271 Pa. 378 | Pa. | 1921
Opinion by
In this case, the court below quashed an indictment, charging the defendants with murder, because a woman served on the grand jury which found the bill. The Commonwealth has appealed; and this brings before us the important question whether women are eligible as jurors in Pennsylvania.
It is conceded that, under the 19th Amendment to the Constitution of the United States, women are given the right to vote, and are therefore electors; but the oyer and terminer held that the provision of our Constitution (article I, section 6), — “Trial by jury shall be as heretofore and the right thereof remain inviolate,” — preserves in this State trial by jury as it existed at common law, and that neither the federal amendment nor its effect upon the Act of April 10,1867, P. L. 62, providing for the selection of jurors, alters the ancient rule that men only may serve.
Let it be noted that what we are called upon to determine is the composition of juries, so far as the qualifica
At the time the provision we are considering was placed in Pennsylvania’s first Constitution, in 1776, justice had been administered in the Commonwealth according to English forms for about a century. Does the word “heretofore” refer to jury trials as conducted in England or in Pennsylvania? We find the method of selecting juries and the qualifications of jurors, at the time of the promulgation of this Constitution, September 28, 1776, was regulated in Pennsylvania and in England by legislation and not by the common law, in the latter country by the Act of 3 George II, c. 25; 3 Blackstone 361.
Under the laws of the Duke of Yorke, April 2, 1664, (Duke of Yorke’s Book of Laws, 1682-1700, page 33), which were in force in Pennsylvania, it was provided, for the summoning of jurors, that the constable shall warn so many of the overseers to attend as jurymen and return their names to the under sheriff. It was also provided “No jury shall exceed the number of seven, nor be under six, unless, in special causes upon life and death, the justice shall think fit to appoint twelve.” By an amendment (Duke of Yorke’s Book of Laws, p. 69) it was provided, “In all cases to be tried by juries at the General Court of Assizes the number of jurors shall be twelve, but at the several Courts of Sessions the same number is sufficient as already in the law is set forth.” “The Frame of Government of the Province of Pennsylvania,” confirmed by the first provincial council May 5, 1682, provided: “Eighth. That all trials shall be by twelve men, and as near as may be peers, or equals, and of the neighborhood, and men without just exception” (Duke of Yorke’s Book of Laws, 1682-1700, page 100). “The Great Law or the Body of Laws” of the Province of Pennsylvania passed at an assembly held in Chester, December
Following the adoption of the Constitution of 1790, the legislature provided the method by which jurors should be selected. By the Act of March 29, 1805, P. L. 183, chapter LXV, “An Act directing the mode of selecting and returning jurors,” it was enacted, that “in each county of this Commonwealth the sheriff and county commissioners, or any two of said commissioners, with the sheriff, shall meet at the seat of justice at least thirty days previously to the first court of common pleas to be holden in each and every year, and shall then and there select, from the list of taxable citizens, the names of a sufficient number of sober and judicious persons, to serve as jurors at the several courts hereinafter mentioned.” The Act of April 4, 1807, P. L. 124, contained the provisions, “It shall be the duty of the assessors of the several townships and districts within this Commonwealth, and of the assessors of the several wards in the City of Philadelphia, and of each borough, to return the names of all the white male taxable citizens, liable to
The Act of March 27,1865, P. L. 779, entitled “An Act for the better and more impartial selection of persons to serve as juror's, in the several courts of Somerset, Bedford, Fulton, Westmoreland, Perry, Juniata Counties,” required the election of two jury commissioners fot these counties, repealed so much of any acts of assembly as made it the duty of the sheriff and county commissioners to select and draw jurors, and required
Under the Act of April 10, 1867, P. L. 62, section 2, (2 Purdon 2062, placitum 2), which expressly applies to each of the counties in the Commonwealth, except Philadelphia, the jury commissioners are required to select “from the whole qualified electors of the respective county, at large, a number,” such as shall be designated by the court of common pleas, “of sober, intelligent and judicious persons, to serve as jurors in the several courts of such county during that year.” The seventh section of this act exempts Philadelphia from its provisions. The statutory enactment which covers Philadelphia is section 2 of the Act of April 20, 1858, P. L. 354 (2 Purdon 2077, placitum 94); it sets forth: “That prior to the first day of December in each and every year, the receiver of public taxes of the said city shall lodge with the said sheriff, for the use of the said board [of judges], a duly certified list of all taxable inhabitants of the said city, setting out their names, places of residence and occupation ; and, prior to the tenth day of December in each and every year, it shall be the duty of the said board, or a quorum thereof, to assemble together and select from the said list of taxables a sufficient number of sober, healthy and discrete citizens, to constitute the several panels of jurors, grand and petit, that may be required for service in the several courts for the next ensuing year, in due proportion from the several wards of the said city and the principal avocations.”
