Brock v. North Carolina/Dissent Douglas
Mr. Justice DOUGLAS, dissenting.

In 1795, when the reasons for the guarantee against double jeopardy were still fresh in men's minds, a North Carolina court stated the basis for not allowing the prosecution to have a jury discharged so that it could obtain better evidence against the accused.

'The rule as laid down in 3 Co.Inst., 110, and 1 Inst., 227, is general and without exception that a jury in a capital case cannot be discharged without giving a verdict. Afterwards, however, in the reigns of the latter sovereigns of the Stuart family, a different rule prevailed, that a jury in such case might be discharged for the purpose of having better evidence against him at a future day; and this power was exercised for the benefit of the crown only; but it is a doctrine so abhorrent to every principle of safety and security that it ought not to receive the least countenance in the courts of this country. In the time of James II, and since the Revolution, this doctrine came under examination,  and the rule as laid down by my Lord Coke was revived with this addition, that a jury should not be discharged in a capital case unless for the benefit of the prisoner; as if the prisoner be a woman and be taken in labor; or if the prisoner after the jury are charged with him be found to be insane, and the like; or if at the prisoner's request a jury be withdrawn to let him in to take the benefit of an exception, which otherwise he would have lost * * *. In the present case the jury were suffered by the court's officer to separate without giving a verdict. As they could not agree to convict, it is strong evidence of the party's innocence; and perhaps he could not be tried again with the same advantage to himself as then. Perhaps his witnesses are dead, or gone away, or their attendance not to be procured, or some accident may prevent their attendance. We will not again put his life in jeopardy more especially as it is very improbable we shall be able to possess him of the same advantages.' State v. Garrigues, 2 N.C. 241.

That point of view should shape our conception of double jeopardy and due process of law. Once the prosecution can call a halt in the middle of a trial in order to await a more favorable time, or to find new evidence, or to make up the deficiencies in the testimony of its witnesses, the promise of protection against double jeopardy loses the great force it was thought to have when the Constitution was written. At that time the practices of the Stuarts were freshly in mind. And it was resolved that they should not reach these shores. 

Notes

In 1698 in the time of Lord Holt, the judges formulated rules regarding the matter: '(1) That in capital cases a juror cannot be withdrawn, tho' all parties consent to it. (2) That in criminal cases, not capital, a juror may be withdrawn, if both parties consent, but not otherwise. (3) And that in all civil causes, a juror cannot be withdrawn, but by consent of all parties.' See Carthew's Reports 465.

Those rules were in time construed to be rules of practice or guides for the exercise of discretion, not rules of law, the breach of which entitled a defendant to plead former jeopardy. See Queen v. Charlesworth, 1 B. & S. 460; Winsor v. Queen, 118 Eng.C.L.R. 141; Queen v. Lewis, 2 Cr.App.R. 180. There is a review of this history in the dissenting opinion of Crampton, J., in Conway v. Regina, 7 Irish L.Rep. 149, 165 et seq.