New national era. [volume] (Washington, D.C.) 1870-1874, 1873-03-20

OF human conduct, passion, and understand
ing, could hardly in any age have been intro
Sluced into practice by deliberate act of the
i Legislature. And according to Bracton, it
appears that the unanimty of juries anciently
was not required, that the number which
originally constituted panel was uncertain,
end that when the jury failed to agree it was
often at the discretion Of the judge to in.
crease the number until twelve agreed, or
more simply, and it is believed more wisely,
| to accept the verdict of the majority.
In Wales, under the provisions of "a
and 80, Henry VIII. a jury was limited
! to six; also, in some special cases in Eng
land. to six and eight; for instance, in
an inquiry Of damages on default, or in an in
quiry of waste. Further in Glanvil, we find
| a writ for jury of eight to inquire into age
when infancy was alleged. F1eta lays it
down for law during the reign of Edward l.,
that in civil cases when there was a differ
ence of opinion among the jurors, it was at
the election Of the judge~either to aniorce the
assize by adding others until twelve agreed,
or to compel them to agree among themselves
by directing the sheriff to keep them without
meat or drink until they were unanimous.
This authority given the judges was exer-
cised by some Of them with very little scru-
pie. During the reign of Edward III. the
Court Of Kings Bench decided on an appeal
from lower court that the jury, in order to
verdict, must be unanimous, and directed
the judges TO resort to restraint, if neces-
sary, in order to secure the required unan-
unity. We see, therefore, that this salutary
power of taking the verdict of majority Of
the jury remained until near the end of the
reign ofEdward ILL.,; then, unfortunately, and
in opposition to both precedent and reason,
| the judges agreed that a verdict less than
twelve was no verdict at all and as spe-
cific cure for difference Of opinion, resort was
hal to hunger, cold, and imprisonment. Ever
since juries have disagreed at their peril.
1t certainly appears that the unanimity
required is opposed to reason and common
sense, because it requires the existence Of
what is morally improbable; viz, that in
cases of extreme difficulty twelve men should
be bona:fde unanimous in their decisions.
1t is contrary to the spirit of the common
law, too, because it tends to delay the admin
istration of justice. 1t frequently forces
jury.
1t is presumed that a jury taken from the
body Of the community will be possessed Of
such knowledge and experience derived from
their intercourse in society as to peculiarly
fit them for the determination Of all disputed
facts arising out of the ordinary transactions
of life. But it must be remembered that
jurors, as a rule, are unaccustomcd to judicial
investigations, and that it requires all the
aid that can be derived from the experience
and penetration of counsel and Judge to direct
their attention to the essential points at
issue, in order to have them reach lust con-
clusion. So far as the law is concerned it
proceeds by certain and defined rules. But
much yet remains to be done to divest case
of its legal membranes, to resolve COM
plcated mass Of evidence into its most sim.
pie elements, to exhibit clearly the connec-
| ton, bearing, and Importance of its distinct
and separate parts, their combined tendency
and effect, stripped Of every extrinslc and
superfluous consideration which might other
wise embarrass or mislead and to do this in
manner suited to the comprehension and
understanding Of an ordinary jury is one of
the most difficult, as it is one of the most UNI
frequently performed, duties connected with
the administration of the law.
ToI 10, he
busineea Of life and you can hardly find two
men of the same opinion respecting it; yet
we select jury from the body of the people
| with no peculiar training or fitness for their
position; they are brought into court and
hear conflicting testimony; two lawyers,
skilled by experience and learning, present
the opposite sides of a cause in the strongest
light; the jury are charged by the judge, told
to retire and bring in verdict, and, in order
| to do this, they must be unanimous. Is il
reasonable to suppose that twelve men will
under the circumstances supposed, draw the
same conclusion?
But let us take another view of the sub.
ject. Suppose one of the jurors interested
| in some sense, indifferent or otherwise I'm.
qualified, and this may happen in a thousand
| ways without it being known to the party
entitled to object. He may be secretly
moved by hatred or friendship, fear or hope
he may have an unfeeling mind and therefore
take very little interest in the discussion o.
doubtful points with his colleagues, but may
content himself by signifying to them that he
has made up his mind, and if they will moi
agree with him there shall be no verdict.
In every case at all doubtful there is only
an apparent unanimity. In such cases it is
far from certain that the verdict is the opin
ion even Of the majority Of the jury. 1t may
be, and probably often is, that Of one obstin
ate man, who has the better Of his fellow
jurors, not by force Of reason but willfulness
1t appears that the principal objection thu
Canadians had to the introduction of jurie.
into their courts was this one of unanimity
They observed that it was a strange thin.
and hard one to force twelve persons, whit
really think differently upon doubtful mat
ter that is referred to their determination, I.
say upon their oaths that they are all Of tn,
same opinion, and it was forcing some O
Ii