in every affair? To what purpose do the jurors so tediously develope their individual opinions? May it not be feared that by doing this they run the risk of being influenced by the view of some one of their colleagues, who may have an ascendancy over them, and give up their own inferences, drawn from the impres sion which has been produced on their minds in the course of the proceedings, for the suggestions of an artful and specious man?

I do not however mean to say that all deliberation should be forbidden them; for that is the only method by which a juror can be brought over, whose dissent may proceed from a mistaken view of the fact; but I should wish this deliberation not to be imposed upon them as a duty, and that at all times they should be authorised to assemble round their foreman, and give in their verdict without being obliged, as they now are, to retire into another room, in order to consider of it.

I might here examine the grand question of that unanimity in jurors, which in England is regarded as the very essence of the institution; insomuch that to it alone some of their most learned lawyers attribute all the advantages of this mode of judgment; but the object of the present chapter does not embrace a discussion of such extent.

I must content myself with remarking that this unanimity was established in the fifth year of the republic, by a law passed on the 19th July, and continued to be insisted upon till the publication of the existing code, that is for about twelve years; with this modification however, that if after twenty-four hours of deliberation the jurors should not be able to come to an agreement, their verdict should then be decided by majority.

If we may believe the accounts of the trials throughout all France at this period, it should appear that upon the whole of them, with the exception of about forty in each year, the juries were unanimous; and that at Paris in particular, in the course of 1800 trials, judged by the criminal tribunal in the space of four years and a half, there have only occurred 21, in which the jurors have profited by their right to deliver in a verdict simply by majority. The advocates for unanimity avail themselves of this representation, and allege, that from it we may fairly presume that, with more constancy and firmness, it would have been easy to have introduced among us, and interwoven with our manners, the necessity of that unanimity, so useful, if not absolutely essential to justice. They maintain that it would have been accomplished with facility, merely by depriving weak and pusillanimous jurors of this unfortunate alternative of twenty-four hours, which offered a refuge to their irresolution, and procured them the means of escaping the responsibility of the decision which their consciences dic

tated. The principal arguments opposed to unanimity of voice emanate in the event of some of the jurors holding contrary opinions, which they are ultimately induced to retract, and which they are evidently inclined to do, not from a conviction of having formed a false estimate of the case, but from the necessity of the weaker succumbing to the stronger or more powerful party; besides, whenever a prisoner is acquitted either by a simple majority or by twothirds of the jury, justice ought to be satisfied, and the public convinced that the remaining third is secretly of the same opinion as the majority, and that if it refuses to unite, it is because the one party is influenced by weakness, and the other is composed of persons whose minds are naturally inflexible, and whose obstinacy induces them to acquit the accused, although convinced of his culpability.

In short, it is pretended that the system of unanimity produces no other effect than to establish a controversy between the strong and the weak, which gives the victory in favor of him who is most habituated to the fatigues both of mind and body.

To this mode of reasoning the supporters of unanimity reply;first, that it is unjust to impute to the union of the minority with the superior number, only an apparent harmony of sentiment; for although a certain degree of complaisance may appear on the weaker side, yet it can never be supposed, that, having formed a strong and irrefragable conviction of the innocence of the prisoner, they could be induced to change that opinion either through fatigue, or a manifest wish on the part of the majority to pronounce him guilty; and that their adhering to that opinion at least proves, that however they might desire further or stronger proofs against the accused in the course of the trial, they had nevertheless quite sufficient internal conviction of his guilt.

Secondly, that society ought to consider it as fact, that the majority of two-thirds really carries with it the certainty of unanimity, except in the cases where we find among the jurors persons obstinately determined never to pronounce a verdict of condemnation. It is a still stronger reason for requiring a public declaration of that unanimity; on the one side, to force the weaker party to abandon their disgraceful and scandalous subterfuge, and to oblige them to join the majority, in securing the bonds of society from being broken; and on the other side, to subdue those systematic and stubborn spirits who wish to appear even wiser than the law itself.

Thirdly, we must not suppose that a firm and courageous man will always happen to be on the erroneous or unjust side of the question. He may as often chance to be on the side of justice, and lend it the support of his courage and resolution; and though

it is not mathematically impossible for a tenacious and resolute man to constrain the eleven jurors who may be decided on condemning the criminal, to abandon through weariness their own sentiments, and adopt his, yet that even this inconvenience is less than that which results from our existing system, by which a person may be condemned by a majority of eight to four, however convinced the remaining four may be of his innocence, and however they may proclaim their sense of it aloud.

Such are the arguments most commonly made use of, both for and against the system of unanimity; those against it originate in the unworthy considerations of weakness or obstinacy; those in its favor are on the contrary the fruits of a theory, masculine, powerful, generous, and congenial to the principles of a constitutional government. But why must I confess that our minds are not yet strong enough to support these principles, and that they might even be productive of the most fatal results? By the present system, which allows of sentence being pronounced by a majority of eight against four, justice has a chance of victory, in the secrecy which the system offers to those jurors who may have given their voices in condemnation of the prisoner, and who may be anxious to escape the inquiries of curiosity, as to which way their opinion tended. How indeed can it be known with certainty by what majority the decision has been carried, and which of the jurors may have voted for, or against the accused? But by the system of unanimity, which necessarily makes all the votes known, how many peaceful citizens would be made uneasy all the rest of their lives, by the dread of some possible revenge? It is easy to collect all the energies of the soul, and brave hatred and design, sooner than subscribe to the condemnation of an innocent person; but in acquitting the guilty, fewer scruples are excited, and yet the injury that is done to society is great enough, on such an occasion, to call for

some remorse..

