One answer to all this is, that notwithstanding the absurdities and mischiefs which belong to the present rule of law, when considered as a mere matter of theory, it really works well in practice. This is the old fallacy, which always has been and always will be employed by those who wish, from motives of any description, to perpetuate existing abuses. There is no fallacy which has ever been more injurious to the interests of mankind, and none which is more palpably delusive. For how can that which is demonstrably irrational and immoral in principle, ever produce, upon the whole and in the long run, the results which properly belong to reason and justice? It would be quite as wise to say, that though vice and folly are calculated in theory to render men wretched, they may nevertheless augment the sum of human happiness in practice; but though unclouded reason is desirable per se, insanity might be found to "work well" upon the whole; that theoretical, honesty is the best policy, and practical roguery the best also; in short, that we shall act reasonably if we seek for grapes on the thorn and figs on the bramble. These considerations would of themselves, a priori, and independently of any evidence of the mischiefs which actually do result from the rule we are now investigating, satisfy us that such a rule ought forthwith to be abandoned. At all events we are entitled to say, that they are quite sufficient to throw the burthen of proof upon those who assert that it is advantageous to the public; and we think we are entitled also to say that they will render no small quantity of proof necessary on the part of those who maintain the affirmative of that proposition. It will clearly not be sufficient to point out a few individual instances in which the results have been beneficial; for by such a mode of arguing and shutting the eyes to general consequences, there is scarcely any crime, not even murder itself, which may not admit of a defence on the ground of expediency,1 and we may be required to yield implicit faith to the reasoning of a madman because his freaks are every now and then any thing but irrational.

We are also told by those who uphold the present system,

attention; it shows very strikingly how a single wrong-headed or corrupt juryman may embarrass the administration of justice, even in the plainest and clearest cases. 1 Paley's Moral and Political Philosophy, b. 2. c. 6.

that if it were really productive of the mischiefs which we ascribe to it as its inevitable consequences, they would be much more frequently brought under the notice of the public; and that as the public at large see or hear little of them, they must be supposed not to exist. Can it be, we are asked, that jurymen really make those disgraceful compromises of which you speak; that they are in fact starved or frightened out of their conscientious opinions; that they sometimes toss up or draw lots for verdicts, reducing the question to one of pure chance; can these things be, and yet not be universally known? At all events, would not the losing party be sure to apply to the court above for a new trial, and would not exposure thus be rendered quite certain? Our reply is this: First, these things are known, by all who are in the habit of attending courts of justice, to be of frequent occurrence; and, where not actually known, they are very strongly and reasonably suspected. Sccondly, it is to be remembered, that any thing which passes in a jury-room can be disclosed by none but the jurors themselves; and that they will not in general be very ready to publish to the world transactions of which some, and perhaps all, have reason to be ashamed. Thirdly, as to the application for a new trial in cases of misconduct on the part of a jury, the courts have laid down a rule, the practical effect of which, is to render such an application in almost every case utterly hopeless. It has been solemnly decided,1 after a review of all the cases, and after a conference among the judges of the different courts, that the affidavit of a juryman, disclosing any misconduct on the part of the jury in the mode of determining their verdict, is inadmissible. The affidavit tendered in that case was made by a person of the name of Bridge, the foreman, and stated, "that the jury not being agreed, left the court, and were put into a room by themselves; that four were disposed to find a verdict for the defendant, and eight for the plaintiffs; that one of those disposed to find for the plaintiffs, swore he would stay there till Saturday evening before he would find a verdict for the defendant; that after some hours had elapsed in fruitless endeavours by Bridge to alter the opinions of those

Owen and another v. Warburton, 1 New Reports, p. 326.

who inclined to a verdict for the plaintiffs, it was proposed by several of the jury to draw lots, to which he (Bridge) was induced to assent; that accordingly two pencils were produced of different lengths, and it was agreed that the longest pencil should be for the plaintiffs, and the shortest for the defendant; that Bridge held the pencils, and another juryman drew, and that the longest pencil being drawn, the jury went to the chief justice's lodgings, and those of the jury who were for the plaintiffs gave in the verdict for them." Here we have a pretty sample of the unanimity in which the law rejoices, and of the modes by which it is occasionally produced. Sir James Mansfield, in delivering the judgment of the court, says (as he very well might), "It is singular, indeed, that almost the only evidence of which the case admits should be shut out." And in an earlier case,1 where the jury had settled the verdict by tossing up for it, Lord Mansfield lays down the same rule as the court of Common Pleas in Owen v. Warburton, saying, "The court cannot receive such an affidavit from any of the jurymen themselves, in all of whom such conduct is a very high misdemeanour; but in every such case the court must derive their knowledge from some other source, such as from some person having seen the transaction through a window, or by some such other means,” which is the very same thing as saying, that in nine hundred and ninety-nine cases out of a thousand, the court can derive no knowledge at all. The reason given for the decision in Owen v. Warburton deserves serious attention. "" Considering the arts which might be used if a contrary rule were to prevail, we think it necessary to exclude such evidence. If it were understood to be the law, that a juryman might set aside a verdict by such evidence, it might sometimes happen that a juryman, being a friend to one of the parties, and not being able to bring over his companions to his opinion, might propose a decision by lot, with a view afterwards set aside the verdict by his own affidavit, if the decision shot against him." The trick pointed out by the Chief Justiceertainly one which might be practised if the affidavits of jurymen were admitted. It is equally clear, however, that if such affidavits are excluded, they may play with impunity almost

