166 The Period of Constitution Making
they spoke unequivocally, the jury must. "The veredic-
turn patriot is assimilated to the judicium Dei." More-
over, the jury being the voice of the country, that itself
looked towards unanimity. The majority dogma was
not clearly formulated, and if the country were to speak,
it must be through unanimity.1 And the judging ele-
ment favoured a unanimous verdict, for the juror did not
have to stand strictly upon his own personal knowledge;
he might be persuaded to change his opinion, or he might
accept the fuller information of his associates. Here was
action and reaction, for the unanimous verdict favoured
the judging element: in most instances it could not be
reached without discussion and sifting. The judges re-
garded unanimity not only as the most natural but the
most convenient requirement, and often used much pres-
sure to obtain it. There were many exceptions to the
rule in early times, but the tendency was decidedly in
favour of unanimity, and that as the result of the primi-
tive characteristics of the English jury and the circum-
stances of its early use in the courts.
It may be impossible to state fully why the traits of
the jury just discussed persisted and triumphed over those
which at first seemed more obvious and important. Some
considerations, however, may be brought forward. Eng-
land was quite uniformly orthodox during centuries when
heresy trials were growing frequent upon the continent.
The nature of the crime of heresy led very readily to the
separate examination of witnesses and the secret collection
of testimony accompanied by torture—an inquisitorial
procedure.2 Had such trials been common in England,
1 Yet to begin with unanimity hardly meant the conscious unequivocal
consent of each member of the jury to the verdict; surely there was no
thought of unanimity as a punctilious safeguarding of the defendant. It
was a group answer that was insisted upon. The majority idea was used
in the grand jury (which consisted of twenty-three members) before the
end of the middle ages.
a Juries of neighbours, finding their verdicts in their own way, might
always be expected to convict men of murder, theft, robbery, etc., in a
reasonable number of cases: but not of heresy, when a district was honey-
combed with heretical beliefs.