An Essay on the Trial by Jury Part 9

The _Mirror of Justices_, (written within a century after Magna Carta,) in the chapter on the abuses of the Common Law, says:

"It is abuse to use the words, _to their knowledge_, in their oaths, to make the jurors speak upon thoughts, _since the chief words of their oaths be that they speak the truth_."--p. 249.

Smith, writing in the time of Elizabeth, says that, in _civil_ suits, the jury "be sworn to declare the truth of that issue according to the evidence, and their conscience."--_Smith's Commonwealth of England_, edition of 1621, p. 73.

In _criminal_ trials, he says:

"The clerk giveth the juror an oath to go uprightly betwixt the prince and the prisoner."--_Ditto_, p. 90.[55]

Hale says:

"Then twelve, and no less, of such as are indifferent and are returned upon the princ.i.p.al panel, or the _tales_, are sworn to try the same according to the evidence."--_2 Hale's History of the Common Law_, 141.

It appears from Blackstone that, even _at this day, neither in civil nor criminal cases_, are jurors in England sworn to try causes _according to law_. He says that in civil suits the jury are

"Sworn well and truly to _try the issue_ between the parties, and a true verdict to give according to the evidence."--_3 Blackstone_, 365.

"_The issue_" to be tried is whether A owes B anything; and if so, how much? or whether A has in his possession anything that belongs to B; or whether A has wronged B, and ought to make compensation; and if so, how much?

No statute pa.s.sed by a legislature, simply as a legislature, can alter either of these "issues" in hardly any conceivable case, perhaps in none. No _unjust_ law could ever alter them in any. They are all mere questions of natural justice, which legislatures have no power to alter, and with which they have no right to interfere, further than to provide for having them settled by the most competent and impartial tribunal that it is practicable to have, and then for having all just decisions enforced. And any tribunal, whether judge or jury, that attempts to try these issues, has no more moral right to be swerved from the line of justice, by the will of a legislature, than by the will of any other body of men whatever. And this oath does not require or permit a jury to be so swerved.

In criminal cases, Blackstone says the oath of the jury in England is:

"Well and truly to try, and true deliverance make, between our sovereign lord, the king, and the prisoner whom they have in charge, and a true verdict to give according to the evidence."--_4 Blackstone_, 355.

"The issue" to be tried, in a criminal case, is "_guilty_," or "_not guilty_." The laws pa.s.sed by a legislature can rarely, if ever, have anything to do with this issue. "_Guilt_" is an _intrinsic_ quality of actions, and can neither be created, destroyed, nor changed by legislation. And no tribunal that attempts to try this issue can have any moral right to declare a man _guilty_, for an act that is intrinsically innocent, at the bidding of a legislature, any more than at the bidding of anybody else. And this oath does not require or permit a jury to do so.

The words, "_according to the evidence_," have doubtless been introduced into the above oaths in modern times. They are unquestionably in violation of the Common Law, and of Magna Carta, if by them be meant such evidence only as the government sees fit to allow to go to the jury. If the government can dictate the evidence, and require the jury to decide according to that evidence, it necessarily dictates the conclusion to which they must arrive. In that case the trial is really a trial by the government, and not by the jury. _The jury_ cannot _try an issue_, unless _they_ determine what evidence shall be admitted. The ancient oaths, it will be observed, say nothing about "_according to the evidence_." They obviously take it for granted that the jury try the whole case; and of course that _they_ decide what evidence shall be admitted. It would be intrinsically an immoral and criminal act for a jury to declare a man guilty, or to declare that one man owed money to another, unless all the evidence were admitted, which _they_ thought ought to be admitted, for ascertaining the truth.[56]

_Grand Jury._--If jurors are bound to enforce all laws pa.s.sed by the legislature, it is a very remarkable fact that the oath of grand juries does not require them to be governed by the laws in finding indictments.

There have been various forms of oath administered to grand jurors; but by none of them that I recollect ever to have seen, except those of the States of Connecticut and Vermont, are they sworn to present men _according to law_. The English form, as given in the essay on Grand Juries, written near two hundred years ago, and supposed to have been written by _Lord Somers_, is as follows:

"You shall diligently inquire, and true presentment make, of all such articles, matters, and things, as shall be given you in charge, and of all other matters and things as shall come to your knowledge touching this present service. The king's council, your fellows, and your own, you shall keep secret. You shall present no person for hatred or malice; neither shall you leave any one unpresented for favor, or affection, for love or gain, or any hopes thereof; but in all things you shall present the truth, the whole truth, and nothing but the truth, to the best of your knowledge. So help you G.o.d."

This form of oath is doubtless quite ancient, for the essay says "our ancestors appointed" it.--_See Essay_, p. 33-34.

