James Wilson, Collected Works of James Wilson, edited by Kermit L. Hall and Mark David Hall, with an Introduction by Kermit L. Hall, and a Bibliographical Essay by Mark David Hall, collected by Maynard Garrison (Indianapolis: Liberty Fund, 2007). Vol. 2.
Accessed from http://oll.libertyfund.org/title/2074 on 2014-03-14
The Subject Continued. Of Juries.
Juries form, with a few exceptions, another constituent part of courts: they form, especially, a constituent part of courts exercising criminal jurisdiction.
I mentioned, in a former lecture,a that I love and admire the trial by jury; and that my love and admiration of it spring from proper principles. Those principles I am now to unfold.
When I speak of juries, I feel no peculiar predilection for the number twelve: a grand jury consists of more, and its number is not precisely fixed.
When I speak of juries, I see no peculiar reason for confining my view to a unanimous verdict, unless that verdict be a conviction of a crime—particularly of a capital crime. In grand juries, unanimity is not required.
When I speak of juries, I mean a convenient number of citizens, selected and impartial, who, on particular occasions, or in particular causes, are vested with discretionary powers to try the truth of facts, on which depend the property, the liberty, the reputation, and the lives of their fellow citizens.
Having described what I mean when I speak of juries, it is proper that I should assign, in the fullest and clearest manner, my reasons for some parts of my description.
The first part in this description, which has drawn your most marked attention, is, probably, that which represents the powers, vested in juries, as discretionary. This part, therefore, merits the first illustration. It will be remembered all along, that the discretionary power vested in juries is a power to try the truth of facts. “Ad quaestionem facti respondent juratores.”1
The truth of facts is tried by evidence. The principal species of evidence, which comes before juries, is the testimony of witnesses.
In a former lecture,b I had occasion to observe, that human testimony is a source of evidence altogether original, suggested by our constitution; and not acquired, though it is sometimes corroborated, and more frequently corrected, by considerations arising from experience. I had occasion further to observe, that, in no case, the law orders a witness to be believed; for the testimony of a thousand witnesses may not produce belief; and that, in no case, the law orders a witness not to be believed; for belief may be the unavoidable result of his testimony. These general positions, then laid down, it is now our business to fortify and apply. If we shall be successful in fortifying and applying them; we shall see, in a new and in a very striking light, the sublime principle of the institution of juries.
It is tedious, and it is painful, to travel through all the numerous degrees, into which it has been attempted to arrange the force of evidence. Some writers on the subject have divided proofs into such as are near, and such as are remote. Others have been adventurous enough to define the precise number of each, which is necessary to superinduce the condemnation of a person, who is accused. One says, two will be sufficient: a second says, three are necessary: a third fixes upon a number different from either. They have never reflected, that evidence arises from the circumstances attending the fact: that those circumstances should be considered in a collected and not in a separate view; and that on the more or less intimate connexion which subsists between them, the strength or weakness of the evidence resulting from them depends.
The truth of this remark will sufficiently appear, if we consider separately any of the presumptions enumerated by those writers on the criminal law. There is not one of them, which may not appear favourable, or unfavourable, or indifferent to the person under trial. A man, with a bloody sword in his hand, is seen running from a house. On entering it, a person run through the body, and no other person, is found there. Would not the presumption be strong, that the man, who ran from the house was the assassin? But should a jury be compelled, on this evidence, to convict him? Should he not be allowed to prove, if he can, the connexion of this strong circumstance against him with another, in his favour, equally strong—that, passing the door of the house, he was drawn, by the cries of the person assassinated, to his assistance, and suddenly seized the poignard which the assassin had left in his side? The weight of any one circumstance cannot be ascertained independently of others: the number and connexion of those others cannot be specified, previously, in a didactick treatise upon the degrees of evidence.
Thus it is with regard to evidence arising from circumstances: will more success attend an attempt to ascertain systematically the degrees of evidence arising from positive testimony? This depends upon the character of him who delivers, and upon the character of him who receives it. That, which would be believed from the mouth of a witness famed for his integrity and good sense, would be disbelieved, if told by a witness remarkable for falsehood or credulity. A person, hackneyed in the ways and vices of the world, who has deceived and who has been deceived a thousand times, is slow to credit testimony. An undesigning countryman, who has never practised nor experienced the artifices of fraud, believes implicitly every thing he hears. Can the characters of witnesses—can the characters of jurors be graduated in a dissertation upon evidence? And yet, in each particular case, the force of evidence must depend upon the character both of witnesses and jurors.
For these reasons, we find, in the institutions of antiquity, no general rules prescribed concerning the force of testimony, or the weight of presumptions: the emperour Hadrian2 expressly declares the impracticability of prescribing them. When one of his judges applied to him for a rescript, containing particular directions upon this subject; the emperour wrote him an answer, in which the sentiment we have mentioned is beautifully exhibited. “No certain rule,” says he, “can be given with regard to the degree of evidence, which will be sufficient in every cause that shall occur. This only I can recommend to you in general; that you by no means confine yourself to any one kind or degree; but that, according to the nature and the circumstances of every case, you estimate, in your own mind, what you believe, and what you do not think to be sufficiently proved.”c
The evidence of the sciences is very different from the evidence of facts. In the sciences, evidence depends on causes which are fixed and immovable, liable to no fluctuation or uncertainty arising from the characters or conduct of men. In the sciences, truths, if selfevident, are instantly known. If their evidence depend on their connexions with other truths, it is evinced by tracing and discovering those connexions. In facts, it is otherwise. They consist not of principles which are selfevident; nor can their existence be traced or discovered by any necessary connexion with selfevident principles. As facts, therefore, are neither principles, nor necessarily connected with principles; the evidence of facts is unsusceptible of a general theory or rules.
Let us then forbear to attempt a graduated scale of this kind of evidence. It is the philosopher’s stone of criminal jurisprudence. It is impossible to establish general rules, by which a complete proof may be distinguished from a proof that is incomplete, and presumptions slightly probable may be distinguished from conjectures altogether uncertain.
If, therefore, the evidence of facts can be ascertained, distinguished, and estimated by no system of general rules; the consequence unavoidably is, that, in every case, the evidence of facts must depend upon circumstances, which to that case are peculiar. The farther consequence unavoidably is, that the power of deciding on the evidence of facts must be a discretionary power; for it is a power of deciding on a subject unsusceptible of general principles or rules.
And, after all, is it, at last, come to this? Do we live by discretionary power? Is this the final result of the boasted trial by jury? In Turkey, life and every thing precious in life depend on the nod of one man: here, it seems, on the nod of twelve. There is a difference, indeed, in number: but, in principle, where is the difference?
Such is, and such must be our doom. It is agreed, on all hands, that, in every state, there must be somewhere a power supreme, arbitrary, absolute, uncontrollable: these are strong expressions for discretionary power. There have been, it is true, different opinions concerning the question—where does this power reside?
What security, then, it may next be asked, is there, under any government, for the enjoyment of property, character, freedom, and life; if, under every government, the last resolution of the tedious and expensive process is into arbitrary or discretionary power?
Let us not despair: perhaps, after a little investigation, we may be happy enough to discover some emerging isthmus, on which, amidst this unstable, watery scene that surrounds us, we may be able to find rest for the soles of our feet.
It has been shown, at large, that it is impracticable, by any determinate rules, to ascertain or graduate the force of evidence in facts; and that, consequently, juries, who decide on the evidence of facts, must possess discretionary powers. But though it be impracticable to ascertain this matter by determinate rules; is it, therefore, impracticable also to give and acquire some conception of it by a general reference? Perhaps not.
Let us try: let the reference be as comprehensive as possible: if we must live by discretion, let the exercise of that discretion be universally unanimous. If there must be, in every political society, an absolute and discretionary power over even the lives of the citizens; let the operations of that power be such, as would be sanctioned by unanimous and universal approbation. Suppose then, that, in pursuing this train of thought, we assume the following position—that the evidence, upon which a citizen is condemned, should be such as would govern the judgment of the whole society.
Let us, first, inquire, whether this position be reasonable: let us next inquire, whether, if this position is reasonable, the establishment of it would give, to the citizen, a just degree of security against the improper exercise of discretionary power: let us, in the last place, inquire, whether, if this theory is eligible, it be possible to reduce its principles to practice.
1. I am first to inquire, whether the position—that the evidence, upon which a citizen is condemned, should be such as would govern the judgment of the whole society—be a reasonable position.
We showed, at large, in a former part of these lectures,d that, in a society, the act or judgment of a majority is always considered as the act or judgment of the whole.
Before the formation of society, the right of punishment, or, to speak with more propriety, the right of preventing the repetition of crimes, belonged to him who had suffered the injury, arising from the crime which was committed. In a society formed and well constituted, the right of him who has suffered the injury is transferred to the community. To the community, therefore, instead of the injured individual, he who committed the injury is now to answer. To answer to the community for his conduct, was a part of the social contract, which, by becoming a member, he tacitly and voluntarily made.e In this manner, a complete right is vested in the society to punish; and a full obligation is laid on the individual offending, to be amenable to punishment.
The social contract is of a peculiar kind: when analyzed into its component parts, it is found to be a composition of agreements, equal in number to the number of all the members, of which the society is composed. To each of those agreements there are two parties. One member of the society is the party on one side: all the other members form the party on the other side.
The punishment of a crime in regulated society presupposes two things. 1. The crime must be authenticated. 2. The penalty must be ascertained. Upon the principles which we have laid down, each of those two prerequisites to punishment must be equally the act of the society—of the whole society.
With regard to each of these prerequisites, the society may act either collectively and personally, or by deputation and representation. If they act by deputation and representation, they may intrust one of the forementioned prerequisites to the management of one class of deputies and representatives; and, to another class, they may commit the management of the other prerequisite. With regard to both, however, the proceedings must be those of the whole society, or, at least, sanctioned by the authority of the whole society: for it must be remembered, that to the whole society the right of punishment was transferred, and with the whole society the engagement to be amenable to its justice was made.
On a nearer and more minute view of things, we shall discover a most material difference between the modes proper for the management of the different prerequisites; because, on a nearer and more minute view of things, we shall discover, in the management of those different prerequisites, a most material difference in the situation of the parties to the social contract.
Penalties may be adjusted, graduated, and ascertained by general rules, and against all the members of the society indiscriminately. In the consequences of the regulations made upon this subject, every member may be affected in a double capacity; he may be affected, either as the individual party to one agreement, or as forming one of the numerous party to each of the other agreements, of which we have seen the social contract to be composed. In other words, he may be affected either as the author or as the sufferer of the penalties. Impartiality, therefore, in the conduct of every member, may rationally be expected; and there will be little reason to use strong or numerous precautions against interestedness or its effects. If the society act by representatives, and a difference of sentiment takes place among them concerning any subject; the numbers on the different sides, in the representative body, will probably bear to one another a proportion nearly the same, as would be found if all the members of the society were personally assembled.
But when we attend to the management of the other prerequisite—that of authenticating the commission of a crime—a situation of men and things, extremely different, appears to our view. Here no general rules can be adopted—no measures can be taken, which will equally and indiscriminately affect all the different members of the community in their turn. Here, the parties to one of the agreements, which form the social contract, appear in their original stations—on one side, an individual—on the other, all the members of the society except himself—on one side, those who are to try—on the other, he who is to be tried.
In this isolated situation, in which he necessarily but unfortunately stands; and in which, if all the members of the society were present, his fate must, from the very nature of society, be decided by the voice of the majority—in this situation, if the society act by representatives, it is reasonable to demand, and it is just to grant the reasonable demand, that the unanimous voice of those who represent parties, and who themselves are parties as well as judges, should be necessary to warrant a sentence of condemnation. In such a situation, where the representatives are not indifferent, and, consequently, may not be impartial, their unanimous suffrage may be considered as nothing more, than what is necessary to found a fair presumption concerning the sentiments of a majority of the whole community, had the whole community been personally present. In such a situation, therefore, we may probably be justified in recurring to our position—that the evidence, upon which a citizen is condemned, should be such as would govern the judgment of the whole society: and we may require the unanimous suffrage of the deputed body who try, as the necessary and proper evidence of that judgment.
2. I am next to inquire, whether the establishment of this position would give, to the citizen, a just degree of security against the improper exercise of discretionary power.