I think I am at liberty to affirm that in the present state of our manners, from the apathy with which our citizens fulfil their duties, it would be impossible, on the system of unanimity, to convict any person who might be guilty of a political crime, connived at by some powerful party.

If, however, the system should prevail against those consequences, which I think myself authorised to doubt, it would certainly be advisable to establish an open and vigorous unanimity, deprived of all those evasive subterfuges which are only the timid concessions of weakness. We require to be taught our duty as citizens: we must learn it from the laws; they must inspire us with the civil courage in which we are so deficient, and accustom us to act upon our own responsibility, the only way to unite opinions, to

give them effect, to gain them defenders, and make them respected.

We will now inquire into the manner in which proceedings are laid before the jurors. The code prescribes that no question shall be submitted to their deliberation, excepting that which absolutely results from the indictment itself. Reason points out that they can only judge the prisoner upon the facts set forth in that indictment. But when unexpected circumstances present themselves in the course of the examination, to palliate the nature of the crime imputed to the prisoner, ought they then to be strictly confined to the question of the indictment, which would in that case be without object, the code not having provided against an occurrence of this kind?

A man, for example, is seen descending from the window of an apartment in which a theft has been committed; he is afterwards found with the stolen articles in his possession, and he is presented before the jurors as guilty of house-breaking.

In the course of the examination the aspect of the affair changes; the witnesses, who before the instruction had positively declared the prisoner to be the same whom they had seen descend from the window, now begin to hesitate; but the circumstance of the stolen goods being found upon him remains as strong as ever, he being unable to explain how they came into his possession: we may imagine that in this case the jurors may doubt as to the principal fact alleged, which is, that the prisoner has not himself been guilty of the theft, but that he has been at least an accomplice in it, by receiving the stolen goods, is still sufficiently evident. The accusation however turns only upon the commission of the theft, and not upon the circumstance of being an accomplice. What conduct then must be adopted? Must the prisoner be acquitted upon the charge of theft, and tried upon a new indictment, as an accomplice, when it is evident that this new indictment can only be framed out of the same materials as the old one? We may easily conceive the evils which would arise from such a mode of proceeding, how the progress of business would be impeded, and the prisons crowded; what expenses would be heaped upon the state; how many prisoners forced to submit to trial after trial, and grow old in dungeons, without means of obtaining the determination of their fate. Such a state of things would be intolerable in practice; and that it does not exist, is owing to the following circumstances.

The court not finding in the criminal code any means of preventing the abuse I have just mentioned, and feeling the urgent necessity of doing so, availed themselves of the article 338, which permits the president, when any aggravating circumstances appear in the course of the evidence, to make a new exposition to

the jurors relative to these circumstances; and from this the inference has been drawn, that the president was authorised to lay before the jurors all questions in any degree connected with the act of accusation.

Certainly the legislature was far from imagining that the construction put upon this article would ever have been carried so far. It was adopted only as a means of completing the accusation; when it was aggravated by any new depositions, containing circumstances not known at the time of the instruction being made out, such as house-breaking, or forcible entry, or being an accomplice : but it was never meant to extend to the right of deciding upon these relative questions; insomuch that when the first plea against "the manner in which they were conducted by the presidents of the courts of assize, was carried into the court of appeal, that court was extremely surprised at the unexpected construction that had been put upon article 338; but it was nevertheless soon convinced that it was impossible in practice to dispense with some law that should grant to the court of assize, the privilege of putting questions having affinity to those immediately emanating from the charge; and that, since no mode of proceeding in cases of that kind was laid down in the code, the deficiency must necessarily be supplied, by giving to one of the articles there found, that interpretation which was absolutely requisite.

The adoption of this article, however, immediately presented another abuse, the inconveniences of which we every day experience. According to the manner in which it is conceived, it is the president alone who has a right to judge upon the circumstances which may aggravate the case; and, according to the construction which he may put upon them, he is privileged to follow up the proceedings. It is evident then that in a great number of circumstances, the fate of the prisoner is at the disposal of the president.

It is necessary to be intimately acquainted with the secret springs by which the jury is governed, to give an idea of the influence which the president possesses over them from his right to put these questions. Often by declining to do it, and by confining himself strictly to the questions which actually result from the charge, he is almost certain of procuring the acquittal of the prisoner. This is almost always the case when the evidence in support of the charge is weakened in the course of the trial by the deposition of witnesses; and that these depositions appearing doubtful as to the principal charge in the accusation, are no longer deemed of importance, excepting as elucidating circumstances connected with it. The jurors then consulting merely upon the act of accusation, which appears doubtful, and not upon the circumstances emanat