happens particularly so as to produce acquittals against the clearest evidence in prosecutions for those peculations of public or private property, where the shame is lessened by the numbers engaged in similar transactions; such as those for the embezzlement of the king's stores, when the trials are in the neighbourhood of their places of deposit. But it may and does happen, in other cases, from partiality or interest on either side; and requiring only deafness to reason and persuasion, with a competent strength of nerves and a good knack at fasting, a Juror so qualified is sure of carrying the verdict.

But granting that the supposed sensible minority is exclusively, and without other assistance, to operate the conversion of the thick-headed majority, does the required unanimity forward this desirable end? I trow not, unless it be supposed not more difficult to persuade ten than any other less number. The sages may have succeeded with eight or nine, and yet all their sense and logic may be thrown away on the tenth, who may laugh at their arguments, and compel them to his verdict by starvation. This is too dangerous a power to be trusted to any individual, especially when a sort of clandestineness attends its exercise, which in a great degree relieves him from the dread of public reprobation. None can accuse him but his fellows, who cannot betray his ill conduct without confessing their own weakness. There may have been many such cases as described by Lord Ashburton; but his inference, that the right verdicts were produced by the required unanimity, is drawn from an excess of hypothetical refinement; to which his acutely discriminating mind was sometimes prone, but which, in this instance at least, outruns common nature and common sense. Besides, the persuasions of good reason and sound argument, as they are supposed to have prevailed with the whole, must have prevailed with the

greater part; and thus, rejecting the unanimity, the verdict of the majority would have been the same with the right and unanimous one, without risking its defeat, by the dulness, passion, or interested motives of the minority.

Here, or perhaps before this, I may be encountered by a warm invective against innovation, a panegyric on the wisdom of our ancestors, Nolumus leges Angliæ mutari, with other pithy sentences, serving against all change as well for the better as the worse. Now, (though I claim a fair hearing for any proposal to expel blasphemy and perjury from the seat of justice, if such proposal had never before been uttered by the mouth or conceived in the brain of man,) yet if I can show that even the number was originally uncertain, that the unanimity contended for was anciently not required; that when the Jury were not unanimous, it was often at the discretion of the judge either to increase their number till he found twelve agreeing, or more simply, and I conceive more wisely to receive the verdict ex majori parte juratorum; I trust I shall have answered all such declamation, for I cannot dignify it with the name of argument. For proof I request the reader's attention to the following authorities on the subject, as chiefly collected in Reeves's History of the English Law.

"I say then, first, with respect to the number, an assise, i. e. a recognition of right in the nature of a verdict, could not be taken by less than seven, though it might, for particular reasons, be taken by more than twelve."-Bracton, as quoted by Reeves, V. 1. P. 326.

“In some special cases the jury may be less than twelve; and in some must or may be more. 1. They may be less. Thus it may be in Wales, under the provision of the 34th and 35th Henry VIII. which allows of sir; so also it is in some special cases in England; as six or eight in inquiry of damages on default, and in inquiry of waste; though

this latter has been questioned and even denied. Further, there is in Glanvil a writ for a Jury of eight to inquire into the age, where infancy is alleged. 2. Instances in which the law allows or requires more than twelve, are, attaint, in which there must be twenty-four; the great assise, in which there must be sixteen; the grand Jury for indictments, consisting of some number between twelve and twentythree; and writ of inquiry of waste; in which thirteen have been allowed."-Hargrave and Butler's edition of Coke on Littleton. Note 274, on 155, a.1

"If there was a difference of opinion among them, the Court might order the assise to be afforced, i. e. that others should be added to the majority equal to the number of dissenting voices. If they happened to agree, their verdict was good, and the dissenting Jurors were to be amerced."Reeves. H. E. L. V. 1. P. 330.

"In civil cases, Fleta lays it down for law, that when there was a difference of opinion among the Jurors, it was at the election of the judge either to afforce the assise, by adding others till twelve were found unanimous, or to compel the assise to agree among themselves, by directing the sheriff to keep them without meat or drink till they all agreed in their verdict. Another method was, to enter the verdict of the greater and lesser part of the Jurors, and then the verdict was taken er dicto majoris partis juratorum."-Reeves. H. E. L. V. 2. P. 267.

"We have seen the method which had got into practice, in the time of Edward I., of compelling a Jury to agree in their verdict. This authority over Jurors seems to have been exercised by judges with very little scruple. Some instances of the treatment experienced by Jurors in this reign (Edward III.), will shew the notions entertained

See also the farther authorities then referred to.

by our ancestors concerning this proceeding. In the eighth year of the king, in a writ of mort d'ancestor, a Juror who had delayed his companions for a day and a night; and this, as the book says, without any good reason; was com mitted to the Fleet, and was afterwards let to mainprise till the Court were advised what step to take with him. In the third year, when in an action of trespass one of the Jurors would not agree, the judge took the verdict of the eleven, and committed the twelfth to prison. The same was done in the twenty-third year. But the taking a verdict er dicto majoris partis juratorum, though conformable to the old practice, began to go out of use toward the latter part of this reign; for in the fortieth year, when eleven gave their verdict without consent of the twelfth, they were fined by the justices."

"In the next year, this point was debated and finally settled. In an assise, all the Jurors were agreed except one, who could not be brought to concur with them: they were therefore remanded, and remained all that day and the next without eating or drinking; then being asked by the justices if they were agreed, the dissentient answered, "No;" and that he would first die in prison: upon which the justices took the verdict of the eleven, and committed the single Juror to prison. But when judgment was prayed in the C. B. on this verdict, the judges were unanimously of opinion, that a verdict from eleven jurors was no verdict at all: and when it was urged that former judges had taken verdicts of eleven, both in assises and trespass, and particularly one was mentioned taken in the twentieth year of the king, Thorpe,' one of the justices, said, it was not an example for them to follow, for that judge had been

1 I am not certain whether this was the respectable chief justice of the same name, who was hanged in this reign for corruption in his office.

greatly censured for it. And it was said by the Bench, that the justices ought to have carried the Jurors about with them in carts, till they were agreed. Thus it was settled at the close of the reign, that the Jurors must be unanimous in their verdict, and the justices were to put them under restraint, if necessary, to produce unanimity.". Reeves, H. E. L. V. 3. P. 105.

We see, therefore, that this salutary power of taking the verdict of the majority of a Jury remained till near the end of the reign of Edward the Third. Then, unfortunately, and in the teeth of both precedent and reason, the judges agreed that a verdict of less than twelve was no verdict at all; and prescribed shaking the Jurors together in a cart, as a specific to cure differences of opinion. Hunger, cold, and discomfort, were held forth as the ultimæ rationes adapted to their capacities, and ever since they have been unanimous at their peril.

We may now compare the present mode of trial by Jury with the axioms we set out with.

It appears the unanimity required is in opposition to the first, because it prevents the speedy administration of justice, by frequently causing unnecessary delay in long and vain endeavours to overcome unreasonable or interested obstinacy; and still more, by introducing a modern practice manifestly illegal and injurious to the suitors, that of discharging a jury who cannot agree, and deferring the trial to a future occasion. It also incurs the danger of a small minority, even of one, dictating the verdict. It introduces restraint and suffering for a purpose on which they should never be employed, to influence a judicial opinion.

It is inconsistent with the second axiom, because it requires the existence of the high moral improbability, that in cases of difficulty, twelve men should be fairly and bona fide unanimous in their decision; and with the third, be