THE JURY SYSTEM. 679 



the jury is composed in all probability came from the accustomed 

 number of compurgators whom the plaintiff or defendant brought into 

 court in early times, before the jury was known, to vouch for his ve- 

 racity.* This being the quantum of proof required to render a party's 

 testimony credible, it was natural that the same quantum of proof — 

 that is, the verdict of twelve jurors possessing the necessary informa- 

 tion — should be required to establish the existence or non-existence of 

 the alleged facts. Thus determining the number of jurors necessary 

 to render a verdict was simply fixing the amount of proof necessary to 

 establish a fact if disputed. When jurors gradually ceased to be wit- 

 nesses the number twelve was still retained, probably because there 

 was no particular reason for changing it. "Why there should have 

 been twelve compurgators, why that was fixed upon as the quantum 

 of proof necessary, it is impossible to say with any degree of certainty. 

 Various reasons have been given by various antiquaries, none of which 

 seem to have much more than speculation to support them. 



Whatever may have been the origin of the number twelve, the rea- 

 sons which gave rise to it have doubtless long ceased to exist, yet it 

 may be difiicult to point out why it should be changed. Should a 

 majority be able to return a verdict, it would be an advantage to have 

 the jury composed of some odd number, but so long as the law re- 

 quiring unanimity remains, or should two thirds or three fourths be 

 allowed to render a verdict, there seems no sufficient reason for chang- 

 ing the number. Should any change in this respect be made, it would 

 seem expedient to make the number of jurors in some degree corre- 

 spond to the importance of the issues to be tried. 



4. The fourth characteristic feature of the jury which I shall con- 

 sider is the requirement of unanimity in the verdict. This, like the 

 number, is due to the fact that the ancient jury was composed of wit- 

 nesses. Twelve lawful men must declare upon oath the existence of a 

 fact before a verdict could be rendered. But, should they disagree, 

 others were added until twelve out of the whole number were of one 

 mind, which process was called afforcing the jury. This process re- 

 sulted in allowing a bare majority to render a verdict whenever that 

 majority consisted of twelve, f From this it is clear that it was the 

 quantum of proof required, and not the probability of correctness aris- 

 ing from unanimity, that gave rise to the rule that twelve men must 

 consent to the verdict. Since jurors are no longer witnesses, the rule 

 has survived the circumstances that gave it birth. 



Laws affecting millions of people are enacted by a mere majority 

 and are equally binding on all ; courts of last resort frequently decide 

 by a bare majority as to the validity or proper application of those 

 laws ; and it is exceedingly difficult to understand why the unanimous 

 verdict of twelve men is necessary to establish the existence of the 

 facts to which such laws apply. When we remember how differently 

 * Forayth, " Trial by Jury," p. 62. f Stubbs, " Constitutional History," vol. i, p. 616. 