In all states, as we have seen, discretionary powers must be placed somewhere. The great body of the people is their proper permanent depository. But on some occasions, and for some purposes, they must be delegated. When they are exercised by the people themselves, a majority, by the very constitution of society, is sufficient for the purpose. When they are exercised by a delegation from the people, in the case of an individual; it would be difficult to suggest, for his security, any provision more efficacious than one, that nothing shall be suffered to operate against him without the unanimous consent of the delegated body.
This provision, however, may still be fortified by a number of additional precautions. Care may be taken in the manner of forming the delegated body. As this body cannot, for reasons which will appear afterwards, be selected, on every occasion, by the great body of the people themselves; they may, on every occasion, be selected by an officer, confidential, impartial, and, by the people themselves, appointed for this very purpose. Notwithstanding this very guarded selection, yet if any improper character appear among the delegated body, every reasonable exception may be allowed against his competency to act. To a necessary exercise of discretionary powers on one hand, the indulgence of a discretionary power may be opposed, on the other. Leave may be given to reject any determinate number of the delegated body, even without disclosing any cause of rejection. Under all these guarded and generous precautions, the person who would undergo a trial might, with an almost literal propriety, be said to try himself.
If, even after all these precautions, conviction might, by possibility, take place improperly; a power might be vested in another body to set the improper conviction aside, and to remit the trial of the cause to a new abstract of the citizens.
Surrounded and fortified by establishments and provisions of this nature, innocence might certainly be secure.
3. I am now, in the last place, to inquire, whether these principles, so beautiful in theory, can possibly be reduced to practice.
Reduced to practice! It cannot have escaped you, that I have been describing the principles of our well known trial by jury.
Those principles, so illustrious in themselves, will receive a new degree of splendour from a more particular investigation concerning the history, the nature, and the properties of this admired institution.
To Athens, to Germany, and to Normandy, the institution of juries has been attempted to be severally traced. From Athens it has been supposed to be transplanted to Rome; from Rome, to England. Those who think it originated in Normandy or Germany, suppose it to have been brought into England from the place of its original establishment.
The great principle of Solon’s system was, unquestionably, this noble one—that every citizen should enjoy the inestimable right of being tried by his peers, and bound only by laws to which he had given his consent. His laws were of the most extensive nature. They comprehended rules of right, maxims of morality, precepts of agriculture, and regulations of commerce. His institutions concerning marriage, succession, testaments, the rights of persons and of things, have been disseminated through the jurisprudence of every civilized nation in Europe.f The trial by jury, therefore, as well as other establishments, may, it is said, refer, with great propriety, its original to Athens.
In Athens, the citizens were all equally admitted to vote in the publick assembly, and in the courts of justice, whether civil or criminal.g
The trial by a jury in Athens was conducted, it is said, with the same forms as those of an English jury, with a few exceptions arising from the difference between the two political constitutions.h When the cause was ready for hearing, the jury, who were to try it, were chosen by ballot.i It was necessary that they should be competent in point of understanding, character, and disinterestedness.j The jury was very numerous: it consisted sometimes of five hundred, sometimes of a thousand, sometimes of fifteen hundred members.k If the defendant, in a criminal prosecution, had half the number of votes in his favour, he was acquitted.l The presiding archon settled the cause for trial, gave the ballot, received the verdict, and published it.m
In this mode of trial, we are told, equal law was open to all: it was favourable to liberty, because it could not be influenced by intrigues.n
In every particular cause, the jurors were chosen and sworn anew.o They were attended by proper officers of the court, that no one might mix with them, or corrupt them, or influence their decisions.p They were not obliged to follow testimony in cases immediately within their own knowledge: but when witnesses were the best evidence, they were admitted.q They were an important body of men, vested with great powers, patrons of liberty, enemies to tyranny.r
The antiquity of this institution among the most civilized people of the world, is urged as an argument, that it is founded in nature and original justice.s “The trial by a jury of our own equals seems to grow out of the idea of just government; and is founded in the nature of things.”t
From this institution, as it was established and observed by the Greeks, we pass to it as established and observed by the Romans.
About sixty years after the expulsion of the Tarquins,4 the Romans, agitated by the dissensions between the patricians and plebeians, on many subjects, and particularly on that of their judicial government, sent commissioners to Athens to obtain a transcript of the laws of Solon.
Among the Romans, there was a double selection of jurors. On the kalends5 of January, a number, different at different times, of citizens of best note were chosen by ballot. From these, all the juries were supplied, to the number of eighty one each, upon every new cause.u On each side, there was a liberty to challenge fifteen: fifty one remained to give the verdict. This rejectio judicum6 is often mentioned by Cicero.v
In Rome as in Athens, the jury were sworn; and the defendant was acquitted on an equality of votes.w
Both at Athens and Rome, the time allowed to the counsel for their pleadings, was measured by the dropping of a certain quantity of water.x When the counsel, on each side, had finished their arguments by saying, “dixi,” the praetor sent out the jury to consult about their verdict. When they returned with their verdict, they delivered it to the praetor; and he published it.y
The Roman juries were judges of law as well as of fact.z They could give a verdict of condemnation, a verdict of acquittal, or a verdict of non liquet.7 This last has, by some, been considered as a special verdict; but improperly; for a special verdict furnishes the court with a statement of facts, on which they can found a decision of law; whereas a non liquet among the Romans immediately adjourned the cause for farther consideration. In some modern tribunals on the continent of Europe, a most scandalous use has, by judges, been made of their power to pronounce a non liquet.
In the celebrated cause of Milo,8 we can trace the vestiges of a special jury. Pompey,9 who was, at that time, sole consul, with the dictatorial power, “videre ne quid detrimenti respublica caperet,”10 appointed a jury, in all respects, of the most able and upright men. Of this jury, the celebrated Cato11 was one. “Te, M. Cato, testor,”12 says Cicero, in his animated and particular address. The selection of a jury in this peculiar manner, instead of the usual way by ballot, was, probably, one instance, in which Pompey exercised his dictatorial authority.a
Julius Caesar extended the Roman name and power into Gaul and Germany; and reduced those countries into the form of Roman provinces. This is an expression of strong and peculiar import. When a country was reduced into the form of a Roman province, it lost its own laws, and was governed by those of Rome.b
Caesar visited Britain: Claudius, one of his successours, achieved the conquest of a considerable part of the island. He planted in it four colonies. One of them—that at Malden13 —was intended, as we are told by Tacitus,c not so much as a check upon the rebel Britons, as to accustom the new conquests to a familiarity with the Roman laws—“imbuendis sociis ad officia legum.”14 His designs were crowned with success. The Britons, who, at first, were disgusted even with the language of Rome, became soon the admirers of her language, her eloquence, and her laws.d Under the reign of Severus,15 the Roman laws were in their meridian splendour in Britain, and were illustrated by the talents and authority of the celebrated Papinian.e16
When the Romans retired from England to guard the vitals of the empire, the Britons resumed, in part, their ancient customs; but blended them with the Roman institutions, with which they had long been familiar. As the trial by jury was a part of the Roman system of judicial polity, when her colonies were established in Britain, it is probable, that this, among other parts, was left and was continued among the Britons.f
Such is the train of observations, which has induced an opinion, that the trial by jury was introduced into England from Athens, through the intermediate channel of Rome. Others think they can trace this mode of trial through a different channel.
The very learned Selden is of opinion, that the Saxons derived the institution of juries immediately from the Grecians. The government of the Saxons, about the time of Tiberius, was, in general, as he informs us,g so suited to that of the Grecians, that it cannot be imagined but much of the Grecian wisdom was introduced among them, long before the glory of the Romans was exalted to its greatest height. It may be well supposed, he infers, that there is some consanguinity between the Saxons and the Grecians, though the degree of that consanguinity be not known. The people were a free people, because they were a law to themselves. This was a privilege belonging to all the Germans, in the same manner as to the Athenians and the Lacedemonians.
The most ordinary trial among the Saxons was, upon a traverse of the matter in fact, by witnesses before the jurors; their votes made the verdict, and determined the matter in fact. In former times, continues he, it was questionless a confused manner of trial by votes of the whole multitude, which made the verdict hard to be discerned. But time taught them better advice, to bring the voters to a certain number, according to the Grecian way.h
The trial per pares,17 we are told by others, was common to all the northern nations, as well as to the Saxons.i
It is probable, says an ingenious and well informed writer, that, among the Saxons, every kind of law suit was, at first, determined in full assembly, and by a plurality of voices. But when the duty of these assemblies became burthensome by the increase of business, convenience introduced a practice of selecting a certain number of their members to assist their president in the determination of each cause. Hence the origin of juries; the precise date of whose establishment is uncertain, because it probably arose from no general or publick regulation, but from the gradual and almost imperceptible changes, authorized by common usage in the several districts of the kingdom. The number of jurymen was, for some time, different upon different occasions; till the advantage of uniform practice introduced a general rule, which determined, that no less than twelve persons should be called in all ordinary causes.j
A third class of writers contend, that juries, properly so called, were first introduced into England from Normandy. They admit a near affinity between this institution and that known to the tribunals of the Saxons; but insist, that, among that people, the trial by jury, speaking correctly,k did not exist. The trial, say they, per duodecim juratos,18 called nambda,19 was established among the Scandinavians at a very early period; but having fallen into disuse, was revived by a law of Reignerus surnamed Lodbrog,20 about the year eight hundred and twenty. Seventy years after this time, Rollo21 made his settlement in Normandy; and, among other customs, carried with him this mode of trial. When the Normans transplanted themselves into England, they were anxious to legitimate this as well as other parts of their jurisprudence, and endeavoured to substitute it in the place of the Saxon sectatores,22 or suitors to the court. The earliest mention, they say, which we find of any thing like a jury, was in the reign of the Conqueror. He had referred a cause to the county, or sectatores, to determine in their county court, as the course then was according to the Saxon establishment. That court gave their opinion of the cause. But Odo, the bishop of Baieux,23 who presided at the hearing of the cause, was dissatisfied with their determination, and directed, that, if they were still sure they spoke truth, they should choose twelve from among themselves, who should confirm it upon their oaths. The old trial by an indefinite number of suitors of court continued, it is added, for many years after the conquest; but the precedent set by the Bishop of Baieux24 had a great effect towards altering it. It was not, however, till the reign of Henry the second,25 that the trial by jurors became general.l
If this account possessed all the accuracy, with the want of which it contains an implied censure of others, still it would admit the principles and substantial rules of trial by jury, to have subsisted among the Saxons; and would establish, between their institution and that of the Normans, a difference only with regard to the number of jurors, and to their qualification by an oath. But, on farther examination, we shall find, that, in both these respects, the law was the same before as after the conquest—that the suitors of the court, in other words, the freemen, were the judges, or, as we now say, the jury.m
Before the conquest, we can discover the clearest vestiges of a jury qualified by an oath, and consisting of twelve men. The most ancient, says Selden,n are to be found in a law of King Ethelred.26 Its original is in the following words—“In singulis centuriis comitia sunto, atque liberae conditionis viri duodeni, aetate superiores, una cum praeposito sacra tenentes juranto se adeo verum aliquem innocentem haud damnaturos, sontemve absoluturos”—In every hundred let there be a court; and let twelve freemen of mature age, together with their foreman, swear, upon the holy relicks, that they will condemn no innocent, and will absolve no guilty person.o
Selden, as we find from his notes collected by Bacon, translates the word “praepositus”—the lord of the hundred. If his translation is just; then this is a strict instance of the duodecemviral judgment.27 I translate the word “praepositus”—the foreman of the jury: if my translation is just; then the jury, in this instance, consisted of thirteen members, including their foreman. I can only say, that, so far as I know, my translation is the usual one of the word, praepositus; that it seems rather unnatural to designate the lord of the hundred by the name of the president of the jury; and that, I apprehend, it was never customary for the judge and jury to be sworn “together”—“una.”
There were two Saxon kings of the name of Ethelred. The first was the immediate predecessor of the great Alfred: the second was one of his successours. Selden refers the law which we have mentioned, to the reign of the second Ethelred. Now, there must be some mistake here one way or the other. If this law describes the jury of twelve; it is not the most ancient vestige of it; for, as we shall soon see, it was unquestionably established in the reign of Alfred. The conjecture is far from being improbable, that this law should be referred to the reign of the first Ethelred; and that it describes a jury consisting of thirteen—a foreman and twelve others.
