mitted that if Hamlet were actually mad, he could not enact the madman more perfectly than he does. . . . But if so, then what ground is there for saying it is not a genuine case ?” He also mentions several distinguished physicians of approved skill in the treatment of insanity, who, in our time, have made a special study. of Hamlet's case and have all come to the conclusion that Hamlet was really mad. Evidence like this last tends to show that the case under discussion is not exceptional, many other similar cases being quoted that are not disputed. This greatly heightens the probability that the proposition is true.

From all this it is clear that the relative weight of the different arguments should be carefully considered, and that the arguments should be the best of which the case is capable.

Assignments on the Test for Strength.

147. Compare the two briefs that are given below. Which arguments establish only a probability that the proposition is true? Which are the strongest arguments? Cancel from each brief the arguments which are answered satisfactorily in the other, and decide, from the remainder, which brief is the stronger.

Unanimity of Verdict ought to be eliminated from the Jury System. Because

A. The requirement of unanimity is destroying the faith of the people in the whole jury system.

For

I. It results in miscarriage of justice and vast expense to the people. For

a. The disagreement of juries renders many trials futile.

B. The system is inconsistent with the theory of our government and the genius of our free institutions. For

I. We do not require unanimity in our higher

courts.

II. In all legislation by our government, a majority only is required.

III. Unanimity is not required even to impeach the President of the United States.

C. The idea of unanimity ignores the fact that all men are not constituted alike.

For

I. Different minds present innumerable shades and degrees of intelligence, education, strength of character, power of observation, and judgment of human nature.

II. The opinions of men are influenced to a great extent by their preconceived ideas upon

matters of religion, ethics, politics, etc.

D. The system is absurd. For

I. It gives one mind equal weight with that of eleven others.

E. The system has been modified in several European countries, and the modification works successfully. For

I. In Sweden only a two-thirds vote of the jury is required, and the people are satisfied with it.

II. In Scotland a majority is required.

F. Great historians and lawyers condemn the present

system.

For

I. Hallam refers to the requirement of unanimity as a relic of the middle ages and of bar

barism.

II. Judge Cooley condemned the present system.

G. The present system should be amended, in criminal. cases, at least.

For

I. A defendant in criminal cases can move time and again for a new trial, while the prose

cution, under the Constitution, cannot do

SO.

H. Refutation. The claim cannot stand that the rule of unanimity secures a full, free, and effective discussion and deliberation of the case by the jurymen. For

I. Experience teaches that in most cases the jurors' minds are finally made up before. they retire for deliberation.

I. Refutation. The claim is unsound that as a necessary consequence of the present system, each member of the jury becomes impressed with a sense of his own responsibility. For

I. Does not the oath taken by the juror, if he is at all conscientious, impress him with the same sense of his important duty ?

J. Refutation. That the system is ancient, is not a convincing argument. For

I. Do we think of applying this rule of ancientry to any other department of knowledge?

K. Refutation. The claim is unsound that the concurrent opinion of twelve men is, by the doctrine of chance and probability, more likely to be correct than that of nine. For

I. It is also true by the law of probability that the verdict of nine or ten is more likely

to be correct than that of a minority of three or two.

L. Refutation. The argument that unanimity inspires public confidence in the justice of the decision is not convincing. For

I. Experience proves that there is little public confidence left in the system as it stands.

Unanimity of Verdict ought not to be eliminated from the Jury System. Because

A. The theory of our law in regard to criminal justice would be destroyed. For

I. Every essential allegation made by the prose

cution must be proved beyond a reason

able doubt in order to entitle the

government to a verdict.

For

a. As long as one juryman disagrees there

exists a reasonable doubt.

B. It secures a free and full discussion of the case by the jurymen. For

I. They must turn the question with the facts concerning it over and over in their pri

vate room until all do agree before they can fulfil the function of a jury.

C. The incompetency of some jurors makes unanimous. verdicts all the more necessary. For

I. By the doctrine of chance and probability twelve are more likely to be right than

nine, ten, or eleven. For

II. As long as the minority is given weight the "reasonable doubt" is represented.

D. The responsibility upon each member of the body would be lessened by giving up the requirement

of unanimity.

E. There would be less public confidence in the justice of decisions if the unanimity requirement were

abolished. For

I. A unanimous verdict is indisputable.

F. Refutation. The argument that all men are not constituted alike is irrelevant. For

I. Every member of a jury has the same facts to deal with and receives them under the

same conditions.

II. No juryman can carry his religious or political prejudices with him without violating his solemn obligation.

Tests of Arguments for Consistency.

148. A third test of arguments arises from the natural demand for consistency. Inferences drawn by the same person from the same facts must harmonize with one another. Thus Burke in the following passage from the Speech on Conciliation makes an argument out of the inconsistency of his opponents when they declare both that the trade laws are worthless and that they must be preserved.

The more moderate among the opposers of parliamentary concession freely confess that they hope no good from taxation; but they apprehend the colonists have further views, and if this point were conceded, they would instantly attack the trade laws. These gentlemen are convinced that this was the intention from the beginning, and the quarrel of