attorneys of all cases coming to their notice which tend to disclose some inadequacy in the law destructive of equality for the poor.

The Michigan State Bar Association has a Committee on Legislation and Law Reform. If the experiences of numerous legal aid committees over all Michigan could be recorded and then analyzed by a central legal aid committee, there would be definite state wide statistics upon which to base recommendations for legislation in behalf of the poor. Thus, in the Michigan State Bar Association, by cooperation of the two committees, the poor as a class would have a strong champion in the matter of legislation, just as the many other diverse divisions of society have.

Regarding the third office of Legal Aid, there may be some surprise at an assertion that there is a lack of confidence in the legal profession, which needs correction. Unfortunately, records are not kept of the innumerable manifestations of distrust in the law and lawyers, brought out in conversations with poor people; but even without statistics, you may believe that there is room, and plenty of it, for enhancement of our rating among the poor.

Without any particular line of endeavor being directed toward the improvement of this situation alone, it is most certain that when the misguided doubters can be shown that the lawyers themselves have sacrificed their time and spent their energies to create for the special benefit of the poor, better conditions in law, and better facilities for their use of the law, much of the existing suspicion will be dispelled.

Thus would the threefold province of legal aid be performed by the construction and operation of a system providing for the poor, adequate representation and needed legislation.

In conclusion, if the lawyers of this State want to, and can, through the Michigan State Bar Association and their respective local bar associations successfully carry into execution any plan for the betterment of the relation of the poor to the law and the lawyer in Michigan, the bar of this State may count one more monument in its total of notable and worthy achievements.

MICHIGAN

STATE BAR JOURNAL

[Including a full reprint of the current Michigan Law Review] Published by the Michigan State Bar Association, at Ann Arbor, Michigan Edited by the Secretary of the Association

DIRECTORS FROM CONGRESSIONAL DISTRICTS

OSCAR C. HULL, Detroit; CLARK E. BALDWIN, Adrian; H. CLAIRE JACKSON, Kala mazoo; PHILIP T. COLGROVE, Hastings; FRED A. MAYNARD, Grand Rapids; CHARLES W. NICHOLS, Lansing; J. FRANK WILSON, Port Huron; F. O. ELDRED, Ionia; A. A. KEiser, Ludington; J. E. DUFFY, Bay City; SHERMAN T. HANDY, Sault Ste. Marie; ARTHUR H. RYALL, Escanaba; STEWART HANLEY, Detroit.

DIRECTORS AT LARGE

T. J. O'BRIEN, Grand Rapids; GEORGE W. WEADOCK, Saginaw; MARK NORRIS, Grand Rapids; ADOLPH SLOMAN, Detroit; ARTHUR C. DENISON; Grand Rapids; FREDERICK B. STEVENS, Ann Arbor; C. W. PERRY, Claire; JOHN J. CARTON, Flint; WILLIAM L. CARPENTER, Detroit; BURRITT HAMILTON, Battle Creek; GEORGE CLAPPERTON, Grand Rapids; CLAUDE S. CARNEY, Kalamazoo; JAMES O. MURFIN, Detroit; WILLIAM W. POTTER, Lansing; GEORGE E. NICHOLS, Ionia.

LESS THAN UNANIMOUS VERDICTS,-THE CASE IN THEIR FAVOR*

THE

BY PAUL HOWLAND, OF THE CLEVELAND BAR

HE question which I have been asked to discuss is: Should verdicts in civil cases by less than a unanimous vote be authorized by law?

Your Constitution, $27 of Art. V, now provides that the legislature may authorize a trial by a jury of a less number than twelve.

*Address delivered before the Michigan State Bar Association at Grand Rapids, September 6, 1923.

Our subject, however, does not refer to the number of jurors impanneled; but relates solely to the question of whether the entire number, whatever it might be, must vote unanimously in order to return a binding verdict. The fact that in Ohio we have what we designate as the three-fourths or 9-12 verdict in civil cases, perhaps qualifies me to speak from a practical standpoint with reference to the results obtained under our law. Both Michigan and Ohio go back to the Ordinance of 1797-I am not going to stay back there very long— both Michigan and Ohio go back to the ordinance of 1787 to establish the sanctity of the jury system, and there we find Article II provides, among other things, that: "The inhabitants of the said territory (Northwest territory) shall always be entitled to the benefits of the writ of habeas corpus, and of the trial by jury."

In order to understand the solemn and binding character of this provision of Art. II, we must look at Section 14 of the Ordinance, where the following words are used:

"It is hereby Ordained and Declared by the authority aforesaid, that the following articles shall be considered as articles of compact between the original states, and peoples and States in said territory, and forever remain unalterable unless by common consent."

