This is an evil of continual occurrence in our courts of law. The only remedy existing for it is that which the judge is supposed to supply by appropriate observations to the jury. But it is hardly reasonable to think that the judge, who comes into court without any previous information as to the particular case, should on the instant be able so effectually to discharge this duty as the counsel for the party would have been; and it is at least quite clear that the judge would himself be materially assisted, if instead of being required to originate the remarks, he had merely to weigh and select from those which had been suggested by the ingenuity of the advocate. According to the ancient practice, this evil was avoided. The course seems to have been universally that which obtains before parliamentary committees, and in cases of high treason, viz. that the party who began, first opened his case, and having called his witnesses, proceeded to sum up or address the jury upon the effect of their testimony, and that the opposite party either concluded the cause by an address to the jury, or opened a case in answer, called his witnesses, and again addressed the jury, leaving to his opponent the general reply. To this (which is obviously the fair course) its tendency to an increased consumption of time seems to constitute the only objection. It may well be doubted whether this objection, if well founded in fact, ought to be allowed to prevail. And we also entertain great doubt whether the tendency is not much overrated. If both the opening and the summing up were confined to the one counsel who leads the cause, we believe that in many cases he would waive the privilege of a double address, and that where he felt it necessary to avail himself of it, he would confine himself in the first instance, to a short statement or opening of the facts, and would reserve for the summing up, his principal observations. Fully sensible, however, of the great inconvenience which would arise from protracted trials, we are on the whole disposed to recommend a modification only of the method in use before parliamentary committees. We propose that the counsel who begins should be allowed (as at present) an opening speech only, without the privilege of summing up upon the close of his case; that the counsel on the other side should be permitted both to open his case and to sum up his evidence, (if any be given) and that in the event of his giving evidence, but in that case only, the

counsel who began should be allowed the benefit of reply. The effect of this would be, that supposing evidence to be given on both sides, each party will have an opportunity of summing up his own evidence and commenting on that of his adversary; the connsel who begins, in his reply, the counsel opposed to him, in his second speech; while on the other hand, the number of speeches would in no case exceed four, and where evidence was not given on both sides, would not be more numerous than at present.

'If this should appear not to establish a perfect equality between the parties, because it makes the plaintiff's right of summing up depend upon the election of his adversary as to calling witnesses, it is to be considered, on the other hand, that the plaintiff enjoys an advantage which the law denies to the defendant, viz. that of suffering a nonsuit, and resorting to a second action, where his proof fails to support the case which he opens.

'It will be observed that we propose to throw upon the same counsel the duty of making both speeches. If the duty were to be divided between different counsel, the natural anxiety for distinction, and a feeling of emulation would probably increase the length of both addresses, and occasion a consequent waste of time.'

The regulation proposed is in the following terms.

'That upon the trial of a cause, the speeches of counsel shall be regulated as follows: The counsel who begins, shall be allowed (as at present) to make an opening speech; the counsel on the other side shall be permitted to open his case and also sum up his evidence; and in the event of his giving evidence, (but in that case only) the counsel who began, shall be allowed to reply: Provided always, that different counsel shall not be allowed to open and reply for the plaintiff, or to open and sum up for the defendant, but (except by permission of the judge under special circumstances) such duties shall respectively be performed by the same person.'

Most of the remarks of the commissioners are judicious. But it seems to us that they lay too much stress upon the waste of time which would be occasioned by allowing more than one counsel on each side to address the jury. It appears to us also that in denying the counsel of the party who begins the right of reply where his adversary offers no evidence, gives the latter

an unfair advantage. In a great variety of cases the counsel cannot before hearing the evidence know what it is, sufficiently to make his remarks bear upon it. Of this indeed the commissioners from their remarks seem to be fully aware. We think that each party ought to have the right in all cases of having the case argued upon the evidence produced. The circumstance of the party who opens his case last, offering no evidence, ought not to deprive the counsel of the opposite side of the right of remarking upon the evidence, since in many cases it requires explanation and comment to make the jury understand its bearings, as much as if it came from the opposite side. In Massachusetts the party who begins always has the right of reply, whether his adversary offers any evidence or not.

The commissioners propose that unanimity should no longer be required in a jury, to support a verdict.

'It is essential to the validity of a verdict that the jury should be unanimous; and regularly they are not allowed to be discharged (unless by consent of the parties) until such unanimous verdict has been returned. It seems absurd that the rights of a party, in questions of a doubtful and complicated nature, should depend upon his being able to satisfy twelve persons, that one particular state of facts is the true one. As it is notorious that upon such questions a body of men so numerous are often found to differ irreconcilably in their views, it is obvious that the necessity of returning in every case a verdict, and an unanimous one, before they separate, must frequently lead to improper compromise among the jurors of their respective opinions.

