Year: 1879

4


ability to agree on verdict supplies a fit
occasion for presenting some of the con-
siderations which have caused many wise
and enlightened men to look with strong
disfavor on the requirement OF unanimity
in the vordicts of juries. Even If
1T were not in our power to bring
forward a great array of high authorities
against the rule of unanimity we might
still properly question it in the light OF SIM
pie common sense and the ever recurring
inconvenience which attend its applica-
tion. The disagreement in the Blair case
is only an additional instance of what Is
perpetually happening in jury trials In all
the States OF the Union.


The evils which follow the disagreement
of juries are too well known to need elab-
crate rehearsal. They are sufficiently ap-
parent in this very Blair case, where dis
agreement exposes the county to the ex-
pense of new trial, without any new evil
dence, and threatens tn reduce the accused
to beggary in another effort to save his life.
IT he is not guilty it is certainly very hard
to subject him to pecuniary ruin by the re-
peated necessity of attempting to satisfy
jury of his innocence. 1t is principle of our
jurisprudence that man shall not be tried
twice for the same offence. But the courts
hold that when a verdict is not reached it
is no trial, although a new arraignment
doubles the pecuniary penalty which inno-
cence cannot escape if it happens to be un-
justly accused. The second jury may not
oh iof fboo ba
it should reach verdict it will be because
the second twelve men have minds somewhat
differently constituted from the first twelve.
| But if difference OF mental constitution is
to be recognized, why not recognize it
among the twelve mon who form the first
| Jury? Two trials, where the same body
of evidence is presented to two juries, are
| equivalent to one trial before jury of
twenty-four men, and viewing the two sets as
one double jury there is no unanimity as to
the force of the evidence whether the second
jury acquits or convicts. If unaninity is
requisite in the first twelve, why not in the
whole twenty -four, when oil the members
of both juries have precisely the same evil
dence before them? If you recognize the





different views of the same body of facts,
why not recognize it at once in the
composition OF the first jury, and
let majority of the first jury
instead of a majority of two successive
juries decide the case? Why is it any
more requisite that twelve men should be
unanimous than that twenty-four men
i ILL.,. 4
the same set of facts Why may not the
law recognize difference of opinion among
members of the same jury as we'll as differ
ence between two separate juries?


| 1t would puzzle the most astute reasoner
to state any reason why jury should be
unanimous in order to render a verdict
which would not be an equally good reason
why court should be unanimous in order
to render Judgment. But courts always
decide by majority Of their judges. The
United States Supreme Court consists of
nine members, the New York Court of Ap-
peals of seven. majority Of the nine or
of the seven suffice for rendering binding
Judgment in every case which can come
before these tribunals. The same is true
Of every court of judicature which consists
of more than single judge. For this rea-
son all higher courts are composed of an
| odd number thus inSuring majority on
| one side or the other. What reason can
there be either in the nature Of things or
the principles of justice why the majority
of jury should not have the same power
of decision as the majority of court? If
courts were required to be unanimous
it would perpetually happen that important
cases could not be decided at all. Unan.
unity would be absurd if required OF courts,
and it is not less absurd when required of
juries.


| Very able men who have thought deeply
on this subject have regarded the una
nimity of juries as preposterous. AS q
conspicuous and weighty example we
cite Mr.. Hallam, who, after tracing the
origin and progress of trial by jury,
expressed his appreciation of the
system and his scorn Of this par
tculnr feature of it in emphatic lam
guage:--.The grand principle of the Saxon
polity, the trial of facts by the coun-
try, is a principle Except as to that pre-
posterous relic Of barbarism, the require
ment of unanimity) from which may we
never swerve-may we never be compelled
to wish to swerve." All the nations on the
continent of Europe who have adopted the
trial by jury reject what Mr.. HalIam calls
'that preposterous relic Of barbarism,
the requirement of unanimity." The alb
surdity of this requirement was perceived
by enlightened English thinkers long pre-
vious to Hallam. Locke, for example. in
the constitution which he drew up for Car
olina inserted this provision LIVERY
jury shall consist of twelve men, and it
shall not be necessary that they should oil