It has sometimes been asked what authority there is for allowing food to a jury during their deliberations; but it is so obvious a right, that some authority of a statute, and of the clearest kind, would be required to take it away. Law cannot presume to suppress the appetites of ordinary men who are not criminals. Whatever may have been the notions of duty in former times, no rule can now be laid down or accepted, that the performance of a juryman's duty, or of any other judicial function, is incompatible with such moderate food as each may reasonably require; and as to the necessity and quantity of it, nobody but the juror can with safety dictate. The discretion of the court may be brought to bear as to anything beyond a certain minimum, but if a juryman represented that according to his constitution and habits food was necessary, it would only defeat justice, if not bring it into contempt, should the request be denied. Starvation is much more likely to derange than fortify or quicken the judgment; and the sole duty of a juror is to give his attention and the best of his consideration to the matter in hand, but nothing more. No rule of law requires that his duty shall be made vexatious, if not dangerous to health.1

Juries during adjournments.-If a civil trial last from day to day, the jury at the end of each day are allowed to return to their homes for the night. But in criminal trials, where the issue is generally more momentous, it is usual for the jury not to separate, but to remain together, or at least in private, and not to return to their homes, lest by communicating with third parties they should receive a bias.2 In such cases the court has an inherent

cases they had been permitted to drink before they went from the bar. 4 St. Tr. 1404. And old authorities seem to assume as a first principle, that juries ought to be debarred from all food during the stage when they retire to deliberate on their verdict.-Doct. & Stud. 271; Mounson v West, 1 Leon. 133; 3 C. & K. 90 (n.); Jenkyns, R. 187. This practice of so jealously watching the food of jurors may be derived from the old practice of champions before the battle taking oath that they had neither eaten nor drunk anything "whereby the truth might be disturbed and the power of the devil enhanced.”—Mirror, c. 3, § 25; 2 Inst. 247. 1 See Windsor v R. L. R., 1 Q. B. 390; 8 B. & S. 490. 2 Langhorne's Case, 7 How. St. Tr. 497; Hardy's Case, 24 How. St. Tr. 414, 572.

power to adjourn, but the jury are meanwhile secluded from the public, and are often kept together in a hotel.1

How far juries must be unanimous.-As unanimity on the part of the jurors, in both civil and criminal cases, is one of the objects aimed at by the law, and the business cannot be completed until such a result of their deliberations is attained, it is obvious that whatever compulsion is exercised must continue until their views coincide. It may well be considered somewhat extraordinary, that twelve men, taken, as it were, by accident out of the crowd, should be expected, after a brief examination of statements and witnesses, not only to agree, but should be to some degree concussed into such agreement by confinement and deprivation of the comforts of their homes.2 In any other business of life it would be vain to expect such agreement; nor indeed would any prudent man take the trouble to consult, and run the risk and delay of refraining to act, except on the unanimous view of so many minds. And it may be asked, why should the law attribute such importance to a unanimous view, and refuse to acknowledge or give the least weight to any conclusion of less than the whole of the men selected to act as jurors, seeing that it must be obvious that there is no power of compelling the minds of men accustomed to think for themselves to accept a view which may appear to them unfounded or contrary to truth. Yet much can be said in favour of the doctrine acted upon by the law, that unless the whole of the jurors shall agree, their verdict shall go for nothing. It would indeed be preposterous that free men, empanelled to decide according to the truth, should be punished for not acquiescing, or should be detained and

1 25 St. Tr. 132, 745, 1295.

2 This rule of unanimity applies to all cases, except grand jurors and jurors at a coroner's inquest. A grand jury consists of twelve to twenty-three persons, and at least twelve must agree in their finding. A coroner's jury consists of more than twelve, and at least twelve must agree. In county courts, where the jury consists of five, they must be unanimous. It was thought that in ancient times the judge attained unanimity by dismissing the minority and substituting new jurors.-Glanv. b. ii. c. 17; Bract. b, iv. c. 19; Fleta, 230. And even sometimes the verdict of the majority was accepted.-2 Hale, P. C. 297. But in the time of Edward III. it was settled, that a verdict of less than twelve persons was nugatory.-41 Ass. 11.

imprisoned until their wills were subdued to one leveltill the obstinate or the sensible part should starve the rest into a surrender of their reason. But so long as a reasonable attempt only at unanimity is enforced, and nothing like tyrannical coercion or the rack is employed, the propriety of insisting on having the opinion of all or none is capable of being supported, and for the following

reasons.

No jury is ever left to spell their way through difficult and obscure passages of evidence or law. A judge is always at hand to explain anything embarrassing, to collect the scattered rays of evidence, and point them to one or two precise issues; and all that the jury have to do is to weigh in their own minds the alternative statements, and say which of them is more correct. When they agree, a reasonable confidence is felt, that all other persons would agree; and when they differ, it may with equal reason be assumed that the point submitted to them is so obscure, so delicate, and so ambiguous, that persons equally sensible would take opposite sides, and would stand by their respective views against all comers, unassailable to all the reasoning and all the argument of all the rest of the world. Considering how solid and intense is the satisfaction, not only to bystanders, but to the parties involved, at this mode of finding guilt or liabilitywhen twelve persons having no interest one way or the other, having heard everything that can be proved or argued on one side and the other, unanimously agree in one view-and how much feebler and less weighty is the judgment of one mind only, however upright and sensible, the result of unanimity is well worth aiming at in all cases. If there are occasional instances in which the jury act perversely or obtusely, they are at least more prone to be humane than a single judge would be, and their dissension may thus be attributed to the weaknesses inherent in human nature itself. And hence the best and least likely to err of all tribunals as yet known among men is that of twelve, or at least several, associated and impartial individuals, to whom is submitted the guilt or innocence, the liability or non-liability, in dispute.

