warlike--the secondary source. These made statute laws. As this was a
self-conscious and organized body, having an object distinctly set
before its mind and devising means for its purposes, it easily
appropriated to itself the chief part of the business of law-making.
Statute laws became more and more numerous and important; they were
the principal--the customs were only subsidiary, laws _de Jure_,
enacted before they are obeyed by the People. Still new customs
continued to flow from the primitive source of legislation, the
People, and of course took new forms to suit the conditions of
national life.
4. Still the people came together to apply the laws--customary or
enacted,--to the special cases which occurred. There were fixed
periods when they assembled without notice given,--"regular law-days;"
and if an emergency occurred, they were summoned on "extraordinary
law-days." Here wrongs between party and party, and offences against
the public, were set right by the "Country," the "Body of the county,"
that is, by the bulk of the population. The majority carried the day.
5. At length it was found inconvenient for so large a body to
investigate each particular case, or to determine what cases should be
presented for investigation.
(1.) So this preliminary examination was delegated to a smaller body
of men, sworn to discharge the trust faithfully, who made inquiry as
to offences committed, and reported the criminals for trial to the
full meeting, the actual "Body of the country." Here, then, is the
first organized and sworn "Jury;" "the grand inquest;"--here is
popular Indictment by delegates.
(2.) Then it was found inconvenient for a large body--the whole
country--to investigate the cases presented. Men were busy with their
own work, and did not wish to appear and consume their time. So a
smaller body of men was summoned to attend to any special case which
was presented by the Grand Inquest. These also were sworn to do their
duty. They were to try the men indicted. Here is Trial by sworn
delegates, who represent the Body of the People. They were still
called the "Country," as any spot of the Atlantic is the "Ocean." Here
is the "Trial by Jury." They must be taken from the neighborhood of
the parties concerned--for at this stage the jurors were also the
witnesses, and other sworn witnesses were not then known. All the
Jurors must concur in the vote of condemnation before the magistrate
could hurt a hair of the accused's head.
Still after the people had delegated their law-making to one body of
sworn representatives, and the twofold function of law-applying, by
Indictment and Trial, to other sworn representatives, there was yet a
great concourse of people attending the court on the "law-days;"
especially when important matters came up for adjudication; then the
crowd of people took sides with Plaintiff or Defendant; with the
authorities which accused, or with the man on trial, as the case might
be. Sometimes, when the Jury acquitted, the people tore the suspected
man to pieces; sometimes when the Jury condemned, they showed their
indignation--nay, rescued the prisoner. For the old tradition of
actual trial by the "Body of the Country" still prevailed.
6. At length the Jurors are no longer the witnesses in the case.
Others testify before them, and on the evidence which is offered, the
Grand-Jury indict or not, and the Trial Jury acquit or condemn. Then
the Jurors are no longer taken from the immediate neighborhood of the
party on trial, only from his district or county. But sworn witnesses
from the neighborhood, depose to the facts. There is no longer a great
concourse of people in the open air, but the trial is carried on in a
small court house, yet with open doors, in the face of the people,
_coram populo_--public opinion still influences the Jury.
As most of the Jurors were unlearned men, not accustomed to intricate
questions, it became necessary for the presiding judge, a man of nicer
culture, to prepare rules of evidence which should prevent the matter
from becoming too complicated for the rustic judgment. Thence came the
curious and strange "rules of evidence" which prevail in all countries
where trial by Jury is established, but are unknown in lands where the
trial is conducted solely by experts, educated men. But as the mass of
the people, as in America, become well informed, the old rules appear
ridiculous, and will perish.
The number of sworn judges varies in different tribes of the Teutonic
family, but as twelve has long been a sacred number with the
Anglo-Saxons, that was gradually fixed for the Jury. Twelve consenting
voices are indispensable for the indictment or the condemnation.
