3. It is further claimed as a consequence of the rule that it secures a full, free and effective discussion and deliberation of the case by jurymen. To that I reply: Experience teaches that in most cases the jurors' minds are finally made up before they retire for deliberation. The juror who does not leave the jury box with a strong opinion one way or the other is a weak-minded fellow, who will not bother his head very much with the issue of the case, who will vote with the majority every time, and whose judgment is therefore of little account. That one or two or three jurors will be able to pursuade the majority that the latter are wrong, is probably a case of the rarest occurrence. They might, by their persistency and superior powers of indurance succeed in tiring the majority into submission against their conviction, but that they should bring about a real change of opinion, is hardly possible.

If, on the other hand, the minority yields, it is either because they have really become convinced of the greater soundness of the judgment-which would simply prove its correctness-or their submission is due, not so much to deliberation and conviction, as to intimidation, exhaustion, fear of censure or weakmindedness, in which case their enforced concurrence adds no strength to the verdict of the majority. But whatever value there is in prolonged discussion and deliberation, might be insurred by law, allowing the reception of a verdict of less than the whole twelve, only after it appears that the jury have made an honest attempt to unanimously agree and have failed. In this respect, the above mentioned statute with reference to civil trials in Scotland contains a valuable suggestion.

In this connection I also desire to quote a suggestion by ex-Governor Koerner, of Illinois, contained in a communication to the Chicago Legal News of February 6, 1869. He is quite outspoken in favor of the abolition of, I quote verbatim now "the illogical unanimity system, which has become a great source of corruption and consequent denial of justice." But in order to insure due deliberation by the jury, he suggests, that "the time when the jury retire should be noted in the minutes of the clerk and the court. A verdict returned within six hours should be unanimous, and signed by every juryman; after that time and within six hours a verdict signed by eleven juryman may be given; after twelve hours and within six hours afterwards, one signed by ten; after eighteen hours and within six hours thereafter one signed by nine, and after twenty-four hour, one by eight may be returned." Some such course as that proposed by Mr. Koerner would certainly insure the fullest, freest and most effective discussion and deliberation of the case by the jury.

4. The friends of unanimity further argue that the confidence engendered in the public mind in the decisions of a tribunal which speaks with an undivided voice, is so great a benefit that it should not be given up.

As against this argument, I desire to array the records of experience. Whenever, in a case attracting public attention, the jury disagree or return a verdict which bears upon its face the evidence of a compromise, public opinion becomes enraged at the impudence, conceit, arrogance, stubbornness or crankiness of the one or two jurors who would set their opinions against the combined judgment of the majority; the community is unanimous in its judgment that the dissenting voice was the result of corruption or thickheadedness; moreover, the people lose confidence in the administration of the law, in the power of the machinery of justice to deal fairly between man and man. Disagreements and compromise ver

dicts, more than any other factor, tend to shake the confidence of the people in the effectiveness of our laws-that confidence which is one of the foundations of civil liberty and security.

Let us now examine the arguments against the requirement of unanimity. First of all it ignores the physical fact that all men are not constituted alike. As men are physically different, and at best only resemble each other, so they will differ in their mental and moral make-up. A great many factors tend toward producing sharp contrasts in the operation of the minds of different people. Different minds present innumerable shades and degrees of intelligence, education, strength of character, power of observation, and judgment of human nature. The opinions of men are influenced to great extent by their preconceived ideas upon matters of religion, ethics, politics. Their judgment is influenced by the peculiar experiences of their lives, by their habits of thought, by their vocations and business. A man's mind is the result of the countless impressions received during a lifetime; and as our experiences and our impressions, our surroundings and associations are different, so our minds and the operation of our minds will become different. Add to that the necessary imperfections of human testimony brought about by imperfect means, or deficient faculty of observation, by want of clear recollection or by the corruption or bias of witnesses. Is it possible that all men should have equal power of discerning falsehood? Is it posssible that the same evidence should have the same effect upon twelve different minds, where there is a controversy upon the facts, with each version supported by proof? Again, we find that many jurors, especially in our State courts, are lacking in intelligence, in principle, or in love of truth, that they are easily led away by the eloquence or fallacious arguments of able advocates, or by statements outside of the evidence, while others are possessed of that keenness of discrimination which will distinguish between evidence and mere claims, between facts and fiction.

There is hardly any important question which occupies the human mind and heart, be it in the field of ethics or philosophy, politics and political economy, art or music, or in any other department except that of the exact sciences, on which there are not two opinions, each strongly advocated and supported. Think of the differences of opinion on such questions as free trade or high tariff, centralized power or State rights, the problem of the emancipation of labor, etc. Why then should it be astonishing that twelve men, taken from different walks of life, should reach different conclusions from the same premises? Think of the difficulties often experienced by a chancellor in deciding controverted questions of fact; and still you expect that twelve men, who come perhaps from weighing butter or measuring calico, should have less difficulty in weighing evidence and measuring the credibility of witnesses, than a trained chancellor, that they should all be alike impressed by the evidence. The result is that, where juries differ, the issue must either be left altogether undecided, the trial must be a nullity, or a verdict will be returned, which, though having the appearance of unanimity, is the result of compulsion or the effect of a compromise which does justice to nobody.

We want truth, Everybody will admit that the due administration of the law requires that each juror should be free to decide according to his own convictions. The word "verdict,” vere dictum, means truth spoken; but a verdict which is the result of an enforced agreement is intrinsically untrue, is a legalized falsehood. The juror who has taken an oath that he will well and truly try the issues and de

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, under such circumstances, "give in," for the mere sake 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 abnormal, 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 question, 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