1 Vaise v. Delaval, 1 Term Reports, p. 11.

any

other kind of trick they please. And it is clearest of all, that both consequences arise from that rule of law which tempts or drives jurors into tricks by absurdly requiring their unanimity.

But then the present system is so ancient! Can we have the heart to touch so venerable a monument of antiquity? We reply at once, that we should be ashamed of ourselves if any sentimental regard for the mere antiquity of an institution could prevent us from denouncing it, when convinced that it is irrational, immoral, and pernicious. Change for the mere sake of change,-change, where the defects of an old, or the merits of a new system are not perfectly obvious — we heartily deprecate; and such changes, whether in law or in politics, we will do our best to discountenance. But, on the other hand, it is surely worse than childish to claim an immortality for every abuse or nuisance which happens to be an old one. If such considerations had prevailed with the truly learned, able, and judicious men who constitute the common law commission, their reports would have been three volumes of idle panegyric upon our juridical institutions, instead of being replete, as they are, with bold and fearless, but at the same time well-considered, rational, and practicable suggestions for their improvement. And we own, that when men like these state, as the result of their deliberations upon the subject which we are here discussing, that "the interests of justice seem manifestly to require a change of law," it will require something more than the mere antiquity of the present system to make us distrust their conclusion. Should the legislature adopt the same view of the subject, we venture to suggest to those who yearn in spirit after every time-honoured institution, that there is consolation in store for them of which they have probably never dreamt. For there really seems reason to believe that the present rule is itself an usurper upon one still older, by which the decisions of juries were not required to be unanimous; so that after all we may be returning to the original principle, instead of departing from it. "I am convinced," says Mr. Baron Maseres, "that unanimity could never have been required in the original institution of juries, but must have grown up from some accidental and collateral cause in the

practice of this mode of trial; as, for example, from the unwillingness of judges to take the trouble of adding a number of fresh jurymen to the first twelve, where they could not agree in their verdict, and causing the evidence that had before been given in the cause before the first twelve jurymen to be repeated over again by the witnesses to the additional jurymen, till a verdict was obtained, in which twelve, at least, out of the whole number of jurymen, were really unanimous. For this was the way of proceeding in this matter in the days of king Henry the Third, that is, about the year 1260, as appears by the following passage in the famous lawyer, Bracton, where he treats of the issue of non disseisivit, in a writ of novel disseisin, which appears to have been at that time a very common action. Contingit etiam multoties quod juratores in veritate dicenda sunt sibi contrarii, ita quod in unam non declinare possunt sententiam. Quo casu, de consilio curiæ, affortietur assisa [that is, the assize or jury shall be reinforced or increased,] ita quod apponantur alii juxta numerum majoris partis quæ dissenserit, vel saltem quatuor vel sex, et adjungantur aliis; vel etiam per se ipsos, sine aliis, de veritate discutiant et judicent et per se respondeant; et eorum veredictum allocabitur et tenebit, cum quibus ipsi convenerint.' See Bracton de Legibus et Consuetudinibus Angliæ, lib. iv. cap. 19. de assisa novæ disseisinæ, folio 185. page 2."1

It forms no part of our design in this article to discuss at any length the new plan suggested by the Common Law Commissioners, but it may not be unfit, by way of conclusion, to state what that plan is, and to add one or two observations, reserving till some future opportunity a fuller investigation of its merits. The Commissioners recommend, "that the jury

1 Additional Papers concerning the Province of Quebec. Mr. Barrington (Obs. on Magna Charta, cap. 29.) quotes a passage from Fleta, which shows that, though the judge might add to the number of the original jury, after the manner described in Bracton, he might nevertheless insist upon the unanimity of the first jury empannelled; and "as it was probably found (says Mr. Barrington) when new jurors were added, that it was, in reality, the trouble of trying the cause over a second time, and so toties quoties; at last, for the greater dispatch of business, they insisted in all cases upon the unanimity of a jury." We find these observations, as well as those of Mr. Baron Maseres, in a note upon Howell's State Trials, vol. xiv. p. 619. Mr. Jardine's very useful Index to this Collection of the State Trials, renders its immense stores of valuable matter infinitely more available than they formerly were.