It has been already observed, that, among the Saxons, the number of jurymen was probably different at different times. It may be observed here, that, before the era of which we now speak, we discover not the slightest traces of the principle of unanimity in juries. If a jury was equally divided in a criminal prosecution, we have seen that, in Athens and Rome, the defendant was acquitted: but what was to be done in a civil cause? To avoid frequent dilemmas of this kind, it is probable that juries consisted generally of an uneven number. This number might be fixed by the first Ethelred to thirteen. This, at least, was an improvement upon a larger and more inconvenient number.
But to the penetrating Alfred, this number, and the regulations connected with this number, would, probably, appear to require and to be susceptible of still greater improvement. A jury of thirteen sit on the life of a prisoner. Six vote for his condemnation: six vote for his acquittal: must his life depend on a single vote—perhaps not more to be relied on than the single throw of a die? Is it not probable, that such as this would be the soliloquy of the humane Alfred? If so; is it not probable, that, from this precarious situation, the family of Alfred—for his people were his children—would be relieved by the resources of a mind, no less distinguished by its vigorous exertion, than by its wise and benevolent reflections? We can only conjecture his motives, indeed: but we know his conduct. He fixed the number of jurors at twelve: to a conviction by that number, he rendered a unanimous vote indispensably necessary. To him the world is indebted for the unanimous duodecemviral judgment.
I establish these interesting facts.
I have already mentioned, on the authority of my Lord Coke, that the greatest part of the book called “The Mirrour of Justices,” was written long before the conquest. In that book, we find an account of Alfred’s acts and judgments, conjectured to have been originally composed by himself. Of that account, I give the following very literal translation from the old French—the language, in which Andrew Horne28 compiled and published the book. “He hanged Cadwine, because he judged Hackwy to death without the assent of all the jurors, in a case where he had put himself upon a jury of twelve men; and because three were for saving him against nine, Cadwine removed the three for others upon whom Hackwy did not put himself.” “He hanged Frebern, because he judged Harpin to death, when the jurors were in doubt as to their verdict; for where there is a doubt, they should save rather than condemn.”p
These texts are short: but they are pregnant with precious instruction.
1. Each juror may here find a salutary lesson for his conduct, in the most important of all the transactions of a man or a citizen—in voting whether a fellow man and a fellow citizen shall live or die. Does he doubt? he should acquit. It is only when the clearest conviction is in full and undivided possession of the mind, that the voice of conviction ought to be pronounced.
2. All the jurors may, in this transaction, of all human transactions the most important, find a salutary lesson for their conduct, in forming the collected verdict of the whole from the separate judgment of each.
I speak of criminal—I speak of capital cases; because the cases here mentioned were those, in which persons were “judged to death.”
Is the judgment of a majority of the members—that the defendant should be convicted—a sufficient foundation for a verdict of conviction by the jury? It is not. That verdict must be composed of each separate judgment. In the case before us, a majority of three to one were for conviction. But the judge was hanged for pronouncing sentence of death upon the votes of this majority, though it was propped by an adventitious accession of three other votes.
3. Every citizen may here find most comfortable information of the jealous attention, with which the law watches over him, even when he is accused of violating the law. No jury can pass upon him, except that upon which he puts himself. “Hackwy,” says the case before us, “did not put himself upon those others.” For every trial there must be a new selection. The discretionary powers, which we have described, and which, in one view, appear so formidable, though, in every view, they are so necessary, can never be exercised against him by any body of men, to the exercise of whose powers he does not give his consent. He may suffer, indeed, in another way. He may suffer the pain of contumacy, direful and hard. His contumacy may, by a legislative process, be transformed into a confession of his guilt. But, by his country he can never suffer, unless, in the language of the law, he “put himself upon his country.”
In the strictest and most correct meaning of the word, we have unquestionably, I think, traced the trial by jury to the Saxons. Selden thinks they derived it immediately from the Greeks: others think they derived it from the Greeks through the intermediate channel of the Romans. The latter seems the most probable opinion. From the Romans they might receive it, by their immediate intercourse with them in Germany, or they might receive it by still another intermediate channel—that of the Britons.
It has been already mentioned, that the Roman arms were followed constantly and rapidly by the Roman laws. If, therefore, we can trace the conquests of Rome to the Saxons; to them we may expect to trace the institutions of Rome likewise.
The loss of the legions under Varus29 was one of the most striking events in the reign of Augustus. On the mind of the emperour it made so deep an impression, that he was often heard to cry, in his interrupted slumbers—Varus! restore my legions! This remarkable disaster happened in or near the country of the Cherusci, which was itself a part of Saxony; and was, indeed, the consequence of the extraordinary pains employed by Varus, to diffuse among the inhabitants the laws and jurisprudence of Rome.
By Velleius Paterculus30 we are informed, that when Varus commanded the army in Germany, he entertained an opinion, that men, who had nothing human about them but their form and their language, might be civilized by laws much more easily, and much more effectually, than they could be brought under subjection by the sword. Under the influence of this impression, he remained in his camp without military exertion; and, surrounded with enemies, sat in judgment on causes, which were brought before him, in the same manner as if he had been a praetor, presiding in the forum of Rome. Of this propensity, the Germans took an artful advantage. They instituted, before Varus, a continued series of litigation; they expressed, in the strongest terms, their gratitude at beholding their controversies terminated by Roman justice, and at seeing the mild energy of law substituted in the place of decisions by force. They expressed also their hopes, that, by the influence of this new discipline, their own ferocity would be gradually softened, and themselves would be gradually qualified to think and to act as the friends of Rome. The surprise of his legions was the first thing which roused him—but it roused him too late—from his delusive dream.
The Saxons, it is said, might see the benefit and retain the exercise of the Roman institutions, after they had expelled him who introduced them with so much zeal, and so much unguarded confidence.
The Saxons, who invaded and conquered England, might also learn the Roman forms of decision through the medium of the Britons. On a former occasion,q I mentioned, that there is, in truth, no reason to suppose that the destruction of the Britons by the Saxons, on their invasion of England, was so great or general as it has been frequently represented. After some time, there was, unquestionably, an intimate and a continued intercommunication of manners, customs, and laws between the two nations. Even an English historian admits, that a more minute and particular account of the Anglo-Saxon constitution might be extracted from the Welch laws of Howell Dha,31 which were collected in the year eight hundred and forty two, than even from the Saxon laws themselves. He indeed accounts for this similarity, by supposing that the Welch adopted the regulations of their ancient enemies. A Welch historian would, probably, admit the fact of the similarity, but, as to the inference drawn from it, he might, perhaps, be able to turn the tables upon the historian of England. It is, indeed, highly probable, that the Saxons borrowed more from the Britons, than the Britons borrowed from the Saxons.
I have now traced the trial by jury, in its principle, and in many parts of its practical rules, to the most splendid eras of Rome and Athens: and I have ascertained the reign, in which its present number was fixed, and the principle of unanimity in verdicts of conviction was introduced. On this principle of unanimity, farther attention ought to be bestowed.
We have seen an express and a very awful authority, that, in verdicts of conviction in criminal cases, it must be inviolably observed. Is the rule extended—ought it to be extended to verdicts of acquittal in criminal cases? Is it extended—ought it to be extended to any verdict in civil cases? I state the questions on the double grounds of fact and reason; because, in these lectures, we are entitled to consider the law as citizens as well as jurists. It may be our duty to obey, when it is not our duty, because, without any fault, it is not in our power, to approve.
I shall consider the questions historically and on principle. On this, as on other topicks of common law, we shall probably find that principle is illustrated by history.
I beg leave, before I proceed, to suggest one precaution—that the idea of a unanimous verdict should be carefully distinguished from the idea of a unanimous sentiment in those who give that unanimous verdict. This distinction, perhaps, will be found far from being unworthy of your attention. But let us proceed.
That verdicts in civil causes, as well as verdicts of conviction in criminal causes, must be unanimous in order to be valid, seems to be a rule unknown to the law of England for many ages after that of Alfred. During some reigns after the conquest, the law was, that if some of the jurors were for one party, and some for the other, new jurors were added, till twelve were found, who agreed in opinion for one of the parties.r In the reign of Henry the third, a unanimous verdict was still not deemed absolutely necessary; but the dissenting jurors were amerced, as guilty of a kind of offence, in obstinately maintaining a difference of opinion.s
In the next reign—that of Edward the first—it was laid down for law by a respectable writer,t that when the jurors differed in opinion, the judge, before whom the cause was tried, might, at his election, add others, till twelve were found unanimous; or might compel the jury to agree among themselves, by directing the sheriff to keep them without meat or drink, till they agreed on their verdict.u There was still another method, which, we are informed by a remarkable case in that reign, was the custom. The verdict of the minority as well as of the majority was ascertained, and distinctly entered on the record; and then judgment was given according to the verdict of the majority.v
In the eighth year of Edward the third, when a juror delayed his companions a day and a night, without assenting or giving any good reason why he would not assent, the judge committed him to prison. In the forty first year of the same reign, the point was fully debated in the court of common pleas, and, as has been generally thought, finally settled. All the jurors, except one, were agreed. They were remanded, and remained all that day and the next without eating or drinking. Being then asked if they were agreed, the dissenting juror answered, no; and said that he would die first in prison. On this, the justices took the verdict of the eleven, and committed the single juror to prison. All this happened in an assize. But when judgment was prayed upon this verdict, in the court of common pleas, the justices were unanimously of opinion, “that a verdict from eleven jurors was no verdict at all.” When it was urged, that former judges had taken verdicts of eleven both in assize and trespass, and one taken in the twentieth year of the king was particularly mentioned; Thorpe, one of the justices, said, that it was not an example for them to follow, for that judge had been greatly censured for it: and it was said by the bench, that the justices ought to have carried the jurors about with them in carts till they were agreed. Thus it was settled, we are told, that the jurors must be unanimous in the verdict; and that the justices may put them under restraint, if necessary, to produce such unanimity.w
Unanimity produced by restraint! Is this the principle of decision in a trial by jury? Is that trial, which has been so long considered as the palladium of freedom—Is that trial brought to its consummation by tyranny’s most direful engine—force upon opinion—upon opinion given under all the sanctions and solemnities of an oath? Every other agreement produced by duress is invalid and unsatisfactory: what contrary principles can govern this?
Let us here make a pause—let us turn round and look back upon the point said to be settled, and the manner of settling it. Useful observations will probably be the result.
We see that, in civil cases, unanimity was not originally required from the jurors: the unanimous verdict of twelve was, indeed, deemed necessary; and, for this reason, new jurors were added, till twelve were found of the same mind. This mode must have been productive of very great inconveniences. It was necessary that the added jurors should be as fully informed concerning the cause, as those who had been impannelled originally. Every new addition, therefore, must have been attended with all the trouble, and expense, and delay of a new trial. With a view, probably, to avoid those inconveniences, a custom was introduced to enter on the record the opinion of the minority as well as that of the majority; and to give judgment upon the latter opinion.x
From the record of the case, however, in which this is stated to have been the custom, it appears that another mode was adopted sometimes by the jurors among themselves, and without any communication of it to the court. A large extract of this record, of the twentieth year of Edward the first, is furnished us in one of the valuable notes annexed to my Lord Hale’s history of the pleas of the crown.y The history of that case, and the conduct of the jury who tried it, deserve very particular attention.
Certain lands were recovered against a prior before two judges of assize, in the sixteenth year of Edward the first. The prior complained, that injustice had been done him at the assize; and the bishop of Winchester and others were appointed to hear the prior’s complaint, and to do justice. The judges appealed, for their justification, to the record of the judgment, which they had given. In that record, the conduct of the jury was stated very minutely. John Pickering, one of the jurors, in narrating the verdict of the jury, was contrary to all the other jurors; for he narrated a different thing from what was agreed upon among them, as appeared by their examination. For this conduct he was amerced, and ordered into the custody of the sheriff, till he made satisfaction for his transgression. The judges, say the bishop and his associates, without specifying on the record, as was the custom in such cases, the opinions of the eleven, or the contradictory opinion of John Pickering, received the verdict, as if all had been of the same sentiment concerning it, and gave judgment accordingly. This judgment was, by the bishop and his associates, declared contrary to the law and custom of the kingdom. From this decision, a writ of errour was brought before the king, by the original plaintiff. But whether any final determination was given, or, if given, what it was, we are not informed.
