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cide according to the law and the evidence, but who has against his real conviction agreed with the rest of the jury, is made to state in open court, under the sanction of his oath, that "this was and is his verdict.”
There was a time when people were “convinced” by the persuasion of the rack and the gibbet, the stake and the dungeon. We all glory in a civilization which looks upon such methods as barbarous; and still we maintain a system by which, in case of a disagreement, the result must be either an absolute failure of justice, or else the dissenting juror is "convinced” by means differing only in degree, but not in principle, from those barbarous methods. For, while jurors now-a-days are not subjected to the strange logic of hunger, cold and darkness, while deliberating upon their verdict, still their imprisonment in a room for hours, or sometimes for days, deprives them of some of those conveniences which almost amount to necessities of life. Many a juror will, urder such circumstances, "give in,” for the mere eake of going back to his work, to the circle of his family, to his business and to his accustomed surroundings.
If you will pardon the allusion to a recent celebrated cause, there is no doubt that the verdict finally rendered in the Cronin case was not in accordance with the conviction of a single one of the twelve jurors. If the reports of the newspapers can be believed, eleven men voted for hanging, the twelfth man for acquittal; still, on the polling of the jury, each juror was compelled to prostitute his solemn oath by the declaration that the verdict rendered was his verdict.
And why should we hesitate to accept a verdict in which a small minority does not concur? If you exhibit a certain physical object to the view of twelve men, eleven of whom pronounce it to be blue, while one man claims that it is black, will any sane person doubt for a moment that the one man is color blind? And if, at the end of a trial, eleven jurors say "guilty," and one says "not guilty," can there be any less doubt that the one man must be morally or intellectually color blind? Whatever you choose to call the particular defect, be it corruption, crookedness, crankiness, stubborness or stupidity, the one man, or the small minority, is ab. normal, and presents the case of mental aberration. If you deny this, you might just as well open our insane asylums and our penitentiaries, and, in the place of their present inmates, shut up all the rest of the people as either intellectually or morally wrong.
The absurdity of the requirement of unanimity consists in the fact, that it gives one single mind equal weight with that of eleven; its unsoundness in the fact that eleven honest and intelligent men may be defeated by one fool or crank; its moral deficiency in its constantly holding out a premium to the professional jury fixer. Men conversant with the art of packing juries are probably to be found at the bar of every large city. That attempts at jury bribing are constantly made is a fact too well known to be ignored. Upon this subject and its relation to the unanimity rule, nothing more sensible or forcible can be said than the following, which I quote from Jeremy Bentham's Essay on the Art of Packing Special Juries. He says: “Of the efficacy of the system of corruption, of which the institution of a special jury is the instrument, our conception would be very inadequate, if the force given to that engine by the obligation of what, in the case of a jury, is called unanimity, were not taken into account. But for this feature, for any purpose of corruption, a majority, or at least half of the twelve, all corrupted, would have been necessary; under and by virtue of this feature, one, any one, gained and properly armed, armed with the necessary degree of patience, suffices.
“If the mode of forming verdicts had been the work of calm reflection, working by the light of experience, in a comparatively mature and enlightened age, some number certain of affording a majority on one side, namely, an odd number, would, on this as on other occasions, have been provided. But the age in which the mode of forming verdicts was settled, being an age of remote antiquity, of such high antiquity, that nothing more is known of it, except that it was an age of gross and cruel barbarism, the course taken for the adjustment of that operation was different, and compared with anything that was ever exhibited in any other nation, no less extraordinary than it was barbarous. The whole body of these assessors, twelve in number, being confined together in a certain situation, and in that situation subjected to a mode of treatment, under which, unless in time relieved from it, being sure to perish, subjected to this torture, but in the case of this as of other torture, with power to relieve themselves from it, in the present instance by declaring, each of them, the fact of his entertaining a certain persuasion (the persuasion expressed by their common verdict), whether really entertained by him or not; in this way it was that a joint decision, called a verdict, expressed by a predetermined word or form of words, was on each and every occasion extorted from the whole twelve. Such for the declared purpose of securing truth, veracity, vere dicta—for making sure that on the sort of occasion in ques.' tion, whatever declarations of opinion came to be made should be true-such was the expedient invented in the 13th or 14th century-such was the course which still in the 19th continues to be pursued.
