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mously agree, they are discharged, and the case is tried over again; also, that it is now-a-days left to the discretion of the trial judge to allow jurors such refreshments as will keep them from starvation.
The propriety of the rule of unanimity, even under the modification of its practical enforcement just mentioned, has been a subject of grave doubt in the minds of many enlightened thinkers for more than a century. Mr. Emlyn, as early as 1730, in his preface to the second edition of Howell's State Trials, makes an eloquent appeal for the abolition of the rule. He suggests that if twelve must agree, the better way would be to have twenty-three on the jury, and the verdict be given by the majority, or so far as criminal cases are concerned, that if twothirds of the jury could agree to find the prisioner guilty, he should be convicted, and that if less than that number should vote him guilty, then he should be acquitted.
Mr. Hallam, in the Supplemental Notes to his “Middle Ages," designates the re. quirement of unanimity as a “preposterous relic of barbarism."
The English Common Law Commissioners of 1831, condemn the rule in very positive language, and propose that the jury should not be kept in deliberation longer than twelve hours, unless at the end of that period they unanimously agree to apply for further time, and that at the expiration of twelve hours, or of such prolonged time for deliberation, if nine of them concur in a verdict, it should be taken.
Dr. Francis Lieber, in his "Civil Liberty and Self-Government,” and more particularly in an article in the sixth volume of the American Law Register, likewise condemns the practice of requiring unanimous verdicts.
Judge Cooley, in his edition of Blackstone, characterizes it as "repugnant to all experience of human conduct, passions and understandings,” and further says that it "could hardly, in any age, have been introduced into practice by a deliberate act of the legislature.”
Lord Neaves, an eminent Scotch judge, in an address before the English Social Science Association, in 1870, advances strong reasons against a practice which compels men to agree to a unanimous verdict, when they were really not unani
In 1876, Governor Carpenter, of Iowa, in a message to the legislature of that State, favored the abolition of unanimity, and characterized the requirement as “an antique absurdity, which has too long fettered the administration of justice.”
In the same year, a committee of the Wisconsin legislature reported in favor of submitting to the people of that State a constitutional amendment, empowering a less number than twelve to return a verdict.
I could go on adding innumerable expressions and opinions of other intelligent thinkers, philosophers, as well as statesmen and jurists, who have favored a change of the law with reference to the unanimity of verdicts. The few I have cited will suffice to give an idea of the development and strength of the opposition to the iron rule of unanimity.
Looking now for a moment at the legislation of cther countries which have adopted trial by jury in modern times, we find not a single instance in which verdicts are required to be unanimous. When in 1848, the political revolutions on the European continent brought about a radical change of ideas with reference to constitutional government, the public clamor for the adoption of trial by jury found recognition. The statesmen and legislators of continental countries took the English system as a model, but were careful to adopt only its useful features, and to modify it according to modern ideas. The best minds of Europe devoted their most earnest and anxious thought to the problem involved, and came to the conclusion that each juror should have, above all, the freedom of expressing his real opinion, and voting according to his true conviction, and that therefore, a majority verdict should be sufficient. Thus we find that in Austria, it is provided by Section 329 of the Code of Criminal Procedure, that each juror, after a discussion of the evidence and mature deliberation of all the questions involved in the case, gives his vote of "guilty” or “not guilty.” If at least two-thirds of the jurors vote "guilty,” the defendant is convicted, otherwise he must be acquitted. The foreman of the jury in each case announces the condition of the vote. In France, where jury trials were introduced about a century ago, a similar rule prevails now, after considerable experiments with various other methods. In Germany, it is provided by Sections 305 and 307 of the Code of Criminal Procedure, that the question of guilt submitted to the jurors are to be answered by “yes” or “no." If more than seven jurors answer in the affirmative, it is a verdict of guilty. In order to negative the existence of mitigating circumstances, the vote of more than six jurors is required. In Italy, the law is substantially the same.
In other European countries, the majority rule varies somewhat from the one just cited, but there is not a single country anywhere on the face of the earth, except England and the United States of America, in which the verdict of jurors are exacted to be unanimous.
So far as Scotland is concerned, trial by jury in criminal cases is an indigenous institution. The jury consists of fifteen, a majority of whom decides. In civil cases, trial by jury of twelve men has been introduced in comparatively modern times, by acts of British Parliament. The unanimity rule excited so much dissatisfaction, that finally, in 1854, a change had to be made by act of Parliament. It was provided by 17 and 18 Vict., c. 59, that if in civil causes the jury are unable to agree unanimously upon a verdict, and if after being kept in deliberation for a period of six hours, nine of the jury agree, the verdict agreed upon by such nine may be returned as the verdict of the jury.
