Western Reserve chronicle. [volume] (Warren, Ohio) 1855-1921, 1867-10-09

that the Judges of the fact and those
of the law must be distinctly separated.
The Judge, in the French trial. takes
part in the trying, frequently offensive
ly so. He is the chief interrogation; he
intimates, and not unfrequentiy insinu-
ates. This would be wholly repuenant
to our conceptions and feelings. and,
may the Judge foreverzkeep with the
American and the Enghsh people his
independent, high position between
and above the parties
"0n the other hand, what is unani-
nifty worth when it is enforced; or
when the jury is out any length of
time, which proves that the formal
unanimity, the outward agreement,
is merely accommodatiye unsnimity, If
l may make wordl Such a verdict
is not an intrinsieslly truthful one the
unanimity is a real 'afforcement,' or
artificial. Again, the unanimity prin-
ciple puts it in the power of any re-
fractory juror, possibly sympathizing
more with crime than with society and
right, to defeat the ends of Justice by
'holiing OUT Every one remembers
cases of the plainest and of welLproVed
strocity going unpunished because of
one or two jurors resisting the others,
either from positively wicked motives,
or some maWkish reasons which ought
to have prevented them from going in
to the jury box altogether.
81 ask then, why not adopt this rule:
Each Jury shall CONSIST Of twelve Jurors,
the agreement of two-thiIds of whom
shall be sufficient for = verdict in all
cases, both civil and penal, except in
capital cases, when three fourths must
agree to make verdictvalid. But the
foreman. in rendering the verdict, shall
state how many Jurors have agreed.
81 have hever heard, nor seen in
print, any objection to the passage
above alluded to, in which have sug-
gested the abandoning of unanimity,
than this, that the people, the crimi-
nal included, would not be satisfied
with verdict if they knew that some
jurors did not agree As'to the crimi-
nal, let US leave him alone. l can as
sure all persons who have investigated
this subject less thanI have, that there
are very few conyicts satisfied with
their verdict. Tbs Wosst among them
will acknowledge that they have com
mitted crimes indeed, but not the one
for which they are sentenced or they
will insist upon the falehood of a great
deal of the testimony en- which they
are convicted, or the llegality of the
verdict. G tH'--5
"The objection to the non-unanimity
principle is not found en- any psycholo-
gic ground. How much stronger is not
the fact that all of us tsye to abide by
the decision of the majority in the most
delicate cases, when supreme courts
decide constitutional questions, and we
do not only. know tha there has been
no unanimity in the court, but when
we actually receive ths opinions of the
and their whole arguments,
which always seem the better ones to
many, sometimes to majority of the
people Ought we to abolish, then,
the publication of the fact that a ma
jority of the judges Only, and not the
totality of them, agreed with the de-
cision? By no means. Daniel Web
ster said in my presence that the study
of the protests in the house of Lords
(haying been published in a separate
was to him the most instruc-
tive reading on constitutional law and
history. May we not say something
similar concerning many opinions of
the minority of our supreme benches? ?
"By the adoption Of the rule which
l have proposed, the great principle
that no mans life, liberty or property
shall be jeoparded twice by trials in
the court of justice, would become a
reality. At least, the.contrary would
become rare exception. Why do all
our constitutions lay down the princi-
pie that no one shall be twice tried for
the same offence! Because it is one of
the means by which despotic govern
ments harass a citizen, under disfayor,
20 try him over and over again and
because civil liberty demands that a
man shall not be put twice to the Yexa-
ton, expense and anxiety for the same
imputed offence. Nov, the law says,
if the jury finds no verdict it is no tri-
al, and the indicted person may be
tried over again. In reality, however
it is tantanount to repeated trial, when
a person undergoes the trial, less, less
only the verdict, and when he remains
against most of the evils
and dangers against which the bill of
rights or constitution intend to secure
him. The point, namely, the making
Of the noble principle in our Constitu-
ton a reality and positive actuality,
seems to me most important motive
why we should adopt the measure
which 1 respectfully, but very urgent
Iy, recommend to the Convention.
"In legislation, in politics, in all Or
the unanimity principle
savors of barbarism, or indicates at least
a lack of development. The United
States of the Netherlands could pass
no law of importance, except by the
consent of the States Gen
eral. A single voice in the ancient
Polish Diet could veto a measure
Does not perhaps something of this
sort apply to our jury unanimity?
whether it be so or not, for one
am convinced that we ought to adopt
the other rule in order to give to our
Verdicts the character of perfect truth
and to prevent the frequent
failures of finding a verdict at all.
81 am, with great respect, your obe-
iient, "FRANcIs LIEBER."