Page:Harvard Law Review Volume 5.djvu/312

296 296 HAR VARD LA W RE VIE W. 2. The rule of unanimity in giving a verdict was by no means universal at first. A doctrine had a considerable application in Normandy and survived in England, that it was enough if eleven agreed ; the ground of this being the old rule that a single wit- ness is nothing — testis unus testis nulhts} Then in certain cases a majority of the twelve was enough ; as in the assise of novel disseisin, in which only seven were necessarily present, these seven being then required to be unanimous. Brunner's remark is very likely true, that " Only in the second half of the fourteenth century did the principle get established that in all in- quests the twelve must agree in order to a good verdict." 2 The Mirror appears to assert an opinion which I have not observed elsewhere, that "since two witnesses are enough, according to the Word of God " {solonque le dit de Dieu), a verdict should be held good if even two only are found to agree. 3 But we are probably to understand this courageous writer to be asserting his own opinion of what ought to be held for law. Thus regarded, his statement seems to overlook the fact that the jury were more than witnesses ; they were triors as well ; and the explanation of their number being usually greater than the scriptural "two or three" lies probably in those historical considerations to which Brunner (Schw. 112) refers, such as the desire to make up not merely by quality but by quantity for the lack, in the case of the jury, of that amenability to counter proof and the battle which sometimes existed in the case of the older witnesses. 4 In 1286 the jurors in an assise (probably of novel disseisin) were unevenly divided, 5 but the judgment is given in these words: et quia dicto maj oris partis jur. standum est, consideratum est, etc. 6 This doctrine of giving judgment with the majority is laid down generally, in the trial of felony, by Britton (12 b): " If they cannot 1 As to this rule, see Best, Evid. ss. 597-600. ton, 1 84 b, 25 5 b, and 1 79 b. The last citation relates to the mortdancestor, and runs thus : "The assise is to proceed by twelve jurors . . . and not fewer, as it may in the assise of novel disseisin, by seven at least. . . . And so here let the assise proceed by twelve at least." In the French use of the inquest, the principle of a majority decision prevailed. 8 c. 3, s. 34; compare c. 5, s. 1, 136. 6 "X jur. dicunt unum, ety. dicunt aliu?n contrarium" says the account in PI. Ab. 279, col. 1, Kane. We must surmise that the xi. is a misprint for ii. 6 Compare a case of 1199 in Rot. Cur. Reg. ii. 105; s. C. PI. Ab. 23, col. 2, Suff.
 * For Brunner's very interesting account of all this, see Schw. 364-371; he cites Brac-
 * Harv. L. Rev. v. 51-52.