In early times the court seems to have shown little consideration to those juries who could not conscientiously

agree in a verdict, treating their differences as the result of obstinacy, which a little hard usage might overcome. Hence it has been said, that if the jurors could not agree in a verdict before the judges of assize left the town, they might be taken in a cart by the sheriff to the borders of the county, so as to give them the benefit of this additional time to stimulate reflection, and their verdict might be accepted by the judge in a different county; though this travelling has sometimes been treated as an idle invention.1 Yet as it is impossible to compel a jury to agree, and equally impossible to detain them for ever if there is no prospect of their ever agreeing, all that the court can do is to allow a reasonable time for the jury to make up their minds, and if then they cannot agree, to discharge them and treat the trial as abortive. No rule can be laid down as to the circumstances which will justify their discharge on the ground of disagreement. It is always a matter for the discretion of the judge, and his discretion will not be interfered with by any court of error.2 It is usual, however, after the lapse of five hours, to come to a decision on this point, for after such a time hunger must interfere with any man's judgment, and discussion must have exhausted its powers. In some countries, as for example in Scotland, a rule has been laid down of allowing the court to accept, after a lapse of three hours, the verdict of nine jurors, and treat it as the verdict of the jury; and in criminal cases the verdict of a majority, namely, eight out of fifteen, will suffice in that country. But in this country no middle course has ever been adopted. The verdict of a majority of a petty jury is not sufficient; and if, after a reasonable time, all the jurors cannot agree, the only course is to discharge them, whether the case is civil or criminal. It is

3

1 Tri. per pais, 274, 285; Morris v Davis, 3 C. & P. 427; Windsor v R., L. R., 1 Q. B. 289, 390. COKE says that some call this treatment of a jury an imprisonment.-Co.Litt. 227b. Courts formerly indulged in so many harsh practices in all the departments of the law, that this legend about the cart seems quite consistent with ancient notions of propriety. Hale seems to recognise the practice.-2 Hale, 297. 2 Windsor v R., L. R., 1 Q. B. 390.

3 In Scotland a precise time of six hours is fixed in civil cases, after which, if nine are not unanimous, the jury are discharged, as a matter of course.-22 & 23 Vic. c. 7, § 2.

+ 22 & 23 Vic. c. 7, § 1.

true, that in a civil case the parties may consent to take the verdict of any portion of the jury; but that is entirely by virtue of the agreement. And it necessarily follows, that, after a jury has been discharged for not agreeing, a fresh trial may be had.1

The jury deciding by lot. The duty of the jury is to apply their minds to the evidence, and endeavour to arrive at a unanimous opinion. Hence it is so utterly contrary to that duty to decide by lot, that the court on being satisfied as to that fact, will not only set aside the verdict, but will fine the jurors.2 And yet, owing to the evils that would be induced by allowing jurors to give evidence and violate the confidence of their privacy, or connive with parties outside, the court will not listen to any of them seeking to disclose such misconduct. It is added, nevertheless, that if a stranger happen to look through a window, and see the jury casting lots, such evidence will be accepted, and if reasonably credible, will be acted upon.3

Accident to juror during trial.-If a juror happen during the trial to become so unwell as to require him to depart, this also has the effect of discharging the rest of the jurors; and renders it necessary to begin the trial de novo, either before a new jury, or the other jurors, with a substitute for the absent member. In civil cases, by consent of parties, the original trial may go on either with the reduced number, or with one substituted for him who has withdrawn. And here again, if the discharge of a jury in a criminal trial before giving their verdict occurs, there being nothing in the nature of a trial, the prisoner may be tried again, and is not entitled to his discharge.5

How far jurors punishable for misconduct. As the duty of jurors is compulsory, and at the same time essential to the administration of justice, it is obvious that while their integrity is of vital importance, and may be expected to be secured against suspicion, and some check put on their

6 B & S. 143, 490. Lev. 139; Foster v 3 Vaise v Delaval, 4 Edwards' Case,

1 Windsor v R., L. R., 1. B., 289, 390; 2 Foy v Harder, 3 Keb. 805; R. v Fitzwater, 2 Hawden, Id. 205; Hale v Cove, 1 Str. 642. 1 T. R. 11; Owen v Warburton, 1 N. R. 326. R. & Ry. 224; 3 Camp. 207; 4 Taunt. 309; R. v O'Connell, 1 Cox, C. C. 413. 5 Scalbert's Case, 2 Leach, 620; Kinloch's Case, 18 St. Tr. 416.