By the Code of Criminal Procedure for British India of 1882, Section 302, it is provided as follows: “If the jury are not unanimous, the judge may require them to retire for further consideration. After such a period as the judge considers reasonable, the jury may deliver their verdict, although they are not unanimous.” Section 305 provides, “when in a case tried before a high court the jury are unanimous in their opinion, or when as many as six are of the same opinion, and the judge agrees with them, the judge shall give judgment in accordance with such opinion."
By the Code of the General Assembly of the Bahama Islands, passed April 19, 1843, otherwise known as Statute 11 Vic., c. 21, it is provided that in all criminal cases other than capital, and in all civil cases, the verdict may be found, given and returned by two-thirds of the jury impaneled to try the issues.
Section 1203 of the compiled laws of the Hawaiian Kingdom provides, that when nine of the twelve jurors in civil or criminal cases agree upon a verdict, they may render the same, and such verdict shall be as valid and binding upon the parties as if rendered by all the twelve.
So far as the United States are concerned, there are three States in which, in civil actions, a three-fourths majority is sufficient for a valid verdict. The respective provisions may be found in the Constitution of California of 1879, Art. 1, Sec. 7; the Constitution of Nevada, Art. 1, Sec. 3; the Constitution of Texas of 1876, Art. 5, Sec. 13. In the latter State, that is, in Texas, the same section of the constitution provides that the verdict of a three-fourths majority shall also be valid in trials of criminal cases below the grade of felony.
In Connecticut, it is provided by Section 1103 of the Revised Constitution of 1887, that a legal verdict may be rendered by any number of jurors not less than nine, in any civil cause in which the parties shall agree, in writing, before the rendition of such verdict, that such portion of the jury may render it.
Thus we find that the rule of unanimity has not only not been followed by a single country outside of the United States of America and the British Islands, but that even some of our States, and one of them even in criminal cases, have commenced to depart from the requirement.
Let us consider now what strength of reason there is in the arguments advanced by the defenders of the requirement of unanimity. The ablest statement of these arguments I found in a paper on the subject read by Mr. W. M. Best, in 1855, before the Juridical Society of London. They may be summed up thus:
1. The verdict of twelve men is, by the doctrine of chance and probability, more likely to be correct than that of nine.
This we admit to be true; but if the jury were to consist of, say sixteen, or any number less than twenty-four, and the unanimous concurrence of twelve of them would be sufficient for a valid verdict, we would have the benetit of a verdict of twelve men without the evils of a rule requiring the concurrent opinion of all those composing the jury. On the other hand, if it is true that the verdict of twelve men is more probably correct than that of eight or nine, it must also be admitted, as a logical conclusion, that the concurrent judgment of nine is likely to be more correct than that of a minority of three.
2. It is said that as a necessary consequence of the present rule, each member of the jury, knowing that his individual concurrence in the verdict will be exacted, becomes impressed with a sense of his own personal responsibility in the matter before him, and the imperative necessity of giving to it his undivided attention and the utmost powers of his mind.
This is a very beautiful sentiment; but, after all, does not the oath taken by the juror, if he is at all conscientious, impress him with the same sense of his important duty, and of the grave responsibility resting upon him? Moreover, under the present system, jurors often deposit ballots contrary to their conviction, only for the purpose of sounding the sentiment of other jurors; trial ballots are frequently taken, the voting is repeated over and over again, and each juror knows that his individual vote may not be final, but that he will probably have a chance change it at the next ballot. This practice does not seem to me to induce every juror to carefully weigh all arguments for or against conviction before determining his own vote. On the other hand, his sense of grave responsibility resting upon him will and must be intensified, if he understands that his one and only vote, as under the continental system, cannot be changed at pleasure, but will finally and absolutely decide the fate of the parties to the suit.
3. It is further claimed as a consequence of the rule that it secures a full, free and effective discussion and deliberation of the case by jurymen. To that I reply: Experience teaches that in most cases the jurors' minds are finally made up before they retire for deliberation. The juror who does not leave the jury box with a strong opinion one way or the other is a weak-minded fellow, who will not bother his head very much with the issue of the case, who will vote with the majority every time, and whose judgment therefore of little account. That one or two or three jurors will be able to pursuade the majority that the latter are wrong, is probably a case of the rarest occurrence. They might, by their persistency and superior powers of indurance succeed in tiring the majority into submission against their conviction, but that they should bring about a real change of opinion, is hardly possible.
