Imagini ale paginilor
PDF
ePub

the parliament held in the eleventh year of his reign, says: "This parliament also made that good law which gave the attaint upon a false verdict between party and party, which before was a kind of evangile, irremediable, -in the Latin, judicia juratorum, quae veredicta vocantur, quae ante illud tempus evangelii cujusdam instar erant, atque plane irrevocabilia. It extends not to causes capital; as well because they are for the most part at the king's suit, as because in them, if they be followed in course of indictment, there passeth a double jury, the indictors and the triers, and so not twelve men, but four and twenty. But it seemeth that was not the only reason; for this reason holdeth not in the appeal,-ubi causa capitalis a parte gravata peragitur. [That is, the appeal of murder, brought by the heir of the deceased. See Railroad v. Clarke, 152 U. S. 230, 239, 14 Sup. Ct. 579.] But the great reason was, lest it should tend to the discour agement of jurors in cases of life and death, -ne forte juratores in causis capitalibus timidius se gererent,-if they should be subject to suit and penalty, where the favour of life maketh against them." 6 Bac. Works (Ed. 1858) 5, 7, 160, 161; 5 Bac. Works (Ed. 1803) 117; 9 Bac. Works, 483.

Lord Bacon was mistaken in assuming that the attaint was introduced by the statute of 11 Hen. VII. c. 24; for it existed at common law in writs of assize, and had been regu lated and extended to other civil actions by many earlier statutes. 2 Inst. 130, 237, 427; Finch, Law, lib. 4, c. 47.

But the mistake does not diminish the force of Lord Bacon's statements that, wherever an attaint did not lie, the "judg ment of the jury, commonly called 'verdict,' was considered as a kind of gospel"; and that the reasons why an attaint did not lie in a capital case were not only that two juries, the indictors and the triers, had passed upon the case, but chiefly that juries, in cases of life and death, should not be discouraged, or act timidly, by being subjected to suit and penalty if they decided in favor of life.

John Milton, in his Defence of the People of England, after speaking of the king's power in his courts and through his judges, adds: "Nay, all the ordinary power is rather the people's, who determine all controversies themselves by juries of twelve men. And hence it is that when a malefactor is asked at his arraignment, ‘How will you be tried?' he answers always, according to law and custom, 'By God and my country'; not by God and the king, or the king's deputy." 8 Milton, Works (Pickering's Ed.) 198, 199. The idea is as old as Bracton. Bract. 119.

In the reign of Charles II. some judges un dertook to instruct juries that they must take the law from the court, and to punish them if they returned a verdict in favor of the accused against the judge's instructions. But, as often as application was made to higher judicial authority, the punishments

were set aside, and the rights of juries vindicated.

00

In 1665, upon the trial of an indictment, against three Quakers for an unlawful conventicle, Wagstaffe and other jurors were? fined by Chief Justice Kelyng for acquitting "against full evidence, and against the direction of the court in matter of law, in said court openly given and declared,"-"contra plenam evidentiam, et contra directionem curiae in materia legis, in dicta curia ibidem aperte datam et declaratam." His reasons for this (as stated in his own manuscript note of the case, not included in the first edition of his Reports, published by Lord Holt in 170S) were "that they and others may know that a willful jury cannot make an act of parliament or the law of England of no effect, but they are accountable and punishable for it"; and "that in criminal cases the court may fine a jury who will give a verdict contrary to their evidence; and the reason (as I take it) is that otherwise a headstrong jury might overthrow all the course of justice, for no attaint lieth in criminal causes, and also one verdict is peremptory, and a new trial cannot be granted in criminal causes, and therefore the judges have always punished such willful juries by fine and imprisonment and binding them to their good behaviour." But at the end of his report is this memorandum: "Note. The whole Case of the Quakers, as to fining Jury, now not law." J. Kelyng (3d Ed.) 69–75. And Lord Hale, then chief baron, tells us that the jurors "were thereupon committed, and brought their habeas corpus in the court of common bench, and all the judges of England were assembled to consider of the legality of this fine, and the imprisonment thereupon"; and the jurors were discharged of their imprisonment, for the following rea

sons:

