by the disagreement of a jury, the State can afford to wait, and no expense should be balanced against the possibility of innocence. So I think that justice will be best insured by retaining the rule requiring unanimity in criminal cases, and in all civil causes permitting three fourths to render a verdict.
5. The fact that jurymen are chosen by lot has been the subject of no little ridicule, and yet I think no other method would, on the whole, prove as satisfactory. When juries were composed of those who knew the facts in dispute, the panel must have been drawn from a limited number, and often the whole number of witnesses were not sufficient to make a complete panel. At that time, knowledge of the matter in controversy determined who should be called to sit as jurors; but, when the jury became a tribunal for the trial of facts upon the testimony of others, the jurors were called from the whole number of citizens possessing the requisite qualifications. In most of the States of the Union the qualifications of a juror are the same as those of a voter, and the panel is chosen by lot. In this way the personal element is, if not eliminated, at least restrained, and the impersonal element—blind chance—that knows neither friend nor foe, decides who shall be the arbitrators. In popular election Justice may be defeated, but Fortune always gives her an even chance.
Having described some of the leading characteristics of the modern jury, I shall now consider some of its advantages—first, as a judicial tribunal; and, secondly, as a political institution. No one now questions the utility of the separation of the legislative or law-making power from the judicial or law-interpreting power. No less important is the separation of the power that decides upon the facts from the power that applies the law to the facts when so determined. The former is the province of the jury, and the latter that of the judge. It is the duty, and the whole duty, of the jury to determine whether certain facts do or do not exist. It is sometimes said that in criminal cases the jury are the judges of the law as well as the fact. This misapprehension arises, I think, from the nature and effect of the verdict rendered in such cases. On all issues joined in criminal cases the jury may bring in a general verdict of "guilty" or "not guilty," and, if the latter, the defendant can not be tried again, no matter how erroneous the verdict may be. And this, too, is the result, even though the verdict be contrary to the express instruction of the court. The jury are, however, bound to follow the instructions of the court in all matters of law, and if they do not they are false to their trust, however remediless the state may be. If, on the other hand, the jury return a special verdict, that is, that certain facts do exist, the court is bound either to act upon those facts as true, or set the verdict aside and submit the facts to another jury. Now, suppose the judge should usurp the power of the jury, and should, notwithstanding the verdict, declare the alleged facts untrue, or decide that the facts though true