“But though what never can happen, is, that by a quantity of bodily pain or uneasiness, any real change should be produced in the opinion formed by any human being on a subject that has no natural connection with that pain or uneasiness, yet what may be very easily and will naturally happen, is, that either by the eventual assurance of any given quantity of pleasure, or, what comes to the same thing, by the assurance of having at command a given quantity of the instruments of pleasure in any shape, or by the eventual apprehension of any given quantity of pain or uneasiness,-a disposition may in a bosom soothed by that assurance, or galled by that apprehension, be produced, a disposition-yes, and moreover an effective determination—to submit to the pain, for a greater length of time than any during which the same pain will be submitted to by a bosom not acted upon in either way as above."
So far Bentham. Of course the argument is sometimes made that an unscrupulous party to a suit, or his counsel, may succeed in bribing three or four jurors as well as one. But it seems to be too plain for argument that it is immensely easier to corrupt one man than it is to corrupt three or four. Where the dissenting voice of one single juror suffices to bring about a mistrial or an absurd or unsatisfactory compromise verdict, the temptation to resort to bribery is very great indeed.
On the subject of compromise verdicts an abundance of cases may be found in the books of reported decisions, wherein verdicts were reached by drawing lots, tossing up shillings, or some other such method of chance. Many a verdict had to be set aside, because it could not be justified upon any hypothesis presented by the evidence. I remember, e. g., reading of a case in which a suit was brought upon a promissory note for $500; the only defense was the denial of its execution;
still the jury brought in a verdict for $250, which had to be set aside, and a new trial was ordered. This is simply an illustration of one of the many cases reported in the books, but of the number of cases in which jurors resort to such means of settling their differences without its ever coming to light, no adequate idea can be formed. The verdict does not always bear upon its face the evidence of the tricks adopted; in most of the cases the jurors themselves are the only persons cognizant of the transactions in the jury room, and according to a well established principle, the affidavit of a juror cannot be received to impeach his verdict.
So far as original cases are concerned, the principle of unanimity is usually defended upon the ground that, if there is one juror among the twelve whom the evidence has failed to convince of the guilt of the prisoner, there exists such a reasonable doubt as ought to preclude a conviction. If this argument were sound, then it should follow, as a logical consequence, that whenever one juror does not believe in the guilt of the accused, he should be acquitted. But no; even if eleven men vote for acquittal, and only one holds out for conviction, the defendant cannot be acquitted, but, under our system, must be again tried. In the case just put, there would appear to be not only a reasonable doubt of the guilt of the defendant, but on the contrary, there would hardly be any reasonable doubt of his innocence; still the law requires that the defendant be again put in jeopardy.
There are, unfortunately, no statistics as to the proportion of mistrials resulting from disagreements; but from my own observation and reading, I know that the number is appalling. In any case presenting complicated questions of fact, not supported on either side by any but circumstantial evidence, it might easily happen that no decision could ever be reached. I know of one suit for damages against the C., R. I. & P. R. R. Co., now pending in the Superior Court of Cook county, in which four successive trials have resulted in disagreements.
A similar result, in a criminal case, would be a matter of greatly aggravated seriousness. Suppose, e.g., that in the trial of the Cronin murderers, recently had in the city of Chicago, the one juror, instead of forcing the others to a compromise verdict, had held out for acquittal, and the jury had been discharged for lack of unanimity, this would have necessitated a new trial. How many men in Cook county-nay, how many men in Illinois, would be competent for jury service in such new trial ? With the exception of illiterates, I do not believe you could find one out of a thousand men who has not eagerly scanned the newspapers every day throughout the trial for the evidence produced in court, and who has not formed a decided opinion as to the guilt of the accused, based upon reports of sworn testimony. All these men, however, would be incompetent under the laws of our State. It might take many years and cost the county a million dollars to procure a jury; the fear of being kept in practical imprisonment for so long a time would prompt men, even if perchance competent, to disqualify themselves by untruthful answers; and if one hundred competent men could possiby be discovered in Cook county during a search of years, the defendants could peremptorily challenge every one of them. In other words, a disagreement of the jury in the Cronin trial would have meant an eventual absolute failure of justice, and the escape from all punishment of the perpetrators of a brutish murder, for the like of which we may search in vain among the annals of crime of the century.
But the escape of the criminals in a case of that character, is not the most serious consequence. Another result, more to be dreaded, more to be deplored, is the de
moralizing effect upon the community. It tends to destroy the faith of the people in the power of the arm of justice, in the efficiency of the safeguards provided for the security of the citizens, in the certainty and swiftness of criminal justice. It tends to embolden the criminal classes, it breeds contempt for the law, it provides food for the disciples of anarchy.
