The Rights of an American Citizen: With a Commentary on State Rights, and on the Constitution and Policy of the United States by Benjamin Lynde Oliver published 1832
PART II; OF SOME PARTICULAR RIGHTS
CHAPTER V: Of the Rights of Juries.
Wherever the trial by jury has been introduced, it has usually furnished a theme for unqualified admiration, on account of its wisdom, impartiality, and justice, and because it is thought to furnish the best security for the citizens, or subjects of the government, against public and private wrongs.
Its wisdom is apparent in this, that it is admirably contrived to render the people satisfied with the administration of justice. For, where a case goes to the jury by the common law, as it almost always may at the discretion of the defendant, no judgment can be given against any person either in a civil or in a criminal trial, unless after a verdict has been rendered against him, by them. Now, since all men of decent characters are qualified to serve on a jury, a few only being exempted or excluded from motives of public convenience or policy, or on account of the nature of their usual occupations, whether public or private; and as the jurors are commonly drawn by lot in each county, at regular periods, for the decision of causes arising within it, every qualified citizen has a chance of being called upon to serve in this office, and, consequently, to decide upon the law disputes of his neighbors, as well as upon all criminal charges prosecuted by the public. The people are aware of this, and are better satisfied to have their causes, or the question of their guilt or innocence of any such criminal charges, decided by men of the same rank, condition, and means of information as themselves, than they would be with the decisions of any judges, however learned and wise, the justice of which decisions they would seldom be able to perceive, because they would not readily understand or feel the weight of the reasons, which those judges would assign for their decrees.
Its impartiality is secured by the manner, in which the jurors, who are to constitute the jury for the decision of each cause, are designated. For, the jurors names being usually drawn by lot, it is impossible to ascertain any considerable time before the trial, what persons will be returned to serve on the jury during the session of the court, or, out of that number, what individuals will be impaneled to serve in any particular trial. Consequently, it would seem impracticable for a party in a cause, or a prisoner on a criminal trial, to procure any particular individual to be returned as a juror, or to be impaneled on the jury. But, as it sometimes happens, that a person returned to serve on the jury, when the court directs a jury to be impaneled for the trial of a particular cause, is supposed by one of the parties not to be impartial, the law permits either party in a civil cause, to challenge any of the jurors, and have them removed from the jury box and others returned in their room, if he can assign any reasonable cause, why the jurors challenged, may be thought to be more likely to favor the party, who does not challenge them. Further, as no one who considers himself as having justice on his side, would be willing to have his case tried by persons, who were not men of fair character, every litigant has a right to challenge a juror, if he has been guilty of any infamous crime. This however he should be very cautious in doing; for, a challenge of this kind is not to be made lightly. As a matter of prudence, the suitor making it, ought to have the record of conviction in his pocket at the time; for, he has no right to put the question to the juror, or to examine him in relation to any matter, which may either charge him with a crime, or with misbehavior, or expose him to shame or disgrace, in order to challenge him as a juror. See 1 Sal. 153.
In capital trials, by the common law, the prisoner has a right to challenge thirty-five jurors in succession, peremptorily, and without assigning any reason whatever for it. This indulgence is shown, that the prisoner may not be tried for his life, by any person whose appearance or character he may dislike, though such dislike may be the effect of mere prejudice, whim or caprice ; and besides these thirty-five he may challenge as many more, as he can assign sufficient reasons for challenging.
The trial by jury is therefore well calculated to do justice between the parties, in criminal trials as well as civil causes. But, besides, the jurors being taken from the great body of respectable citizens, and consisting of so large a number as twelve, one or more of them will be likely to be acquainted with all the general modes of business, the habits and practices and customs of society, as well as with the views and feelings of persons in the same class or business, with the parties in the case before them; they will therefore be well able to determine equitably and justly between them, as to the subject in dispute, the value of properly, the extent of injuries, &c.
In protecting the citizens from private wrongs, the lawful power of the jury, in assessing damages for injuries committed, is particularly observable. For, here they have a right to take into view, not only the amount of damage which the injured party has sustained, which is the least sum for which a jury can ever justifiably find a verdict; but, if the injury is of such a nature, that public policy particularly requires that it should be prevented from taking place again, the jury will be well warranted in giving what are called exemplary damages, as a warning to the defendant as well as to all ill-disposed persons in general.
The operation of this mode of trial in protecting the citizens from any species of public wrong or oppression, may be illustrated by numberless imaginary though not impossible, cases; e. g. suppose an unconstitutional and oppressive law to be enacted either by congress, or by the state authority, which however the courts, for whatever reason, see fit to sustain, if the jury were satisfied that such laws were unconstitutional and oppressive, they would have the power and the right, and, not only so, but it would be their solemn duty to acquit any prisoner, who might be charged with an offence against such law.
But in order to form a just estimate of the value of the trial by jury, it will be necessary to descend to further particulars. It is intended, therefore, in the course of this chapter, to consider the right and power of the jury in relation to their verdict: 1, in actions for breach of contract; 2, in actions for wrongs done maliciously, fraudulently or forcibly; 3, in criminal prosecutions. Before proceeding to these particulars, however, it may be proper to remind the reader, that it is a general rule applying to all cases which are the subject of a jury trial, that it is the province of the jury to ascertain all facts upon which the decision of the case before them depends, while the law of each case is to be determined by the court. It is therefore considered the duty of the jury, to make up their verdict from the evidence exhibited to them at the trial, under the direction of the court as to the law applicable to the case. The law on this subject is thus laid down in Plow. Commentaries, 114. ‘It is the business of the jury to inquire of matters of fact, and not to adjudge what the law is; for that is the office of the court. ‘And, if the jury should find all the facts, and should further find that the law is so, when it is not so, the judges shall decide according to the matter of fact, and not according to the finding of the jury. For, the verdict will be good as to the fact found, but void as to their conclusion.’
But, as it sometimes happens, from the fallibility of human reason, from which experience has shown, that the most able judges are not always exempt, that the law is incorrectly charged to the jury; and as it is obvious, if the error is in a material point, and the jury are governed by the charge, they will give their verdict for the wrong party, and, in this manner, injustice will be done to him, this general proposition must be subject to some restrictions. For, there appears to be an analogy between the right of the jury to decide as to the facts from the testimony of the witnesses, and their right to form their opinion, as to so much of the law as is necessarily involved in a general verdict, from the charge of the judges. For, the duty of the jury requires them to bring in a verdict according to the law and the evidence in each case. In making up their verdict, therefore, so far as the facts are concerned, they are morally bound to believe the testimony of those witnesses whom the Court admit as competent, subject to these conditions : 1, that the facts sworn to, are not improbable; 2, that the testimony of the witness is consistent with itself; 3, that it is not contradicted by any other witness; 4, that it is not contrary to what the jury themselves know to be the fact; for, it is settled that the jury may give a verdict on their own knowledge, though regularly every juror, having a knowledge of any facts, ought to communicate it to the Court and be sworn. 5. That there is nothing in the appearance or manner of the witness in giving his testimony, to lead the jury to distrust his truth or sincerity.