From the record it appears, that, when the jurors could not agree in a verdict, it was the custom and deemed to be the law to enter the different sentiments upon the record, and give judgment according to those of the majority. But from this record something more appears. It appears, that the jury might agree upon a verdict among themselves, and appoint one of their number to narrate it to the court—that if the person, thus appointed, narrated the verdict in a manner contrary to what was agreed on, he was guilty of a misdemeanor—that the verdict agreed on should not, however, be vitiated by the prevarication of the foreman, but should be received according to what was agreed upon among the jury. Such is the evident import of the record before the judges of assize, and of the judgment which they gave upon the proceedings.
The bishop and his associates are extremely inaccurate in stating the facts, upon which they ground their reprehension of the judges. From their statement one would be led to imagine, that Pickering narrated one verdict as the voice of the other eleven, and another as his own; and that the judges, without taking any notice of this contradiction, had received and entered the verdict as a unanimous one. But this was very far from being the fact, as it appears upon the record of the two judges of assize. Pickering specified in his narration no difference of sentiment. He, on the contrary, attempted to palm upon the court, as a unanimous verdict, one contradictory to that which had been agreed on among the jury. The other jurors disclosed the verdict agreed on. That verdict was received and entered as a unanimous one. Pickering himself appears not to have either denied or retracted his own agreement to it. The law and custom of the kingdom, therefore, concerning contradictory verdicts, were applied, with great inaccuracy, to the proceedings before the two judges.
Highly probable it is, however, that, before this verdict was formed, much diversity of sentiment was entertained concerning it, among the jurors. The expressions of the record are very remarkable—“inter illos fuit provisum”—the verdict was provided among them. Consideration, consultation, adjustment are all suggested by this emphatick phrase.
One important subject of their deliberation is mentioned; and it appears, that their sentiments were worthy of the subject, which employed their attention. The prior, it seems, claimed the plaintiff as his villain. The consequence of this claim, if established, would have been, that the plaintiff could not have recovered the lands in question. For a villain could acquire no property in lands or goods; but if he purchased either, the lord might enter upon them, or seize them for his own use.z
The jury found, that the father of the plaintiff was a free man, and of free condition; and that although the father and his issue held, of the prior and his predecessors, their tenements in villainage and by villain services, this should not prejudice them as to the freedom of their persons. They assign the reason—because no prescription of time can reduce free blood to a condition of slavery; therefore the plaintiff should recover. This position, indeed, the bishop and his associates declare to be altogether false; and some of the jury themselves, perhaps, entertained a degree of hesitation concerning it, and did not adopt it till after much deliberation and advisement. They provided, however, a verdict, founded on this position, and instructed one of their number to narrate that verdict to the court.
The conduct of this jury in forming their verdict deserves the attention—perhaps, as we shall afterwards find, the imitation of their successours. Sentiments, somewhat discordant when taken separately, may, by a proper process, be melted down into a unanimous verdict.
Hitherto we have discovered no law or authority, which, in civil causes, requires unanimity in the verdicts, far less in the sentiments, of jurors. In this reign, however, an approach seems, at first sight, to be made towards the rule. The author of Fleta, who wrote in the time of Edward the first, gives, as we have seen, the election to the judges, either to increase the number of jurors till twelve are found unanimous, or to compel the first twelve, by hunger and thirst, to agree.
The author of Fleta was a writer very respectable: great deference is due to his sentiments: but the sentiments of no writer have, on the balance of authority, the weight of judicial determinations. Besides, the practice of withholding from jurors the causes of torpor and the incentives of passion, while they ponder and deliberate concerning their verdict, will, perhaps, be traced to a source and to principles, very different from those assigned by the author of Fleta.
The case decided in the forty first year of the reign of Edward the third may, perhaps, be urged as a leading and governing authority for the principle of unanimity in the verdicts and opinions of jurors. In that case, the court said, that the justices ought to have carried the jurors about with them in carts, till they were agreed. But, as to this saying of the court, I crave the liberty of proposing two questions.
Is it supported by any previous custom or adjudication? Our investigations hitherto lead us to conclude, that it has no such support.
Is it the point of adjudication in this very case? It is not. The question in judgment before the court was this—Is the verdict from eleven jurors only a good verdict? This question the court determined judicially; and their determination was in the negative. But was the other question—what shall be done with a disagreeing jury?—was this question in judgment before them? It was not. Was the answer given to this question a necessary consequence of their adjudication on the point judicially before them? It was not. The verdict of eleven jurors only might be an erroneous verdict. Does it follow, that the errour can be prevented or rectified only by carting the jury till they agree? According to the practice previous to this saying of the court, it would have been rectified by entering on the record the opinion of the dissenting juror. According to the practice subsequent to this saying, the errour would have been prevented by directing a juror to be withdrawn. According to the principles of jury trial, it might be prevented or rectified by a variety of modes other and more eligible than that of carting the jury. Some of those modes will soon be suggested.
“I would know,” says my Lord Chief Justice Vaughan, in the celebrated cause of Bushell,32a “whether any thing be more common, than for two men, students, barristers, or judges, to deduce contrary and opposite conclusions from the same case in law? And is there any difference, that two men should infer distinct conclusions from the same testimony? Is any thing more known, than that the same author, and the same place in that author, is forcibly urged to maintain contrary, conclusions; and the decision is hard which is in the right? Is any thing more frequent in the controversies of religion, than to press the same text for opposite tenets? How then comes it to pass, that two persons may not, with reason and honesty, apprehend what a witness says, to prove one thing in the understanding of one, and a contrary thing clearly in the understanding of the other? Must, therefore, one of these,” asks his Lordship, “merit fine and imprisonment?”
Must, therefore, both of these, I beg leave to ask, merit what is worse than imprisonment and fine? Must they be exposed, in carts, to publick derision, because they act a part which is common, innocent, unavoidable? Must they suffer all the extremities of hunger and thirst till, at last, agonizing nature makes the necessary but disgraceful barter of unsufferable punishment for degrading prevarication? Are instruments subscribed by pain, by infamy, and by shame—are these the letters recommendatory, which our law despatches, or wishes to despatch, to the remotest regions of the globe, in order to concentre in the trial by jury the admiration and imitation of all?
It must, however, be confessed, that though no judicial determinations, so far as I know, are precisely in the point; yet the forms of our law, rendered venerable by the immemorial practice of ages, seem at least to countenance, if not to presuppose, the principle of unanimity in the trial by jury. When the jury retire, a bailiff is sworn to keep them together till they be agreed of their verdict. When they return to the bar, the first question asked of them is—are you agreed of your verdict? This question must be answered in the affirmative, before the verdict can be received. Such are the established forms of the law. They seem to require a unanimous verdict.
Every juror swears that he will give a true verdict according to his evidence. The sacred obligation of this oath demands, that to unanimity truth shall not be made a sacrifice.
In this situation are the jury placed. Truth and unanimity—qualities very distinct—qualities, on some occasions, seemingly irreconcilable—must unite in the composition of their verdict. To extricate them from such a labyrinth, where the law seems to point to one direction, and their oaths seem to point to another, is there no affectionate hand to furnish them a clue?
What is a verdict? It is the joint declaration of twelve jurymen upon their oaths. Littleton33 calls it “the verdict of twelve men.”b
“Veredictum,” says my Lord Coke, in his valuable Commentary, “quasi dictum veritatis, as judicium is quasi juris dictum. Et sicut ad quaestionem juris non respondent juratores, sed judices; sic ad quaestionem facti, non respondent judices, sed juratores.” A verdict is a declaration of the fact: a judgment is a declaration of the law. To a question of law the judges, not the jury, shall answer: so, to a question of fact, the jury, not the judges, shall answer. So far the parallel holds exactly between the duties of judges and of jurors, in their respective provinces of law and of fact. So far the parallel holds between a verdict and a judgment.
We have seen what a verdict is: it is a joint declaration of the jury. What is a judgment? It is, I apprehend, the joint declaration of the court. It is not merely a declaration of a majority of the judges: it is the declation of the court. When it is solemnly pronounced, even by a dissenting president, it must be announced as “the judgment of this court”—not as the “judgment of a majority of the judges.” Why should not the parallel hold, in this instance too, with regard to a jury, except in a case of conviction, which has been already shown to stand upon its own peculiar foundation?
We have seen, that, in this instance too, the parallel did hold formerly with regard to the jury. We have seen, that the declaration of the majority operated as the verdict of the jury. For some time, indeed, the dissent of the minority was noticed on the record; but was it necessary to notice that dissent? Was it necessary to continue that practice? Every one knows, that judgments are entered as the acts of the court generally, even when there is a dissenting minority. Why should not the same practice prevail—why should we not presume that the same practice has prevailed, with regard to juries? On the record, the transactions of the court bear the same stamps of unanimity with the transactions of the jury: whence, then, can it be inferred, that a degree of unanimity is, in reality, required from the jurors, which, on all hands, is acknowledged to be unnecessary in the judges?
Whether, therefore, we consult the suggestions of the records, or the information of etymology, the inferences of analogy, or the language of adjudications, we shall find no authority to conclude, that, in civil causes, the verdict of a jury must be founded on unanimous opinion.
But recurrence will still be had to those venerable forms, immemorially established, which countenance or presuppose the doctrine of unanimity in the trial by jury. Before a verdict can be received, it will be urged, the jury must declare, that of that verdict they are agreed.
Permit me, on this occasion, to have recourse to a conjecture. I propose it with diffidence: I pursue it with caution: if my expressions concerning it become sanguine, it shall not be till I think I have established it. My conjecture is, that by the phrase, “agreed of a verdict,” nothing more is meant, than that the jury are willing and prepared to give a verdict; and by that means, bring to a decision the controversy submitted to them.
In early times, a verdict, as we have seen, could not be prevented by the contrary vote or sentiment of one or of a minority of the jurors. The jury was increased till twelve were unanimous; or the vote of a majority was received as a decision. But the effect of an obstinate refusal to give any vote was very different. We have seen, that all the votes were required to be disposed of on the record; and that though eleven votes on one side, and one on the other, formed materials for a verdict; yet eleven votes, unopposed by the dissenting one, were deemed insufficient for that purpose. Those, therefore, who wished to obstruct the administration of justice in the trial by jury, accomplished their wishes by refusing to give any vote on either side. In turbulent times—and the times I allude to were turbulent—this expedient would be often used, by the friends of a powerful usurper in possession, against a legal recovery by him who had right. To restrain and to prevent the pernicious effects of such a conduct, every juror was sworn to give a verdict; the bailiff was sworn to confine him till he should agree to give it; and no declaration was received by the court, till it was unanimously declared, that, as to the point of giving a verdict, they were all agreed.
These observations will throw a new light upon some points, which have been already mentioned. The case of an obstinate juror, of the species now described, happened, as we before noticed, in the eighth year of the reign of Edward the third. Upon that case, my Lord Chief Justice Vaughan makes the following remarks: “This book,” says he, “rightly understood, is law: that he staid his fellows a day and a night, without any reason or assenting, may be understood, that he would not, at that time, intend the verdict at all, more than if he had been absent from his fellows; but wilfully not find for either side. In this sense, it was a misdemeanor against his oath; for his oath was truly to try the issue, which he could never do, who resolved not to confer with his fellows.” “And in this sense,” adds he, “it is the same with the case 34. Ed. III. where twelve being sworn, and put together to treat of their verdict, one secretly withdrew himself, and went away, for which he was justly fined and imprisoned; and it differs not to withdraw from a man’s duty, by departing from his fellows; and to withdraw from it though he stay in the same room: and so is that book to be understood.”c These remarks corroborate what I have mentioned—that the great object seems to have been to secure a decision, not a unanimous decision, by verdict. For both the cases, just now noticed, happened before that which is alleged to have settled the principle of unanimity. I hope, I have now established my conjecture.
I have asked, “since judgments are entered as the acts of the court generally, when there is a dissenting minority; why should not the same practice prevail—why should we not presume that the same practice has prevailed, with regard to juries?” I now go farther, and undertake to evince, that the reason for that practice is much greater, and that, consequently, the presumption in its favour is much stronger, in the case of jurors, than it is in the case of judges. This will appear from a variety of considerations.
In the turbulent times, to which I allude, the jurors, as we are told by Montesquieu, were obliged to fight either of the parties who might give them the lie. When there was no dissent, or which, as to this point, was the same thing—when no dissent appeared, a party who gave the lie to one, must engage in single combat with each. Their number would render him circumspect. A regard, therefore, to the security of jurors would superinduce every prudent appearance of unanimity in their opinions and verdicts. But this reason applied not to the judges.
In times the most civilized and tranquil, it is improper to expose jurors unnecessarily to the concealed resentment of those, who may be affected by the parts they severally take in the juries, of which they are members. This reason is applicable, but not so strongly applicable, to the judges.