"It was agreed by all the judges of England (one only dissenting) that this fine was not legally set upon the jury, for they are the judges of matters of fact; and although it was inserted in the fine, that it was contra directionem curiae in materia legis, this mended not the matter, for it was impossible any matter of law could come in question till the matter of fact were settled and stated and agreed by the jury, and of such matter of fact they were the only competent judges. And although the witnesses might perchance swear the fact to the satisfaction of the court, yet the jury are judges, as well of the credibility of the witnesses as of the truth of the fact; for possibly they might know somewhat of their own knowledge that what was sworn was untrue, and possibly they might know the witnesses to be such as they could not believe, and it is the conscience of the jury that must pronounce the prisoner guilty or not guilty. And to say the truth, 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, the trial by jury would be useless." 2 Hale, P. C. 312, 313.

Lord Hale's apparent meaning is that, at a trial upon the plea of not guilty, the jury are the judges of the issue of fact thereby presented, and it is the conscience of the jury that must pronounce the prisoner guilty or not guilty; that, as no matter of law can come in question unless the facts are first found by the jury in a special verdict, it were idle to say that a general verdict was against the judge's direction or opinion in matter of law; and that, if the judge's opinion in matter of law must rule the issue of fact submitted to the jury, the trial by jury would be useless.

The reasons are more fully brought out in Bushell's Case, in 1670, not mentioned in the text of Lord Hale's treatise, and doubtless decided after that was written. William Penn and William Mead having been indicted and tried for a similar offense, and acquitted against the instructions of the court, Bushell and the other jurors who tried them were fined by Sir John Howell, recorder of London, and Bushell was committed to prison, in like terms, for not paying his fine, and sued out a writ of habeas corpus. Penn and Mead's Case, 6 How. State Tr. 951; Bushell's Case, Vaughan, 135, 6 How. State Tr. 999; 1 Freem. 1; T. Jones, 13.

At the hearing thereon, Scroggs, the king's serjeant, argued: "It is granted that, in matters of fact only, the jury are to be judges; but, when the matter of fact is mixed with matter of law, the law is to guide the fact, and they are to be guided by the court. The jury are at no inconvenience, for if they please they may find the special matter; but if they will take upon them to know the law, and do mistake, they are punishable." Freem. 3.

1

But Bushell was discharged from impris onment, for reasons stated in the judgment delivered by Sir John Vaughan, chief justice of the common pleas, after a conference of all the judges of England, including Lord Hale, and with the concurrence of all except Chief Justice Kelyng. Vaughan, 144, 145; 1 Freem. 5; Lord Holt in Groenvelt v. Burwell, 1 Ld. Raym. 454, 470.

In that great judgment, as reported by him. self, Chief Justice Vaughan discussed separately the two parts of the return: First, that the acquittal was "against full and manifest evidence"; and, second, that it was "against the direction of the court in matter of law."

It was in discussing the first part that he observed "that the verdict of a jury and evidence of a witness are very different things, in the truth and falsehood of them. A witness swears but to what he hath heard or seen; generally or more largely, to what hath fallen under his senses. But a juryman swears to what he can infer and conclude from the testimony of such witnesses, by the act and force of his understanding, to be the fact inquired after, which differs noth

ing in the reason, though much in the punishment, from what a judge, out of various cases considered by him, infers to be the law in the question before him." Vaughan, 142.

After disposing of that part of the return, he proceeds as follows: "We come now to the next part of the return, viz.: That the jury acquitted those indicted against the direction of the court in matter of law, openly given and declared to them in court.

"The words, 'that the jury did acquit, against the direction of the court in matter of law,' literally taken, and de plano, are insig. nificant, and not intelligible; for no issue can be joined of matter of law, no jury can be charged with the trial of matter in law barely, no evidence ever was or can be given to a jury of what is law or not, nor no such oath can be given to or taken by a jury to try matter in law, nor no attaint can lie for such a false oath.