As the jury therefore may find the truth of facts on their own knowledge, and ought by no means to find a verdict contrary to what they know to be the case; so, as to the law, though they are bound to receive what the judges charge them, as the law by which they are to be governed in making up their verdict, so far as it is applicable to the case before them, yet this must be subject to the restriction, that they the jurors, do not know the law to be otherwise. In most cases, it is true, the jury are wholly incompetent to determine, without the assistance of the Court, what the law is in relation to the case before them. They have a right to presume therefore from the circumstance of a judge’s appointment to office, and his learning and experience, that his charge is correct, unless they know or conscientiously believe to the contrary; and, if he should be incorrect, and the jury, confiding in the correctness of his charge, should bring in an erroneous verdict, no blame can ever rest upon the jury; since they have merely placed a proper confidence in the knowledge of a person, whom society or the constituted authorities of it, have appointed to be an official expounder of its various laws and ordinances. But this will not hold good, where the jury know the judge to be in an error, or what comes nearly to the same thing, where they are thoroughly convinced and conscientiously believe, that he has charged the law incorrectly. And, even in the cases, where the party injuriously affected by the verdict, may have a right to appeal; still, this circumstance will not discharge them from the strictest responsibility for the correctness of their own verdict; because the law confides, that in every stage of a cause, each individual, officially concerned in the administration of justice, will do his duty scrupulously and punctiliously, without relying upon higher tribunals to correct his mistakes. Besides, those who have a legal right to appeal, do not always find themselves in convenient circumstances to exercise it.
1. Of the power and right of the jury, in making up their verdicts in civil actions for breach of contract.
In actions brought for a breach of contract, where the performance consists in the payment of a precise sum of money, if the jury are satisfied that there has been a legal contract, which has not been performed, and no satisfactory excuse for non-performance is proved, they are bound to find a verdict for the precise sum due on the contract. Here they have no discretion whatever, and, if they should find a verdict for either more or less, the Court would set aside the verdict, and grant one or more new trials until this precise justice was done, unless it was adjusted by the consent of the parties.
Where the breach of contract consists in a failure to deliver certain goods or merchandize, the jury would have rather more latitude for the exercise of their discretion. For, though they would be bound to assess the damages at the true value of the goods, this of course must be understood as binding the jury according to the conscientious opinion of the jurors. But, as there would not be the same precise standard of value, in this case, as in the preceding one, and, as they might form their valuation upon the testimony of different witnesses, who did not agree precisely, the jury would have a legal right to adopt any valuation for the goods, between the highest and the lowest value, sworn to by the witnesses. But, if they should go beyond those limits on either side, and it could be made to appear to the court, the verdict would be set aside here also, and a new trial granted.
2. Of the right and power of the jury in civil actions for wrongs done maliciously, fraudulently, forcibly, or carelessly.
In these cases, the jury have a still greater latitude in assessing damages. But, where property is maliciously or wantonly destroyed, their verdict cannot, consistently with either law or conscience, be for a less amount than its value; though, if there are any circumstances of peculiar aggravation, the jury will be warranted in law to assess a far greater sum. For, the rule in all cases of personal wrongs is, that the jury may decide at discretion upon the amount of damages, with no other restriction, than that they must not be absurdly small nor enormously large. For, in either case, it is not to be doubted that the courts will grant a new trial for the purposes of justice. This power in the courts however will very rarely be exercised, because the design of it is not, to interfere with the power, which the law bestows on juries, of assessing damages for injuries at their discretion; but it is intended to secure to the suitors the honest and conscientious exercise of the discretion of the jurors, and to protect the parties from the effects of partiality, prejudice, passion, weakness of understanding, corruption or mistake in the jury, to one or the other of which, an absurd and unreasonable verdict, if to a very great excess, must necessarily be ascribed, and for which, it would be a disgrace to the law to suppose it had furnished no remedy.
While on this subject it may not be amiss to remark, that the reason of the law in some cases of actions for wrongs, seems to be misapprehended, as it is sometimes applied. For, in such cases, and even where an injury has been done maliciously, testimony is sometimes admitted to show that the wrong-doer has but little property, as if this circumstance afforded an extenuation.
But, it must be apparent, in such cases, that the jury cannot consistently with their oaths, ever give a verdict for less than they conscientiously believe to be the amount of the damage, which the plaintiff sustains by the malice, or even carelessness of the defendant, whether the defendant has sufficient estate to respond damages or not. And why should the defendant be in a better situation than he would be, if he had given a promissory note, and through misfortune, had become unable to pay it? In that case, the jury would not reduce the amount of the damages, merely because the defendant had not property enough to pay the whole. But, in the case of any wrong, there is still less reason for any such reduction. In cases of contract, a man must always take the chance of the insolvency of the person with whom he deals; and, though he should never be paid, still he parts with his property voluntarily and takes that chance. But, when one man destroys the property of another, it cannot be pretended that the owner voluntarily gave it up, or consented to run any risk whatever. Being under the protection of the laws of society, he has a right to insist upon having damages for the full amount which the jury shall conscientiously believe to be its value; for, though the wrongdoer may not, at that time, have sufficient property to satisfy the whole judgment, it is very possible that he may have enough at some future time. But, the true reason, it is believed, why such testimony may sometimes be received, is because, if the defendant were very rich, and had committed the injury from jhe insolent recklessness of consequences, which is sometimes seen to accompany the consciousness of being able to respond large damages without difficulty, the court would direct the jury to assess such exemplary damages, as the wrongdoer would feel, and as would serve as a warning to others. The defendant, therefore, upon any surmise that he had acted from any such motive, would be permitted to prove that he did not possess much property, in order to show, that he was not a fit subject from whom to require exemplary damages; but never for the purpose of reducing the damages below the amount of the injury really sustained.
In cases of slander, libel, seduction, assault and battery without any mitigating circumstances as to provocation, oppression of any kind accompanied with an abuse of an authority given by the law, or any contumelious wrong whatever, the jury would do well to make the case of the injured party their own, and not by a mistaken sympathy for a disturber of the public tranquility, add wrong to wrong, by giving a verdict for insufficient damages. For, the ill consequences of such a verdict, are very great; because it does not furnish the redress to which the plaintiff is entitled, but on the contrary injures his character, and lowers him in the esteem of others. It tends also to bring the administration of justice into contempt. Lastly, it leads to violence and injustice two ways; because, others seeing the impunity of the defendant, will not be deterred, but on the contrary will be encouraged in committing similar wrongs and outrages; while the sufferers, seeing that they can expect no adequate redress from the tribunals of the law, will resort to direct violence to revenge them.