In this argument, whatever shows a greater reason for preserving the vestiges of diversity in the sentiments of the judges, than in those of the jurors, will have the same effect, as that which shows a greater reason for preserving the appearance of unanimity in the sentiments of the jurors, than in those of the judges. We have seen,d that “a judge, particularly a judge of the common law, should bear a great regard to the sentiments and decisions of those, who have thought and decided before him.” We have seen,e “that the evidence of facts—and facts are the province of juries—cannot be ascertained, distinguished, or estimated by any system of general rules; and that, for this reason, the evidence of facts must, in every case, depend on circumstances, which to that case are peculiar.” The natural consequences from these two positions are, that it might be useful, perhaps material, to preserve, on the record, evidences of the unanimity or diversity of sentiments, with which judgments are given, so that they may make the slighter or deeper impression on the minds of succeeding judges; and that such a measure, with regard to verdicts, would be altogether useless and immaterial; since every verdict rests on its own peculiar circumstances, without precedent and without example.
The result is, that the reasons for apparent unanimity on the record are not so great, nor the presumption arising from them so strong, in the case of judges as in the case of jurors: an apparent unanimity, however, is preserved, while a real diversity of sentiment subsists, in the case of judges: there is, therefore, much greater reason to presume, that a real diversity of sentiment may subsist, though an apparent unanimity be preserved, in the case of juries.
It may be naturally asked—if this principle of unanimity in the trial by jury be unfounded; how has it happened, that the opinion of its existence has been so general and so permanent, not only among the people at large, but even among professional characters? This has already been accounted for in part. It was prudent to preserve the appearance of unanimity: this uniform appearance would naturally produce and disseminate an opinion that the unanimity was real. Besides, in one species—in the most important species of verdicts—those of conviction in criminal, still more in capital cases—this unanimity, upon the principles which have been explained, was not only apparent, but real and indispensable. Farther; the awful precedents set by Alfred, to establish the principle of unanimity in this species of verdicts, would naturally make a deep and lasting impression upon all—upon professional characters, as well as upon others. Impressions, deep and lasting, are always diffusive: their influence, therefore, extended beyond those causes, which had originally produced them. Unanimity, confined, in its principle, to verdicts of conviction in criminal cases, was applied indiscriminately to cases and verdicts of every kind—to verdicts of acquittal, as well as to those of conviction—to cases civil, as well as to cases criminal.
This subject, so very interesting to juries and to all who, and whose causes, are tried by juries, I have investigated minutely and carefully, historically and upon principle. Of many late dicta I have taken no notice, because they are suspended on those of a more early period. To trace matters to their remotest sources, is the most satisfactory and the most successful mode of detecting errours, as well as of discovering truths. In doing both, I hope that, on this subject, I have had some success: if so, I shall have much satisfaction; for I shall have contributed to dispel a cloud, dark and heavy, which has hitherto shaded and hung over the trial by jury, so luminous when beheld in its unintercepted lustre.
If I have been successful, many practical advantages will result to parties, to jurors, and to judges. My theory is shortly this. To the conviction of a crime, the undoubting and the unanimous sentiment of the twelve jurors is of indispensable necessity. In civil causes, the sentiment of a majority of the jurors forms the verdict of the jury, in the same manner as the sentiment of a majority of the judges forms the judgment of the court. In many cases, a verdict may, with great propriety, be composed of the separate sentiments of the several jurors, reduced to what may be called their average result. This will be explained. Hitherto, I have said nothing concerning verdicts of acquittal in criminal cases. After what has been observed, it is unnecessary to say much concerning them. If to a verdict of conviction, the undoubted and the unanimous sentiment of the twelve jurors be of indispensable necessity; the consequence unquestionably is, that a single doubt or a single dissent must produce a verdict of acquittal.
Let us now see whether this theory, short and plain, may not be reduced to practice, with great security and advantage to parties, to juries, and to judges.
In criminal prosecutions, the state or society is always a party. From the necessity of the case, it is also always a judge. For we have seen, that, in the social contract, the party injured transfers to the publick his right of punishment, and that, by the publick, the party injuring agrees to be judged. The state acts by the medium of the selected jury. Can the voice of the state be indicated more strongly, than by the unanimous voice of this selected jury? Again; the state, though a party on one side, has a deep interest in the party on the other side; for to a well organized state, every citizen is precious. According to the theory which we are now trying by its application to practice, the state can lose no precious part of herself, unless on the strongest indication that she herself, if consulted on the occasion, would say,
Ense recidendum est; ne pars sincera trahetur.34
By the practice of this theory, the state will lose no member by the malice or resentment of a single individual, who, with a constitution as strong as his heart is hard, can starve his fellow jurors into a reluctant and prevaricating verdict of conviction.
How stands the other party to a criminal prosecution? He stands single and unconnected. He is accused of a crime. For his trial on this accusation, he is brought before those who, if he is guilty, represent his offended judge. If it were possible, the characters of party and judge should be separated altogether. When that is impossible, the greatest security imaginable should be provided against the dangers, which may result from their union. The greatest security is provided by declaring, and by reducing to practice the declaration, that he shall not suffer, unless the selected body who act for his country say unanimously and without hesitation—he deserves to suffer. By this practice, the party accused will be effectually protected from the concealed and poisoned darts of private malice and malignity, and can never suffer but by the voice of his country.
By this practice, we are led to see the beautiful and exquisite propriety and emphasis of a form, which is used every day in criminal trials; but which is the object of little attention, because it is used every day. When the jury are sworn to try a person for a crime, the clerk of the court informs them succinctly of the nature of the charge; that the prisoner has pleaded to it, that he is not guilty; that for trial he has put himself upon his country—“which country,” adds he, “you are.” Upon the principles which I have stated and explained, a jury, in criminal cases, may, indeed, be called the country of the person accused, and the trial by jury may, indeed, be denominated the trial per patriam.35
“In a well tempered government,” says the Empress of Russia, in the excellent instructions which she gave concerning a code of laws for her extensive empire, “In a well tempered government, no person is deprived of his life, unless his country rise up against him.”f Let others know, and teach, and publish, and recommend fine political principles: it is ours to reduce them to practice.
We may now conclude, that the practice of the theory, which we have explained, is advantageous and secure for the parties in criminal causes. Let us next examine it in relation to causes of a civil nature. Here, we say, the sentiment of a majority of the jurors forms the verdict of the jury, in the same manner as the sentiment of a majority of the judges forms the judgment of the court.
That the sentiments of the majority shall govern, is, as we before showed at large,g the general rule of society. To this rule we have seen the strongest reason to introduce an exception, with regard to verdicts of conviction in criminal prosecutions. Does the same reason extend to civil causes? We presume not. In civil causes, the jury stand equally indifferent to the parties on either side. As the juridical balance thus hangs in perfect equipoise between them; it is for their security, and for their advantage too, that the scales should clearly indicate the proportional weight of law and truth which is thrown into them, and that a preponderancy on the whole should direct the decision. To insist that a jury should be unanimous, is eventually, in many cases, to ordain, that their verdict shall not be the legitimate off spring of free deliberation and candid discussion; but shall be the spurious brood of strength of constitution and obstinacy of temper. For the advantage and security of the parties this cannot be; the other must.
Let us now consider this subject as it respects juries. From the principle of unanimity, as it has been often understood, he who will be obliged to discharge the important trusts and duties of a juryman has but a comfortless prospect before him. He must perform the most interesting business of society—he must decide upon fortune, upon character, upon liberty, upon life: all this he must perform in conjunction with others, whom he does not choose, whom, perhaps, he does not know, with whom, perhaps, he would not wish to associate; for though jurors are selected, they are not selected by one another: all this, too, he must perform in real or in counterfeited unanimity with eleven others, each of whom is summoned and appears on this business under the same untoward circumstances with himself. What must he do? In the affairs of life, real unanimity among such a number is little to be expected; least of all is it to be expected in matters which are litigated, and concerning which, if there had been no doubt, it is to be presumed there would have been no controversy. If real unanimity cannot be expected, he must either counterfeit it himself, or he must be an accessory before the fact to the counterfeiting of it by others. The first is the principal, the second is inferiour only to the principal degree of disingenuity. Such a situation can never be desirable: on some occasions, it may be dreadful.
Let us suppose, that matters are brought to the sad alternative—that a juror must ruin his constitution, or, perhaps, literally starve himself; or, to avoid immediate death or a languishing life, he must, contrary to his conscience, doom a fellow man and a fellow citizen to die—what must he do? In this crisis of distress, he prays direction from the laws of his country: the laws of his country, as often understood, tell him—you must starve: for it cannot be insinuated, that the laws will advise him to belie his conscience. He obeys the hard mandate: by the virtue of obedience he loses his life: by his death the jury are discharged: for now there is a natural, as well as a moral impossibility of obtaining the unanimous verdict of twelve men. The former produces what, on every principle of morality and jurisprudence, the latter ought most unquestionably to have produced. But what must be the consequence of the jury’s discharge? Does it discharge the person accused? No. A second jury must sit upon him; and before that second jury must be brought all those inextricable difficulties, which produced such calamity in the first.
Where is this to end? By the practice of the principles which I have explained, this can never begin. It is no hardship for each juror to speak his genuine and undisguised sentiment. Is it for conviction? Let him declare it. Let every other, in the same manner, declare his genuine and undisguised sentiment. If the sentiment of every other is for conviction; the verdict of conviction is unanimous. If a single sentiment is not for conviction; then a verdict of acquittal is the immediate consequence. To this verdict of acquittal, every one whose private sentiment was for conviction ought immediately to agree. For by the law, as it has been stated, twelve votes of conviction are necessary to compose a verdict of conviction: but eleven votes of conviction and one against it compose a verdict of acquittal.
Thus it is as to criminal matters. Under this disposition of things, can an honest and conscientious juror dread or suffer any inconvenience, in discharging his important trust, and performing his important duty, honestly and conscientiously? Under this disposition of things, will the citizens discover that strong reluctance, which they often and naturally discover, against serving on juries in criminal, especially in capital cases? Under this disposition of things, will those who have influence with the returning officer, exert that influence to prevent their being returned; and will those who cannot prevent their being returned, but can pay a fine, pay the fine rather than perform the service? Under this disposition, will juries, in criminal, especially in capital cases, be composed—as we have seen them too often composed—chiefly of such as have neither influence enough to avoid being returned, nor money enough to pay a fine for their nonattendance?
In civil causes, the business of the jury will be managed and directed in the same manner as the business of the court, and of every other publick body. Unanimity will always be acceptable: free and candid discussion will always be used: if they produce unanimity, it is well: if they reach not this high aim, acquiescence will be shown in the sentiment of the majority. This is the conduct of legislators: this is the conduct of judges: why should not this be the conduct of jurors?
I mentioned, that, in many cases, a verdict may, with great propriety, be composed of the separate sentiments of the several jurors, reduced to what may be called their average result. This I now explain.
It has been observed—and the observation has been illustrated at great length—that the power of juries is a discretionary power. This discretionary power arises from the nature of their office. Their office is to try the truth of facts: the truth of facts is tried by their evidence: the force of evidence cannot be digested by rules, nor formed into a regular system.
In many causes, there can be but two different sentiments. If, for instance, a suit be brought for the recovery of a horse; there can be, among the jury, only two opinions—that the plaintiff ought, and that he ought not, to recover. If there is a majority on either side, the voice of the majority should govern the verdict. If, on each side, there be an equal number of opinions, the verdict should be in favour of the possessor. “Melior est conditio possidentis.”36
But there are many other causes, in which twenty different opinions may be entertained, as well as two; and there is no fixed rule, by which the accuracy or inaccuracy of any one of them can be ascertained. An action of slander, for instance, is brought by a young woman to recover damages for an injury, which she has sustained by the defamation of her char acter. A variety of opinions may be formed, without end, concerning the particular sum which she ought to recover. Each of those various opinions may be composed from a variety of combining circumstances, the precise force of any of which can never be liquidated by any known methods of calculation. Those combining circumstances will arise from the situation and character of the plaintiff, from the situation and character of the defendant, from the nature and kind of the injury, and from the nature and extent of the loss. In the mind of each of the jurors, according to his situation and character, each of those combining circumstances may produce an effect, different from that which is produced by them in the mind of every other juror. The opinions, which are composed of those circumstances operating thus differently, must, of necessity, be different. Each juror forms his own. The opinion of each has an equal title to regard. How shall a verdict be collected from twelve opinions, no two of which are the same? Let each pronounce the particular sum, which, he thinks, the plaintiff ought to recover: let the sums be added together: let the amount of the whole be divided by twelve: let the sum produced by this division form the verdict of the jury. In this manner I explain what I mean by a verdict, “composed of the separate sentiments of the several jurors, reduced to what may be called their average result.” This mode of forming a verdict will, on many occasions, be found useful and satisfactory.