If, on the other hand, the minority yields, it is either because they have really become convinced of the greater soundness of the judgment—which would simply prove its correctness-or their submission is due, not so much to deliberation and conviction, as to intimidation, exhaustion, fear of censure or weakmindedness, in which case their enforced concurrence adds no strength to the verdict of the majority. But whatever value there is in prolonged discussion and deliberation, might be insurred by law, allowing the reception of a verdict of less than the whole twelve, only after it appears that the jury have made an honest attempt to unanimously agree and have failed. In this respect, the above mentioned statute with reference to civil trials in Scotland contains a valuable suggestion.
In this connection I also desire to quote a suggestion by ex-Governor Koerner, of Illinois, contained in a communication to the Chicago Legal News of February 6, 1869. He is quite outspoken in favor of the abolition of, I quote verbatim now “the illogical unanimity system, which has become a great source of corruption and consequent denial of justice." But in order to insure due deliberation by the jury, he suggests, that "the time when the jury retire should be noted in the minutes of the clerk and the court. A verdict returned within six hours should be unanimous, and signed by every juryman; after that time and within six hours a verdict signed by eleven juryman may be given; after twelve hours and within six hours afterwards, one signed by ten; after eighteen hours and within six hours thereafter one signed by nine, and after twenty-four hour, one by eight may be returned.” Some such course as that proposed by Mr. Koerner would certainly insure the fullest, freest and most effective discussion and deliberation of the case by the jury.
4. The friends of unanimity further argue that the confidence engendered in the public mind in the decisions of a tribunal which speaks with an undivided voice, is so great a benefit that it should not be given up.
As against this argument, I desire to array the records of experience. Whenever, in a case attracting public attention, the jury disagree or return a verdict which bears upon its face the evidence of a compromise, public opinion becomes enraged at the impudence, conceit, arrogance, stubbornness or crankiness of the one or two jurors who would set their opinions against the combined judgment of the majority; the community is unanimous in its judgment that the dissenting voice was the result of corruption or thickheadedness; moreover, the people lose confidence in the administration of the law, in the power of tho machinery of justice to deal fairly between man and man. Disagreements and compromise ver
dicts, more than any other factor, tend to shake the confidence of the people in the effectiveness of our laws—that confidence which is one of the foundations of civil liberty and security.
Let us now examine the arguments against the requirement of unanimity. First of all it ignores the physical fact that all men are not constituted alike.
As men are physically different, and at best only resemble each other, so they will differ in their mental and moral make-up. A great many factors tend toward producing sharp contrasts in the operation of the minds of different people. Different minds present innumerable shades and degrees of intelligence, education, strength of character, power of observation, and judgment of human nature. The opinions of men are influenced to great extent by their preconceived ideas upon matters of religion, ethics, politics. Their judgment is influenced by the peculiar experiences of their lives, by their habits of thought, by their vocations and business. A man's mind is the result of the countless impressions received during a lifetime; and as our experiences and our impressions, our surroundings and associations are different, so our minds and the operation of our minds will become different. Add to that the necessary imperfections of human testimony brought about by imperfect means, or deficient faculty of observation, by want of clear recollection or by the corruption or bias of witnesses. Is it possible that all men should have equal power of discerning falsehood? Is it posssible that the same evidence should have the same effect upon twelve different minds, where there is a controversy upon the facts, with each version supported by proof? Again, we find that many jurors, especially in our State courts, are lacking in intelligence, in principle, or in love of truth, that they are easily led away by the eloquence or fallacious arguments of able advocates, or by statements outside of the evidence, while others are possessed of that keenness of discrimination which will distinguish between evidence and mere claims, between facts and fiction.
There is hardly any important question which occupies the human mind and heart, be it in the field of ethics or philosophy, politics and political economy, art or music, or in any other department except that of the exact sciences, on which there are not two opinions, each strongly advocated and supported. Think of the differences of opinion on such questions as free trade or high tariff, centralized power or State rights, the problem of the emancipation of labor, etc. Why then should it be astonishing that twelve men, taken from different walks of life, should reach different conclusions from the same premises? Think of the difficulties often experienced by a chancellor in deciding controverted questions of fact; and still you expect that twelve men, who come perhaps from weighing butter or measuring calico, should have less difficulty in weighing evidence and measuring the credibility of witnesses, than a trained chancellor, that they should all be alike impressed by the evidence. The result is that, where juries differ, the issue must either be left altogether undecided, the trial must be a nullity, or a verdict will be returned, which, though having the appearance of unanimity, is the result of compulsion or the effect of a compromise which does justice to nobody.
We want truth, Everybody will admit that the due administration of the law requires that each juror should be free to decide according to his own convictions. The word "verdict,” vere dictum, means truth spoken; but a verdict which is the result of an enforced agreement is intrinsically untrue, is a legalized falsehood. The juror who has taken an oath that he will well and truly try the issues and de