History of Woman Suffrage Volume II Part 96

It may not be amiss here, gentlemen, to remind you of the good old rule, that on questions of fact it is the province of the jury, on questions of law it is the province of the court, to decide. But it must be observed that by the same law which recognizes this reasonable distribution of jurisdiction, you have, nevertheless, a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt you will pay that respect which is due to the opinion of the court; for as, on the one hand, it is presumed that juries are the best judges of facts, it is, on the other hand, presumable that the court are the best judges of law. But still both objects are lawfully within your power of decision.

This charge was delivered in a jury trial, at the bar of the Supreme Court, and expressed the unanimous opinion of the judges of that court, and that, too, in a civil cause. The decision in Georgia _vs._ Brailsford has never been expressly overruled by that court; although the practice in civil causes is for the court to direct a verdict where there is no conflict in regard to the testimony. In Beavans _vs._ The United States, 13 Wall, 56, which was an action _ex contractu_, on a receiver's bond, the court says:

The objection that the jury was instructed to find for the plaintiffs the amount claimed by the papers given in evidence (viz, the official settlements), with interest thereon, is entirely without merit. There was no evidence to impeach the accounts stated, or to show set-off, release, or payment. The instruction was, therefore, in accordance with the legal effect of the evidence, and there were no disputed facts upon which the jury could pa.s.s.

An act of Congress declares that the papers of official settlement shall be _prima facie_ evidence of the condition of the accounts. No testimony was offered in this case to impeach that statement. There was, therefore, no fact in issue; and the instruction of the court to find a verdict for the plaintiff was, in substance, ruling upon matters of law only. And the Supreme Court, in their opinion, recognize, and merely recognize, the practice which now obtains universally in the trial of civil causes. And, although it is inconsistent with Georgia _vs._ Brailsford, and substantially overrules it, it does not impair the value of the decision in that case, as showing the understanding of the profession and the courts about the time of the adoption of the Const.i.tution.

In United States _vs._ Wilson (1 Bald., 108), the jury were instructed as follows:

We have thus stated to you the law of this case under the solemn duties and obligations imposed on us, under the clear conviction that in doing so we have presented to you the true test by which you will apply the evidence to the case; but you will distinctly understand that you are the judges both of the law and the fact in a criminal case, and are not bound by the opinion of the court. You may judge for yourselves; and if you should feel it your duty to differ from us, you must find your verdict accordingly. At the same time, it is our duty to say that it is in perfect accordance with the spirit of our legal inst.i.tutions that the courts should decide questions of law, and the juries of facts. The nature of the tribunals naturally leads to this division of powers; and it is better, for the sake of public justice, that it should be so. When the law is settled by a court there is more certainty than when done by a jury. It will be better known and more respected in public opinion. But if you are prepared to say that the law is different from what you have heard from us, you are in the exercise of a const.i.tutional right to do so.

In United States _vs._ Porter (1 Bald., 108), the doctrine was stated more guardedly, as follows:

In repeating what was said on a former occasion to another jury, that you have the power to decide on the law as well as the facts of this case, and are not bound to find according to our opinion of the law, we feel ourselves constrained to make some explanations not then deemed necessary, but now called for from the course of the defense.

You may find a general verdict of guilty or not guilty as you think proper, or may find the facts specially, and leave the guilt or innocence of the prisoner to the judgment of the court. If your verdict acquits the prisoner, we can not grant a new trial, however much we may differ with you as to the law which governs the case; and, in this respect, a jury are the judges of law if they choose to become so.

In Farmer's trial before the Supreme Court of the State of New Hampshire in 1821, the Chief-Justice, speaking for the whole court, told the jury that they were the judges both of the law and the fact; that

It was the duty of the court to give them proper instructions and to aid them in forming a correct opinion as to the law applicable to the case. But if, contrary to his intentions, any expression should escape him which might seem to indicate any opinion as to the facts, they must disregard it; their verdict ought to be according to their own opinion as to the prisoner's guilt or innocence. (See Farmer's Trial, p. 68.)

