matter in hand than would be the case if his individuality were sunk in the verdict by a majority. This is probably quite true. If the juror knows that unless he consents to agree with the others there can be no verdict, it is very likely that he will be careful in trying to make up his mind according to the evidence and render a just verdict. The. inducement for him to do this is all the greater since in case he is the only one who will not agree to the verdict the other eleven wish to render, he must take the responsibility for the entire decision. Not many men care to go before the world with this responsibility unless they are fully persuaded that they are justified in holding to their opinion. Without carefully considering the whole matter they will not feel justified in taking this responsibility. Under a rule by which the majority decides, it is clear that the individual juror would not be likely to give the case so much attention. We are all aware of the comfortable feeling that comes over us as soon as we know that some other person will vote as we do. Our minds are at once relieved from the exertion of finding more arguments in support of our position. On the contrary when standing alone in our opinion, we feel the amount of energy we must spend in finding evidence to convince others that we are in the right. This is precisely what happens in the jury room. While the trial is going on each juror feels the necessity of paying close attention lest he be the one that will have the others against him and thus be compelled to produce the reasons for his position. It seems quite clear that the unit rule in this way tends to emphasize the individual juror's responsibility.

The principal argument against the abolition of the unit rule is that it is not a matter of very much importance. This is the leading argument that was made in the New York constitutional convention of 1894, where the question was discussed somewhat, though not at very great length. It is said.

that not many disagreements of juries are such that they would be prevented by the adoption of the unit rule. When a jury disagrees the vote usually stands either six to six, seven to five, eight to four, or nine to three. The cases are not many when one or two men hang the jury.

Again it has been shown that out of the whale number of jury trials the disagreements of the jury are comparatively few. Of 1104 jury cases tried in the superior court of the City of New York, there were but 35 disagreements. The Supreme Court in the first department of the State of New York, which includes the city, tried from 1889 to 1893, 3,460 jury cases. Of these there were but 22 in which the jury disagreed. It seems as though there is a mistake in the number of disagreements it is so small. Yet these are the figures given by the clerk of that court, and presented by Mr. Truax to the constitutional convention. From these figures it is clear that the question of the abolition of the unit rule is not as important as it might seem from reading the arguments that have been presented in its favor.

It should still further be added that these cases are not civil cases alone; the number includes the criminal cases as well. It is true that the disagreements of the jury are much more common in cases where a person is charged with crime than in civil cases where the action of the jury is not such as to deprive anyone of life or liberty. This is why jurors decide the cases submitted to them very quickly when nothing but the question of property is concerned. It is not in the cases that are concerned with the determination of line fence troubles that the jurors are kept out all night in the jury room. Only cases that are concerned with the lives and liberties of persons are sufficient to do that.

Such being the case, it is clear that the abolition of the unit rule will not tend greatly to diminish the number of disagreements in civil cases. This proves that there are

other reforms in the judicial system that are more urgently demanded than the abolition of the unit jury rule in civil actions.

The best results of the jury system are sometimes lost by the death or disability of one of the jurors. The general rule in such cases is to summon a new jury and have the entire case commenced again at the beginning. This is a serious defect in the judicial system. In important cases it is frequently difficult to get a jury. In one case in the city of New York, weeks were consumed in getting a jury and when the evidence was all in and the jurors were deliberating upon their verdict one became insane. Experts on insanity were called to examine him and testify as to his competency to render a verdict. The result was the usual one when experts are employed. The experts failed to appeals. In another case, a criminal case in the same city, one of the jurors became ill just as the evidence was being summed up. The result was a new trial. This cost the city of New York thousands of dollars, and occupied the attention of the court for many weeks. In another case one of the jurors died while waiting to render a verdict. The only thing that can be done in such cases is to begin at the beginning and have a new trial.

In civil cases this difficulty can be avoided if counsel are willing to go on with less than twelve jurors. In a criminal case, however, this cannot be done without express authority in the constitution. The courts have generally held that while the right to jury trial may be waived in civil cases, it cannot be waived in criminal cases, and that trial by jury means trial by a jury of twelve.

In the following States provision has been made so that death or disability of a juror does not interrupt the trial:

STATES IN WHICH ILLNESS OR DEATH
OF JUROR NEED NOT INTERRUPT
TRIAL.

Colorado-Civil cases. C. C. P. 189.
Idaho Civil cases. R. S. '87, §4381.

Iowa Civil cases by consent of parties. Code '97 § 3713.

Michigan-Civil cases if nine jurors remain.
Howell's S. § 7622.
Nevada-Civil cases.

C. L. '00, § 3261.
North Dakota-Civil Cases. R. Codes '99, $5439.
Oregon Civil cases by consent of parties. Hill's
S. '87, § 199

South Dakota Civil cases. Ann. S. '99, § 6262.
Texas-Civil cases if nine jurors remain. R. S.
'95, § 3229. Same in misdemeanors in district
court. White, Crim. Code, § 745.
Tennessee-Civil cases by consent of parties.
Code '96, § 4688.

Utah-Civil cases. R. S. '98, § 3157.
Washington-Civil cases by consent of parties.
Ballinger's S. § 5000.