3. The right and power of the jury as to their verdicts in criminal prosecutions, &c.
In criminal cases, the trial by jury is intended to afford to the person accused, not only a fair trial, whether innocent or guilty; but it is intended also to furnish, in an especial manner, every reasonable protection against the possibility of being convicted unjustly. Where therefore the jury consists of individuals possessing only a moderate share of abilities and knowledge of mankind, and such a share of integrity as is sufficient to resist the temptations, which may possibly be offered to induce them to pervert justice, if they will pay a proper attention to the proceedings before them, there can be but little probability, that innocence will ever suffer the penalty of criminality, or that legal guilt will ever escape with impunity.
To illustrate the justness of this remark, it will hardly be necessary to do more than allude to the certainty, which is required in the indictment, in describing the criminal charge, without which the prisoner cannot be convicted, even if the jury should give a verdict against him; (See the case of Mr. Rosewell, Infra the challenge of the jury with cause; or, the peremptory challenge, without cause, before mentioned; the inadmissibility of all proof of confessions drawn from the prisoner by promises of favor, or by threats of any kind; the presumption of innocence, with which the law protects the prisoner, and renders it unnecessary for him either to justify, excuse or in any way exculpate himself, until a strong presumption of his guilt, is raised against him by the testimony of witnesses under oath; and lastly, the humane principle, that even if such strong presumption should be raised in the first instance, if the prisoner can, either by other testimony, or by inferences drawn from circumstances satisfactorily proved, or by comparison of facts and conclusions, raise only a reasonable doubt, whether after all, he may not be innocent, the jury, according to the legal understanding of their oaths, will be bound to acquit him. By the English law, which is generally adopted in this country, a general verdict in criminal cases, must be either guilty or not guilty. By the law of Scotland there are three verdicts, viz., guilty, not guilty, and not proven. The last is given in, when there is not sufficient evidence to warrant the conviction of the accused, but the jury entertain doubts of his innocence. In such case, by the common law the jury are bound to acquit. If juries could always be depended on to make a proper distinction in their verdicts, perhaps this must be considered as an improvement on the common law.
It was on a humane principle, though sometimes barbarously abused by arbitrary judges in unsettled times, that the ancient common law did not allow prisoners counsel in capital cases, unless some matter of law, not already settled, should arise upon the facts found. It was supposed they could not need it for the facts; for, it was held, that if the evidence against them was not so clear, as not to be rebutted by any argument, they ought to be acquitted. Where the law applicable to the case, admitted of no doubt, it was the duty of the judges to be of counsel for the prisoner, i. e. to take care to give him notice of every fair advantage he might take, in challenging the jury, &c., and in general to take care that he should not be improperly convicted.
But, on account of the apparent hardship, and the occasional abuses which sometimes took place, the law has been altered. At this day, prisoners both in England and in this country, are permitted to retain what counsel they please, and in capital cases, poor prisoners have counsel assigned to them, on request, by the court.
To return; it is not enough, that the jury, after hearing all the testimony of the witnesses, the arguments of the public prosecutor, the defence of the prisoner both by himself and his counsel, and lastly the charge of the court,—are fully persuaded in their own minds that the prisoner is guilty; it is not enough that the jury, by their own natural sagacity, or, by the ingenious comparison of circumstances by the public prosecutor, are come to this conclusion. For, an opinion that the prisoner is guilty, thus formed, will hardly authorize the jury to find a verdict against him.
It is true, that it is the height of practical sagacity and wisdom, to be able to draw correct inferences from minute circumstances, which escape the observation of dulness,—from a partial view of facts, where it is impracticable to ascertain the whole truth; from premises wholly inadequate to the purposes of demonstration; this however, is only to be considered as a matter of prudence and caution for our own security; but, it would be the greatest injustice to apply such wisdom and sagacity, to the purpose of convicting a prisoner on merely probable surmise, when, according to the true intention of the law, guilt must either be proved to a moral certainty, or, otherwise, must be allowed to escape with impunity. For,
Why is guilt punished at all? Is it not, for the sake of the security of the just? But, unless guilt is demonstrated, then it is possible, that innocent men may unfortunately fall into the same circumstances with the individual convicted, whether he be guilty or innocent in fact, and may have the same arguments from circumstances urged against them, and consequently, in the same way, may be convicted and punished. It is plain, therefore, that where even a guilty person is convicted and punished, without conclusive proof of his guilt, innocence itself is endangered, and the security of good men is not obtained.
In civil actions, if the jury should give a verdict, contrary to the evidence, that is to say, without any apparent evidence at all to support it, (for, it is not enough that it is found against the weight of evidence,) the court will set aside the verdict and grant a new trial. But the jury may give a verdict contrary to evidence if they see fit. See Plowd. 8. Holt, 404. Vaugh. 147.
So, in a civil action, if the jury should give a verdict, contrary to the direction of the court in matters of law, the court will set aside the verdict, and grant a new trial. But, as there are no new trials in criminal cases, if the jury should give a verdict, either against law or evidence, and notwithstanding the instructions of the judge, before it was recorded, to reconsider it, should persist in it, the verdict must stand, and there is no power to call the jury to account for it.
Since therefore this power is confided to the jury, it may not be amiss to consider what is their right and duty in this class of cases. This subject will be most conveniently illustrated by selecting a particular one. Suppose A to be indicted for a crime, and pleads not guilty, and after the witnesses for the prosecution are examined, he or his counsel argues to the court, at the same time requesting the attention of the jury, (as Home Tooke was permitted to do, on his trial for a libel before Ld. Mansfield,) that the facts testified to, do not amount to the crime charged. Suppose that the court charge the law to the jury contrary to the prisoner’s argument; here the jury, if they are satisfied of the truth of the facts, and take the law to be as charged by the court, will be bound to find the prisoner, guilty. If they doubt, or cannot agree with each other, whether the law is correctly charged by the court; or, if they have any mistrust of themselves, that they shall not be able to apply the law correctly to the facts, they may find a special verdict, and thus submit the question of the prisoner’s guilt, to the decision of the court. But if, after hearing the prisoner’s argument, and the charge of the court, the jury should be clearly of opinion, that the law is according to the argument, and the judge’s charge is wrong, it will be jheir duty to acquit the prisoner. If, in such case, they should find a special verdict, they would hardly do right, since they must be pretty sure the prisoner will be convicted, and yet, according to their own opinion, or rather according to the convictions of their own understandings, he is not guilty. If they should ask the court for further instructions in such case, before they made up their verdict, as they ought to do, because perhaps a few words of explanation from the judge will remove the difficulty in their minds, and they should still feel convinced, that the judge did not charge the law correctly, but, from a deference to his opinion, should find the prisoner guilty, they would violate their oaths.
If a barbarous or arbitrary law should be enacted, as for instance, if it should make mere words sufficient to constitute an act of treason, and any person should be indicted on such act, it would be the duty of the jury to acquit the prisoner, if, as in the case supposed, the law were unconstitutional; or, what is the same thing in effect, if the jury conscientiously believed the law to be unconstitutional, however it might be charged by the court. It is in this sense, probably, that the remark of Fortescue is to be understood; ‘that the jury are not bound by the determination of the House of Commons, nor by any law in the world but their own consciences.’ Fort, de. Laud. 117.