It will thus be seen that since 1805, when the Constitution of 1790 was in force, the persons charged with the duty of jury service have been fixed, from time to time, by the legislature and have been “taxable citizens,” “white male taxable citizens,” “male taxable citizens,” “taxable inhabitants” and “qualified electors.” This fol
The qualifications of jurors at common law changed and varied. At an early period it was required that a juror should be possessed of some property as a qualification: Proffat on Jury Trials, section 115. At common law, jurors were required to be freeholders and the qualification continued by statute from the time of Henry Y down to that of George II: 20 Amer. Law Register 437. The statute of the 2d Henry V, c. 3, requires jurors that pass upon a man’s life to have forty shillings per annum freehold. At the time of the adop
Just what was the common law right of trial by jury is somewhat difficult to determine and define. Certain it is that in England it was not, in 1776 when our first Constitution was adopted, the same as it had been in earlier times: Proffat on Jury Trials; Forsyth, Trial by Jury; History of the Jury System by Lesser. Magna Charta (1215 A. D.) provided, that no man should be deprived of life, liberty or property unless “by the lawful judgment of his peers and by the law of the land.” While this has been popularly accepted as a guaranty of trial by jury, yet, such trials, in their present form, did not come into existence until some time later; and the phrase, — “lawful judgment of his peers and the law of the land,” — when used, meant nothing more than a guaranty of the right to trial according to one of the then existing modes, — by recognition, compurgation, combat, ordeal, witnesses and other forms then in vogue (Bigelow, Hist, of Proced. 155, n.; Taylor, Due Proc. of Law, sec. 4). In the words of Mr. Justice Williams in Smith v. Times Pub. Co., 178 Pa. 481, 506, “It simply protected Englishmen from the power of secret, irresponsible tribunals and conceded the jurisdiction of the legally established courts over all causes.” The modes of procedure gradually changed, through the centuries which elapsed from the granting of King John’s charter to the founding of the early English colonies in America; at the latter time trial by jury, substantially as we know it, had replaced the other forms.
That a wedding of modern society to the ancient jury system would not be tolerated is pointed out in Hurtado v. California, 110 U. S. 516, where, after referring to the various ancient modes of trial, it is said (page 530): “When we add to this that the primitive grand jury heard no witnesses in support of the truth of the charge to be preferred, but presented upon their own knowledge,
A careful reading of the words of the section of the Constitution we are considering as it appeared in the Constitution of 1776 shows that it was not precisely similar to its present phraseology. As it first appeared it was “trials” not “trial” by jury shall be as heretofore and the section went on to say, “and it is recommended to the legislature of this State to provide by law against every corruption or partiality in the choice, return or appointment of juries.” This first constitutional enactment on the subject indicates that what was to remain as theretofore was the “trials” of certain kinds of cases and the method of trial; they were to be by jury as theretofore, not by a judge alone, or by some other tribunal, and the trial itself was to be carried on as such trials had customarily been conducted; and, so far as the qualifications of the jurors were concerned, as the
When the section was carried into the Constitution of 1790, it appeared in article IX, the declaration of rights, in its present form, “That trial by jury shall be as heretofore and the right thereof remain inviolate.” It thus appears in the Constitution of 1838 and in the present Constitution. It is evident, however, that what was being guaranteed by these three subsequent instruments was the same thing spoken of in the Constitution of 1776, the right to a jury trial of certain kinds of cases and the method of trial, and not a rigid fixing of the mode of selecting jurors or their qualifications by past standards. If the qualifications of jurors can be fixed only by the Constitution, it is inconceivable that the right of the legislature, to determine what they shall be, has not been challenged from the foundation of our preS ent state government until now.
Without feeling called upon to determine what other matters the word “heretofore” in the Constitution of 1873 refers to, we do say that when that instrument was adopted the uniform method of selecting jurors and determining their qualifications was by legislation, both here and in England. This was known to the framers of the first and all succeeding Constitutions, in the first being specifically recognized, and, in guaranteeing the right of trial by jury, it and all the others did not in any way limit the legislature from determining from time to time how juries should be composed.
/We have then the Act of 1867, constitutionally providing that the jury commissioners are required to select “from the whole qualified electors of the respective county......persons to serve as jurors in the several courts of such county,” and the 19th Amendment to the federal Constitution putting women in the body of electors. “The term ‘elector’ is a technical, generic term, descriptive of a citizen having constitutional and statutory qualifications that enable him to vote, and including
Summing up, we conclude, (1) there-^as no absolute and fixed qualification of jurors at common law, and from very ancient times their qualifications were fixed by act of parliament; (2) the qualification of jurors was not the thing spoken of by the section of the Constitution under consideration; (3) the words “as heretofore” in that section refer to the kinds of cases triable before juries and the trial, not the qualifications of the jurors; (4) the designation “qualified elector” embraces all electors at the time jurors are selected from the body of electors; (5) the term “electors” embraces those who may be added to the electorate from time to time.
While it is true the Supreme Court of Massachusetts, in giving an advisory opinion to the legislature of that state (In re Opinion of the Justices, 130 N. E. R. 685) recently determined that, under its constitution and existing statutes, women are not liable to jury duty, yet the opinion in question holds, as we do, that the qualification of jurors is a matter not constitutionally fixed but within the control of the legislature, and that the general assembly of that state is authorized to make a
The pending case calls for the immediate decision only of the right of women to serve as jurors in those counties which are covered by the Act of 1867. We entertain no doubt, however, that women are eligible to serve as jurors in all the Commonwealth’s courts.
The order quashing the indictment is reversed, and the indictment is reinstated with direction to the court below to proceed with the trial of the defendants in due course.