* * * * *
Such is the form of the Jury as we find it at this day. The other
officers have also undergone a change. So, Gentlemen, let me give you
a brief sketch of the Historical Formation of the Function of the
Judge in nations of the same ethnological origin. Here I shall mention
four steps.
1. At the meetings of the people to make, apply, and execute the law,
some one must preside to keep order, put the question, and declare the
vote. He was the Moderator of the meeting. At first it would seem that
some important man, a priest, or a noble, or some other wise,
distinguished, or popular man, performed that function. The business
over, he dropped into his private place again. A new one was chosen at
each meeting.
2. If the former moderator had shown skill and aptness, he was chosen
the next time; again and again; at length it was a matter of course
that he should preside. He studied the matter, and became "expert in
all the manners and customs of his nation." This happens in most of
the New England towns, where the same man is Moderator at the
town-meetings for many years in succession. Men love to walk in the
path they have once trodden, even if not the shortest way to their
end.
3. When the nation is organized more artificially and the laws chiefly
proceed from the secondary source, the government,--elective or
usurpatory--a judge is appointed by the central authority to visit
the districts (counties) and assist at the administration of justice.
As the law is now made by the distant delegates, the judge they send
down declares and explains it to the people, for they have not made it
as before directly, nor found it ready-made, an old inherited custom,
but only receive it as the authorities send it down from the Capitol.
The law is _written_--the officer can read while they have no copy of
the law, or could not read it had they the book. Hence the necessity
of a judge learned in the law. Still the people are to apply the
written law or apply it not.
Besides, the old customs remain, the unwritten laws of the people,
which the judge does not understand so well as they. He represents the
written law, the assembly the unwritten custom or tradition. The judge
is appointed that he may please the central power; the people are only
to satisfy such moral convictions as they have. There is often a
conflict between the statute and the custom, a conflict of laws; and
still more between the judge and the jury--a conflict in respect to
the application of the law.
4. Then comes the critical period of the Trial by Jury. For the
deputed judge seeks to enlarge his jurisdiction, to enforce his law,
often against the customs and the consciences of the People, the jury,
who only seek to enlarge Justice. He looks technically at the statute,
the provisional Means of law, not at Justice the ultimate Purpose of
law. To the "Country," the "Body of the People," or to the jury of
inquest and of trial, he assumes not to suggest the law and its
application, but absolutely to _dictate_ it to them. He claims the
exclusive right to decide on the Law and its Application; the jury is
only to determine the Fact--whether the accused did the deed charged
or not.
If the judge succeeds in this battle, then tyranny advances step by
step; the jury is weakened; its original function is curtailed;
certain classes of cases are taken from its jurisdiction; it becomes
only the tool of the government, and finally is thrown aside. Popular
law-making is gone; popular law-applying is also gone; local
self-government disappears and one homogeneous centralized tyranny
takes the place of the manifold Freedom of the people. So the trial by
jury faded out of all the South-Teutonic people, and even from many
regions of the German and Scandinavian North. But the Anglo-Saxon,
mixing his blood with Danes and Normans, his fierce kinsfolk of the
same family, has kept and improved this ancient institution. When King
or Parliament made wicked laws, or appointed corrupt and cruel men for
judges, the People have held this old ancestral shield between the
tyrant and his victim. Often cloven through or thrust aside, the Saxon
Briton never abandons this. The Puritan swam the Atlantic with this on
his arm--and now all the Anglo-Saxon tribe reverences this defence as
the Romans their twelve AONCILIA [Transcriber's Note: for 'AONCILIA'
read 'ANCILIA'; see Errata], the mythic shield which "fell from
Heaven."[113]
[Footnote 113: In this brief sketch I do not refer to the authorities,
but see, who will, the classic passages and proof-texts in the
well-known works of Grimm, Rogge, Biener, Michelsen, Moeser, Phillips,
Eichhorn, Maurer, and others.]
* * * * *
After so much historic matter, Gentlemen, it is now easy to see what
is--
THE FUNCTION OF THE JURY AT THIS TIME. Here I make three points.