A distinction however may be taken here. 1. If the law were made to punish a man for doing anything, which it is his duty to do; or, which it is morally wrong to prevent him from doing; or, for not doing anything, which he ought not to do, the law would be wicked and tyrannical, and such as no government has a right to make; and therefore the jury would do well in refusing to assist in enforcing any such law. 2. If the law should prohibit any thing, which a man would have a right either to do, or to omit, if not prohibited; or, command any thing to be done, which, if not commanded, any individual would, in like manner, have a right, either to do or to omit, and such law is not contrary to the constitution, though the penalty is excessively severe and out of proportion to the offence, still, the jury, in case of an indictment for a violation of it, will be bound by their oaths to convict a person who is guilty of such violation. They have nothing to do with the punishment.
With greater reason they will be bound to convict a person, who has committed an act wrong in itself, in violation of a law which prohibits such act, however severe the penalty may be.
The right of a jury to give a verdict, contrary to the opinion of the court on a point of law, can exist only, where they are fully satisfied that the court is in an error. For, if not thus satisfied, they ought to receive the judge’s charge as correct. But, each juror ought in all cases, especially in capital ones, to act according to the dictates of his own conscience, and on his own moral responsibility in making up his verdict. The prisoner in a criminal case, and the parties in a civil action, are entitled to ‘the exercise of his judgment, unbiased by any consideration, that is not grounded either on the evidence in the case, or the law applicable to it. The jury in no case have a right to decide their verdict by drawing lots; it is always a misdemeanor, (see 1 T. Rep. 113) to do it in a criminal trial would be inexcusable; and in a capital trial would in fact be murderous ; because in this way an individual might be put to death, without any real consideration of his guilt or innocence. It is held, that if they cannot agree upon their verdict, they may agree to find their verdict according to the vote of the major number. See Says. R. 100. 1 Stra. 642. This however must be restrained to verdicts in civil actions, and can hardly be justified in law even there. For, the law requires unanimity in a jury, as a test of the truth and justice of their verdict. It means therefore unanimity brought about by discussion, and the exercise of the understanding. But, the unanimity brought about by putting the subject to vote, is an evasion of the law ; for, this is not brought about by the exercise of the understanding, and it renders the verdict of the majority effectual, which at law would be wholly unavailing.
It has been held, that a jury may give in a verdict contrary to evidence. See Plow. 8. But, this is because it might be supposed, that they formed their verdict on their own private knowledge of facts. But a juror, who should thus bring in a verdict in either a civil action or in a criminal prosecution, would act improperly at least, and perhaps might occasion great injustice. In a civil action, if the jury should bring in a verdict grounded solely on their own private knowledge, ft might appear to be given contrary to, or, without any evidence, and, if the court were of that opinion, it would be set aside and a new trial granted. If there was evidence given on both sides, the verdict would appear to be given contrary to the weight of evidence, and, in this way, though a new trial would not be granted, yet it would tend to bring the administration of justice into disrepute. The same consequence would attend the conviction of a person indicted for a crime, on the private knowledge of the jury. A greater injury however is done here; because the prisoner is convicted on evidence which does not appear on the trial—evidence, of which he has no notice, and consequently has no opportunity to answer. The duty of a juror, who has a knowledge of any material facts, would therefore seem to be, to give notice of it, especially in a trial for a capital offence, so that he may be sworn, and the prisoner may have an opportunity of explaining away his testimony, and perhaps convincing that very juror that he is in an error. It would seem, also, very proper in the jury, in general, if one of their number should attempt to influence the rest by appealing to his own private knowledge of facts, to give notice to the court of the circumstance; for, otherwise, the accused party does not seem to have a fair trial. But, it is held that where a person is about to be sworn on a jury, who has material evidence to give in the case, he ought to inform the court of it, before taking the oath. Sal. 405.
No juror ought ever to agree to bring in a verdict of guilty, against a prisoner, unless he is completely satisfied of his criminality. Though the other eleven are agreed, if their reasonings do not convince him, and he should out of deference to their judgment, though sanctioned also with the opinion of the court, consent to such verdict, the prisoner’s blood, if innocent, will rest upon that juror’s head, and upon his alone; for, the rest conscientiously believe the prisoner guilty, according to the best exercise of their judgment; but he convicts, while he doubts the prisoner’s guilt, and therefore violates his oath, neglects his duty and betrays his trust. Neither ought a juror ever to consent to find a verdict against a prisoner from the expectation, that he will not be capitally punished. For, the substance of the verdict of the jury, when they find the prisoner ‘ guilty,’ is, that he is Proved to be guilty; but, where they find him, ‘not guilty,’ the only rational meaning of the verdict, is ‘that he is not proved to be guilty? though the law permits it to be considered as a proof of innocence, so far that he shall never be tried again on the same charge, though conclusive -evidence of his guilt should afterwards be discovered. If the jury cannot agree, they will be discharged after the court have kept them together long enough to ascertain, that there is no probability that they will agree.
On the other hand, if the juror is completely satisfied of the prisoner’s guilt, and can trace that conviction to the effect of the testimony which has been given on the trial, he ought to find him guilty; without regarding those vain scruples, which sometimes afflict men of great sensibility, when discharging the plainest duty, that though they are fully satisfied, after the most careful scrutiny, yet perhaps they may be in an error. In such case, they should remember, if they are in an error, it is because they are fallible creatures, and not because they have not taken proper pains; but no man can be accountable for any thing more, than the honest exercise of such an understanding as nature has given him.
In all cases, both civil and criminal, if all the jury are satisfied and agreed, as to the facts of a case, but cannot agree as to the law, so that they are unable to make up their verdict, they have a right to call on the court to give them further instructions and explanations as to the law, to enable them to do so; or, they may bring in a written statement of all the facts in the case, which will be reduced into proper form for them by the counsel in the case, under the direction of the court, and conclude with submitting to the decision of the court what their verdict ought to be. By this special verdict finding all the facts, the final decision is submitted entirely to the court; so that if, after finding all the facts, they should conclude by giving a general verdict in favor of one of the parties, or of the prisoner as the case might be, the court would reject the conclusion as void, and would determine for themselves on the facts found in the verdict.
After the jury are agreed, and the foreman has delivered in the verdict, and the jury are asked the final question ‘so you say all, gentlemen,’ any juror may then dissent, if he has any scruple arise in his mind, and the court will then send the jury out again, to see if they can agree. And whatever their first verdict may have been, they are entirely at liberty to alter it as they see fit. This power they retain until their verdict is recorded. And therefore, where two were on trial for a conspiracy, and the jury came in with a verdict of guilty, against one, and were sent out again, because one alone cannot be guilty of a conspiracy, and on their return again, found both guilty, the verdict was held good. See Plowd. 212.
