THE trial by jury must, if possible, be construed to be such that
a man can rightfully sit in a jury, and unite with his fellows in
giving judgment. But no man can rightfully do this, unless he
hold in his own hand alone a veto upon any judgment or sentence
whatever to be rendered by the jury against a defendant, which
veto he must be permitted to use according to his own discretion
and conscience, and not bound to use according to the dictation
of either legislatures or judges.
The prevalent idea, that a juror may, at the mere dictation of a
legislature or a judge, and without the concurrence of his own
conscience or understanding, declare a man "guilty," and thus in
effect license the government to punish him; and that the
legislature or the judge, and not himself, has in that case all
the moral responsibility for the correctness of the principles on
which the judgment was rendered, is one of the many gross
impostures by which it could hardly have been supposed that any
sane man could ever have been deluded, but which governments
have nevertheless succeeded in inducing the people at large to receive
and act upon.
As a moral proposition, it is perfectly self-evident that, unless
juries have all the legal rights that have been claimed for them
in the preceding chapters, that is, the rights of judging what
the law is, whether the law be a just one, what evidence is
admissible, what weight the evidence is entitled to, whether an
act were done with a criminal intent, and the right also to limit
the sentence, free of all dictation from any quarter, they have
no moral right to sit in the trial at all, and cannot do so
without making themselves accomplices in any injustice that they
may have reason to believe may result from their verdict. It is
absurd to say that they have no moral responsibility for the use
that may be made of their verdict by the government, when they
have reason to suppose it will be used for purposes of injustice.
It is, for instance, manifestly absurd to say that jurors have no
moral responsibility for the enforcement of an unjust law, when
they consent to render a verdict of guilty for the transgression
of it; which verdict they know, or have good reason to believe,
will be used by the government as a justification for inflicting
a penalty.
It is absurd, also, to say that jurors have no moral
responsibility for a punishment indicted upon a man against law,
when, at the dictation of a judge as to what the law is, they
have consented to render a verdict against their own opinions of
the law.
It is absurd, too, to say that jurors have no moral
responsibility for the conviction and punishment of an innocent
man, when they consent to render a verdict against him on the
strength of evidence, or laws of evidence, dictated to them by
the court, if any evidence or laws of evidence have been
excluded, which they (the jurors) think ought to have been
admitted in his defence.
It is absurd to say that jurors have no moral responsibility for
rendering a verdict of "guilty" against a man, for an act which
he did not know to be a crime, and in the commission of which,
therefore, he could have had no criminal intent, in obedience to
the instructions of courts that "ignorance of the law (that is,
of crime) excuses no one."
It is absurd, also, to say that jurors have no moral
responsibility for any cruel or unreasonable sentence that may be
inflicted even upon a guilty man, when they consent to render a
verdict which they have reason to believe will be used by the
government as a justification for the infliction of such
sentence.
The consequence is, that jurors must have the whole case in their
hands, and judge of law, evidence, and sentence, or they incur
the moral responsibility of accomplices in any injustice which
they have reason to believe will be done by the government on the
authority of their verdict.
The same principles apply to civil cases as to criminal. If a
jury consent, at the dictation of the court, as to either law or
evidence, to render a verdict, on the strength of which they have
reason to believe that a man's property will be taken from him
and given to another, against their own notions of justice, they
make themselves morally responsible for the wrong.
Every man, therefore, ought to refuse to sit in a jury, and to
take the oath of a juror, unless the form of the oath be such as
to allow him to use his own judgment, on every part of the case,
free of all dictation whatsoever, and to hold in his own hand a
veto upon any verdict that can be rendered against a defendant,
and any sentence that can be inflicted upon him, even if he be
guilty.
Of course, no man can rightfully take an oath as juror, to try a
case "according to law," (if by law be meant anything other than
his own ideas of justice,) nor "according to the law and the
evidence, as they shall be given him." Nor can he rightfully take
an oath even to try a case "according to the evidence," because
in all cases he may have good reason to believe that a party has
been unable to produce all the evidence legitimately entitled to
be received. The only oath which it would seem that a man can
rightfully take as juror, in either a civil or criminal case, is,
that he "will try the case according to his conscience." Of
course, the form may admit of variation, but this should be the
substance. Such, we have seen, were the ancient common law
oaths.