288 



JURY. 



dangers arising from other and different sources, 

 twin their political ojiinions, from their state interests, 

 from their irresponsibility to public opinion, jind from 

 influences of character and profession, which insen- 

 sibly warp the judgment. If the trial be by perman- 

 ent jurors, there will be still greater dangers from 

 their want of the proper learning, and general weight 

 of cliaracter, added to the other objections. So that 

 any of the proposed substitutes does not furnish more 

 safety or certainty, in the administration of criminal 

 justice, than that of a trial by jury. 



On the other hand, the trial by jury, as known to 

 the common law, affords some checks upon arbitrary 

 power, and enlists many just feelings and reasonable 

 guards against oppression. 1. The jurors are selected 

 from the mass of intelligent citizens, of suitable quali- 

 fications, and of the same rank, and having the same 

 general interests, as the accused. They are not per- 

 manently employed, and have no common connexion 

 with each other, and no habits of fixed co-operation. 

 They are, or may be, strangers to each other, and to 

 the accused, until the moment when they are em- 

 panneled. They are subject to no reasonable ex- 

 ception, either in point of character or influence, for 

 that would exclude them, at the will of the accused. 

 They are subject to the same laws, and liable to the 

 same prosecution, as the party on trial, and therefore 

 have a natural tendency to sympathize with him. 

 2. The trial is had in open court, before judges who 

 hold their offices permanently, and who are bound 

 to administer the law, and to give their opinions 

 publicly to the jury. From the moment that they are 

 empanneled, they are excluded from all intei.ourse 

 with every person except what takes place in 

 open court ; and their subsequent deliberations are 

 private and secret. 3. They are under oath to decide 

 the case upon the evidence given in open court. No 

 testimony can be heard by them, except what is ad- 

 mitted and delivered in open court ; so that the court, 

 the counsel, and the by-standers, have a perfect 

 knowledge of every part of it. Thus the whole pub- 

 lic become the ultimate judges of the sincerity and 

 justice of their verdict. 4. If they find a verdict 

 against the party, and there has been any error of 

 law or fact, or any misconduct in the jury, the court 

 will grant a new trial ; but if they acquit him, there 

 can be no new trial, for the law will not allow a man 

 to be twice put on trial for the same offence, and thus 

 his life, liberty, or limb be put in jeopardy. Here 

 we see the humanity of the common law, which leans 

 in favour of the accused, and disables the government 

 from practising oppression upon any citizen, by suc- 

 cessive vindictive prosecutions. 5. Again, if the 

 evidence is doubtful, the party is entitled to an 

 acquittal, and the court will so direct the jury; for 

 the common law will not tolerate that any man should 

 be punished, unless there be satisfactory proofs of 

 guilt to the minds of twelve of his peers or equals. 

 6. It has been said that the facts are often compli- 

 cated, and the guilt is compounded partly of facts and 

 partly of law. This is true ; but here again the 

 wisdom of the common law has provided that the 

 judges shall state to the jury what the law is, as 

 applicable to the various postures of the facts, as they 

 may find them. They are also generally assisted by 

 the arguments of the counsel on each side, in arrang- 

 ing and comparing the facts; and the judge, in his 

 summing up of the evidence, brings the whole in 

 review, and points out to them the bearings of every 

 part, and strips off the false glosses, if any, which 

 liave been made by counsel. But he still leaves them 

 to decide upon it according to their own conscientious 

 belief of it. 7. It is said that the arguments of coun- 

 sel may deceive them, and blind them to the truth. 

 But die answer is, that they have an equal oppor- 



tunity to hear the opposite side, and that, generally 

 the judges assist them, when there is any attempt to 

 ini>st;ite the evidence, by referring to their own 

 notes of it, as given in open court. And from long 

 habits, and experience in human life, jurymen learn 

 to disregard the mere efforts of eloquence, and, under 

 a sense of their religious and social obligations, con- 

 sult the real truth and justice of the case. Would 

 there be more security if no counsel were allowed ? 

 No person will say so. 8. It is also said that the 

 judges may have an undue influence with the jury. 

 This is certainly possible, and has actually occurred 

 in corrupt times. In the case of chief-justice Jef- 

 freys, referred to in the preceding part ot the article, 

 it should be remembered that he held his office during 

 the pleasure of the crown, and not, as the judges 

 of England now hold, during good behaviour, or life. 

 He was a devoted partisan of the crown, and ha 

 become infamous by his corrupt administration of the 

 law. But it should be considered, that the jury 

 could scarcely have been free from improper biases of 

 some sort, otherwise they could not have found a 

 verdict against the accused. In our day, and, indeed, 

 at any time since the arbitrary times of king James 

 II. and the revolution of 1688, such conduct in a 

 judge would be sure to meet with universal reproba- 

 tion, and would generally produce an acquittal of the 

 prisoner, and a public impeachment of the judge. 

 Nay, it is well known, that such is the jealousy of 

 juries in this particular, that any undue interference 

 or solicitude for conviction, exhibited on the part of 

 a judge, would destroy his influence, and produce an 

 opposite verdict. It is his supposed impartiality 

 that gives weight to his opinion ; and the jury know 

 that they have a right to disregard it, if they plea.se. 

 9. It is said, that juries may be influenced by impro- 

 per motives, and sometimes disregard the law, and 

 give a false verdict. This is possible, and, indeed, 

 has probably sometimes happened. But the occa- 

 sions are rare ; and where there is a suspicion of that 

 sort, it always injures the character of the jurymen, 

 and subjects them to public scorn and odium. Gene- 

 rally, juries are scrupulous in respecting the law, 

 because it is the only protection of their own rights. 

 Where the law is very harsh, and the punishment is 

 disproportioned to the offence, they have sometimes 

 exhibited a repugnancy to convict ; but they rarely 

 have acquitted the party, unless there were circum- 

 stances of great doubt, or of great mitigation ; and if 

 their conduct, in such cases, is not strictly justifiable, 

 it is generally not such as produces any reproach, 

 either from the court or the public. These occasions, 

 however, are rare, and constitute exceptions of no 

 great moment in the general administration of jus- 

 tice. 10. It is not true, as is sometimes supposed, 

 that juries are ready to convict on slight proofs, or 

 insufticient evidence. Our law declares, on the con- 

 trary, that in such cases they ought to acquit the 

 party ; and it is always laid down to the jury by the 

 court. Indeed, the judges, in this respect, always act 

 as counsel for the prisoner, and give their advice to 

 the jury, in respect to every reasonable doubt in the 

 evidence. There are so many checks upon juries, in 

 cases of this sort, that it can scarcely happen, that an 

 unjust conviction, at least by the improper bias of the 

 jury, can take place. If there be any error, it is 

 usually on the side of mercy. 11. It is objected, that 

 the jury sometimes find the party guilty of a part, 

 and not of the whole offence, as of manslaughter 

 when he is accused of murder. Certainly the jury do 

 so; and for the best reason, that the law requires it. 

 A jury ought not to find a man guilty of the whole of 

 a charge, unless it is wholly proved. If what is 

 proved amounts to a crime of the same nature, but of 

 inferior enormity, or more mitigated than what is 