Let us, in the last place, consider this subject as it regards judges. Judges do not, indeed, undergo, but, with melancholy, sympathetick feelings, they are obliged to witness—nay, they are obliged to be instrumental in—the feelings which jurors undergo, from the principle and the practice of unanimity, as it is frequently understood.
How natural is it for a jury, worn down by thirst, and hunger, and want of sleep, distracted by altercations and debates, bewildered by the diffi-culties and embarrassments by which those debates and altercations were produced—how natural is it for them to fly, for relief and instruction, to the court! Before the court they appear, pale, anxious, dejected; and beg the court to instruct and relieve them. On the principle of unanimity, as often received, what can the court do or advise? If they are well disposed—and we will presume them well disposed—they will, with every mark of compassionate attention and regard, advise them to do—what, if they could have done, there would have been no application for advice—“gentlemen, we advise you to agree: return to your chamber; confer together; reason together; come to an agreement; for you must agree; otherwise we cannot receive your verdict.”
I have presumed the court to be well disposed: for this presumption, there is not always a sufficient ground. In the celebrated trial of William Penn and William Meade, four of the jurors dissented from the others. The recorder of London, before whom the cause was tried, addressing himself to Mr. Bushel, one of the four dissenters, said, Sir, you are the cause of this disturbance, and manifestly show yourself an abettor of faction; I shall set a mark on you, Sir. Gentlemen, said he to the whole jury, you shall not be dismissed, till we have a verdict that the court will accept; and you shall be locked up without meat, drink, fire, and tobacco: we will have a verdict, by the help of God, or you shall starve for it.h
But I have presumed the court to be well disposed. If they really are so, their situation is, indeed, a distressful one. They see before them a body of men, intrusted by their country with the greatest and most interesting powers: in the execution of this high trust, they see them suffering, though not offending: from those unmerited sufferings, they feel themselves altogether incapable of affording relief. What, in this situation, is left to the court? The alternate emotions of compassion and regret—compassion for those, whom they cannot aid—regret, because they cannot aid them.
By reducing to practice the theory, which I have stated and explained, the judges will be disburthened of all that uneasiness, under which they otherwise must labour; and will, on every occasion, have it in their power to relieve and advise satisfactorily every jury, who may apply to them for advice and relief.
Is the jury sitting in a criminal cause? Are they at a loss what to do? Do they pray the direction of the court? The court may give them a series of directions, which, one would imagine, must contain a remedy for every complaint.—Gentlemen, each of you must know the state of his own mind. Each of you must be clearly of opinion that the prisoner ought to be convicted, or that he ought to be acquitted; or you must be doubtful what opinion you must form. If the first be the case, you ought to vote for a conviction: if either of the two last be the case, you ought to vote for an acquittal. What we say in the case of one, we say in the case of every one. Let every one, therefore, govern his own vote by these directions. When the vote of each is formed; the next step is to compose the verdict of all from the vote of each. Let the votes, then, be taken: they must be either unanimous or not unanimous: if they are not unanimous, let all agree to a verdict of acquittal: if they are unanimous, they must be unanimous for acquittal, or for conviction: if the former, the verdict is a verdict of acquittal: if the latter, the verdict is a verdict of conviction.
Is the jury sitting in a civil cause? Are they, in this cause too, at a loss what to do? Do they pray the direction of the court? The court may, in this cause too, give them a series of satisfactory directions.—Gentlemen, can only two opinions be entertained concerning the cause before you? If so; after freely and candidly discussing the matter by friendly conference among yourselves, let each make up his own opinion: let all the opinions be collected: if there be a majority on either side, let all agree to a verdict in favour of that side: if there is an equality of votes on each side, let the verdict be given in favour of possession. May any indefinite number of opinions be entertained concerning the cause before you? Let each juror form his own: let the verdict consist of the average result of all.
I trust, I have now shown, that, by reducing to practice the theory, which I have advanced on the subject of unanimity, in jury trials, many solid advantages would result from it to judges, to juries, and to parties. I trust, I have established this theory on every pillar on which a legal theory can be built—on precedent—on authority—on principle.
To all the nations, which swarmed from the northern hive, the trial by jury was common: to none of them, the principle of unanimity was known.
I here finish what, at present, I propose to say, concerning the doctrine of unanimity in the trial by jury.
Of juries there are two kinds; a grand jury, and a traverse jury. The institution of the grand jury is, at least in the present times, the peculiar boast of the common law. In the annals of the world, there cannot be found an institution so well fitted for avoiding abuses, which might otherwise arise from malice, from rigour, from negligence, or from partiality, in the prosecution of crimes.
In Athens, we can discover the vestiges of an institution, which bears a resemblance, though a very slight one, to that of grand juries. There was among them a previous inquiry before that trial, in which the final sentence was pronounced.
In cases of murder, the relations of the deceased alone had a right to prosecute.i There is an evident resemblance between this regulation, and that part of the law of England, which relates to prosecutions by appeal. When crimes were committed immediately against the government of Athens, every citizen might step forward as the prosecutor; for an injury offered to the commonwealth was considered as personal to each of its members.
Among the Romans, too, any one of the citizens was permitted to prosecute a publick offence. With all our predilection, however, for those celebrated republicks, we must admit, that these regulations were extremely injudicious, and produced mischiefs of very dangerous, though of very opposite kinds. Prosecutions were, on some occasions, undertaken from motives of rancour and revenge. On other occasions, a friend, a dependent, perhaps a confederate, of the criminal officiously engaged to prosecute him, with a view to ensure his impunity. Of this we have a remarkable instance, in the case of the infamous Verres.37 Caecilius,38 his creature and associate, disputed with Cicero the right of accusing him. The preference was adjudged to Cicero, in a process known by the name of divination.
There was a time, says Beccaria, when the crimes of the subjects were the inheritance of the prince.j At such a time probably it was, that the judge himself became the prosecutor. In several of the feudal nations, this was, indeed, the case. The gross impropriety of this regulation appears at the first view. The prosecutor is a party: without the last necessity, the prosecutor ought not to be both a party and a judge.
Among the Saxons, as we are informed by Mr. Selden, besides the satisfaction recovered by the party injured, there was a way found out to punish the offender by indictment. The difference, adds he, between former indictments and those in these days, consists in this, that the ancient indictments were in the name of one man; those of the latter sort are in the name of the jury. Time and experience, continues he, refined this way of trial into a more excellent condition.k
In the reign of Henry the third, the presentment of offences was made by a jury of twelve, returned for every hundred in the county. But towards the latter end of the reign of Edward the third, another improvement was introduced into the institution of grand juries. Besides the jury for every hundred, the sheriff returned a jury for the county, which was termed “the grand inquest.” When this grand inquest inquired for the whole body of the county, the business of the hundred inquest, and the whole trust and duty of making presentments and finding indictments, naturally devolved upon the grand jury.l
A presentment is an accusation brought forward by the grand jury of their own mere motion. An indictment is a particular charge laid, by the publick prosecutor, before the grand jury, and found by them to be true.
The trust reposed in grand juries is of great and general concernment. To them is committed the custody of the portals of the law, that into the hallowed dome no injustice may be permitted to enter. They make, in the first instance, the important discrimination between the innocent and the guilty. To the former, they give a passport of security: the latter they consign to a final trial by a traverse jury.
The manner, in which grand juries ought to make their inquiries, well deserves to be attentively considered. It has been declared by some, that grand juries are only to inquire, “whether what they hear be any reason to put the party to answer”—“that a probable cause to call him to answer, is as much as is required by law.” But, indeed, such a declaration is very little consonant to the oath—the best evidence of the law—which every grand juryman is obliged to take. He swears, that he will inquire diligently. As little is such a declaration consonant to ancient authority and practice. “In those days,” says my Lord Coke,m speaking of the reign of Edward the first—“in those days (as yet it ought to be) indictments, taken in the absence of the party, were formed upon plain and direct proof, and not upon probabilities or inferences.” Still as little is such a declaration consonant to the voice of reason and sound sense. An indictment has been styled, and with no small degree of propriety, the verdict of the grand jury. “It ought to import all the truth which is requisite by law; and every part material ought to be found by the oath of the indictors.” Now, is it consistent with reason or sound sense, that a verdict found upon oath—upon an oath to make diligent inquiry—should be the vague, perhaps the visionary, result merely of probability? Ought not moral certainty to be deemed the necessary basis of what is delivered, under the sanction of an obligation so solemn and so strict?
The doctrine, that a grand jury may rest satisfied merely with probabilities, is a doctrine dangerous as well as unfounded: it is a doctrine, which may be applied to countenance and promote the vilest and most oppressive purposes: it may be used, in pernicious rotation, as a snare, in which the innocent may be entrapped, and as a screen, under the cover of which the guilty may escape.
It has been alleged, that grand juries are confined, in their inquiries, to the bills offered to them, to the crimes given them in charge, and to the evidence brought before them by the prosecutor. But these conceptions are much too contracted: they present but a very imperfect and unsatisfactory view of the duty required from grand jurors, and of the trust reposed in them. They are not appointed for the prosecutor or for the court: they are appointed for the government and for the people: and of both the government and people it is surely the concernment, that, on one hand, all crimes, whether given or not given in charge, whether described or not described with professional skill, should receive the punishment, which the law denounces, and that, on the other hand, innocence, however strongly assailed by accusations drawn up in regular form, and by accusers marshalled in legal array, should, on full investigation, be secure in that protection, which the law engages that she shall enjoy inviolate.
The oath of a grand juryman—and his oath is the commission, under which he acts—assigns no limits, except those marked by diligence itself, to the course of his inquiries: why, then, should it be circumscribed by more contracted boundaries? Shall diligent inquiry be enjoined? And shall the means and opportunities of inquiry be prohibited or restrained?
The grand jury are a great channel of communication, between those who make and administer the laws, and those for whom the laws are made and administered. All the operations of government, and of its ministers and officers, are within the compass of their view and research. They may suggest publick improvements, and the modes of removing publick inconveniences: they may expose to publick inspection, or to publick punishment, publick bad men, and publick bad measures.
The relative powers of courts and juries form an interesting subject of inquiry. Concerning it, different opinions have been entertained; and it is of much consequence, in the study and in the practice too of the law, that it be clearly and fully understood. I shall treat it in the same manner, in which I have treated other questions of great importance: I shall examine it historically and on principle.
From a statute made in the thirteenth year of Edward the first, usually called the statute of Westminster the second,n it appears, that the contest between judges and juries concerning their relative powers ran, at that time, in a direction very different from that which it has taken since. The judges, then, were disposed to compel the jury to find the law as well as the fact: the jury were disposed to show the truth of the fact only, and to refer to the court the determination of the law. The statute interposed, and declared the discretionary power of the jury to do which of the two they thought most proper. “It is ordained, that the justices assigned to take assizes shall not compel the jurors to say precisely, whether it is or is not a disseisin.” A general verdict of this kind included the question of law as well as the question of fact. “It is sufficient that they show the truth of the fact, and pray the assistance of the justices. But if they will voluntarily say, whether it is or is not a disseisin, their verdict shall be received at their own peril.”
This statute recognised the law as it then stood, but introduced no new law. We are informed by my Lord Coke, in his commentary on it,o that in all actions, real, personal, and mixed, and upon all issues joined, general or special, the jury might find the special matter of fact pertinent and tending only to the issue joined, and might pray the discretion of the court for the law. This the jurors might do at the common law, not only in cases between party and party, of which the statute puts an example of the assize; but also in pleas of the crown at the suit of the king. This statute, therefore, like many others of the ancient statutes, is only in affirmance of the common law.p
Bracton, who wrote in the reign of Henry the third, tells us,q that a distinction was commonly taken between the provinces of the judges and jurors in this manner—truth is to be displayed by the jury; justice and judgment by the court. Yet, says he, it seems that judgment sometimes belongs to the jurors, when they declare upon their oath, whether such a one disseised or did not disseise such a one; according to which declaration, the judgment of the court is rendered. But, adds he, as it belongs to the judges to pronounce a just judgment, it is incumbent on them diligently to weigh and examine what is said by the jury, that they themselves may not be misled by the jury’s mistakes.