I. They are to decide the QUESTION OF FACT, the matter charged, and
determine whether the accused did the deed alleged to be done. That is
the first step--to determine the Fact.
II. They are to decide the QUESTION OF LAW, the statute or custom
supposed to apply to the Deed done, and determine whether there is
such a statute or custom, and whether it denounces such a Deed as a
Crime assigning thereto a punishment. That is the second step--to
determine the Law.
III. They are to decide the QUESTION OF THE APPLICATION OF THE LAW TO
THE FACT, and to determine whether that special statute shall be
applied to the particular person who did the deed charged against him.
That is the third step--to determine the Application of the Law.
Gentlemen, I shall speak a few words on each of these points, treating
the matter in the most general way. By and by I shall apply these
general doctrines to this special case.
I. The jury is to DECIDE THE QUESTION OF FACT; to answer, Did the
accused do the deed alleged, at the time and place alleged, with the
alleged purpose and producing the alleged result? The answer will be
controlled by the Evidence of sworn witnesses, who depose under a
special oath to "tell the truth, the whole truth, and nothing but the
truth." Their Evidence is the Testimony as to the Fact,--the sole
testimony; the jury is the ultimate arbiter to decide on the
credibility of the evidence, part by part, and its value as a whole.
Sometimes it is an easy matter to answer this Question of Fact;
sometimes exceedingly difficult. If there be doubts they must weigh
for the accused, who is held innocent until proven guilty.
With us the theory that the jury is the exclusive judge of the
Question of Fact is admitted on all sides. But in England it has often
happened that the judge instructs the jury to "_find the facts_" so
and so; that is--he undertakes to decide the Question of Fact. In
libel cases it is very common for New England judges to undertake to
determine what constitutes a libel, and to decide on the intentions of
the accused; that is to decide the most important part of the complex
and manifold Question of Fact. For it is as much a question of fact to
determine what constitutes a libel, as what constitutes theft, the
_animus libellandi_ as much as the _animus furandi_. Sometimes juries
have been found so lost to all sense of manhood, or so ignorant of
their duties, as to submit to this judicial insolence and usurpation.
If the Jury decide the Question of Fact in favor of the accused, their
inquiry ceases at that step, they return their verdict, "NOT GUILTY;"
and the affair is ended. But if they find he did the deed as charged,
then comes the next function of the Jury.
II. The Jury are to DECIDE THE QUESTION OF LAW. Is there a statute or
custom denouncing a penalty on that special deed? is the statute
constitutional? To determine this matter, there are three sources of
evidence external to their own knowledge.
1. _The Testimony of the Government's Attorney._ The Government itself
is his client, and he gives such a statement of the law as suits the
special purposes of the rulers and his own private and particular
interest, selects such statutes, customs, and decisions, as will serve
this purpose, and declares, Such is the law. Nay, he makes inferences
from the law, and thereby infers new customs, and constructs new
statutes, invents new crimes. He treats the law as freely as he treats
the facts--making the most that is possible against the party accused.
You have seen already what tricks Government attorneys have played,
how they pervert and twist the law--making it assume shapes never
designed by its original makers. He gives his opinion as to the law,
as he gave an opinion as to the fact. This is not necessarily his
personal and actual, but only his official and assumed opinion--what
he wishes the Jury to think is law in this particular case.
2. _The Testimony of the Defendant's Attorney._ The accused is his
client. He is to do all he can to represent the law as favorable as
possible to the man on trial. He gives an opinion of the law, not his
personal and actual, but his official and assumed opinion--what he
wishes the Jury to think is law in this particular case.
