favour of the criminal. The obvious consequence of this is, that they on other occasions interpret their obligation according to their own ideas of the propriety of the law, which awards punishment to the crime, upon the commission or noncommission of which, they are sworn to decide. By which interpretation of their oath, they become at once both legislators and judges; whereas the power vested in them (in many cases without their verdict being subject to a revision) can upon no principle of political wisdom have been given them, but upon the confidence that they would put the strictest interpretation upon an oath so plain as theirs is. And the institution is so valuable to our liberty and security, that every true Englishman must be sincerely desirous it should always be maintained in its utmost dignity and purity. While yet, as limited to the number of twelve, who are required to be unanimous in their verdict, the actual operation of it, in civil cases at least, seems inconsistent with the oath enjoined; for that does not suppose any dispensation for the minority to give up their judgment to the majority, which is a case that must often occur. In criminal cases indeed, as the law requires the unanimous verdict of the twelve before a man can be convicted; when that unanimity does not take place, the person arraigned is of course acquitted; and therefore that part of the jury do not in fact violate their oath, who supposing him guilty, give up their opinion to the others after having concientiously declared their judgment and the ground of it to their fellows. But it does not appear that the jurors, who consider the person arraigned to be innocent, can, even if they form the minority, conscientiously give up their opinion and join with the majority in condemning him. In neither case does there seem any reason or propriety in requiring the jury to be

unanimous in their verdict. However, we do not treat our jurymen worse, than the inquisitors in Spain do the unhappy culprits, who are brought before them; for they only make them swear they believe what the inquisitors know perfectly well they do not.

Dr. Pettingal, in his Inquiry into the Use and Practice of Juries among the Greeks and Romans, 4to. Cadel, London, 1769, has with great probability derived the custom of juries, prevalent at one time in all the nations of Europe established on the ruins of the Roman Empire, from the judices of the Roman Courts (who, after the rejection of fifteen by the challenge of each of the contending parties, were sworn, to the number of fifty-one) in consequence of the Roman laws so long before established in those countries; as he derives. these judices also from the Athenian dixaorai, through the means of the Roman laws by solemn deputation brought from Athens by the Decemvirs. Be that as it may; it appears that the number of jurors has been different at different periods. In Scotland", about A.D. 842, they were to be any odd number from seven to fifteen, and even more, indefinitely. Ethelred the First, the brother and predecessor of Alfred, appointed them to be thirteen including their foreman, the majority of whom seem to have determined. Alfred saw with concern the life of man exposed to the decision of one odd vote, when six of the number thought him innocent; and therefore ordered that no man should be punished by loss of life or limb, whose crime or misdemeanor was not so evident as indisputably to appear to all the twelve. A constitution quoted by the same author from Bracton, Lib. iv. c. 19. is contrary to Alfred's proceedings, seems inconsistent with any equi

17 Pettingal, p. 161.

table mode of administering justice, and at the same time shews the dilemma into which the judges were drawn by requiring the twelve jurors to be unanimous. Si autem juratores sibi invicem fuerint contrarii, in electione justiciariorum erit vel assisam (so called from sitting, quasi assidentes) afforciare per alios, vel eosdem compellere ad concordiam. "But if the jurors differ in their opinion, it shall be in the choice of the judges to increase the number of the jury by others, or to compel the same to agree." If the principle of Alfred's law in criminal cases is to be applied to civil ones, it must happen the plaintiff will never gain his cause, unless his claim appears indisputable to all the twelve. How far this might be just or practicable, those can best determine who are most conversant with the decisions of the courts. At any rate in this, as in many other cases, by aiming at too much we lose what we might gain. By endeavouring to force the jurors into unanimity, we cannot be said to obtain the unbiassed judgment of twelve men; for that can be obtained only by a constitution similar to that of the grand jury.

And the barbarous attempt to force a jury to be unanimous by starving them, seems to have grown out of a regulation, very salutary to the intemperate invaders of countries producing wines, to which they had not been accustomed; that they should transact all their business before dinner. The laws of the Lombards order :-Ut judices jejuni causas audiant et decernant. "That the judges should hear and determine causes fasting," i. e. in the morning. Which practice also seems founded on the laws of the Romans, who ended their sittings both in courts of justice and in the

18 Pettingal.

senate by three o'clock, their dinner time; or at latest by four.

Dr. Pettingal, instead of deriving our juries from the ancient practice of compurgators, derives that practice from the laudatores of the Roman laws, who were witnesses called to speak to the character of the person arraigned.

Sometimes in important points, doubts may arise respecting the extent of the obligation imposed by the oath or the discharge of the person sworn from the obligation of it (as lately in the case of a grand juryman's oath) which it is of importance to the maintenance of a truly conscientious principle, should be determined upon solid grounds; that no temptation be afforded for evasions, but the mind be perfectly satisfied in what it resolves to do. In the case of that oath the decision seems easy. It is a public oath imposed by the whole legislature, and therefore the obligation cannot be voided by a less authority. It is also imposed for the individual security of the jurors in the discharge of their important functions; and therefore the obligation cannot be voided, except by the consent of every individual of the jury, being in effect an oath to them also. The next question is, what is the extent of the obligation? The oath requires that they keep the king's counsel, their fellows, and their own: and therefore every thing which passes in secret among them, whether it affect the parties whose matters are at issue, or the conduct, opinions, or character of their fellows, comes within its extent; as also the rights of the king no less sacredly and indispensably, except by his consent also. But what is said or done by other persons not sworn to secresy, seems not to be included; and therefore the grand juryman, who gave testimony in open court to the perjury of a witness previously examined before the

grand jury, acted with a sound discriminating judgment. Things also, which pass in the grand jury room before persons not sworn to secresy, cannot be called the secrets of the grand jury, and therefore evidence might be given of them by a grand juryman, when they are misrepresented to the discredit of the grand jury. But as in these cases the whole truth must come out, which might in some points reflect on some individual of the grand jury, such evidence, which in theory might seem allowable, must in practice, be held not admissible. At any rate as the grand juryman is left by the law to interpret his oath according to his own conscience, it does not appear that any power can lawfully or justly compel him to answer in such cases; especially as in common criminal cases no one is obliged to answer questions, which he thinks may criminate himself. In some cases it might be advantageous to the ends of justice to have such evidence: but if the license to give it were general, it would defeat the object altogether, for which the secrecy is enjoined and therefore it is not allowable in any. For we must determine in such cases on a view of the general, not of the particular consequence. (See Paley.) The same observations apply in every respect to the oath of a privy counsellor. And we need go no farther than Lord Clarendon's account" of the evils, which actually followed the dispensation from the oath of secrecy granted to the privy counsellors, that they might permit themselves to be examined as witnesses against Lord Strafford; to be convinced that such a measure may suit the narrow views of a party interest, but can never coincide with the straight forward course of an enlightened policy. But with respect to an oath not enjoined by law, the case is altogether different for no one can of his own authority, by inducing a posterior obligation,

19 Vol. I. Book iii. p. 193, 194. Oxford, 1717. 8vo.