We have the high authority of Littleton, that, in cases where the jury may give their verdict at large—in other words, a special verdict, stating the facts, and praying the decision of the court as to the law—they may, if they will take upon them the knowledge of the law, give their verdict generally, as is put in their charge.r
In a case determined in the reign of Queen Elizabeth, it was objected, that a jury could not give a special verdict upon a special and collateral issue; but that, in such case, the jury ought to give a precise and categorical answer to the question arising from such special issue. It was resolved, however, unanimously by the court, that the law will not compel the jurors to take upon them the knowledge of points in law, either in cases of property, or in those which concern life; and that it will not compel even the judges to give their opinions of questions and doubts in law upon the sudden; but, in such cases, the truth of the facts should be found; and, after consideration and conference, the question should be determined according to the law.s
In the famous trial of John Lilburne,39 for publishing a book, entitled, an impeachment of high treason against Oliver Cromwell, we hear a language, very different from that, to which we have hitherto been accustomed.
“Let all the hearers know”—said Mr. Justice Jermin,40 a judge of the upper bench, as it was called during the commonwealth, and who was one of the commissioners appointed in the extraordinary commission of oyer and terminer for the trial of Mr. Lilburne—“Let all the hearers know, the jury ought to take notice of it, that the judges, that are sworn, that are twelve in number, they have ever been the judges of the law, from the first time that ever we can read or hear that the law was truly expressed in England: and the jury are only judges, whether such a thing were done or no; they are only judges of matter of fact.”t Lord Commissioner Keble41 delivers it as the opinion of the court, that “the jury are judges of matter of fact altogether; but that they are not judges of matter of law.”u The prisoner urged the authority of my Lord Coke, that the jury were judges of the law as well as of the fact; but, by a mistake, mentioned the book as a commentary upon Plowden42 instead of Littleton. The court told him there was no such book; that they knew it a little better than he did. He pressed to read it; and said that it was an easy matter for an abler man than him, in so many interruptions as he met with, to mistake Plowden for Littleton. “You cannot”—these are the words of Judge Jermin, as mentioned in the report of the trial—“you cannot be suffered to read the law: you have broached an erroneous opinion that the jury are the judges of the law, which is enough to destroy all the law in the land; there was never such a damnable heresy broached in this nation before.”v Mr. Lilburne persisted, however, and read his authorities.
“Extremes in nature equal ends produce.” As were some of the judges under Cromwell, so were some of the judges under Charles the second. We have had occasion to take some notice of the trial of William Penn and William Meade. The jury, at last, agreed on a verdict of acquittal. This verdict the court could not refuse; but they fined each of the jurors forty marks for giving it, “because it was against the direction of the court in matter of law.”w The jurors were imprisoned till they should pay the fines. Mr. Bushell, one of them, sued a writ of habeas corpus out of the court of common pleas. His case was heard and determined there; and the cause of commitment was adjudged to be insufficient, and Mr. Bushell was discharged.
To what end—said Lord Chief Justice Vaughan, in delivering the opinion of the court—to what end are jurors challenged so scrupulously to the array and the poll? To what end must they be true and lawful men, and not of affinity with the parties concerned? To what end must they have, in many cases, the view, for their exacter information chiefly? To what end must they undergo the heavy punishment of the villainous judgment; if, after all this, they must implicitly give a verdict by the dictates and authority of another man, under pain of fines and imprisonment, when sworn to do it according to the best of their own knowledge? A man cannot see by another’s eye, nor hear by another’s ear; no more can a man conclude or infer the thing to be resolved, by another’s understanding or reasoning.
Upon all general issues, the jury find not the fact of every case by itself, leaving the law to the court; but find for the plaintiff or defendant upon the issue tried, wherein they resolve both law and fact complicately, and not the fact by itself.x
In every case, says the late Sir Michael Foster, where the point turneth upon the question, whether the homicide was committed wilfully and maliciously, or under circumstances justifying, excusing, or alleviating; the matter of fact, to wit, whether the facts alleged by way of justification, excuse, or alleviation be true, is the proper and only province of the jury. But whether, upon a supposition of the truth of the facts, such homicide be justified, excused, or alleviated, must be submitted to the judgment of the court.y
It is of the greatest consequence, says my Lord Hardwicke, to the law of England, that the powers of the judges and jury be kept distinct: that the judges determine the law, and that the jury determine the fact.z
This well known division between their provinces has been long recognised and established. When the question of law and the question of fact can be decided separately; there is no doubt or difficulty in saying, by whom the separate decision shall be made. If, between the parties litigant, there is no contention concerning the facts, but an issue is joined upon a question of law, as is the case in a demurrer; the determination of this question, and the trial of this issue, belongs exclusively to the judges. On the other hand, when there is no question concerning the law, and the controversy between the parties depends entirely upon a matter of fact; the determination of this matter, brought to an issue, belongs exclusively to the jury. But, in many cases, the question of law is intimately and inseparably blended with the question of fact: and when this is the case, the decision of one necessarily involves the decision of the other. When this is the case, it is incumbent on the judges to inform the jury concerning the law; and it is incumbent on the jury to pay much regard to the information, which they receive from the judges. But now the difficulty, in this interesting subject, begins to press upon us. Suppose that, after all the precautions taken to avoid it, a difference of sentiment takes place between the judges and the jury, with regard to a point of law: suppose the law and the fact to be so closely interwoven, that a determination of one must, at the same time, embrace the determination of the other: suppose a matter of this description to come in trial before a jury—what must the jury do?—The jury must do their duty, and their whole duty: they must decide the law as well as the fact.
This doctrine is peculiarly applicable to criminal cases; and from them, indeed, derives its peculiar importance. When a person is to be tried for a crime, the accusation charges against him, not only the particular fact which he has committed, but also the motive, to which it owed its origin, and from which it receives its complexion. The first is neither the only, nor the principal object of examination and discussion. On the second, depends the innocence or criminality of the action. The verdict must decide not only upon the first, but also, and principally, upon the second: for the verdict must be coextensive and commensurate with the charge.
It may seem, at first view, to be somewhat extraordinary, that twelve men, untutored in the study of jurisprudence, should be the ultimate interpreters of the law, with a power to overrule the directions of the judges, who have made it the subject of their long and elaborate researches, and have been raised to the seat of judgment for their professional abilities and skill.
But a deeper examination of the subject will reconcile us to what, at first, may appear incongruous. In criminal cases, the design, as has been already intimated, is closely interwoven with the transaction; and the elucidation of both depends on a collected view of particulars, arising not only from the testimony, but also from the character and conduct of the witnesses, and sometimes also from the character and conduct of the prisoner. Of all these, the jury are fittest to make the proper comparison and estimate; and, therefore, it is most eligible to leave it to them, after receiving the direction of the court in matters of law, to take into their consideration all the circumstances of the case, the intention as well as the facts, and to determine, upon the whole, whether the prisoner has or has not been guilty of the crime, with which he is charged.
Juries undoubtedly may make mistakes: they may commit errours: they may commit gross ones. But changed as they constantly are, their errours and mistakes can never grow into a dangerous system. The native uprightness of their sentiments will not be bent under the weight of precedent and authority. The esprit du corps will not be introduced among them; nor will society experience from them those mischiefs, of which the esprit du corps, unchecked, is sometimes productive. Besides, their mistakes and their errours, except the venial ones on the side of mercy made by traverse juries, are not without redress. Of an indictment found by a grand jury, the person indicted may be acquitted on his trial. If a bill be returned “ignoramus” improperly, the accusation may be renewed before another grand jury. With regard to the traverse jury, the court, if dissatisfied with their verdict, have the power, and will exercise the power, of granting a new trial. This power, while it prevents or corrects the effects of their errours, preserves the jurisdiction of juries unimpaired. The cause is not evoked before a tribunal of another kind. A jury of the country—an abstract, as it has been called, of the citizens at large,—summoned, selected, impannelled, and sworn as the former, must still decide.
One thing, however, must not escape our attention. In the cases and on the principles, which we have mentioned, jurors possess the power of determining legal questions. But they must determine those questions, as judges must determine them, according to law. The discretionary powers of jurors find no place for exertion here. Those powers they possess as triers of facts; because, as we have already observed, the trial of facts depends on evidence; and because the force of evidence cannot be ascertained by any general system of rules. But law, particularly the common law, is governed by precedents, and customs, and authorities, and maxims: those precedents, and customs, and authorities, and maxims are alike obligatory upon jurors as upon judges, in deciding questions of law.
True it is, according to the sentiment of my Lord Hardwicke, that it is of the greatest consequence to preserve the separate and distinct powers of the judges and the juries. But equally true it is, that those separate and distinct powers may be rendered reciprocally beneficial, by the most pleasing and harmonious cooperation.
In favour of a conclusion of this kind, the conduct of juries bears ample testimony. The examples of their resisting the advice of a judge, in points of law, are rare, except where they have been provoked into such an opposition by the grossness of his own misconduct, or betrayed into an unjust suspicion of his integrity by the misrepresentation of others. In civil cases, juries almost universally find a special verdict, as often as the judges recommend it to them. In criminal cases, indeed, special verdicts are less frequent: but this happens, not because juries have an aversion to them, but because such cases depend more on the evidence of facts, than on any difficulties arising in points of law.
Nor is it a small merit in this arrangement, that, by means of it, every one who is accused of a crime may, on his plea of “not guilty,” enjoy the advantages of a trial, in which the judges and the jury are to one another a mutual check, and a mutual assistance. This point deserves from us a full illustration.
Some things appear, at the first view, to be alike, which, upon a close inspection, are found to be materially different. To a superficial observer, no very important distinction would seem to arise, between the credibility and the competency of evidence. Between them, however, a most important distinction subsists. They spring from different sources; they run in different directions; and, in the division of power between the court and the jury, they are, with great propriety, allotted to different provinces. In some instances, indeed, the line of division is scarcely perceptible; but, even in those instances, the law points out a proper mode of management.
Evidence is of two kinds, written and oral. In each kind, the important distinction between its competency and its credibility takes place. In oral evidence, however, or the testimony of witnesses, the distinction is the most important; and, for this reason, it should be clearly known and strictly preserved.
The excellency of the trial by jury, says the great and good Lord Chief Justice Hale, is, that they are the triers of the credit of the witnesses, as well as the truth of the fact: it is one thing whether a witness is admissible to be heard: whether, when he is heard, he is to be believed, is another thing.a
It is a known distinction, says Lord Chief Justice Willes,43 in a very celebrated cause, that the evidence, though admitted, must still be left to the persons who try the causes, to give what credit to it they please.b
That I may observe it once for all, says Lord Chief Justice Hale, in another place, the exceptions to a witness are of two kinds. 1. Exceptions to the credit of the witness, which do not at all disable him from being sworn, but yet may blemish the credibility of his testimony; in such case, the witness is to be allowed, but the credit of his testimony is left to the jury, who are judges of the fact, and likewise of the probability or improbability, credibility or incredibility of the witness and his testimony; these exceptions are of such great variety and multiplicity, that they cannot easily be reduced under rules or instances. 2. Exceptions to the competency of the witness, which exclude him from giving his testimony: and of these exceptions the court is the judge.c
The writers on the civil law, to which the trial by jury has, for many ages, been unknown, have attempted to reduce the credibility and incredibility of testimony under rules and instances: but their attempts have shown, what, indeed, has been likewise shown from the nature of the thing, that such a reduction is not only not easy, as my Lord Hale says, but is altogether and absolutely impracticable.
Evidence is, by those civilians, distinguished into different degrees—into full probation; into probation less than full; into half probation. The deficiency in half probation is made up, sometimes by torture, sometimes by the suppletory oath of the party. Concerning circumstantial proofs, rules, unsatisfactory because unfounded, have been heaped upon rules, volumes have been heaped upon volumes, and evidence has been added, and divided, and subtracted, and multiplied, like pounds, and shillings, and pence, and farthings. In the parliament of Toulouse,44 we are told by Voltaire,d45 they admitted of quarters and eighths of a proof. For instance, one hearsay was considered as a quarter; another hearsay, more vague, as an eighth; so that eight vague hearsays, which, in fact, are no more than the reverberated echos of a report, perhaps originally groundless, constitute a full proof. Upon this principle it was, that poor Calas was condemned to the wheel.