"Therefore we must take off this vail and' color of words, which make a show of being something, and in truth are nothing.

"If the meaning of these words, 'finding against the direction of the court in matter of law,' be that if the judge, having heard the evidence given in court (for he knows no other), shall tell the jury, upon this evidence, the law is for the plaintiff, or for the defendant, and you are under the pain of fine and imprisonment to find accordingly, then the jury ought of duty so to do. Every man sees that the jury is but a troublesome delay, great charge, and of no use in determining right and wrong, and therefore the trials by them may be better abolished than continued; which were a strange new-found conclusion, after a trial so celebrated for many hundreds of years.

"For if the judge, from the evidence, shall by his own judgment first resolve upon any trial what the fact is, and so knowing the fact shall then resolve what the law is, and order the jury penally to find accordingly, what either necessary or convenient use can be fancied of juries, or to continue trials by them at all?

"But if the jury be not obliged in all trials to follow such directions, if given, but only in some sort of trials (as, for instance, in trials for criminal matters upon indictments or appeals), why then the consequence will be, though not in all, yet in criminal trials, the jury (as of no material use) ought to be either omitted or abolished, which were the greater mischief to the people than to abolish them in civil trials.

"And how the jury should, in any other manner, according to the course of trials used, find against the direction of the court in matter of law, is really not conceptible." Vaughan, 143, 144.

He then observes: "This is ordinary, when the jury find unexpectedly for the plaintiff or defendant, the judge will ask, how do you find such a fact in particular? and upon their answer he will say, then it is for the defendant, though they find for the plaintiff, or e

contrario, and thereupon they rectify their verdict. And in these cases the jury, and not the judge, resolve and find what the fact is. Therefore always, in discreet and lawful assistance of the jury, the judge's direction is hypothetical, and upon supposition, and not positive and upon coercion, viz.: If you find the fact thus (leaving it to them what to find), then you are to find for the plaintiff; but if you find the fact thus, then it is for the defendant." But he is careful to add that "whatsover they have answered the judge upon an interlocutory question or discourse they may lawfully vary from it if they find cause, and are not thereby concluded." Pages 144, 145.

It is difficult to exhibit the strength of Chief Justice Vaughan's reasoning by detached extracts from his opinion. But a few other passages are directly in point:

"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; and though the verdict be right the jury give, yet they, being not assured it is so from their own understanding, are forsworn, at least in foro conscientiae." Page 148.

"That decantatum in our books, 'ad quaestionem facti non respondent judices, ad quaestionem legis nɔn respondent juratores,' literally taken, is true; for if it be demanded, what is the fact? the judge cannot answer it; if it be asked, what is the law in the case? the jury cannot answer it." He then explains this by showing that upon demurrers, special verdicts, or motions in arrest of judgment "the jury inform the naked fact, and the court deliver the law." "But upon all general issues, as upon not culpable pleaded in trespass, nil debet in debt, nul tort, nul disscisin in assize, ne disturba pas in quare impedit, and the like, though it be matter of law whether the defendant be a trespasser, a debtor, disseisor, or disturber, in the particular cases in issue, yet the jury find not (as in a special verdict) the fact of every case by itself, leaving the law to the court, but find for the plaintiff or defendant upon the issue to be tried, wherein they resolve both law and fact complicately, and not the fact by itself; so as though they answer not singly to the question what is the law, yet they determine the law in all matters, where issue is joined and tried in the principal case, but [i. e. except] where the verdict is special." Pages 149, 150.

He then observes that "to this purpose the Lord Hobart in Needler's Case against the Bishop of Winchester is very apposite," citing the passage quoted near the beginning of this opinion; and concludes his main argument as follows:

"The legal verdict of the jury, to be recorded, is finding for the plaintiff or defendant; what they answer, if asked, to questions concerning some particular fact, is not of their verdict essentially, nor are they bound to agree in such particulars; if they all agree to find their issue for the plaintiff or

defendant, they may differ in the motives wherefore [therefor], as well as judges, in giving judgment for the plaintiff or defendant, may differ in the reasons wherefore they give that judgment, which is very ordinary." Page 150.