Just observe the inconsistency of our system. We exact unanimity of juries. But suppose the judgment of a nisi prius court is removed to an appellate tribunal, by appeal or writ of error, that court not only passes on the rulings of the lower court on matters of law, but likewise upon controverted questions of fact. Suppose that in the Supreme Court of our State, four of the seven judges, a bare majority, affirm a conviction of the lower court, and the other three dissent for the avowed reason that the evidence fails to convince them of the guilt of the defendant, still the judgment of the bare majority rule. And justly so. Or would you provide that the justices of the Supreme Court should be locked up in their conference room, and deprived even of those conveniences of life which a country hotel affords, until they unanimously agree upon a dicision of the case in hand? But what must strike you as ridiculous, when applied to a tribunal of judges, is the very method adopted to compel juries to agree.
Legislative measures affecting the welfare and happiness of the people at large, the adoption or the rejection of the most vital constitutional amendments, peace and war, affecting the lives of thousands, nay, millions of people, are decided upon by bare majorities.
No unanimity is required in grand juries, though upon their decision depends whether a man's life should be put in jeopardy. No unanimity is required to impeach the President of the United States. On a trial before the English House of Peers, a bare majority is sufficient, provided it consists of at least twelve. A person tried by that tribunal may be sentenced to death by a House consisting of twenty-three Peers, twelve of whom declare him guilty on their honor, while the other eleven declare him not guilty under a like sanction.
In spite of all these analogies we continue to place it in the power of one corrupt man to pollute the fountain of justice, to defeat the ends for which courts are organized, to upset the judgment of eleven honest and intelligent men, and to make jury trials a mockery.
The rule of unanimity may have worked well enough in olden times, when competent jurors were easily obtainable; but in our age of a free and enterprising press, which daily supplies millions of people with intelligence on all the details of every important event, it is an obstruction to the administration of justice, it is fruitful of litigation, it retards justice and it shields crime.
The system may also be accompanied with less evil results in England, where the average material for jury service is of a higher standard, and where the judge's charge, discussing as it does, the evidence in all its bearings, is of so great signficance and influence, that on an average,'the jury find their verdicts without leaving their seats in about 80 per cent of the cases.
But altered circumstances, resulting from the march of progress and the development of civilization, should result in appropriate change of legislation. You have abolished slavery and returned to manhood three millions of people, you have made important innovations in social laws, you have emancipated woman from her former inferior position, and admitted her to the rights of individual proprietorship and the practice of learned professions. You are constantly concerning yourselves with the improvement of the condition of the laboring classes. You have succeeded in removing the school from the influence of the church. You have adopted compulsory education laws. You are at the head of all the people of the earth in devising useful inventions and putting them into practice. You are in the front rank of the nations in every matter of progress and civilization; only in the matter of the administration of the law, you stand with at least one foot in the slum of the middle ages. You have broken in practice with the barbarous treatment of subjecting jurors, while deliberating, to hunger, thirst and cold; why not break with another relic of barbarism, and give up the senseless rule of unanimity?
The rule of decision we should adopt when we have once abolished the principle of unanimity, is a matter with which our Legislature will have to concern itself, after you have once paved the way by a constitutional amendinent. I, for one, after having given the matter considerable thought, and influenced partly by the successful working of majority rules in European countries, am in favor of the adoption of a law giving the verdict of a two-thirds majority the effect of a valid verdict. At the same time, for the purpose of securing proper deliberation by the jury, some such safeguard as that suggested by ex-Governor Koerner might be adopted. In criminal cases, unless at least two-thirds of the jury agree upon a verdict of guilty, the defendant should be acquitted ; and in capital cases I would favor a proviso that the death penalty should not be inflicted unless the jury unanimously agree upon a verdict of guilty.
These, of course, are simply suggestions. My main purpose was to point out the evil. The discovery of the proper remedy is a task well worth the exertions of the best minds of the people. What I desire to impress upon you, what I beg of you, one and all, to help agitate and bring home to the understanding of the people at large, is the fact that the requirement of unanimity tends to make jury trial a reproach to free government, and an impediment to the due administration of justice; and that, without a change, the entire institution, which we all cherish as one of the noblest birthrights of an American citizen, as one of the arch-pillars of our liberty and security, may eventually fall into disrepute, and possibly into desuetude.