challenges are of two kinds: (a) challenges to the array, and (b) challenges to the polls. Challenges to the array are directed against the manner in which the list of jurors have been drawn, and if successful, set aside the entire list.

Challenges to the polls are directed against individual jurors. Such challenges are either peremptory or for cause. Each party is allowed a certain limited number of peremptory challenges which can be used without assigning any reason.

24 See N. Y. Code Rem. Jus., Sec.

1042, et seq. 25 Ante, Sec. 13. 26 G. S. Mass., 1860, Chap. 132, Sec. 37. 27 See Ferris vs. People, 35 N. Y., 125.

28 United States vs. Collins, 1 Woods (U. S.), 499, 504.

29 Rafe vs. State, 20 Ga., 64.

30 Wheeler vs. State, 42 Ga., 306.

31 Cox vs. People, 19 Hun. (N. Y.), 430.

32 Thompson on Trials, Sees. 13-15.

Challenges for cause may be either on account of some general disqualification, or for some disqualification in respect to the particular case. The main grounds for general disqualification33 are,

Lack of the statutory qualifications.

Alienage.

Ignorance of the English language.

Inability to read and write.

Party to another suit at same term.

Prior service as a juror within a stated period.

The most common grounds for challenge on account of disqualification affecting the particular case are:

Member of the grand jury.

Consanguinity and affinity.

Members of public corporations.

Members of private corporations and societies.

Interest in the suit.

Membership in associations for the suppression of crime.

Business relations.

Prior service in the same or a similar case.

Bias, prejudice, opinion.

Conscientious scruples against capital punishment.

Conscientious scruples against capital punishment on circumstantial evidence.

Opinions touching the merits of the particular case.

The allowance of a challenge for cause rests with the trial judge.

23Such grounds will vary in the different states.