On the obligations of this oath, the essay says:

"If it be asked how, or in what manner, the (grand) juries shall inquire, the answer is ready, _according to the best of their understandings_. They only, not the judges, are sworn to search diligently to find out all treasons, &c., within their charge, and they must and ought to use their own discretion in the way and manner of their inquiry. _No directions can legally be imposed upon them by any court or judges_; an honest jury will thankfully accept good advice from judges, as their a.s.sistants; but they are bound by their oaths to present the truth, the whole truth, and nothing but the truth, to the best of their own, not the judge's, knowledge. Neither can they, without breach of that oath, resign their consciences, or blindly submit to the dictates of others; and therefore ought to receive or reject such advices, as they judge them good or bad. * *

Nothing can be more plain and express than the words of the oath are to this purpose. The jurors need not search the law books, nor tumble over heaps of old records, for the explanation of them. Our greatest lawyers may from hence learn more certainly our ancient law in this case, than from all the books in their studies. The language wherein the oath is penned is known and understood by every man, and the words in it have the same signification as they have wheresoever else they are used. The judges, without a.s.suming to themselves a legislative power, cannot put a new sense upon them, other than according to their genuine, common meaning. They cannot magisterially impose their opinions upon the jury, and make them forsake the direct words of their oath, to pursue their glosses. The grand inquest are bound to observe alike strictly every part of their oath, and to use all just and proper ways which may enable them to perform it; otherwise it were to say, that after men had sworn to inquire diligently after the truth, according to the best of their knowledge, they were bound to forsake all the natural and proper means which their understandings suggest for the discovery of it, if it be commanded by the judges."--_Lord Somers' Essay on Grand Juries_, p.

38.

What is here said so plainly and forcibly of the oath and obligations of grand juries, is equally applicable to the oath and obligations of pet.i.t juries. In both cases the simple oaths of the jurors, and not the instructions of the judges, nor the statutes of kings nor legislatures, are their legal guides to their duties.[57]

SECTION IV.

_The Right of Juries to fix the Sentence._

The nature of the common law courts existing prior to Magna Carta, such as the county courts, the hundred courts, the court-leet, and the court-baron, all prove, what has already been proved from Magna Carta, that, in jury trials, the juries fixed the sentence; because, in those courts, there was no one but the jury who could fix it, unless it were the sheriff, bailiff, or steward; and no one will pretend that it was fixed by them. The juries unquestionably gave the "judgment" in both civil and criminal cases.

That the juries were to fix the sentence under Magna Carta, is also shown by statutes subsequent to Magna Carta.

A statute pa.s.sed fifty-one years after Magna Carta, says that a baker, for default in the weight of his bread, "_debeat_ amerciari vel subire judicium pillorae,"--that is, "_ought_ to be amerced, or suffer the sentence of the pillory." And that a brewer, for "selling ale, contrary to the a.s.size," "_debeat_ amerciari, vel pati judicium tumbrelli;" that is, "_ought_ to be amerced, or suffer judgment of the tumbrel."--_51 Henry III._, st. 6. (1266.)

If the king (the legislative power) had had authority to fix the punishments of these offences imperatively, he would naturally have said these offenders _shall_ be amerced, and _shall_ suffer judgment of the pillory and tumbrel, instead of thus simply expressing the opinion that they _ought_ to be punished in that manner.

The statute of Westminster, pa.s.sed sixty years after Magna Carta, provides that,

"No city, borough, nor town, _nor any man_, be amerced, without reasonable cause, and according to the quant.i.ty of the trespa.s.s; that is to say, every freeman saving his freehold, a merchant saving his merchandise, a villein his waynage, _and that by his or their peers_."--_3 Edward I._, ch. 6. (1275.)

The same statute (ch. 18) provides further, that,

"Forasmuch as the _common fine and amercement_ of the whole county in Eyre of the justices for false judgments, or for other trespa.s.s, is unjustly a.s.sessed by sheriffs and baretors in the s.h.i.+res, so that the sum is many times increased, and the parcels otherwise a.s.sessed than they ought to be, to the damage of the people, which be many times paid to the sheriffs and baretors, which do not acquit the payers; it is provided, and the king wills, that from henceforth such sums shall be a.s.sessed before the justices in Eyre, afore their departure, _by the oath of knights and other honest men_, upon all such as ought to pay; and the justices shall cause the parcels to be put into their estreats, which shall be delivered up unto the exchequer, and not the whole sum."--_St. 3 Edward I._, ch. 18, (1275.)[58]

The following statute, pa.s.sed in 1341, one hundred and twenty-five years after Magna Carta, providing for the trial of peers of the realm, and the king's ministers, contains a recognition of the principle of Magna Carta, that the jury are to fix the sentence.

"Whereas before this time the peers of the land have been arrested and imprisoned, and their temporalities, lands, and tenements, goods and cattels, a.s.seized in the king's hands, and some put to death without judgment of their peers: It is accorded and a.s.sented, that no peer of the land, officer, nor other, because of his office, nor of things touching his office, nor by other cause, shall be brought in judgment to lose his temporalities, lands, tenements, goods and cattels, nor to be arrested, nor imprisoned, outlawed, exiled, nor forejudged, nor put to answer, nor be judged, but by _award_ (_sentence_) of the said peers in Parliament."--_15 Edward III._, st.

