than original evidence, are, in these times of rapid and easy dissemination of news, an absurd anachronism, a positive disgrace to the spirit of the age, and a reproach to the civilization of the country.

I might mention other defects perhaps equally significant, but the one that I have chosen for the subjects of my paper, seems to me to deserve more especial consideration, because if it can be done away with, all others will lose a considerable portion of their evil effects. Another reason why it commands our special attention, is the fact that the requirement of unanimity cannot be abolished except by a popular vote in favor of an amendment to the State constitution, while all other vices of the present system are properly remediable by acts of the legislature of the State. What I have to say on the subject is addressed to you, in your capacity as educators of the people in the various communities in which you practice our noble profession; is addressed to you as men who, by their active interest in the work of our State Bar Association, manifest an interest in the science of jurisprudence and the propagation of law reforms outside of, and in addition to, the practice of the law as a business pursuit. If the arguments against the requirement of unanimity should convince your minds, it will be your duty to agitate the necessity of reform at every opportunity, to awaken the people to a clear and proper understanding of the problem, so as to help root out that prejudice or superstition in favor of the rule of unanimity which seems to possses the minds of so many unthinking people.

And first, let us examine for a few moments the historical background of the unanimity rule. One of the strongest arguments commonly advanced in favor of the rule is its anciency. The judicial wisdom and legislative policy of five centuries ago, are cited as reasons for its retention. It strikes me that in no other department of human pursuits--intellectual, moral, political or industrial-is the march of progress so slow as in the field of law. Would anybody dream of citing the views of the philosophers, political economists or masters on statecraft, the writings of scientists on chemistry, astronomy, physics or technology of five hundred years ago, as authorities upon these various subjects? For our rules of law and our legal institutions, however, we constantly go back to the middle ages for ideals and authorities. And while in all other fields of human thought the antiquity of an idea is hardly ever considered an evidence of its soundness, we find that the anciency of a principle of law or of a legal institution, is usually cited as a strong argument of its wisdom and correctness.

Be that, however, as it may, an investigation into the history of the rule of unanimity demonstrates the fact, that the verdict of juries on English soil was originally not required to be unanimous. In Etheldred's laws we find the provision: "that a gemote be held in every wapentake, and that the twelve senior thanes go out and take the reeve with them, and swear on the relic that is given them in hand, that they will accuse no innocent man, nor conceal any guilty one. And let doom stand where thanes are of one voice; if they disagree, let that stand which eight of them say, and let those who are there outvoted pay, each of them, six half marks."

It should not be forgotten that originally the jurors were not what they are today, but witnesses, cognizant of the facts which formed the basis of the action. This is the reason why the jurors had to come from the vicinage of where the cause of action arose. It is true that the concurrence of twelve men was required for a

verdict, but where twelve men could not agree upon a verdict, those who disagreed from the majority were supplanted by others by a process called affortiatio, until the required number was obtained to render a verdict. Bracton, in his work, “De Legibus et Consuetudinibus Angliæ," book 4, c. 19, gives the following explanation of this process: "It often happens that jurymen, when they come to deliver their verdict, appear to be of different opinions, so that they cannot bring in a unanimous verdict. In these cases the court must order the assize or jury to be reinforced or increased by the addition of as many new members as there are in the majority of the jury who already agree in one opinion and differ from the minority, or at least by the addition of four or six new members. And these additional members of the jury shall join with the former jurymen in considering and debating the matter in question. Or they may, if the court shall so direct, consider and debate the matter by themselves, without any such conjunction with the original jurymen, and give their answer concerning the matter in dispute separately and by themselves, and the verdict of those members of the original jury with whom these new jurymen shall agree in opinion, shall be allowed and hold good."

Only about the middle of the 14th century, in the reign of Edward III., this practice was superseded by the requirement of unanimity on the part of the original twelve men, as a more convenient and expeditious process, so as to save the necessity of having the evidence repeated over again by the witnesses to the additional jurymen. The idea was, that where a majority of the jurors related their own knowledge of a state of facts, and the minority did not agree with them, such minority was willfully disregarding the truth; hence the jury were forced to agree unanimously on their verdict, and effective means of compelling the jurors to agree were soon devised. They were locked up without meat, drink, light or fuel until they were unanimous. The principle was, that a jury once properly constituted for the trial of a cause, could not be discharged until they had arrived at a unanimous verdict. Mr. Forsyth, however, in his History of Trial by Jury, states that the verdict was sometimes taken from eleven, and the refractory juryman committed to prison. The latter practice, however, was declared illegal, not by any statute, but by a decision of the Court of Common Pleas, reported in the Year Book, 41, Edward III., 31 a. Blackstone, in his Commentaries, Book 3, p. 376, says, that "if the jurors do not agree in their verdict before the judges are about to leave the town, though they were not to be frightened or imprisoned, the judges are not bound to wait for them, but may carry them around the circuit from town to town in a cart."

Without going into further details, I simply desire to state it as the result of my examination, that the requirement of unanimity grew out of the anomaly of having the characters of jurors and witnesses united in the same persons. But the rule was retained, even after the adoption of the principle that the jurors should be judges of facts, and should have no prior knowledge of any matters of evidence. From the time of Edward III. to the present day, the rule of unanimity has been retained in England; it always has been and still is the prevailing rule in the United States of America, with the exception of a few States, which we will presently notice. The rule, however, has been so far relaxed, that where, after the lapse of a reasonable time for deliberation, it appears that the jury cannot unani

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 requirement 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

mous.

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 Vie., 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 benefit 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 to 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.