But, after the trial is over, and the verdict is once recorded, there seems to be no remedy, even though they have made a mistake in their finding, and make an affidavit to that effect. For, all mistakes ought to be corrected at the time of trial, and before the verdict is recorded. See 2 T. R. 282. If any alteration should be allowable after the jury had once been dismissed, it would furnish too many opportunities to attempt to tamper with them. It is for this reason, that all representations of jurors, contrary to their verdict, have been censured. See 3 Bur. 1696. This however does not apply to recommendations for mercy, made by the jury after conviction.
Jurors should be careful to attach no weight whatever to suggestions, made as to the probability or improbability that a prisoner, if convicted, will be punished. Their concern is with his guilt or innocence alone, and that question it is their sworn duty to decide, without any reference to the question, whether he will be punished or not, or, what his punishment may be. In a capital case, within the recollection of the present writer, the public prosecutor expressed an opinion in the course of his argument, that the prisoner, if convicted, would not be punished capitally; and the jury found him guilty; but afterwards, eleven of them sent a representation to the Governor, stating that they should not have found him guilty, if they had expected he would be punished capitally, &c.; but their petition was not granted, and the prisoner was executed.
The grossness of such conduct in the jury, is manifest from the consideration, that, unless it can be supposed, that they knowingly brought in a false verdict against him, for whatever reason, they would have found him not guilty, when in their consciences they believed him guilty, merely because they were unwilling, that he should suffer the punishment prescribed by law for the crime proved against him.
With regard to the efficacy of the trial by jury in protecting the citizens from public wrongs, whether consisting in the operation of laws grounded solely in usurpation, or, upon an abuse , of a legal authority; or, consisting in acts of arbitrary power committed by persons in authority, but without any legal warrant, it may be further remarked, that, if acts of oppression should be practiced upon an individual under pretense of a lawful authority, and an action should be brought for the injury, if the oppressor were a person of great political power or influence, it might happen that any one or two individuals, if they had the judicial power of deciding between the parties without the intervention of a jury, might be too much overawed and intimidated by the wrong doer, to do strict justice between them. But an independent jury in any such case, would make the plaintiff’s case their own ; and keeping in mind the principle, that, where one citizen is oppressed, all are threatened, would take care to give a verdict against the defendant, for such exemplary damages, as would teach him, however high his rank might be, that the law is above him.
If the sovereign political power should fall into bad hands, and an attempt should be made to crush all those who were obnoxious to them, by the enactment of highly penal and unconstitutional laws, against acts wholly free from moral turpitude, and only prohibited, because all freedom is dangerous to usurped power, it would be the duty of the jury, by their verdict of acquittal, to rescue the persons accused, and show their detestation of tyranny and oppression.
If the time should ever arrive, when the members of the judiciary shall be dependent for their offices upon the other departments of government, and those other departments shall abuse their authority to violate the constitution, and crush such of the citizens as shall oppose their schemes; and, to carry their designs into effect, shall appoint to judicial offices such of their own adherents as will co-operate with them, by harsh and arbitrary misconstructions of penal laws, it is then that the excellence of this mode of trial, ought to be seen and felt as a guardian and protector of civil and political rights. How far is this supposition justified by the history of the past?
In the first year of Charles II. while public affairs were controlled by Cromwell, Lieut. Col. John Lilburne was indicted for high treason for publishing certain books and pamphlets, reflecting in the strongest manner upon that usurper. On his trial he made a very bold and eloquent defence, and though the court were unanimous against him, and seemed very desirous that the jury should convict him, yet he was unexpectedly acquitted, to the great joy of the people, who, it is said, shouted for half an hour without intermission, to the great terror of the judges. Within three years afterwards he was banished by a resolve of the Parliament, under pain of death. He was at the Parliament door the day after this resolve was passed, and was ushered into the bar, by the Sergeant at arms. The speaker of the house twice commanded him to kneel to receive his sentence, but he replied that though he submitted to their sentence, he neither could nor would kneel. Being then sent out, he told the Sergeant to inform the speaker, that when he should be brought up to receive his sentence, he should not kneel, if they should order the sergeant to beat his brains out with the mace; because such a gesture seemed to imply a consciousness of guilt. He returned from banishment, and was indicted for it capitally, on the resolve or act of Parliament, and was very unfairly used on his trial, but making an able and eloquent defence, he was again acquitted by the jury. The Parliament seem to have been greatly incensed at this, and passed an order to examine the jurors, and make them give an account of their verdict. They were accordingly examined separately, and their answers were generally such as became men of integrity. The foreman’s answer in substance was, ‘that, in what he did, he discharged his conscience, and that he would give no further answer as to the grounds of the verdict, for reasons best known to himself.’ Four of them answered, ‘ that they did it to satisfy their consciences,’ &tc. One answered, ‘that he was not bound to give an account of what he did in that business, but to God himself.’ Two of them said, ‘that notwithstanding the court told them they were judges of the fact only, they considered themselves judges of the law also.’ One doubted, whether John Lilburne, named in the act of Parliament, was the same John Lilburne, who was indicted, having never seen him before, &c.
It was soon found, therefore, that jury trials were not so much under the control of the powers of the government, that favorable results could always be depended on with confidence, even when the influence of the government was seconded in the strongest manner, by that of arbitrary and prejudiced judges. Yet, it is not to be wondered at, if in times preceding the revolution in England, when James II. abdicated or was dethroned, and William and Mary succeeded, the trial by jury was found a very inadequate protection for innocent persons, who had fallen under the displeasure of the court. For, in those times, the fairness of the trial depended almost entirely on the presiding judges, because they exercised a power over the jury, that has long since been done away. The jury therefore, being overawed by the judges, who sometimes did not hesitate to threaten those of the jury, who would not agree to such verdicts as they required, were often induced to convict persons of crimes, which were not sufficiently proved. For, how could a jury, who were not well acquainted with the law, who were exposed to the highly penal and infamous punishment of an attaint, for a false verdict, or, as it has sometimes been held, for a verdict contrary to the opinion of the court; and, beside that, who were liable to be kept without food and refreshment at the discretion of the court, if they did not agree, as also to be carried round the circuits in a wagon to attend the court until they did agree, exhibit the same independence as in later times, when all these absurdities are done away? Yet, though they took the further illegal advantage of controlling the sheriff in the return of the jurors, as sometimes was done by Cromwell, it so happened, by means of the prisoner’s challenges, and because the character and opinion of every individual juror could not be certainly known to the sheriff, that, even in the worst times, there would occasionally be found one or more jurors, too honest and independent, to be either corrupted or intimidated, into a false and iniquitous verdict.