3. _The Testimony of the Judge on the Bench._ But in the English
courts, and the Federal courts of the United States, he is commonly no
more than a government attorney in disguise; I speak only of the
general rule, not the exceptions to it. He has received his office as
the reward for party services--was made a judge because he was
one-sided as a lawyer. In all criminal cases he is expected to twist
the law to the advantage of the hand that feeds him. Especially is
this so in all Political trials--that is, prosecutions for opposition
to the party which the judge represents. The judge may be impartial,
or partial, just or unjust, ignorant or learned. He gives an opinion
of the law,--not his personal and actual, but his official and assumed
opinion--what he wishes the jury to think is law in this particular
case. For the court also is a stage, and the judges, as well as the
attorneys, may be players,
"And one man in his time play many parts."
Of these three classes of witnesses, no one gives evidence under
special oath to tell the law, the whole law, and nothing but the
law--or if it be so understood, then all these men are sometimes most
grossly and notoriously perjured; but each allows himself large
latitude in declaring the law. The examples I have already cited, show
that the judge often takes quite as wide a range as the
attorney-general, or the prisoner's counsel.
As the jury hears the manifold evidence as to the facts, and then
makes up its mind thereon and decides the Question of Fact, often
rejecting the opinion of various witnesses, as ignorant, partial,
prejudiced, or plainly false and forsworn; so will the jury hear the
manifold and often discrepant evidence as to the law, and then make up
their mind thereon and decide the Question of Law, often rejecting the
opinion of various witnesses thereupon ignorant, partial, prejudiced,
or plainly false and forsworn.
In regard to the Fact, the jury is limited to the evidence adduced in
court. What any special juror knows from any other source is not
relevant there to procure conviction. But in regard to the Law there
is no such restriction; for if the jury know the law better than these
three classes of witnesses for it in court, then the jury are to
follow their better knowledge. At any rate, the jury are to make up
their minds on this question of Law, and for themselves determine what
the special Law is.
Every man is to be held innocent until proved guilty--until the
special Deed charged is proved against him, and until that special
deed is proved a Crime. The jury is not to take the government
attorney's opinion of the Fact, nor the prisoner's counsel's opinion
of the Fact, nor yet the judge's opinion thereon; but to form their
own opinion, from the evidence offered to make up their own judgment
as to the Fact. So likewise they are not to take the government
attorney's opinion of the Law, or the prisoner's counsel's opinion of
the Law, nor yet the judge's opinion thereon; but from all the
evidence offered, not [Transcriber's Note: for 'not' read 'or'; see
Errata] otherwise known to them, to make up their own judgment as to
the Law. After they have done so--if they decide the Law in favor of
the accused, the process stops there. The man goes free; for it does
not appear that his deed is unlawful. But if the jury find the Law
against the deed, they then proceed to their third function.
III. The jury is to decide the QUESTION OF THE APPLICATION OF THE LAW
TO THE FACT. Here is the question: "Ought the men who have done this
deed against the form of Law to be punished thereby?" The government
attorney and the judge are of the opinion that the law should be thus
applied to this case, but they cannot lay their finger on him until
the jury, specially sworn "well and truly to try and true deliverance
make," have unanimously come to that opinion, and say, "Take him and
apply the law to him."
The Deed may be clear and the Statute clear, while the Application
thereof to the man who did the deed does not follow, and ought not to
follow. For
1. It is not designed that the full rigor of every statute shall be
applied to each deed done against the letter thereof. The statute is a
great sleeping Lion, not to be roused up when everybody passes that
way. This you see from daily practice of the courts. It remains in the
Discretion of the Attorney to determine what offences he will present
to the Grand-Jury,--he passes by many, and selects such as he thinks
ought to be presented. It remains in the Discretion of the Grand-Jury
to determine whom they will indict, for sometimes when the Fact and
Law are clear enough to them, they yet find "no bill" or _ignore_ the
matter. And after the man is indicted, it still remains in the
Discretion of the Attorney to determine whether he will prosecute the
accused, or pass him by. Indeed I am told that the very Grand-Jury who
found the bills which have brought you and me face to face, hesitated
to indict a certain person on account of some circumstances which
rendered his unlawful act less deserving of the legal punishment: the
Attorney told them he thought they had better find a bill, and he
would enter a _nolle prosequi_ in court,--plainly admitting that while
the Law and the Fact were both clear, that the Grand-Jury were to
determine in their Discretion whether they would apply the law to that
man, whether they would indict or not; and the Attorney whether he
would prosecute or forbear. It remains equally in the Discretion of
the Trial Jury to determine whether the man who did the unlawful deed
shall be punished--whether the spirit of that statute and the Purpose
of Law requires the punishment which it allows.
