1863.] 219 [Price 



or in 1368 ; and was thus pronounced to be the continuing law of 

 England by Chief Justice Hale, in the same reign of Charles II, 

 when Penn and Mead were tried, and Bushel discharged ; conse- 

 quently, that all arbitrary proceedings in intermediate reigns at vari- 

 ance with it, had been usurpations. 



Unanimity is to be attained, or no verdict results. The jury is to 

 be kept together until they have made earnest efforts at a reconciliation 

 of opinion ; but what their verdict shall be, or whether there be any, 

 must depend upon themselves alone. They may be unable to agree, 

 and after due effort, they will in civil cases be discharged by the 

 court, or they may give an erroneous verdict against the weight of 

 evidence, or contrary to the direction of the court in law, and then 

 their verdict in a civil case will be set aside, and the issue be tried 

 by another jury. But the opinion of the jury cannot be coerced. 



In the trial of persons charged with the higher degrees of crimes, 

 there is more ground for a charge of a physical coercion upon the 

 jurors. In civil cases, the judge is expressly authorized by statute 

 to discharge the jury because they cannot agree. In capital cases, 

 be cannot merely for that reason discharge them. (6 S. & B. 577 ; 3 

 R. 498.) Our Constitution declares, in consonance with the conunon 

 law, that " no person for the same offence shall be twice put in jeopardy 

 of life or limb;" and to commit his case to two juries is to put him 

 twice in jeopardy. To discharge the jury is, therefore, to discharge 

 the prisoner. This is a discretion that judges disclaim, and it is ob- 

 viously a dangerous one. But although the jury cannot be discharged 

 because they cannot agree to convict or acquit the prisoner, the judge 

 must act to discharge the jury trying a capital charge, in a case of 

 absolute necessity ; and that necessity arises when the health or life 

 of a juror is in peril. Chief Justice Tilghman says, " No one can 

 think for a moment that they are to be starved to death. God forbid 

 that so absurd and inhuman a principle should be contended for. 

 Very far from it. The moment it is made to appear to the court, 

 by satisfactory evidence, that the health of a single juryman is so 

 affected as to incapacitate him to do his duty, a case of necessity has 

 arisen which authorizes the court to discharge the jury." (6 S. & 

 R. 587.) And that such necessity may not arise, the court will 

 allow a reasonable supply of food and nourishment, as a right of the 

 jurors. (3 Rawle, 503.) There exists, therefore, in the trial of 

 high crimes, a pressure of physical bearing, namely, of only a seclu- 

 sion under the charge of a sworn officer, until they agree, or health 

 gives way. And is not this better and safer than that a majority 