In the interest of economy it has been argued that a jury may safely consist of less than twelve. In the following States provisions for such juries exist:

STATES IN WHICH JURY MAY CONSIST OF LESS THAN TWELVE IN COURTS OF RECORD.

Arkansas-By consent of parties in cases less than felony. Statutes '94, §2121. California-By consent of parties in civil actions and misdemeanors. C. C. P. '97, § 194. Colorado Six to twelve in civil cases on demand and payment of fees. '91, p. 83. Connecticut-Nine or more in civil cases by written consent of parties. G. S. '88, §1103. Florida-Twelve in capital cases, six in others. R. S. '92, §2854.

Georgia-Not less than five in all except city and superior courts. Const. art. 6, § 18. Code '95, vol. 2, § 4143.

Idaho-Less than twelve in civil cases by consent of parties. R. S. '87, § 3939.

Illinois-Twelve or six by agreement in trials of right to property in county courts. R. S. '99, p. 1274.

Indiana-Three to twelve by agreement in civil cases. Ann. S. '97, §521.

Kentucky-Less than twelve by agreement in all cases except felony. Statutes '94. § 2252. Louisiana-When punishment may be hard labor, jury of five; when must be hard labor, jury of twelve. Const. § 116.

Montana-Less than twelve by consent in civil cases and criminal cases not amounting to felony. Const. art. 3. § 23.

Nevada-Not less than four by consent in civil cases. C. L. § 3256.

Oregon-Less than twelve by consent in civil cases. Ann. L. '87, § 180.

Utah-Eight jurors in all but capital cases. Const. art. I, § 10.

Washington-Net less than three by consent in civil cases. Ballinger's S. § 4978.

0

VER three-quarters of a century ago, a civic storm raged with unprecedented violence over the State of Kentucky, fraught with dangers and consequences of the gravest character. As the writer found, in a winter's sojourn in Kentucky in 1897-8, even after so long a lapse of time, the exciting scenes and events of this judicial episode, happily unparalleled either before or since in this country, were still a topic of conversation.

In defiance of the Constitution an attempt was made by the Legislature, a coördinate department, to supplant the old Court of Appeals by a new court. The grand juries of several counties found indictments against the majority of the Legislature for passing a "re-organization" act. Judges of the Court of Appeals armed themselves when they attended prayer meeting; a member of the Legislature was stricken down by the hand of violence as he left the hall, for words uttered in debate; three State elections, conducted with intense bitterness, widespread financial ruin, public discontent and distrust, bordering on warfare, were some of the features of this civic storm.

The moving cause of this controversy was an Act of the Kentucky Legislature of 1820. It provided that a plaintiff, on issuing an execution on his judgment, could endorse thereon that he will take paper of the Bank of the Commonwealth of Kentucky, in discharge of it; and in case he failed to do so, that the defendant may replevy the debt for two years. This Act was declared unconstitutional by the trial court of Clarke County, and Judge Clarke, who presided, was summoned to appear before the Legislature, in special session, that he might be removed.

But this summary proceeding happily failed. In Blair v. Williams, Vol. 4, Littell's Ky. Reports (1824), p. 34, it was urged this Act of the Kentucky Legislature was violative of the clause in the Federal Constitution: "That no State shall pass any law impairing the obligation of contracts." The learned court holds the contract between the parties in that case to be indisputably within the true meaning of this clause, and says: "There are but two questions which arise on this branch. of the subject; first, what is the obligation. of the contract between the parties in this case, and, secondly, does the Act of the Legislature in question impair that obligation?"

The court knew its decision would run counter to a wild clamor of then highlyexcited public opinion, in which the debtor class were largely in the majority. And so the decision is supported by the ablest reasoning. It goes into the distinction of perfect and imperfect obligations, and notes the difference between moral and legal duty. It shows the connection between legal remedy and constitutional right. It suffers nothing by comparison with Chief Justice Taney's opinion, on the same subject, in Bronson v. Kinzie, How. 311. An able and distinguished Kentucky lawyer, now dead, John Mason Brown, said, "It is fairly entitled to the praise of being a handsome and polished metaphysical essay."

The decision in Blair v. Williams and Lapsley . Brashears, both decided the same term by the same court, was to the effect that this Act was unconstitutional. The political excitement which these decisions caused, is better understood by referring to the financial condition of Kentucky at that time.

The memory of the experience of Continental paper money long kept alive a prejudice against a like currency. In the absence of any form of money, barter took its place, such as fur or tobacco. Of land there was abundance, and the traffic was largely in this. As Judge Bates said, of the early days of Missouri, it was almost the only article of export. But this prejudice died with those who personally knew of its ilis. Free banking sprang into existence, through legislative enactment. Forty-six separate banks, with a total capital of $8,720,000, were created in 1818. These were soon wrecked and caused the Old Bank of Kentucky, the only solid bank in the State, to suspend specie payment. Then, in 1820, the Legislature annulled these forty-six charters, leaving the majority of the people of the State as broken financially as the banks. Again the Legislature tried to create relief The wise few were overrun by the ruined many. It is said history repeats itself, but it does so more frequently on financial than on other lines. The Bank of the Commonwealth was organized, and its unique and farreaching powers were intended to stem the tide of disaster, and revive prosperity. It had a capital stock of $2,000,000, with power to issue $3,000,000 circulating paper, which was made a legal tender for all debts, but for which the holders could not demand specie payment. Then the directors of the Bank of Kentucky were removed by legislative enactment, and fiat money men took their place. The good credit of this bank was used to float the bills of the new bank. The result but added to the people's woes, and inaugurated a struggle unparalleled in the history of the States.