The adoption of constitutions by the various states carved out of the Northwest Territory has abrogated the Ordinance of 1787 as held by the Federal Courts and finally by the Ohio Supreme Court, but this provision of the ordinance relating to jury trials was embodied in the Ohio Constitution of 1802, Art. VIII, §8, as follows: "The right of trial by jury shall be inviolate."

In the Ohio Constitution of 1852, Art. I, §5, the same language was adopted, that is to say: "The right of trial by jury shall be inviolate."

On the 3rd day of September, 1912, Art. I, §5 of the Ohio Constitution, was amended so that it now reads as follows: "The right of trial by jury shall be inviolate, except that in civil cases laws may be passed to authorize the rendering of a verdict by the concurrence of not less than three-fourths of the jury." The vote was: Yes, 345,686,-No, 203,953.

On February 12, 1912, the Legislature of Ohio passed an Act now known in our Code as §11455, carrying into effect the power granted by the amendment, and the law became effective May 14, 1913, by reason of our Referendum Law, giving ninety days before

a law goes into effect, and that statute is in the words and figures following: "In all civil actions a jury shall render a verdict upon the concurrence of three-fourths or more of their number. The verdict shall be in writing and signed by each of such jurors concurring therein, and they must then be conducted into court where their names shall be called by the Clerk, and the verdict handed to the Clerk by the foreman. The Clerk must then read the verdict to the jury, and make inquiry if it is the verdict of three-fourths or more of their number."

It will be observed that this section applies to the petit jury, which consists of twelve jurors. It therefore requires the concurrence of nine out of the twelve to render a valid verdict. In our municipal and justice courts, where a jury of six is lawful, this law requires five out of the six to render a valid verdict.

We have now been operating under the 9-12 law since May 14, 1913, something over ten years. But before discussing its merits, or otherwise, I am constrained to ask where, when and how it became necessary to have a unanimous vote to render a binding verdict.

In the early history of the English law, and particularly with reference to the development of the jury system, the authorities are substantially unanimous that unanimity was not required at the hands of the jury. Neither was the number twelve the hard and fast number of the jury, but it varied as the circumstances, the character of the litigation and the authorities impanelling the jury seemed to consider wise or expedient. For instance, in POLLOCK AND MAITLAND'S HISTORY OF ENGLISH LAW, Vol. II, p. 623, in explaining how unanimity was finally obtained as the sine qua non for a valid verdict, it is said: "It is to the presence of these three elements, (arbitral, communal, quasi judicial)" ***

Before I go on with the quotation I want to amplify a little bit on those three matters without carrying it into my quotation. The arbitral element was the element which seems to pervade some of our juries at the present time, that they are arbitrators, not jurors to find a fact, the existence of a fact or non-existence of a fact, but arbitrators. They seem to think they are arbitrators to pass upon the question and settle the question between two neighbors. That old idea pervaded the jury, and it still pervades some jurors that I have come in contact with. So Messrs. Pollock and Maitland, assigned that as one of the reasons, one of the elements which after a

long series of years, resulted in the doctrine of unanimity. Then the next element is the communal. The thought there is one that pervades the mind of many a juror, that in a controversy between John Doe and Richard Roe, he represents the community, he represents the public. There is a third party that he is looking out for, namely the public. And the communal idea is one of the elements that Messrs. Pollock and Maitland attribute or assign as one of the reasons why the doctrine of unanimity ultimately took such a strong hold in our system of jurisprudence. The third element which he gives is the quasi-judicial, I do not have to explain that to an assemblage of lawyers. The idea that many jurors have, that they are acting perhaps in just a little bit of a judicial capacity, particularly when the Judge on the bench says to the jury: "Gentlemen of the Jury, I did not enact this law, the legislature passed this law. Possibly if I had the enactment of the law, I would have made it a little different, but I charge you, gentlemen of the jury, that this is the law," clearly saying to the jury, "take this case and do what you please with it, regardless of the law." Have you ever had a judge charge a jury that way? So Messrs. Pollock and Maitland, in discussing this doctrine of unanimity historically, say that those three elements enter into the final establishment in the common law of the doctrine of unanimity. They use this language:

"It is to the presence of these three elements, (arbitral, communal, quasi judicial), that we may ascribe the ultimate victory of that principle of our law which requires a unanimous verdict. We cannot treat this as an aboriginal principle. In the old Frankish inquests the sworn neighbors sometimes gave a single verdict, while in others each man's evidence was taken separately and recorded separately. Or again, their voices might be counted without being weighed and the verdict of the majority accepted. For a long time we see in England various ideas at work. If some of the recognitors (that is an old term for the jurors), profess themselves ignorant they can be set aside and other men called in to fill their places. If there is but one dissenting juror his words can be disregarded and he can be fined testis unis-testis nullis. In the Assize of novel disseisin, which in no wise touches the right, we are content with the verdict of seven men though the other five have not appeared, or have appeared and dissented, but gradually all these plans are