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CHAPTER VIII.

The Institution of Juries.

In the institution of juries, I comprehend both the grand and petit jury as known in the laws of England and in the United States.

The trial by jury is certainly of considerable antiquity in the English laws, from which we in this country have derived the institution. It has been often asserted that it made a part of the Saxon jurisprudence before the Norman conquest. On this subject, Mr. Crabb, in his History of the English law, observes,"Whether the trial by jury existed among the Saxons, has, like many other matters connected with those remote periods, been a subject of controversy. From all the records that have been preserved from those times, it is clear that there was no such thing as a jury of twelve men sworn to give their verdict on the evidence offered to them." He further tells us," In criminal matters it is clear from a law of Ethelred, that a grand jury existed among the Saxons; for the law directs, that twelve Thanes, with the sheriff at their head, shall go, and on their oath enquire into all offences, not charging any one falsely nor wilfully, nor suffering any offender to escape. From the condition of the parties and the office required of them, namely, accusare, that is to make presentment of offenders, it is beyond all question that they had only to determine what offenders should be put upon their trial and what not."*

* History of English Law, p. 35.

It appears probable that the trial by jury was introduced after the Norman conquest, and was extended and improved by slow degrees. In the reign of Henry I. about the beginning of the twelfth century, the trial by jury was recognised in criminal suits; but in civil suits it seems not to have approached very near to its present form until about the middle of the thirteenth century in the reign of Henry III.* In this reign we find that the office of the grand jury and their oath was nearly the same as at the present day. The jury system has since received many and great improvements, till it has been brought to its present state of perfection, in which it is justly considered the great palladium of liberty, and worthy of a special provison in the constitution of every free government.†

In a mixed government like that of Great Britain, the intervention of juries, both in the prosecution of crimes, and in the decision of private rights, is a principal security to the subject against any dangerous power and influence of the monarchical and aristocratic branches. It is equally necessary in a republic, but for reasons somewhat different. In a republic the powers of government are supported, not by force, but by the sentiments of the people. It is necessary, therefore, to cultivate a sentiment of attachment to the government. The powers of government are visible in the exercise only. The mode in which they are exercised, either invigorates or weakens the sentiment. The exercise of power is not in general agreeable to those who are the subjects of it. The administration of justice without a view to the consequences, is austere and forbidding, rather than amiable and attractive. ‡ As more men are capable of feeling than reasoning, the first view is generally of something unamiable. The ministers of justice,

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*History of English Law, p. 164.

Those who are desirous of further information on this subject will do well to consult this work here quoted, and Reeves' History of the Common Law.

Justice when considered as a private virtue, that is, the rendition to every one of his houest due, is directly amiable; when considered in the distribution of punishments it is not so; the mind is reconciled to it from a view of the consequences merely, unless when the passion of revenge excites a desire of retaliation.

are the objects of these feelings;-the ideas of una miable severity daily impressed on the minds of the people are not easily corrected by reasoning on the consequences.*

Justice is administered for the redress of some evil, either public or private. The evil is past, and sometimes uncertain, or at least, of difficult investigation. The evil which is

inflicted by the ministers of the law, is present and certain. The people cannot, consistent with an impartial administration of the law, have a direct control over them. These considerations have, more or less, a tendency to diminish that sentiment of attachment, which is so necessary in a republic. The institution of juries, in which is to be comprehended both the grand jury, who are to pass on the accusation and find it supported before the person accused can be put on trial, and the petit jury, who pass on the final trial, furnishes an adequate remedy.

In the administration of criminal law, the institution of a grand jury has a very leading influence in a free government.† To guard the innocent against the infamy and oppression of a public accusation, and without favor to bring forward the guilty to trial for their crimes, constitutes the principal duty of the grand jury. Taken from the body of the people, and having, in the prosecution of offences, no interest but the peace and welfare of the community, as far as they are secured by the prevention of crimes, they are placed as a shield between the accused and the interested passions, or malicious attempts of private prosecutors; and their intervention between the people and the officers of the law, who, from the nature of their employment, may, sometimes, be suspected of interested views,

* Hangmen and public executioners, are universally detested. The first impressions which their actions make on the mind,—impressions of inhumanity and cruelty,—are never effaced by reasoning on the justice of their actions or necessity to the community.