Nor need criticism too severely condemn what had occurred, and what followed, on financial lines. The State was then isolated and sparsely settled. That the principle of exchange is hard of understanding, by the majority of the people of a State, is shown by

universal experience; barter of goods can readily be comprehended, but add to it a designated standard of exchange, and the question is too difficult for ordinary comprehension. The measure of value, assumes, in popular belief, a mysterious agency of more than human power. The value of coin, as represented by a bank note, is a problem not readily comprehended by the people,

The Legislature did not declare the bank notes legal tender. But it sought to secure the same results by the duress of delay upon the creditor.

The political excitement that followed was intense. The Old Court had its friends, who vehemently applauded its action. Those of opposite views denounced the decisions and the judges in unmeasured terms. The very lawyers who appeared in the cases, thereby became leaders of stormy political parties.

The Chief Justice's associates on the bench were Owsley and Mills. Kentucky's ablest lawyers argued the case. On one side was James Haggin, Wm. T. Barry and John Rowan. On the other was Robert Wickliffe and Joseph C. Breckenridge, the latter father of John C. Breckenridge.

The political agitation that seethed throughout the State suddenly grew into a revolutionary determination to abolish the old court, and to establish a new court, whose judges would yield to the will of the people as expressed through a newly-to-be-elected Legislature.

The Legislature, first, by solemn resolution, denounced these decisions as subversive of the dearest and most invaluable politica! rights, and asserted in effect that ministerial officers of the State Government should treat them as a nullity. But the preamble to these resolutions was the remarkable part of the proceeding. It covered twenty-six pages. It informed the court that it had transcended its powers. It concluded with the following eloquent appeal to the people: "The members of the Legislature, while

they admit the power of the court to declare any law unconstitutional and void which is obviously and palpably so, feel themselves reluctantly constrained by the most solemn obligation of duty to themselves, to their constituents and posterity, and to the principles of rational liberty throughout the civilized world, to make their deliberate protest against the erroneous and usurping doctrines of these Decisions."

On December 24, 1824, the newly elected Legislature passed an act re-organizing the Court of Appeals. Its avowed purpose was to get rid of the judges who rendered the obnoxious opinions. The protests of the minority against these illegal measures were refused a place on the journals of both Houses. That minority, however, was great enough to save the judges of the Old Court from removal by impeachment, as would surely have been done, could their impeachment have mustered a two-thirds vote. The oath required of the judges of the new court. stipulated they "will not bend to men in power."

Among the ablest opponents of the reorganization scheme in the Legislature, was Ben Hardin, uncle of Hon. Watt Hardin, whom Governor Bradley, Republican, defeated for governor. His argument against it, while eloquent and unanswerable, had it been addressed to impartial minds, also partook of extreme bitterness in its attack on the opposite side. So intensified was the resentment he engendered, that at the close of the sitting as he emerged from the hall, he was stricken insensible by a blow on his head, from unknown hands. and was so carried to his room, and only recovered by a narrow margin.

Governor Desha, elected as the new court candidate, promptly appointed the judges provided for in the re-organization ac*. These met and organized into a court. But the members of the Old Court were not of the stuff to yield their places without a

struggle. They repudiated the legislative enactment as unconstitutional. They held their own court as usual. Their mandates were in most cases obeyed. Then the new court solemnly recorded the old court to be in contempt and a nullity. It imprisoned the clerk of the Old Court for refusal to deliver up Records to their appointee. Then the Old Court declared the new appointee in contempt.

The clerk of the Old Court went before the people in a stirring personal attack upon the new judges. Others took up the warfare in the prints, over such inspiring signature as the "Spirit of '76." The cry of assassination was in the air, and one of the judges. constantly wore his pistols, when he went to prayer meeting. The newspapers were full of the arguments of the opposing factions.

Again the whole question went to the people in the next popular election of 1825, and when the succeeding Legislature met, a repeal of the re-organization act passed the lower house by a good majority, but the hold-over members of the Senate defeated it, with the help of the casting vote of the Lieutenant Governor. Public excitement thereafter climaxed into fever heat. Foth the old and the new court held regular sessions. A military force actually guarded the records of the new court. Bloodshed seemed imminent, but was prevented by the moderation and wisdom of the Old Court judges, in a new appeal they inaugurated to the people.

The lawyers generally began to show distrust of the new court; the election of 1826 gave a decided majority in both branches of the Legislature in favor of the Old Court, and at its first session, the re-organization act was speedily repealed, and the new court, with all its possibilities of danger to the public welfare, stepped down. It lives today in tradition, and not by its records. Every actor in those stirring scenes has gone to his reward. The Repealing Act, passed in 1826, is found in Monroe's full, in