It was in consequence of such disappointments, as it is presumed, that very soon after Lilburne’s first acquittal in 1650, it was thought a politic expedient to create new courts with the style of high courts of justice, which had authority and was made use of, to determine cases of treason, &c. without the intervention of a jury. Under this tribunal, though the number of commissioners amounted to forty, there seems to have been no difficulty in convicting any person on almost any kind of evidence, as a quorum consisted of seventeen, and the opinion of the majority was decisive. The proceedings were arbitrary and cruel, to a high degree. The first high court of justice, however, was erected for the trial of Charles I. and gave rise to the rest.
Among those who suffered capital punishment under this tribunal, and whose guilt is not satisfactorily made to appear, because they had not a fair trial, were Col. Andrews, Ch. Love, J. Gibbons, Dr. Hewit, Sir Henry Slingsby, and many others. John Mordant was acquitted, there not being a majority of the judges against him, and some being bribed. After the restoration of Charles II. the trial by jury was again permitted in such cases. But here the trial by jury was again found insufficient to protect the innocent, on account of the unfairness with which it was usually conducted in the time of Ch. Jus. Jeffries. Certainly it was a rare instance, indeed, when one indicted before the court of King’s Bench, escaped, while this judge presided. He seems almost invariably to have had a strong bias against the prisoner, from the beginning of the trial; and being a man of great abilities, and assuming the part of king’s counsel and uniting it with the authority of chief justice, he generally refuted or silenced the arguments of the prisoner, and overawed or convinced the jury with equal ease, whether there was or was not sufficient legal evidence of guilt. In illustration of these remarks, one or two instances may be given. In 1681 Stephen College was indicted for high treason, and, if allowance were not made for the age, the perusal of his trial, would be sufficient to give any one a distaste for the trial by jury. Because it seems impossible not to come to the conclusion, that he was the innocent victim of perjury in the witnesses, cruel and barbarous oppression in the court, and gross servility or excessive stupidity in the jury.
In the trial of Count Coningsmark and three others in the same year, for murder, in which there seems to have been no doubt that Coningsmark was the instigator, and that the act was perpetrated by one of three others in the presence of the rest, by his procurement, the Ch. Jus. Jeffries, for whatever reason, was resolved to save Coningsmark from conviction. For this purpose, evidence was withheld from the jury which would have tended to clear some of the prisoners, but would have endangered the Count. But no one can read the trial and doubt his guilt. In order to favor him the more, after the testimony was closed two of the prisoners who were foreigners and did not speak English, were not asked what they had to say in their defence, from an apprehension that it might lead to the Court’s conviction. The jury therefore found him not guilty; but the three others were convicted and executed, one of whom, it is not unlikely, was innocent, or at least wholly ignorant of the intention of committing the crime of murder.
Joseph Hayes was also indicted for high treason, before that court; there was hardly any thing, which would be called legal evidence, offered against him. He conducted his trial with great boldness and spirit, and, notwithstanding a violent charge against him by Ch. Jus. Jeffries, was unexpectedly acquitted by the jury.
The trial of Thomas Rosewell, a dissenting Clergyman, for high treason, the overt acts of which consisted in delivering two discourses in the presence of a few persons at a private dwelling-house, and which discourses were said to contain the crime of imagining the king’s death, deserves a more particular notice. The indictment against Mr. Rosewell was drawn up in Latin, agreeably to the law at that time. The treasonable words, charged to have been uttered by Mr. Rosewell, without the innuendos to point the application of them, were as follows:
‘That the people made a flocking to the king, upon pretense of healing the king’s evil, which he could not do; but we are they to whom they ought to flock, because we are priests and prophets, who can heal their griefs. We have now had two wicked kings together, who have permitted popery to enter under their noses, whom we can resemble to no other person but to the most wicked Jeroboam; and, if you will stand to your principles, I do not fear but we shall be able to overcome our enemies, as in former times, with rams’ horns, broken platters, and a stone in a sling.’
The witnesses for the crown were three women, whom, Mr. Rosewell, being conscious of his innocence of having ever uttered the expressions charged against him in the indictment, and apprehending that they would swear to the same story if questioned in each other’s presence, requested to have examined apart. This was accordingly done, but they agreed in their testimony in a surprising manner, though Mr. Rosewell cross-examined them with no small ingenuity. There can be no doubt therefore, that Mr. Rosewell did deliver two discourses at the times and places testified to by the women; indeed, Mr. Rosewell never denied so much, and that the words charged in the indictment, were what they supposed Mr. Rosewell to mean.
After the evidence of the crown was closed, Mr. Rosewell, who was a good scholar, requested that the same passage in the indictment, just now quoted in English, should be read to him in the original latin, which was done as follows:
—* Quod populus coadunationem fecere (anglice, ‘made a flocking’) dicto domino regi nunc, sub pretextu sanandi morbuin regni (anglice, ‘ the king’s evil’) quod ipse facere non potest; sed nos sumus illi ad quos illi debent accedere, (anglice ‘ flock to,’) quia nos sumus sacerdotes et prophets, qui precibus dolores ipsorum sanaremus. Nos habuimus nunc duos iniquos reges insimul, qui permiserunt Romanam superstitionem (anglice, ‘popery’) ingredi in eorum conspectu (anglice, ‘under their noses ‘) qui assimilari possunt ad nullam personam, nisi ad nequissimum Jeroboam.—Et si ipsi ad fundamentalia ipsorum permanerent (anglice, ‘would stand to their principles’) ipse non timebat, quin ipsi inimicos suos vincerent, sicut in pristino tempore cum cornubus arietum, patinis fractis (anglice, ‘broken platters’), et lapide in funda; (anglice, ‘sling ‘) &tc.
Mr. Rosewell before beginning his defence, made some exceptions to the indictment; and the following dialogue ensued between him and Ch. Jus. Jeffries.
Rosewell. If it please you, my lord, that which I object against, and desire to be satisfied in by your lordship, is this; I am charged with speaking words about flocking to the king to cure the king’s evil; and it is in the indictment called, ‘morbus regni anglici,’ that is, the disease of the English kingdom.
Lid. Ch. Jus. Jeff. No, no; it is morbus regni, anglice, ‘the king’s evil.’
Ros. I do not understand how ‘morbus regni’ can be ‘the king’s evil.’
Ld. Ch. Jus. Therefore, because there is no apt word in the law for that distemper, they help it up by the word ‘anglice,’ to show what they meant.
Ros. But, my lord, I understand there are proper words for the disease; as struma and scrofula; those are proper words for it; not ‘morbus regni.’
Ld. Ch. Jus. Not at all in law; those may be the words used among physicians; but in legal proceedings, we are to keep up exactly to the legal names and phrases; and where we have not an usual word, then we help it up by anglices, and so we here express that very distemper, which is called by the name of the king’s evil, by a word framed as near to a law phrase as we can; and to show our meaning in it we add anglice, the king’s evil.
Ros. My lord, is that the phrase that is proper for it in law?
Ld. Ch. Jus. Yes, yes; it is very well expressed to show what is meant.
