Authored by: bugstomper on Tuesday, May 08 2012 @ 01:51 AM EDT |
Quoting from History of Trial
by Jury , William Forsyth M.A., 2nd Ed. (1875) revised by James Appleton
Morgan Esq.
Bishop Burnet tells us of a jury in his time who were
shut up a whole day and night, and those who were lor an acquittal yielded to
the fury of the rest, only that they might save their lives, and not be starved.
At the present day, when the jury in a criminal trial can not agree upon a
verdict, they are discharged as soon as the confinement and abstinence become
seriously injurious to health; and this is generally certified to the court by a
medical man. But it may well be doubted whether the rule as to their being kept
“without meat, drink, or fire,” ought not to be relaxed. It is difficult to see
what harm can possibly result from their being supplied with a moderate degree
of food and the warmth of fire during their deliberation. The interruption of
their ordinary occupations, and the loss of time and inconvenience occasioned by
their attendance at the trial, are quite a sufficient stimulus to induce them to
come quickly to an agreement, without adding the pangs of hunger, and thirst,
and cold. And it seems absurd, if not worse, to try and starve men into
unanimity in a matter in which their consciences are concerned. The result must
often be that the strongest stomach, instead of the wisest head, carries the
day. I feel persuaded that if we first heard of the existence of this custom in
a book of travels relating to some distant country, we should denounce it as
utterly unreasonable; and nothing but long usage could reconcile us to its
continuance amongst us. For my own part, I am unable to devise an argument
defending it. The possibility of excess seems to be the only pretext for the
rule; but this is a chimerical apprehension, since it is always in the power of
the court to take care that the food and drink supplied shall be of the most
temperate kind. It may possibly be said, that even this to some common jurors
would be a temptation to prolong the sitting; but when we consider the detriment
to their own private affairs which absence causes, such a case can only be a
rare and exceptional one.
[ ... ]
The rule,
however, in this respect, is different at the present day, for it is only after
the judge has summed up and the jury are considering their verdict, that they
are prohibited from having “meat, drink, or fire, candle-light only excepted.”
Otherwise, in cases when a trial extends over several days, it would be
physically impossible to enforce abstinence, and prisoners would escape by
resorting to the expedient of tedious and protracted delay in their defense. No
such lengthened trials were, however, known in the simple times of old. But the
reason assigned for the rule in the passage above quoted is not the true one. It
arose, no doubt, from the propensity of our ancestors to indulge in excess at
their meals; and was dictated by a fear lest jurors should, if they had access
when impaneled to food and drink, become incapacitated from a due discharge of
their duty.
The first mention of the rule occurs, I believe, in Fleta, which
was written in the reign of Edward I., and it is there said, that the sheriff is
to cause the jurors in an assize to be kept sine cibo et potu until they are
agreed. But at that time it was in the option of the justices, either compellere
ad concordiam the jury in this way, or to afforce it by adding, as has been
previously explained, jurors to the majority, until twelve were found to be
unanimous. The expression compellere ad concordiam shows that in Fleta’s time a
compulsory process might be resorted to in order to produce an unanimous
verdict; and this is further shown by the fact, that the dissentient minority
were subjected to a fine quasi pro transgressione. But here again we must not
forget that the jurors were still regarded merely as witnesses. And if seven men
swore positively that they had seen and known the possession of land to be in a
particular person, or his ancestors, the presumption was very strong that five
other neighbors who professed to be cognizant of the matter must have known the
same fact, and therefore, in refusing to concur in the verdict of the majority,
they were deemed to be guilty of contumacy, if not willful perjury. But it
deserves notice, that by the law of the Saxon Ethelred, which has been already
quoted, if two-thirds of the thanes who formed the court or inquest agreed, the
remaining one-third who dissented were fined. “Let doom stand where thanes are
of one voice: if they disagree, let that stand which VIII. of them say. And let
those who are out-voted pay each of them VI. half-marks.” And the thanes spoken
of here were certainly not witnesses, but sat in the capacity of
judges.
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