That judgment thus clearly appears to have been rested, not merely on the comparatively technical ground that upon the general issue no matter of law could come in question until the facts had been found by the jury, nor yet upon the old theory, that the jurors might have personal knowledge of some facts not appearing in evidence, but mainly on the broad reasons that if the jury, especially in criminal trials, were obliged to follow the directions of the court in matter of law, no necessary or con venient use could be found of juries, or to continue trials by them at all; that though the verdict of the jury be right according to the law as laid down by the court, yet, if they are not assured by their own understanding that it is so, they are forsworn, at least in foro conscientiae; and that the “decantatum" in our books, "ad quaestionem facti non respondent judices, ad quaestionem legis non respondent juratores," means that issues of law, as upon demurrers, special verdicts, or motions in arrest of judgment, are to be decided by the court; but that upon general issues of fact, involving matter of law, the jury resolve both law and fact complicately, and so determine the law.

Notwithstanding that authoritative declaration of the right of the jury, upon the general issue, to determine the law, Chief Justice Scroggs, upon the trial of Harris for a seditious libel in 1680 (7 How. State Tr. 925, 930), insisted that the jury must take the law from the court; and Chief Justice Jeffreys, presiding at the trial of Algernon Sidney in 1683, charged the jury as follows: "It is our duty upon our oaths to declare the law to you, and you are bound to receive our declaration of the law, and upon this declaration to inquire whether there be a fact, sufficiently proved, to find the prisoner guilty of the high treason of which he stands indicted." And Sidney was convicted, sentenced. and executed. 9 How. State Tr. 817, 8S9.

In the last year of the reign of James II., the Trial of the Seven Bishops, reported 1% How. State Tr. 183, took place upon an information for a seditious libel contained in their petition to the king, praying that he would be pleased not to insist on their distributing and reading in the churches his declaration dispensing with the penal statutes concerning the exercise of religion. The trial was at bar before all the justices of the king's bench, upon a general plea of not guilty. A principal ground of defense was that the king had no dispensing power, and therefore the petition of the bishops to him was an innocent exercise of the right of petition, and was not a libel. In support of this defense, ancient acts of parliament were

given in evidence; and, upon the offer of one in Norman French, the chief justice said, "Read it in English, for the jury to understand it," and it was so read by a sworn interpreter. Pages 374, 375. And, when the attorney general argued that these matters were not pertinent to the case, the chief justice, interrupting him, said: "Yes, Mr. Attorney, I'll tell you what they offer, which it will lie upon you to give an answer to; they would have you show how this has disturbed the government, or diminished the king's authority." Page 399.

At the close of the arguments, each of the four judges in turn charged the jury. Lord Chief Justice Wright said: "The only question before me is, and so it is before you, gentlemen, it being a question of fact, whether here be a certain proof of a publication. And then the next question is a question of law, indeed, whether, if there be a publication proved, it be a libel." "Now, gentlemen, anything that shall disturb the government, or make mischief and a stir among the people, is certainly within the case of libellus famosis; and I must, in short, give you my opinion. I do take it to be a libel. Now, this being a point of law, if my brothers have anything to say to it, I suppose they will deliver their opinions."

Mr. Justice Holloway said: "If you are satisfied there was an ill intention of sedition, or the like, you ought to find them guilty; but if there be nothing in the case that you find, but only that they did deliver a petition to save themselves harmless and to free themselves from blame, by showing the reason of their disobedience to the king's command, which they apprehended to be a grievance to them, and which they could not in conscience give obedience to, I cannot think it is a libel. It is left to you, gentlemen, but that is my opinion."

Mr. Justice Powell also expressed his opinion that the paper was not a libel, and said: "Now, gentlemen, the matter of it is before you; you are to consider of it, and it is worth your consideration." He then expressed his opinion that the king had no dispensing power, and concluded: "If this be once allowed of, there will need no parliament; all the legislation will be in the king, which is a thing worth considering, and I leave the issue to God and your consciences."