2. Besides, in deciding this question--the jurors are not only to
consider the one particular statute brought against the prisoner, but
the whole Complex of Customs, Statutes, and Decisions, making up the
Body of Law, and see if that requires the application of this special
statute to this particular deed. Here are two things to be
considered.
(1.) The general Purpose of the whole Body of Laws, the Object aimed
at; and
(2.) The Means for attaining the end. Now the Purpose of Law being the
main thing, and the statute only subsidiary to that purpose, the
question comes--"Shall we best achieve that Purpose by thus applying
the statute, or by not applying it?" This rests with the Jury in their
Discretion to determine.
3. Still more, the Jury have consciences of their own, which they must
be faithful to, which no official position can ever morally oblige
them to violate. So they are to inquire, "Is it right in the sight of
God, in the light of our consciences, to apply this special statute to
this particular case and thus punish this man for that unlawful deed?"
Then they are to ask, also, "Was the deed _naturally wrong_; done from
a wrong motive, for a wrong purpose?" If not, then be the statute and
the whole complex of laws what they may, it can never be right for a
jury to punish a man for doing a right deed, however unlawful that
deed may be. No oath can ever make it right for a man to do what is
wrong, or what he thinks wrong--to punish a man for a just deed!
But if the twelve men think that the Law ought not to be applied in
this case--they find "not guilty," and he goes free; if otherwise,
"guilty," and he is delivered over to the judges for sentence and its
consequences, and the judge passes such sentence as the Law and his
Discretion point out.
The judge commonly, and especially in political trials, undertakes to
decide the two last Questions himself, determining the Law and the
Application thereof, and that by his Discretion. He wishes to leave
nothing to the Discretion of the jury, who thus have only the single
function of deciding the Question of Fact, which is not a Matter of
Discretion--that is, of moral judgment,--but only a logical deduction
from evidence, as the testimony compels. He would have no moral
element enter into their verdict. The judge asks the jury to give him
a deed of the ground on which he will erect such a building as suits
his purpose, and then calls the whole thing the work of the jury, who
only granted the land!
But this assumption of the judges ultimately and exclusively to decide
the question of Law and its Application, is a tyrannous usurpation.
(1.) It is contrary to the fundamental Idea of the Institution of
Trial by jury.
(2.) It leads to monstrous tyranny by putting the Property, Liberty,
and Life of every man at the mercy of the government officers, who
determine the Law and its Application, leaving for the jury only the
bare question of Fact, which the judge can so manage in many cases as
to ruin most virtuous and deserving men.
(3.) Not only in ancient times did the jury decide the three questions
of Fact, of Law, and of its special Application, but in cases of great
magnitude they continue to do so now, in both America and England, and
sometimes in direct contradiction to the commands of the judges.
* * * * *
Gentlemen of the Jury, if you perform this threefold function, then
you see the exceeding value of this mode of trial,
1. For the punishment of wrong deeds done against the law, done by the
unorganized selfishness of thieves, housebreakers, murderers, and
other workers of unrighteousness;
2. And also for the prevention of wrong deeds attempted in the name of
law, by the organized selfishness of the makers and officers thereof.
For in each special case brought to trial, the jury are judges of the
Law and of its Application. They cannot make a law--statute or
custom--nor repeal one; but in each particular case they must demand
or forbid its execution. These Tribunes of the Saxon People have no
general veto on law-making, and can efface no letter from the
statute-book, but have a special and imperative veto on each case for
the Application of the law.