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knows nothing more of the cause than from that testimony, it is possible, especially where there is intricacy, or contradictory evidence, he may still differ from them in his inference. He cannot, as the law stands, discharge his conscience by giving his verdict individually. He must there. fore either perjure himself by agreeing in a verdict which he believes false and unjust; or abide the consequences with his colleagues, by compelling them to remain with him and submit to the processes devised by the wisdom or barbarism of our forefathers to enforce unanimity.
The first principle of these processes seems to be, that a deliberating jury should never be too comfortable. Perhaps in a fine warm summer day they may pass a few hours without much inconvenience. But in winter, when the days are short, and the air cold and keen, the absence of fire and candle, of meat and drink, will rank high in the catalogue of negative comforts; and will go a great way toward producing the same sort of uniformity in civil cases, as the application of other modes of torture by the Holy Inquisition has done in ecclesiastical ones. Scarce any man will deliberately risk his health by enduring cold and hunger, amidst the remonstrances and reproaches of his neighbours,
1 On the decision of the Douglas cause in the House of Lords, the late Lords Camden and Mansfield drew diametrically opposite infer. ences from the same evidence ; Lord Mansfield supporting the legitimacy of the claimant, and Lord Camden denying it. Had these been private men on a jury, or had the House of Lords been under the juror's oath, and compelled to be unanimous, one must have been perjured, or both have been starved. .
2 How distressing must be such a situation to a conscientious mind, and how uneasy its reflections on what has past, though under a compulsion almost irresistible !
3 I believe the courts now generally wink at the allowance of fire and candle.
whom his obstinacy compels to suffer with him ;, when by a word, or even by silence when the verdict is taken, he may relieve himself and them; and for which word or silence none but his own conscience can accuse him. There may be heroes in virtue equal to this martyrdom; but for human nature in general, made of the stuff we know, it is too severe a trial of integrity;
But let us take another view of the Jury, and suppose one of them interested in the question. This may happen a thousand ways without its being known to the party en. titled on that account to object to him. He may be secretly moved by hatred or friendship, fear, or hope. If he has an athletic temperament, with an unfeeling mind, no very uncommon union, he may take little share in the discussion of doubtful points with his colleagues, but may content himself with signifying to them that he has made up his mind, and if they will not agree with him, they must try to outstarve him, for he will not give up his opinion. This lasts for six, twelve, fifteen, twenty hours; and if this one man's strength is greater, or his appetite less troublesome than those of his colleagues, he carries his point and the verdict against the opinion and conscience of the other eleven. There is reason to think this is no uncommon case. Every attorney knows, that if he can but depend on one or two of the Jury for sufficient stubbornness to serve his client, he needs not care for the rest. In such a transaction, ten or eleven out of the Jury are inevitably perjured. Instead of a true verdict according to the evidence, they give what their consciences tell them is a false one, and contrary to it; and to this crime the very law which ought to punish it, compels them. Yet notwithstanding these absurdities and crimes in consequence continually reiterated in the temples of justice, few in comparison have noticed them. Men in general have been content to let things go on as they found them; and so long as only the Jurýmen were compelled to perjure, the Judges seem to have thought it sufficient to keep clear of it themselves. Suppose a Juryman about to be sworn, were to state this difficulty to the Judge, and request permission to give his verdict individually. The Judge of course refuses. The Juryman refuses the oath. The Judge thereupon fines, and perhaps commits him for refusing to put himself in the way of forswearing himself. The Judge only enforces the law as it stands. The Jury. man, notwithstanding, is morally right, and the Judge wrong. The law authorising such a procedure, is immoral and odious. .
As to authority on this point of unanimity, Blackstone dismisses it with the remark, that it is peculiar to our Judicature, and that in the Gothic Original it was not required." This does not seem as if he were partial to it. Lord Hale declares, “ That the unanimous suffrage and opinion of twelve men carries with it a much greater weight and preponderance to discover the truth of a fact than any other trial whatsoever." Granted, if there is a real unanimity, But on every case at all doubtful, there is probably only an apparent and compulsive one. In such cases, it is far from certain, that the verdict is the opinion even of the majority, It may be, and I believe often has been, that of one obstinate man against the other eleven, who has got the better of his fellows, not by reason but by perseverance.
The most recent, however, as well as the most respectable direct authority in favor of the unanimity of Juries, is the opinion of the late Lord Ashburton, as cited with ap.
? Professor Christian remarks on this passage (3 Black. Com. 376.) “ The unanimity of twelve men, so repugnant to all experience of hu. man conduct, passions, and understandings, could hardly in any age have been introduced by a deliberate act of the Legislature.”
probation by Lord Stanhope in his “ Rights of Juries dékended," p. 94. The passage is as follows:
“ We should also remember, that it is not necessary for the Judges in a court of law to be unanimous, but that a Jury must. This is perhaps one of the most excellent parts of that admirable institution. A great lawyer, whom I can never think of without veneration, nor mention without respect, made an observation on the law requiring unanimity in Juries, which was the result of great wisdom, experience, and attention. He said he had “ frequently observed from the countenance of a Jury, that the major part of them were carried away by a sudden impulse, as it were, from something that was said by the witnesses or counsel ; and that sometimes that impression was a wrong one. But that he had observed one or more sensible men among the Jury, as it was likely there would be out of such a number, who were not carried away by such wrong impression; and. that afterwards a right verdict was brought in : which moved, that as the majority of the Jury could not bring in a verdict without the concurrence of the rest, the more sensible men had by argument brought over the others to their opinion. This therefore was the good effect that resulted from the unanimity that the law requires."
To examine this:
Certainly nothing is more common than for wrong impressions to be produced in the minds of individuals composing a deliberative assembly of any kind, whether legislatite or judicial. It happens not only with the twelve men of a petty jury, but with the larger number of a grand one, and with every popular assembly whatever, from the ho
"A strange inaccuracy from so accurate a logician! Allow the vague inference of their opinions from their countenances to be true at a certain point of the trial, still nothing proves they were not corrected afterwards in the course of it by other means than those he supposes,
mage of a Manor Court to the two Houses of Parliament. If unanimity is necessary to cure this in one case, it must be so in all. The disease and the patients are alike, and so must be the remedy, which will conduct us in the last case to the unanimity of a Polish diet.' We know how that succeeded.
But admitting the discovery of one or two wise men by their faces among their blockheadly colleagues, and also that the blockheads join the wise men afterwards in a right verdict, what does this prove? Only that it would be wrong to take the opinion of the Jury in the middle of the trial; for by the supposition they had corrected themselves before the verdict. The means by which they did this, Lord Ashburton could only conjecture, and on no very solid ground. I contend it on the contrary to be a fairer and more probable guess than his, that they were corrected by the means provided by law for that purpose during the trial : by the arguments of counsel interested to remove such wrong impressions, by the summing up of the evidence, and by the Judge's opinion on the whole of the case.
On the other hand, I cannot but believe, that in the course of his practice Lord Ashburton must have seen many instances of bad verdicts wrung from the majority of a Jury, probably by the obstinacy of one or two. This
* It was the privilege of every individual member of the diet of Poland to stop its proceedings at pleasure, simply by rising and pronouncing the word “Veto.” “This was the chief cause that none of the civilized nations in Europe was so ill governed ; none had a code of laws so imperfect or so ill administered. The nobility, who were the legislators, were divided into factions, each ruled by a foreign power, whose interest it was to prevent all amelioration. Where persuasion failed, the sabre was commonly threatened or used to the minority,