Mr. Justice Allybone, after saying, "The single question that falls to my share is, to give my sense of this petition, whether it shall be in construction of law a libel in itself, or a thing of great innocence," expressed his opinion that it was a libel.

The jury, on retiring, requested, and were allowed by the court, to take with them the statute book, the information, the petition of the bishops, and the declaration of the king; and they returned a verdict of not guilty, whereat there was great popular rejoicing in London and throughout England. 12 How. State Tr. 425-431; 1 Burnet's Own Time, 744. It thus clearly appears that upon that trial,

one of the most important in English history, deeply affecting the liberties of the people, the four judges of the king's bench, while dif fering among themselves upon the question? whether the petition of the bishops was a libel, concurred in submitting that question. as a question of law, to the decision of the jury, not as umpires between those judges who thought the paper was a libel and those judges who thought it was not, but as the tribunal vested by the law of England with the power and the right of ultimately determin ing, as between the crown and the accused, all matters of law, as well as of fact, involved in the general issue of guilty or not guilty.

Upon the accession of William and Mary, parliament declared the king's power of dispensing with the laws to be unlawful; and reversed the conviction of Algernon Sidney. "for a partial and unjust construction of the statute" of treasons in the instructions by which his conviction had been procured. St. 1 W. & M. Sess. 2, c. 2; 6 St. Realm, 143, 155: 9 How. State Tr. 996. And early in the new reign Holt was appointed lord chief justice, and Somers lord keeper.

Lord Somers, in the opening pages of his essay on "The Security of Englishmen's Lives. or the Trust, Power, and Duty of the Grand Juries of England" (first published in 1681. and republished in 1714, towards the end of his life, after he had been lord chancellor), lays down in the clearest terms the right of the jury to decide the law, saying: "It is made a fundamental in our government that (unless it be by parliament) no man's life shall be touched for any crime whatsoever, save by the judgment of at least twenty-four men, that is, twelve or more, to find the bill of indictment, whether he be peer of the realm or commoner; and twelve peers or above, if a lord, if not, twelve commoners, to give the judgment upon the general issue of not guilty joined." "The office and power of these juries is judicial. They only are the judges from whose sentence the indicted are to expect life or death. Upon their integrity and understanding the lives of all that are brought into judgment do ultimately depend. From their verdict there lies no appeal. By finding guilty or not guilty they do complicately resolve both law and fact. As it hath been the law, so it hath always been the custom and practice, of these juries, upon all general issues, pleaded*in cases, civil as well as criminal, to judge both of the law and fact." "Our ancestors were careful that all men of the like condition and quality, presumed to be sensible of each other's infirmity, should mutually be judges of each other's lives, and alternately taste of subjection and rule, every man being equally liable to be accused or indicted, and perhaps to be suddenly judged by the party, of whom he is at present judge, if he be found innocent."

Lord Chief Justice Holt declared that "in all cases and in all actions the jury may give a general or special verdict, as well in causes criminal as civil, and the court ought

to receive it, if pertinent to the point in issue; for if the jury doubt they may refer themselves to the court, but are not bound so to do." Anon. (1697) 3 Salk. 373. And upon the trial of an information for a seditious libel, while he expressed his opinion that the paper was upon its face a criminal libel, he submitted the question whether it was such to the jury, saying: "Now you are to consider whether these words I have read to you do not tend to beget an ill opinion of the administration of the government." Tutchin's Case (1704) 14 How. State Tr. 1095, 1128. Although he concluded his charge with the words, "If you are satisfied that he is guilty of composing and publishing these papers at London, you are to find him guilty," yet, as Mr. Starkie well observes, "these words have immediate reference to the ground of defense upon which Mr. Tutchin's counsel meant to rely, namely, that the offense had not been proved to have been committed in London; and cannot be considered as used for the purpose of withdrawing the attention of the jury from the quality of the publication, upon which they had just before received instructions; and, indeed, to suppose it had so meant would prove too much, since, if so, the jury were directed not to find the truth of the innuendoes." Starkie, Sland. & L. 56.