1, sec. 2.

Section 4, of the same statute provides,

"That in every Parliament, at the third day of every Parliament, the king shall take in his hands the offices of all the ministers aforesaid," (that is, "the chancellor, treasurer, barons, and chancellor of the exchequer, the justices of the one bench and of the other, justices a.s.signed in the country, steward and chamberlain of the king's house, keeper of the privy seal, treasurer of the wardrobe, controllers, and they that be chief deputed to abide nigh the king's son, Duke of Cornwall,") "and so they shall abide four or five days; except the offices of justices of the one place or the other, justices a.s.signed, barons of exchequer; so always that they and all other ministers be put to answer to every complaint; and if default be found in any of the said ministers, by complaint or other manner, and of that attainted in Parliament, he shall be punished by judgment of the peers, and put out of his office, and another convenient put in his place. And upon the same our said sovereign lord the king shall do (cause) to be p.r.o.nounced and made execution without delay, _according to the judgment_ (_sentence_) of the said peers in the Parliament."

Here is an admission that the peers were to fix the sentence, or judgment, and the king promises to make execution "_according to_" that sentence.

And this appears to be the law, under which peers of the realm and the great officers of the crown were tried and sentenced, for four hundred years after its pa.s.sage, and, for aught I know, until this day.

The first case given in Hargrave's collection of English State Trials, is that of _Alexander Nevil_, Archbishop of York, _Robert Vere_, Duke of Ireland, _Michael de la Pole_, Earl of Suffolk, and _Robert Tresilian_, Lord Chief Justice of England, with several others, convicted of treason, before "the Lords of Parliament," in 1388. The sentences in these cases were adjudged by the "Lords of Parliament," in the following terms, as they are reported.

"Wherefore the said _Lords of Parliament_, there present, as judges in Parliament, in this case, _by a.s.sent of the king, p.r.o.nounced their sentence_, and did adjudge the said archbishop, duke, and earl, with Robert Tresilian, so appealed, as aforesaid, to be guilty, and convicted of treason, and to be drawn and hanged, as traitors and enemies to the king and kingdom; and that their heirs should be disinherited forever, and their lands and tenements, goods and chattels, forfeited to the king, and that the temporalities of the Archbishop of York should be taken into the king's hands."

Also, in the same case, Sir _John Holt_, Sir _William Burgh_, Sir _John Cary_, Sir _Roger Fulthorpe_, and _John Locton_, "_were by the lords temporal, by the a.s.sent of the king_, adjudged to be drawn and hanged, as traitors, their heirs disinherited, and their lands and tenements, goods and chattels, to be forfeited to the king."

Also, in the same case, _John Blake_, "of council for the king," and _Thomas Uske_, under sheriff of Middles.e.x, having been convicted of treason,

"_The lords awarded, by a.s.sent of the king_, that they should both be hanged and drawn as traitors, as open enemies to the king and kingdom, and their heirs disinherited forever, and their lands and tenements, goods and chattels, forfeited to the king."

Also, "_Simon Burleigh_, the king's chamberlain," being convicted of treason, "_by joint consent of the king and the lords_, sentence was p.r.o.nounced against the said Simon Burleigh, that he should be drawn from the town to Tyburn, and there be hanged till he be dead, and then have his head struck from his body."

Also, "_John Beauchamp_, steward of the household to the king, _James Beroverse_, and _John Salisbury_, knights, gentlemen of the privy chamber, _were in like manner condemned_."--_1 Hargrave's State Trials_, first case.

Here the sentences were all fixed by the peers, _with the a.s.sent of the king_. But that the king should be consulted, and his a.s.sent obtained to the sentence p.r.o.nounced by the peers, does not imply any deficiency of power on their part to fix the sentence independently of the king. There are obvious reasons why they might choose to consult the king, and obtain his approbation of the sentence they were about to impose, without supposing any legal necessity for their so doing.

So far as we can gather from the reports of state trials, peers of the realm were usually sentenced by those who tried them, _with the a.s.sent of the king_. But in some instances no mention is made of the a.s.sent of the king, as in the case of "Lionel, Earl of Middles.e.x, Lord High Treasurer of England," in 1624, (four hundred years after Magna Carta,) where the sentence was as follows:

"This High Court of Parliament doth adjudge, that Lionel, Earl of Middles.e.x, now Lord Treasurer of England, shall lose all his offices which he holds in this kingdom, and shall, hereafter, be made incapable of any office, place, or employment in the state and commonwealth. That he shall be imprisoned in the tower of London, during the king's pleasure. That he shall pay unto our sovereign lord the king a fine of 50,000 pounds. That he shall never sit in Parliament any more, and that he shall never come within the verge of the court."--_2 Howell's State Trials_, 1250.

Here was a peer of the realm, and a minister of the king, of the highest grade; and if it were ever _necessary_ to obtain the a.s.sent of the king to sentences p.r.o.nounced by the peers, it would unquestionably have been obtained in this instance, and his a.s.sent would have appeared in the sentence.