"There is reason also to apprehend, that where any of them happen to be actuated by partial motives, it must tend to produce a corrupt verdict. Indeed no one can have been much conversant with courts of justice, without having frequently heard the remark (where the verdict has been very long in suspense) that one or other of the contending parties has a friend upon the jury.

'On the other hand, however, the necessity for the unanimity of the jury carries with it one most valuable advantage. In the event of any difference of opinion, it secures a discussion. It is not possible to poll the jury at once, and so, without further trouble or consideration, to come to the conclusion. Any one 40

VOL. VII.-NO. XIV.

dissentient person can compel the other eleven, fully and calmly to reconsider their opinions.

'But there seems to be no good reason why, after a certain period of time sufficiently long for the purpose of reasonable and ample discussion, the jury (if still in disagreement) should not be excused from the necessity of giving a verdict, or why the present principle of keeping them together till unanimity be produced by a sort of duress of imprisonment, should be retained. And the interests of justice seem, manifestly, to require a change of law upon this subject.

We propose, therefore, that the jury shall not be kept in deliberation longer than twelve hours, unless at the end of that period they unanimously concur to apply for further time, which, in that case, shall be granted; and that at the expiration of the twelve hours, or of such prolonged time for deliberation, if any nine of them concur in giving a verdict, such verdict shall be entered on record, and shall entitle the party in whose favor it is given, to judgment: and in failure of such concurrence, the cause shall be made a remanet.'

It does not appear that the commissioners make any distinction between civil and criminal cases, in regard to their proposal for admitting a verdict in which only nine jurors agree. While we approve the change which they propose in its application to most cases, we cannot help entertaining great doubt, whether unanimity of the jury ought not to be necessary in order to convict a prisoner indicted for a capital crime. The feelings of the community would not be satisfied, if any person should be executed for a crime, where two or three of the jury felt doubtful of his guilt.

ART. IV.-SALVAGE.

Whether salvage paid on cargo, ultimately carried to the port of destination, is a charge diminishing freight?

THERE seems to be some little obscurity in the doctrine relative to the consideration how far salvage paid for the cargo shall diminish the right to freight, or, in other words, when, and to what extent, salvage shall be considered as diminishing the

Salvage of goods

upon the articles The ship-owner

cargo, on which freight is to be calculated. is not generally a charge upon the freight, but saved, and this seems consonant with reason. contracts to carry goods from one port to another, with the exception of the perils of the seas; and if by those perils the goods are diminished in value to ever so great a degree, it seems on delivery at the port of destination the whole freight becomes due. Thus, in the case of capture and recapture, if the ship afterwards proceeds to the port of destination, and delivers the cargo, freight is earned. It is true that in this case the freight, as well as the ship and cargo, must pay a proportion of the salvage, because each derived its proportional benefit from the recapture. But the proportion paid by the cargo is not considered, as a total loss of so much of the cargo, but the whole freight, for the whole cargo is to be paid. So decided in the case of the Racehorse, 3 Rob. Adm. Rep. 101. In conformity with this the Laws of Oleron, Art. 4, decide, that if the ship be disabled and part of the goods are saved, and the master repair his ship, or hire another to complete the voyage, he shall have his freight of the goods to be reckoned according to the proportion of the whole cargo; and the goods saved shall pay the costs of salvage; cited Abbott, part 3, ch. 17, sect. 10, p. 277. The same rule seems to have been acted on in the case of Lutwidge v. Gray, Abbot, 280, in the Court of Admiralty in Scotland, and finally affirmed in the House of Lords. On the other hand, in Hotham v. The E. India Company, Doug. 272, it seems conceded on all sides that the 4th issue in that case, which affirmed that the owners of the ship were liable to pay the expenses of saving as well as of transporting the goods to London, was rightly found; or at least the point was not disputed. In Luke v. Lyde, 2 Burr. 882, freight was adjudged to be paid pro ratâ itineris, but the freight was calculated only on one half of the cargo, and the value of the other half, having been paid for salvage was considered, as though it had been lost. And Abbott, p. 3, ch. 7, sect. 8, p. 274, states, as his own opinion, that in case the ship is wrecked at another port, and the cargo saved at a great expense, even if the master should pay salvage and convey the cargo to the port of destination, the merchant could not be compelled to pay freight, but might accept the goods or not, loaded with the expense of