Everett P. Wheeler, of New York: Mr. President, I move the Secretary be instructed to cast one ballot for the officers whose names have been reported by the Committee on Nominations. The motion was duly seconded and carried. The Secretary: Mr. President, the ballot has been cast. The President: The Secretary reports he has cast the ballot, and it is my privilege to announce to those gentlemen that they are duly elected to their respective offices. We will now have the pleasure of listening to a paper prepared by a member of the Virginia Bar, who has done us the honor to come all the way from his home to read his address in person. He comes here as a guest of the Association. I now have the pleasure of presenting Mr. A. Caperton Braxton, of Staunton, Virginia. A. Caperton Braxton: (Applause.) Mr. President and gentlemen, it is hardly true, as stated by the President, that I have come all the way from Virginia to read you a paper, which I fear will hardly be worth your time to listen to. The principal reason that brought me here was the desire to meet and become acquainted with my professional brethren, in what we all recognize as the greatest State of the greatest country on earth. (Applause.) I, also, was moved by the desire to have the pleasure and instruction of listening to the other papers which will be read to you by the distinguished gentlemen who will follow me, as well as to the paper which I have heard with the greatest pleasure and instruction from your honorable President. I was partly moved, also, by the desire to exhibit to your somewhat astonished gaze, a Southern man and a Virginian, who is neither a Judge nor a colonel. (Applause.) Mr. Braxton then read the following paper: THE CIVIL JURY. No true friend of the civil jury, as one of the vital institutions of a free country, can fail to observe with deep concern the growing unpopularity of jury trials as a method of settling civil controversies. The civil jury is unpopular because it is unsatisfactory; it is unsatisfactory because it is burdened with antiquated and useless methods, unreasonable in themselves and unsuited to modern conditions, an incubus which threatens to bring the whole institution into disrepute. By far the greatest defect in the jury system, as it exists in most of the States, is the anomalous, illogical and oppressive rule requiring unanimity in civil verdicts a rule that has long been inveighed against by lawyers, judges and publicists, but to which many people still cling with a blind infatuation because of the superstitious reverence they entertain for its antiquity. Should such a rule be now proposed for the first time, the unanimity with which it would be rejected and its author pronounced a crank, would be quite disconcerting. But "time consecrates, and what is hoary with age becomes religion," thus the reverence for this unanimity rule, which reason condemns, rests upon exaggerated notions of the remoteness of its origin, which is not only much more recent than is generally supposed, but arose out of conditions essentially different from those to which the rule is now applied. Since the researches of the German scholar, Dr. Bruner, it has been generally conceded that the English civil jury (which, by the way, is several centuries older than the criminal jury), came, not "from the forests of Germany," as Montesquieu claims, but originated in England as an outgrowth of the "Inquisition of Witnesses" created by the Carlovingian Kings of France to establish the facts in controversies concerning the royal estates. It was not derived from the ancient "FolkCourts," but was substantially different from them. These early "Folk-Courts were not bound by the unanimity rule, nor were any of the older tribunals. The Judicium Parium of Magna Charta was not required to be unanimous. In all tribunals known to man - those of ancient Egypt, the Grecian Dicasts, the Roman Judices, and the Courts of the ancient Germans and Anglo-Saxons, of the Britons and of the Normans -in each of them the majority ruled. anomaly of jury unanimity arise? had its origin when the jury was not a tribunal at all, but merely a body of witnesses - an "Inquisition of Witnesses"— summoned, not to decide upon evidence, but to prove facts. How, then, did this The answer is, that it The policy of the law, in requiring more than one witness to establish a fact, is as old as law itself. In the ancient laws of the Hebrews it was essential that "in the mouth of two or three witnesses shall every word be established"; and even now, we have the requirement, in most of the States, of two or three witnesses to prove a will, or to overthrow the weight of a sworn answer in chancery. So it was at the inception of the civil jury system, that twelve witnesses were required to establish a disputed fact. Why the number twelve was decided upon is not known. Some think it was from analogy to the twelve Apostles; but it is known to have been a mystic number in the superstitions of many ancient peoples, including the older Scandinavians, who were unfamiliar with the Bible. The number twelve is sometimes called the most perfect number, because it, and its fraction "six," are exactly divisible by a greater proportion of smaller numbers than any other numbers; and it is probably to some such idea of its perfection that its frequent association with the offices of religion and justice might be correctly traced. But whatever be the real reason for selecting the number twelve as the essential number of a jury, it was evidently based upon pure superstition, for every man will now admit that there is no more virtue in twelve than in seven or any other number; and in England and a number of the States, juries of seven have been tried with most satisfactory results. The old law, however, required twelve witnesses to agree upon a disputed fact, in order to establish it; and so it was that, when the first twelve witnesses summoned failed to agree, they were "afforced" by summoning additional witnesses, till twelve were found that would agree. This grew to be inconvenient; and, some 600 years ago, the rule requiring twelve witnesses to concur was relaxed, and the concurrent evidence of a majority of the twelve witnesses was taken as sufficient This was unquestionably a sensible innovation and a decided improvement; but, in the latter part of the fourteenth century, during the reign of Edward III, the English Law Courts, with their characteristic zeal for upholding the forms of antiquity, even when the substance had been rejected, restored the rule requiring twelve concurring witnesses to establish a disputed fact. But these old judges were not so impractical a set as their pedantic adherence to ancient forms might indicate; and, being unwilling to resort to the inconvenient and expensive "afforcing" process, to obtain twelve witnesses who would agree, they resorted to the simpler and more direct method of compelling the original twelve to agree, whether they would or not, by holding them “sine cibo et potu" until they did agree! The very reasons upon which this remarkable rule was based showed the Courts' recognition of the wisdom and propriety of majority rule; for, it was said, that the minority were inexcusable in holding out against the majority; that, as they were all merely witnesses to the same fact, if the majority agreed upon what that fact was, nothing but stupid obstinacy, "impious stubbornness," or corruption, could account for the minority taking a different view about a matter of plain fact and not involving opinion or judgment at all! Thus was the "unanimity rule" established; and it is to an origin, based upon such essentially different conditions and upon such absurd and illogical reasons, characteristic of an age of intellectual night, that the modern advocates of unanimity in verdicts of civil juries cling with superstitious veneration. Gradually, and by slow degrees, the jury was transformed from a body of witnesses to prove facts, into a tribunal to determine them; but, with its wonted tenacity of ancient forms, the law held on to the unanimity rule, long after any reason, even imaginary, existed to support it. Let it not be supposed, however, that our eminently practical ancestors had any idea of putting up with the inconvenience of hung juries, for such a thing was practically unknown to the common law first, because the facts to be inquired into, and the evidence submitted, were |