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 veracity. 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 information 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 witnesses 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 reasons which gave rise to it have doubtless long ceased to exist, yet it may be difficult 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 requiring unanimity remains, or should two thirds or three fourths be allowed to render a verdict, there seems no sufficient reason for changing the number. Should any change in this respect be made, it would seem expedient to make the number of jurors in some degree correspond to the importance of the issues to be tried.
4. The fourth characteristic feature of the jury which I shall consider is the requirement of unanimity in the verdict. This, like the number, is due to the fact that the ancient jury was composed of witnesses. 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 resulted in allowing a bare majority to render a verdict whenever that majority consisted of twelve. From this it is clear that it was the quantum of proof required, and not the probability of correctness arising 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
- Forsyth, "Trial by Jury," p. 62.
- Stubbs, "Constitutional History," vol. i, p. 616.