of the whole system is preferable to a change that would allow a majority of seven, or nine even, to exercise all the powers and func tions of the entire twelve. . . . Trials by jury became a part of the common law when the questions before the courts related princi pally to real estate and personal rights and liberty, and while admirably fitted to ascer tain and settle the few and simple facts gen erally involved in such controversies, it by no means follows that a jury of twelve men, farmers and mechanics, are the most appro priate tribunal to which the facts and cir cumstances connected with intricate and involved commercial transactions of the present day, could be submitted for an in telligent and satisfactory decision. A change in that respect might be in the direction of true reform, and warranted by the changed condition of the circumstances and business of the commercial world, and the advance of civilization. Notwithstanding this may be true, we cannot look upon the proposed change with any degree of favor. ... In an ac tive and extensive practice of nearly half a century in three States, it has not been the experience of one of the minority of your committee to observe mis-trials to any serious extent, caused by " one crank " or "fool " on the jury failing to agree with his associates. Cases of this kind may have occurred; but mis-trials have usually been the result of honest differences of opinion of jurors. . . . Jurors were never selected as experts, or as men learned in the law, but as men competent to find and agree upon the facts, and their unanimous concurrence has always been re quired. If the unanimity principle is to be given up and sacrificed, then the whole jury system should go with it. If a majority is to rule in fixing the verdict, let us have men of intelligence selected for the purpose, learned in the law and skilled in the investigation and sifting of evidence, and their number greatly
reduced. In fact, let the whole system be abolished, if this one essential and fundamen tal principle is to be eliminated, and a dif ferent tribunal constituted." Three of the committee signed the major ity report. One concurred in Mr. Cary's minority report. The whole question was the subject of discussion by the Association. But the Association hesitated, and passed the further consideration of the subject over to the next meeting of the organization. The report of the minority, coming as it did from such an eminent source, caused the Associa tion "to take a second thought " before tak ing definite and final action. It is doubtful if anything further ever came of the matter before that august body. It is obvious from what has been submit ted, that Mr. Cary was identified with litiga tion of far-reaching importance and conse quence, not only to the parties directly concerned, but to the general public as well; that this importance and consequence related, not only to the vast financial interests in volved, but also to legal principles as they should be applied to corporate interests, and their proper judicial interpretation in the courts of last resort. Mr. Cary's connec tion with this litigation was in the capacity of one of the principal actors. He took no minor part. He was the leading counsel on one side of the litigated matters. His famil iarity with the facts and knowledge of the law was phenomenal. The presentation of his views, as they had been formed, by rea son of that familiarity and knowledge, was masterly. He was cautious but certain. He was conservative and fair, but never wavered. He was painstaking and thorough and so never hesitated in the positions taken. He was modest and unostentatious and so never "brilliant," as the term is used among law yers. He abhorred the lawyer who indulged in senseless claptrap and meaningless bulla