Evidence is that which produces belief. Belief is a simple act of the mind, more easily experienced than described. Its degrees of strength or weakness cannot, like those of heat and cold, be ascertained by the precise scale of an artificial thermometer. Their effects, however, are naturally felt and distinguished by a sound and healthful mind. With great propriety, therefore, the common law forbears to attempt a scale or system of rules, concerning the force or credibility of evidence; it wisely leaves them to the unbiassed and unadulterated sentiments and impressions of the jury. But with regard to the propriety or competency of evidence, the case is very different. This subject is susceptible of system and of rule. This subject, therefore, is wisely committed to the information and experience of the judges.
The most general and the most conspicuous rule with regard to the competency of evidence, is, that the best, of which the nature of the fact in question is capable, must be produced, if it can be produced: if it cannot be produced, then the best evidence, which can be obtained, shall be admitted. Both the parts of this rule are founded on the most solid reason. To reject, as incompetent, the strongest evidence which can be procured, would be rigid, and unaccommodating to the various vicissitudes of life and business. To admit an inferiour kind of evidence, when evidence of a superiour nature is withheld, would prevent that degree of satisfaction in the minds of the jurors, which evidence should be fitted to produce. Evidence produces belief: the strongest evidence produces the strongest belief: why is the strongest evidence withheld? The party, in whose power it is, can have no motive for withholding it, unless he is conscious that it would disclose something, which his interest requires to be concealed. The satisfactory administration of justice, therefore, demands, that it should be laid before the jury.
The application of this rule is most extensive. What ought or ought not to be presumed in the power of the party, must be collected by a full and intimate knowledge or information concerning the business and transactions of life. The most authentick materials of information and knowledge are furnished by juridical history—a subject deservedly the professional study of judges of the common law.
Another rule, of high import in the administration of justice, is, that evidence, in order to be admitted, must have a proper degree of connexion with the question to be tried: in legal language, it must be pertinent to the issue. A variety of evidence, unconnected with the point specified by the record for the examination of the jury, would have a tendency to bewilder their minds, and to prevent that strict and undivided attention, which is so indispensable to the satisfactory investigation of that, which they are empowered and intrusted to decide.
The evidence proper to be given in each of the numerous kinds of issues, which come before a jury, forms a very interesting portion of legal knowledge. At present, we can only show the principle and the importance of that accuracy, which the law requires in the admission of evidence. The preservation of this accuracy is fitly committed to the experience of the judges.
With regard to oral evidence, or the testimony of witnesses, the rule of the law is, that proper testimony may be received from the mouth of every intelligent person, who is not infamous or interested. Concerning the points of intelligence, of infamy, and of interestedness, a great variety of rules are established by the law. To apply those rules to cases which occur in the course of practice, is, with obvious propriety, allotted to the judges.
In one of those subjects, however—I mean the interest of witnesses—the line of division, between the province of the judges and that of the jury, is faintly marked, and difficult to be ascertained. The degrees of interest are so numerous, and the effects of the same degree of interest upon different characters and in different situations are so diversified, that it is impracticable, in many instances, to define exactly the precise boundary, at which the question of competency ends, and the question of credibility begins. In doubtful cases of this description, the judges, especially of late years, presume in favour of the province of the jury. This is done with great reason. For an objection, urged, without success, against the competency of a witness, may be urged successfully against the credibility of his testimony; and to the objecting party it is altogether immaterial, whether the testimony of the witness is rejected or disbelieved. When an objection, says my Lord Hardwicke, is made against a witness, it is best to restrain it to his credit, unless it is like to introduce great perjury; because it tends to let in light to the cause.e
In arranging and in summing up the evidence, the court, from their knowledge and experience of business, can give great assistance to the jury. In questions of law emerging from the evidence, the assistance of the court is still more necessary and essential. Lord Chief Justice Hale observes, that a judge may be of much advantage to the jury, by showing them his opinion even in matter of fact.f Of the sentiment of a judge so exemplary in his delicacy as well as in his candour, I risk not the disapprobation; but I add, that this power can never be exercised with a reserve too cautious.
We have seen, by a number of instances, how, in the administration of justice, the jury receive assistance from the judges. Let us now see how the judges receive assistance from the jury.
“Ex facto oritur jus.”46 The jury lay the foundation of truth, on which the judges erect the superstructure of law. A correct statement of the facts, every professional gentleman knows, is necessary to an accurate report. A true verdict given by the jury, is an essential prerequisite to a just judgment pronounced by the court. Judgments in supposed cases may abundantly evince professional skill; but they will never have a decisive influence over society—they will never come home to the business and bosoms of the citizens—unless they are practically founded on the manners, and characters, and rights of men. The manners, the characters, and the rights of men are truly and practically reported by the verdicts of juries.
To judges of a proper disposition, the assistance of juries is soothing as well as salutary. In criminal cases, it is unquestionably so. “To say the truth”—I use the language of the humane Lord Chief Justice Hale—“it were the most unhappy case that could be to the judge, if he, at his peril, must take upon him the guilt or innocence of the prisoner, and if the judge’s opinion must rule the matter of fact.”g
Take upon him the guilt or innocence of the prisoner! It may be soothing, indeed, to judges, to be relieved from this mental burthen, of all the most anxious: but upon whom—methinks I hear a citizen ask—upon whom must this most anxious of all mental burthens be laid? How must it be born by those on whom it is laid?
This very serious and momentous question brings before us the trial by jury in a view, the sublimity of which I have often admired in silence; but which now—though I feel myself far inferiour to the task—I must endeavour to describe and explain. I solicit your candid indulgence, while I attempt to delineate the particulars, of which this prospect, magnificent and interesting, is composed; and then try, with unequal efforts, to convey the impression which naturally will result from the combination of the whole.
It will be necessary to review some principles, of which notice has been already taken in the course of my lectures. In a former part of themh I observed, that, when society was formed, it possessed jointly all the previously separate and independent powers and rights of the individuals who formed it, and all those other powers and rights which result from the social union. I observed, that all those powers and rights were collected, in order to be enjoyed and exercised; that, in a numerous and extended society, all those powers could not, indeed, be exercised personally; but that they might be exercised by representation. I asked, whether one power might not be delegated to one set of men? and whether another power might not be delegated to another set of men? alluding to the legislative and executive departments. I mentioned a third power of society—that of administering justice under the laws. I asked, whether this power might not be partly delegated, and partly retained in personal exercise; because, in the most extended communities, an important part of the administration of justice may be discharged by the people themselves. I mentioned, that all this has been done, as I should have the pleasure of showing, when I should come to examine our governments, and to point out, by an enumeration and comparison of particulars, how beautifully, how regularly, and how usefully, we have established, by our practice in this country, principles concerning the distribution, the arrangement, the reservation, the direction, and the uses of that publick power, of which the just theory is still unknown in other nations.
I have had the pleasure of explaining the powers, legislative, executive, and judicial, which the people have delegated: I come now to that part of the judicial authority, which they retain in personal exercise—I mean, the authority to decide in criminal cases; in cases, especially, of life and death.
This may be considered in two different points of light; as a power, and as a burthen. As a burthen, it is considered as too heavy to be imposed, as a power, it is considered as too great to be conferred, permanently upon any man, or any organized body of men. We have seen it a discretionary—so far it partakes of a legislative power. We have seen that, in large and extended communities, necessity directs the delegation of other legislative power. This is a species of legislative power, which may, and therefore should, be exercised in person. In cases of life and death, the standing jurisdiction remains with the people at large. As emergencies occur, an abstract of the people is selected for the occasional exercise of it. The moment that the occasion is over, the abstracted selection disappears among the general body of the citizens. No one citizen, therefore, any more than any other, can complain of this as an uneasy burthen. Except on particular occasions, and during those occasions, it is imposed on no one.
If jurisdiction in cases of life and death, considered as a burthen, is uneasy to those who bear it; considered as a power, it is tremendous to those who behold it. A man, or a body of men, habitually clothed with a power over the lives of their fellow citizens! These are objects formidable indeed. By an operation, beautiful and sublime, of our juridical system, objects so formidable are withdrawn from before the eyes of our citizens—objects so formidable do not exist. To promote an habitual courage, and dignity, and independence of sentiment and of actions in the citizens, should be the aim of every wise and good government. How much are these principles promoted, by this beautiful and sublime effect of our judicial system. No particular citizen can threaten the exercise of this tremendous power: with the exercise of this tremendous power, no particular citizen can be threatened. Even the unfortunate prisoner, the day of whose trial is come, the jury for whose trial are selected, impannelled, and returned—even this unfortunate prisoner cannot be threatened with the exercise of this tremendous power by any particular citizen. When he comes to the bar and looks upon the prisoner, a single supercilious look will produce a peremptory rejection.
Uncommonly jealous is the constitution of the United States and that of Pennsylvania upon this subject, so interesting to the personal independence of the citizens. The formidable power we have mentioned is interdicted even to the legislatures themselves. Neither congress nor the general assembly of this commonwealth, can pass any act of attainder for treason or felony.i Now, an act of attainder is a legislative verdict.
I have said, that this authority remains with the people at large. Potentially, indeed, it does; actually, it cannot be said to remain even with them. The contrivance is so admirably exquisite concerning this tremendous jurisdiction, that, in the general course of things, it exists actually no where. But no sooner does any particular emergency call for its operations, than it starts into immediate existence.
But it remains, that I give satisfaction with regard to the inquiry—how shall this burthen, attended with so much uneasiness, be born by those, upon whom, though only occasionally, it is laid?
It is, we acknowledge, a most weighty burthen. That man must, indeed, be callous to sensibility, who, without emotion and anxiety, can deliberate on the question—whether, by his voice, his fellow man and fellow citizen shall live or die. But while capital punishments continue to be inflicted, the burthen must be born; and while it must be born, every citizen, who, in the service of his country, may be called to bear it, is bound to qualify himself for bearing it in such a manner, as will ensure peace of mind to himself, justice to him whose fate be may determine, and honour to the judicial administration of his country. By so qualifying himself, though, in the discharge of his duty, he will feel strong emotions, he will, from the performance of it, feel no remorse.
I must again enter upon a review of some principles, of which notice has already been taken.
With regard to the law in criminal cases, every citizen, in a government such as ours, should endeavour to acquire a reasonable knowledge of its principles and rules, for the direction of his conduct, when he is called to obey, when he is called to answer, and when he is called to judge. On questions of law, his deficiencies will be supplied by the professional directions of the judges, whose duty and whose business it is professionally to direct him. For, as we have seen, verdicts, in criminal cases, generally determine the question of law, as well as the question of fact. Questions of fact, it is his exclusive province to determine. With the consideration of evidence unconnected with the question which he is to try, his attention will not be distracted; for every thing of that nature, we presume, will be excluded by the court. The collected powers of his mind, therefore, will be fixed, steadily and without interruption, upon the issue which he is sworn to try. This issue is an issue of fact. Its trial will depend upon the evidence. Evidence, in every cause, is that which produces: evidence, in a capital cause, is that which forces belief.
Belief, as we have seen, is an act of the mind, not easily described, indeed, but easily felt. Does the juror feel its force? Let him obey the constitution of his nature, and yield to the strong conviction. If the evidence produce, upon the mind of each of his fellow jurors, the same strong conviction, which it produces on his, their sentiments will be unanimous; and the unanimous sentiments of all will still corroborate the strong conviction of each. If a single doubt remain in the mind of any juror, that doubt should produce his dissent, and the dissent of a single juror, according to the principles which we have explained, and, we trust, established, will produce a verdict of acquittal by all.
Considered in this manner, is the duty of a juror, in a capital case, intolerably burthensome? It cannot, indeed, as we have said, be discharged without emotion: but the unbiassed dictates of his own constitution will teach—will force him to discharge it properly.
In criminal—in capital cases, with what sublime majesty does the trial by jury now appear to its ravished beholders! In the first and purest principles of society its foundations are laid: by the most exquisite skill, united with consummate benignity, the grand and finely proportioned edifice has been raised: within its walls, strong and lofty as well as finely proportioned, freedom enjoys protection, and innocence rests secure.
James Wilson, Collected Works of James Wilson, edited by Kermit L. Hall and Mark David Hall, with an Introduction by Kermit L. Hall, and a Bibliographical Essay by Mark David Hall, collected by Maynard Garrison (Indianapolis: Liberty Fund, 2007). Vol. 2.