+I do not recollect any institution among the ancients similar to that of a grand jury; nor do I recollect to have met with any in any of the modern governments, that of the English excepted. It was as we have seen established among them before the Norman conquest. Crabb, ubi supra. Blackstone, Comm. 4. 302.

or at least, of a want of feeling, gives a facility to the execution of criminal law, and reconciles to the sentiments of the people, the necessary punishment of offenders. The punishment of the guilty, if, from an oppressive partiality in the prosecution, or an undue rigor in the execution, it meets not the acquiescence of the people, can have no salutary effect in society.

It may be made a question, how far the person injured ought to be admitted to prosecute for the end of punishing. I apprehend this will depend much on the state of manners, and the principles of the government. In a government supported in a great measure by force, and in a state of manners in which the mind is highly inflamed by every, the least private injury, and the passion of revenge is satisfied with nothing short of personal retaliation, it may be in a degree necessary to permit the person injured to prosecute his revenge at law, to prevent the fatal consequences of private malice. To restrain the spirit of personal revenge, and subject it to general laws, is a great point in the progress of society. Still, as prosecutions, for the end of punishment by the party injured, have a direct tendency to perpetuate a resentment of injuries, and to make the law instrumental in the exercise of personal enmity, the practice, by no means, agrees with a general refinement of manners or the humane principles of a popular government. The person injured ought to rest satisfied with a full security in the right of reparation. The right of punishment ought to be exercised solely for the prevention of crimes, and to be permitted to those only, who are selected by law for that purpose, and who are supposed to be capable of candor and moderation in their proceedings. The practice of admitting common informers, who are to receive a share of the penalty as a reward for prosecuting, is still less to be justified. The practice can never be necessary in any state of manners, nor is it justified by the plea

* By refinement of manners is not meant the ettiquette of politeness merely, which may consist with many traits of barbarous manners. It consists with the modern point of honor, the practice of duelling to revenge personal affronts, and insults often imaginary. We ought rather to place a refinement of manners in the sentiments of humanity, and a general spirit of accommodation.

of preventing a greater evil, by the admission of a less. It often serves the purposes of private malice, always fosters in the prosecutors a spirit of plunder, a disposition to prey on others, and serves to excite and disseminate jealousies and private animosities among the citizens. It is calculated for those governments only, in which the rulers foresee the punishment of their own crimes in the unanimity of the people. Can we, then, hesitate to pronounce that in the United States of America, the institution of criminal prosecutions in the name and under the direction of private persons, is opposed to the present state of manners, and the principles of their government? and that the intervention of a grand jury ought to be secured in every constitution, as the sacred right of the people, at least, in all prosecutions for capital, and all other high crimes and misdemeanors ?

The observations made on the institution of grand juries, who, by their intervention between the ministers of the law, and the people, and their deliberate and solemn approbation of prosecutions, remove the odium of severity and serve to reconcile the execution of criminal law to the sentiments of the people, apply with more force to petit juries, in proportion as the condemnation is of more consequence than the accusation. This is not all. The institution is the best which has been devised, and probably, that can be devised by human wisdom, for obtaining substantial justice in trials, both criminal and civil. The particular province of the jury, is to weigh evidence and to decide upon facts. It is true, that in all questions to be decided by a jury, justice results from a combination of law and facts; and it is also true, that in a complicated state of society the law may become intricate and its application not a little difficult. This can happen in questions of a civil nature only. No crimes are to be made out by a construction of dubious facts, or a doubtful application of law. It is the province of the judges to explain and apply the law, and to decide upon it when submitted to them by the jury on a statement of facts. To such statement the jury are fully competent.

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Will it be thought strange to assert, that professional and systematic knowledge is less competent to judge of the proof of facts, than plain sense conversant only with the common business of life, and the common characters of men? And yet, to

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