Some decisions, often cited as against the right of the jury by a general verdict to determine matter of law involved in the general issue of guilty or not guilty, were upon special verdicts presenting pure questions of law. Such were Townsend's Case (1554) 1 Plow. 111, and Rex v. Oneby*(1726) 2 Ld. Raym. 1485; 2 Strange, 766; 1 Barnard, 17; 17 How. State Tr. 29.

After the accession of George II., Lord Chief Justice Raymond, on trials at nisi prius for seditious libels (ignoring the Cases of Tutchin and of the Seven Bishops), told juries that they were bound to take the law from the court, and that the question whether the paper which the defendant was accused of writing and publishing was a libel was a mere question of law, with which the jury had nothing to do. Clarke's Case (1729) 17 How. State Tr. 667, note, 1 Barnard, 304; Francklin's Case (1731) 17 How. State Tr. 625, 672.

In 1734, upon an information in the nature of a quo warranto against the defendant to show cause by what authority he acted as mayor of Liverpool, his motion for a new trial, because the jury had found a general verdict for the crown against the instructions of the judge, and notwithstanding he ordered them to return a special verdict, was granted by the court of king's bench, Lord Chief Justice Hardwicke saying: "The gen eral rule is that if the judge of nisi prius directs the jury on the point of law, and they think fit obstinately to find a verdict contrary to his direction, that is sufficient ground for granting a new trial; and when the judge upon a doubt of law directs the

Jury to bring in the matter specially, and they find a general verdict, that also is a sufficient foundation for a new trial." "The thing that governs greatly in this determination is that the point of law is not to be determined by juries; juries have a power by law to determine matters of fact only; and it is of the greatest consequence to the law of England and to the subject that these powers of the judge and jury are kept distinct; that the judge determines the law, and the jury the fact; and, if ever they come to be confounded, it will prove the confusion and destruction of the law of England." Rex v. Poole, Cas. t. Hardw. 23, 26, 28, Cunn. 11, 14, 16.

But such an information to try title to a civil office (though it had some of the forms of a criminal prosecution) was brought for, the mere purpose of trying a civil right, and was considered as in the nature of a civil proceeding. 3 Bl. Comm. 263; Rex v. Francis, 2 Term R. 481; Ames v. Kansas, 111 U. S. 449, 460, 461, 4 Sup. Ct. 437. And, as appears by the first passage above cited from Lord Hardwicke's opinion, it was evidently so treated by the court, under the practice of granting new trials on motion of either party to a civil case, which had gradually grown up within the century preceding, as a substitute for attaints. Bell v. Wardell (1740) Willes, 204, 206; Witham v. Lewis (1744) 1 Wils. 48, 55; Bright v. Eynon (1757) 1 Burrows, 300, 394. In a criminal case, certainly, the court could not compel the jury to return a special verdict. Nothing, therefore, was adjudged in Poole's Case as to the right of the jury to decide the law in prosecutions for crime. And it is significant that, although both reports of that case were pub lished in 1770, it was not cited by Lord Mansfield, in 1784, when collecting the authorities against the right of the jury in criminal cases. King v. Shipley, 4 Doug. 73, 168.

Lord Hardwicke's own opinion, indeed, may be presumed to have been against the right of the jury; for when attorney general he had so argued in Francklin's Case, 17 How. State Tr. 669; and he was, as justly observed by Mr. Hallam, "a regularly bred crown lawyer, and in his whole life disposed to hold very high the authority of government." 3 Hall. Hist. (9th Ed.) 287. His opinion, therefore, is of less weight upon a constitutional question affecting the liberty of the subject than upon other questions of law or of equity.

The later history of the law of England upon the right of the jury to decide the law in criminal cases is illustrated by a long conflict between the views of Mr. Murray, afterwards Lord Mansfield, against the right, and of Mr. Pratt, afterwards Lord Camden, in its favor, which, after the public sentiment had been aroused by the great argument of Mr. Erskine in Dean of St. Asaph's Case, was finally settled, in accordance with Lord Camden's view, by a declaratory act of parliament.

« ÎnapoiContinuă »