MODIFICATIONS OF THE JURY SYSTEM 1 



By John Burton Phillips 



There has always been considerable agitation against the rule that a 

 jury should be unanimous in the verdict it renders. Emlyn in 1730 

 argued for the abolition of the rule. Hallam in his Middle Ages wrote 

 against it. Bentham and Francis Lieber are also on record in favor of 

 its abolition. But a greater name than any of these in modern juris- 

 prudence is that of Judge Cooley. In his edition of Blackstone, he says 

 of the jury system, as far as its unit rule is concerned, that it is "repug- 

 nant to all experience of human conduct, passions, and understandings." 

 He further says that "it could hardly, in any age, have been introduced 

 into practice by a deliberate act of the Legislature." Justice Miller of 

 the United States Supreme Court is also on record against the unit rule. 

 He says, "I am of opinion that the system of trial by jury would be much 

 more valuable, much shorn of many of its evils, and much more entitled 

 to the confidence of the public, as well as of the legal and judicial minds 

 of the country, if some number less than the whole should be authorized 

 to render a verdict." 



It is peculiar that the unit rule in regard to the verdict of the jury is a 

 thing that prevails in England and America alone. 



In Scotland, before 181 5, a verdict could be rendered by two-thirds 

 of the jury. The English system of unanimous verdict was introduced 

 in 1830, but it did not give general satisfaction. In 1854 it was modified 

 by a law which provides that a verdict by nine jurors is sufficient after 

 six hours' deliberation. 



In France the jury system was introduced in 1771, and requires only 

 a two-thirds vote for a verdict. In Italy and Germany a majority is 

 sufficient, and in Austria, eight of the twelve are all that are required to 

 agree. In British India, after reasonable deliberation, if six are united 

 in their opinion and the judge agrees with them they may render a ver- 

 dict. "Reasonable" is interpreted by the judge. In the Bahama 

 Islands, a verdict may be rendered by two-thirds of the twelve. 



1 Reprinted from the Green Bag, Vol. XVI, No. 8, August, 1904, by permission of the editor. 



209 