Ros. But, my lord, ‘morbus regni’ is in English, properly, the disease of the kingdom.
Lid. Ch. Jus. It is so; the disease of the kingdom; if they had gone no further, but left it there, it might have had such an interpretation put upon it. But because the words are so ambiguous in Latin, they are reduced to a certainty, by putting an anglice to them.
Ros. I thought it had been ‘anglici.’ My lord, there is another phrase that I object against; k says ‘ nos habuimus nunc duos iniquos reges insimul;’ My lord, this cannot be understood of two kings, one after another; but ‘ insimul’ makes it to be both at once.
Lid. Ch. Jus. No; we have had now together two wicked kings.
Ros. That we do not use to express so in Latin.
Ld. Ch. Jus. The words do thus sound in English.
Ros. There are two words, insimul and nunc, that do signify the’ present time. My lord, I am now only speaking all this while upon the hypothesis, that these words were spoken by me; for I still do, and always must deny the thesis.
Ld. Ch. Jus. We take it so.
Ros. It should have been successive.
Ld. Ch. Jus. Then it had not agreed with your words. For the witnesses swear that you said we have now had two wicked kings together, and not successively.
Ros. If that be an anglicism, this cannot be true Latin.
Ld. Ch. Jus. Nay; if it be a blunder in the Latin, it was a blunder of your making; for you spoke it so in English, and the indictment in Latin must exactly pursue the English.
Ros. Then, my lord, here is another expression, that they suffered ‘ Romanam superstitionem,’ ‘ Popery’ to come in.
Ld. Ch. Jus. Aye; is not that well expressed?
Ros. My lord, there may be superstition in the worship of the Church of Rome, and yet not be the thing we call Popery.
Ld. Ch. Jus. There may so, you say right; but then this comes under the same reason, as the former phrase you objected against,’ morbus regni.’ Because ‘ Romana superstitio,’ is such a general word, and because there are several superstitions in the Romish Church, abundance of them; and this may make it uncertain; and because we have no other word to express what we call Popery by, therefore there is an Anglice put in, to show what is meant.
Ros. Then, my lord, it is said, ‘ in eorum conspectu,’ is that right, my lord?
Ld. Ch. Jus. Yes, Anglice under their noses.
Ros. That is in their sight.
Ld. Ch. Jus. Pray, how would you put that in Latin, under their noses.
Ros. My lord; if I should speak according to the other parts of the Latin of this indictment, which your lordship says must exactly pursue the English, I would render it, ‘ sub naribus illorum.’
Ld. Ch. Jus. Such people suffer conventicles under their noses, ‘in eorum conspectu.’
Jus. Holloway. It is not your nose, that sees.
Ld. Ch. Jus. Suffer rebellion under your noses; are these things, ‘sub naribus,’ or ‘ in conspectu?’
Ros. My lord, this could not possibly be spoken of the late king and this king; when the precedent king died a professed zealous protestant, and his present majesty has so often, and earnestly declared against it.
Ld. Ch. Jus. We know that very well; but yet withal we know, it was the pretence of Popery and arbitrary power, and those things, that brought that blessed martyr to the scaffold; and the great cry now at this day, by all factious and seditious busy fellows, is against Popery; as if it were just breaking in upon us, and the government abetted it; when it is all false, nothing more untrue; the indictment calls it so, says these words are spoken ‘/also et malitiose;’ and all treasons are so.
Ros. Then, my lord, there is another thing, ‘ si ipsi starent ad fundamentalia eorum,’ Anglice, ‘ would stand to their principles or principals;’ for, I know not how it is in the indictment. Pray, my lord, how comes ‘ fundamentalia,’ to signify, ‘principles.’
Ld. Ch. Jus. Their principlesj that is, their foundations or fundamentals. ‘If the foundations are destroyed, what can the righteous do?’ says the Psalmist. The Latin bible expresses it by ‘fundamentalia.’
Ros. Then it is, ‘ si ipsi’ in the third person ; now my lord, in common sense, that must needs refer to the two wicked kings that were spoken of just before, or to the king and his subjects spoken of afterwards; and then sure it cannot be treason.
Ld. Ch. Jus. No; ‘they,’ that is, I and you that are here. It was spoken to your congregation. If they would stand to their principles; then come ‘the broken platters,’ &tc.
Ros. If it were spoken to them and of them, it must have been ‘ you ‘ or ‘ we.’ Then, it is added in the end, my lord, ‘fractis patinis,’ ‘ broken platters,’ your lordship lias remembered me of that word. My lord, I did hear, that Mrs. Smith, did swear at Kingston assizes, it was ‘pewter platters.’
Ld. Ch. Jus. I do not know what she swore there; now I am sure she swears as it is in the indictment, &tc. &c.
After some further criticisms, Mr. Rosewell commenced his defence, and, that the ridiculous expressions charged against him and absurdly made the foundation of an indictment for high treason, were never used by Mr. Rosewell, was conclusively proved by the testimony of a great number of witnesses, who agreed in their account of the discourses, denied that he uttered the words charged, stated the language which he did use, and made it quite clear, that it was entirely owing to a misapprehension of his meaning, that the women testified as they did. For, according to these witnesses of Mr. Rosewell’s, some of whom, being in the practice of taking notes, had committed to writing some parts of his discourses, what he really did say, was in substance as follows, and was delivered by him while expounding the 20th chapter of Genesis. After reading some of the first verses of that chapter, he took occasion to observe, from the conduct of Abraham there mentioned, that a good man might fall into the same sin, again and again. One instance, which he mentioned was that of Jehoshaphat, who sinfully joined with two wicked kings, first with Ahab, and afterwards with Ahaziah. On the seventh verse, he observed that the prayers of the prophets have been very prevalent for the healing of others. He instanced the prophet who rebuked king Jeroboam, and when the king’s hand became withered, because he threatened the prophet with it, and the king intreated the prophet that it might be restored, it was healed at his intercession. Mr. Rosewell in his discourse then quoted from an annotator on the bible, ‘that a godly man’s prayer is a sovereign cure of the king’s evil,’ not meaning the scrofula; but any disease which a king might happen to have, &c. There was nothing said about ‘ flocking to the king ‘ at all.
In his second discourse, he expounded Heb. 11. v. 12 which alludes to Abraham’s having a son in his extreme old age, from whom a great multitude of descendants sprung. He took occasion to observe, that God could effect great matters by very small and improbable means. He instanced the throwing down of Jericho by the sound of rams’ horns, the destruction of the Midianites by Gideon, with a few broken pitchers, and the killing of Goliath by David with a sling.
