contrary to the sanctity of the oath of a ju ror.1 They say that if it is expected by the public that there will be as a matter of course an agreement upon a verdict of guilty or not guilty, juries will be tempt ed to neglect their duty, and to agree with out proper consideration of the grave issues presented to them. They fear that beliefs and prejudices will be substituted for honest attention to the evidence. And when they come down to the final point they deny that one juror should ever yield what he thinks is a reasonable doubt, unless he is entirely convinced that it is not reasonable. This position reduces the chance of a ver dict to the state of mind of the most vacillat ing man on the panel. It is true that it sus tains the right of the men of the best judg ment to explain away the difficulties of others after agreeing upon the main lines of some reasonable position, and it sustains the equal right of one independent juror to stand out with superior intelligence and courage perhaps against eleven mistaken men. But the intelligent and able men can be trusted to take care of themselves in such discus sions. They know how to listen and to learn and to deliberate and to decide beyond a reasonable doubt. They see when doubts are unreasonable as they gradually reach certainty. If they cannot learn enough from the evidence to get some more positive stand than mere puzzling over the question whether a doubt be reasonable or not, they decide that they cannot decide. And such men should be followed, and are followed by their fellow jurymen in most cases. They know more about the case before them than their fellow jurymen, although they have all sat in the same box. When the learned judge referred to spoke of the jurors as i" You shall well and truly try, and true deliverance make, between our sovereign lady the queen and the pris oner at the bar whom you shall have in charge, and a true verdict give according to the evidence. So help you God." This is said to be the immemorial form of the common law oath.
"equally honest, equally intelligent, who have heard the same evidence, with the same attention," he really used the language of theory; he was speaking with that judicial diplomacy which is adapted to prevent the lay mind from suspecting that any citizen is being treated otherwise than as having his full rights to live up to the Declaration of Independence. Jurors are not equally intelligent, and most of them acknowledge it if their right to disagree is not encroached upon. Nor are they all equally able to make up their own minds without assistance. Yet those who are inferior in these respects may be of material assistance through other qual ities to the whole jury. The fundamental error in the objection to the practice of one or more jurors yielding to the opinions of others whom they think to be more probably correct than themselves seems to spring from the irrational assump tion, that the function of every member of a jury is the same. But twelve men rarely ex cel each in the same direction. The man who can attend to every detail of the trial that goes on before them all is an exception al person. The man who can remember everything which he does hear or see is even rarer. The man who with a shrewd judg ment of human nature weighs every witness and gives a proper proportionate value to each person's testimony is a person of unusu al experience. The man who has a special knowledge which enables him to understand evidence of matters not universally familiar, for instance, as to whether a ship's wheel can be left lashed when she is under full sail, is a help when such matters are in evidence. The man who can, by his clearness of mind, put all these things in their places in a com prehensive view of the whole case and then not merely argue logically but make the facts do their own reasoning by his life-like statement of them, is a convincing force. He too needs the natural and irrepressible doubter to whom as a rule any theory is un satisfactory. And they all need the man of
