a cause, inherent in the system, which must not be ignored, and that is the rule requiring unanimity,—the sixth element I have men tioned. Every one knows that in an import ant and hard case the struggle of counsel is to secure upon the jury one or more who are friendly to their client, or in sympathy with the cause or interest with which he is iden tified, or who may be easily influenced by ap peals to prejudice or sympathy. The intelli gent business man, the mechanic, and the farmer, too quickly respond to the voice of the judge demanding justice, and hence, if possible, they must be excluded, and the ignorant, easily moved by appeals of coun sel, secured. Let the rule of unanimity be abolished and the result determined by the conclusions of two-thirds or three-fourths of the jury, and this struggle after the single helpful juror will largely disappear. And why should it be deemed essential? Neither in legislative halls, among judges, in arbitra tion proceedings, nor in scarcely any other body called to make a determination, is it the rule. In my judgment, the great objec tion to the jury system, as it is administered to-day, and the one which more than any other, threatens its overthrow, is this rule of unanimity. Were it abolished, less time would be wasted in impaneling a jury, and a better class of jurors would ordinarily be selected. More than that, the truth would be more certainly determined. How often, in criminal cases, do ten or twelve jurors yield to the obstinacy of the remaining, and agree on a verdict for a lower degree of crime than they really believe the defendant to be guilty of! And in actions for the recovery of money how often is the amount of the verdict affected by the obstinacy of a single juror! If the jury is to be preserved, some other things must be done,—things necessary to elevate its character, make it a fair repre sentative of the highest intelligence of the community, or at least of the average, and not, as it now generally is, of the lowest in
telligence. All know that the ordinary business man, the intelligent citizen, shirks jury duty with about as much zeal as he runs from a rattlesnake; that there are a multi tude of loafers around a court room seeking the meagre pay which attaches to the posi tion, who cultivate the lawyers, and become professional jurors. I make these sugges tions as helpful in the matter. First, give them better compensation. As a rule, they are paid no more than the ordinary day wages of an unskilled laborer, and it is gen erally true that poor pay brings poor service. Better eight jurors reasonably paid than a dozen poorly paid. Secondly, free the work of the juror from some of the disagreeable annoyances which now too often attend it. He should not be compelled to work more hours than the judge. To shut him up and keep him confined day and night is a crime against society. He is treated too often as an object of suspicion,—as though he were probably dishonest, and must be specially shielded from temptation. Why should he be shut up, while the judge is not? A bad man on the bench or in the jury box will surely find ways to be tempted, and few things are more calculated to degrade his office in the sight of the juror, and to bring out all the evil that is in him, than the con sciousness that he is an object of suspicion. I have been nearly thirty-seven years on the bench, and take pleasure in recalling that, so far as it was possible, I always relieved the juror from confinement other than such as I myself submitted to: that I endeavored to make him in the discharge of his duties free from suspicion and annoyance. And I have not the slightest reason to doubt that the course thus pursued resulted not merely to the comfort of the juror, but in a better administration of justice. Some of the changes which I have sug gested, particularly that in respect to the number of jurors and the rule of unanimity, can only be accomplished through constitu tional amendment. It is a very difficult