It seems probable, these women, immediately after they heard these discourses of Mr. Rosewell, had conversed together in relation to them, and had agreed in putting their own erroneous interpretation upon them, and through the effect of imagination, had come to the belief that he had actually made use of the expressions charged, because they expressed the meaning, which, on a conference with each other, they concluded was intended by Mr. Rosewell. Mr. Rosewell’s loyalty and innocence of any treasonable intention was established in evidence by a great number of witnesses, who testified particularly to his uniform practice of praying publicly for the king. On one occasion he was overheard praying for him in secret prayer, by one of his servants. He was however found guilty of high treason, and would have been executed, if there had not been a want of technical certainty in the indictment, in describing the charge. As soon as Mr. Rosewell made the exception, it was readily entertained by Ch. Jus. Jeffries, who stood firmly by the law, and seemed disposed to sustain the exception. But, in all probability, it was thought to be bad policy to let a prisoner off, by a motion made in arrest of judgment for a defect in the indictment, which, it does not appear, could have been avoided, and Mr. Rosewell was therefore pardoned.
After the exception to the indictment for want of certainty, was made by Mr. Rosewell, the Chief Justice assigned Mr. Pollexfeu to be his counsel to argue the motion in arrest of judgment; Mr. Pollexfen then moved for a copy of the indictment, because it might be necessary to know its precise tenor. The Ch. Jus. would not grant it, but expressed his opinion of the unreasonableness of withholding it, in the following terms.
‘Why look ye, Mr. Pollexfen,—If you speak to me privately as to my own particular opinion, it is hard for me to say, that there is any express resolution of the law in the matter; but the practice has always been to deny a copy of the indictment. And, therefore, if you ask me as a judge, to have a copy of the indictment delivered to you in a case of high treason, I must answer you, show me any precedents where it was done. For, there are abundance of cases in the law, which seem hard in themselves; but the law is so, because the practice has been so, and we cannot alter the practice of the law without an act of parliament. I think it is a hard case, that a man should have counsel to defend himself for a two-penny trespass, and his witnesses examined upon oath; but, if he steal, commit murder or felony, nay, high treason, where life, estate, honour, and all are concerned, he shall neither have counsel, nor his witnesses examined upon oath; but yet you know as well as I, that the practice of the law is so; and the practice is the law.’
It is very plain from many’other cases, besides those which have been named, that it is too much to expect of the trial by jury, that it should always guaranty a fair trial to the prisoner, even if the jury are free from all responsibility for the correctness of their verdict, unless the prisoner has secured to him, the right to a copy of the indictment, that of being heard by his counsel without any restrictions whatever as to questions of law; the right to compel the attendance of his witnesses, and that of having them put on oath, all which were formerly withheld.
But so long as juries shall be protected in the free exercise of their understandings, as they now are in this country, it will be impossible for any government to practise any very gross oppression upon the citizens in general, under the forms of legal trials.
It is on this account, that the people should carefully guard this mode of trial from change or alteration. For, as it is one of the strongest safeguards of the civil rights of the people; it will be one of the first upon which lawless power will desire to lay its hands, under the pretext of improvement. But, here at least, it is hoped, the hand of innovation will be prevented from any modifications which will affect its sense of common interest, its impartiality and independence.
It is true, juries are very properly under the control of the court in many respects; and may be punished for a contempt, if they neglect or refuse to perform their duty; if they refuse to submit to the lawful direction of the court as to their behaviour during a trial; as, for example, if they should refuse to como in or to go out at the request of the court, or should persist in disturbing the course of a trial by grossly disorderly conduct, persisting in asking illegal questions after notice from the court, or any other similar absurdities or improprieties. And therefore it has been held, that, if the jury separate improperly, they may be punished at the discretion of the court, as for a contempt. 2 B. & Al. 462. So, if they should eat or drink without the direction of the court, before finding their verdict, even if it be at their own expense; but, for a stronger reason, if at the expense of one of the parties. See Vaugli. 153. In Plowd. 518, a case is mentioned of a juror, who was fined twenty shillings for having sugar candy, he. found upon him. So, they are fineable, if they are unlawfully dealt with. See 1 Dyer, 55. pl. 8. And a juror who has been challenged and taken from the pannel, is punishable for speaking with the rest after departure from the bar. 2 Ro. 85.
But; juries are left entirely free from any other motives to agree upon their verdicts, than those of reason and conscience, and a regard for truth and justice. Where there is no probability that they will agree, it would be an act of oppression to keep them together an unreasonable time. And there is no reason to do it in modern times; since it seems to be quite settled, that even in a capital case, if the jury cannot agree, they may be discharged, and the proceedings may be repeated before another jury, toties quoties, until a jury can be found who will agree in their verdict.
It ought not to be dissembled, however, that doubts have been entertained, whether in general the merit of this popular mode of trial is not greatly overrated. On this account it was intended to notice some of the exceptions, to which it seems most exposed. But, as this chapter has already overrun its assigned limits, it must suffice merely to allude to some of the more prominent ones, and to submit them without comment to the intelligence of the reader.
1. It has been thought incongruous, that though juries have no adequate knowledge of the law independent of the charge of the court, yet they may, if they please, decide directly contrary to it; and thus, while they have not discernment enough to do right, they are entrusted with a power to do wrong.
2. Where damages are certain, all juries must decide alike; when they are uncertain, no two juries would give the same verdict.
3. In cases, where questions of party politics have been brought up, it has frequently been found, that the jury has divided in opinion according to the politics of the jurors.
4. In cases where local interests, or popular prejudices or feelings, are concerned, a stranger, or one who is not of the tribe or clan, must rest satisfied with very meagre justice.
5. Juries are affected by circumstances of pomp, display, plausibility, vain glory; and are influenced by eloquence, authority and reputation, as much as by considerations of truth, and justice. It is easier to persuade them, by an appeal to their sympathy, than to convince them by argument.
6. They are usually more merciful than judges, though not always; but not so just. Yet the jury decides whether a crime has been committed or not, which would seem to require the most exact justice; while the judge frequently determines the amount of punishment, which would seem to afford an opportunity for the exercise of mercy.
Whatever may be thought of these exceptions, it is clear that the value of the trial by jury, must always depend upon the degree of virtue and intelligence prevalent among those citizens, from whom juries are selected.
Continued in CHAPTER VI: Of the Rights of Witnesses.See Also: RIGHTS OF AMERICAN CITIZENS: General Rights; Division One RIGHTS OF AMERICAN CITIZENS: General Rights; Division Two RIGHTS OF AMERICAN CITIZENS: General Rights; The Social Compact RIGHTS OF AMERICAN CITIZENS: The Powers delegated to the General Government in the Federal Constitution RIGHTS OF AMERICAN CITIZENS: Powers delegated to the State Governments RIGHTS OF AMERICAN CITIZENS: The Independence of the States RIGHTS OF AMERICAN CITIZENS: The rights reserved to the people of the United States RIGHTS OF AMERICAN CITIZENS: Of the right of suffrage and of elections RIGHTS OF AMERICAN CITIZENS: The Liberty of Speech and of the Press RIGHTS OF AMERICAN CITIZENS: The Power of Courts to punish for Contempts RIGHTS OF AMERICAN CITIZENS: The Law of Libel in relation to Public Officers