In the trial of William S. Smith for misdemeanor, in the Circuit Court of the United States for the State of New York, in July, 1806, the jury were instructed as follows:

You have heard much said upon the right of a jury to judge of the law as well as the fact. Be a.s.sured that on this occasion there is not the least desire to abridge those rights. I am an advocate for the independence of the jury.

It is the basis of civil liberty; and in this country, I trust, will ever be a sacred bulwark against oppression and encroachment upon political freedom. The law is now settled that this right appertains to a jury in all criminal cases.

On the trial of John Hodges for high treason, before the Circuit Court of the United States for the District of Maryland, in 1815, the Court charged the jury as follows:

The court said they were bound to declare the law whenever they were called upon, in civil or criminal cases. In the latter, however, it was also their duty to inform the jury that they were not obliged to take their direction as to the law. (Hodge's Trial, p. 20.)

The elementary writers declare the same principle. Blackstone, 4 Comm., 361, says:

And such public or open verdict may be either general (guilty or not guilty) or special, setting forth all the circ.u.mstances of the case, and praying the judgment of the court, whether, for instance, on the facts stated, it be murder, manslaughter, or no crime at all. This is where they doubt the matter of the law, and therefore choose to leave it to the determination of the court; though they have an unquestionable right of determining upon all the circ.u.mstances and finding a general verdict, if they think proper so to hazard a breach of their oaths; and, if their verdict be notoriously wrong, they may be punished and the verdict set aside by attaint at the suit of the King, but not at the suit of the prisoner. But the practice heretofore in use of fining, imprisoning, or otherwise punishing jurors, merely at the discretion of the court, for finding their verdict contrary to the direction of the Judge, was arbitrary, unconst.i.tutional, and illegal, and is treated as such by Sir Thomas Smith two hundred years ago, who accounted "such doings to be very violent, tyrannical, and contrary to the liberty and custom of the realm of England."

For, as Sir Matthew Hale well observes, it would be a most unhappy case for the Judge himself if the prisoner's fate depended upon his directions; unhappy also for the prisoner, for, if the Judge's opinion must rule the verdict, the trial by jury would be useless. Yet, in many instances where contrary to evidence the jury have found the prisoner guilty, their verdict hath been mercifully set aside and a new trial granted by the court of King's Bench; for in such case, as hath been said, it can not be set right by attaint.

But there hath been yet no instance of granting a new trial where the prisoner was acquitted upon the first.

In Wilson's Lectures, Vol. II., p. 72, the same doctrine is declared and ill.u.s.trated; and he says:

The jury must do their duty and their whole duty. They must decide the law as well as the fact. This doctrine is peculiarly applicable to criminal cases, and from them, indeed, derives its peculiar importance.

In Forsyth's Jury Trials, after an examination of the subject, it is said, p. 265:

It can not therefore be denied that, in all criminal cases, the jury do virtually possess the power of deciding questions of law as well as of fact.

The authorities quoted from conclusively show that at the time the Const.i.tution was adopted, and for nearly a quarter of a century afterward, juries were understood and declared to possess the right to pa.s.s upon questions of law as well as fact in all criminal cases; and this is all that need be shown to bring this right within the protection of the Const.i.tution.

The first case it is believed in which the contrary doctrine received favor in any American court was in the case of the United States _vs._ Battiste, 2 Sum., 240, decided in 1835. Mr.

Justice Story, in that case, said:

My opinion is that the jury are no more judges of the law in a criminal case upon the plea of not guilty than they are in every civil case tried upon the general issue. In each of these cases their verdict, when general, is necessarily compounded of law and of fact, and includes both. In each they must necessarily determine the law as well as the fact.

In each they have the physical power to disregard the law as laid down to them by the court. But I deny that in any case, civil or criminal, they have the moral right to decide the law according to their own notions or pleasure.

In Commonwealth _vs._ Porter, 10 Met., decided in 1845, the Supreme Court of Ma.s.sachusetts followed the decision in Battiste's case, and held that the jury are under a moral obligation to decide the case as instructed by the court, and the court sum up the subject as follows:

On the whole subject, the views of the court may be summarily expressed in the following propositions: That in all criminal cases it is competent for the jury, if they see fit, to decide upon all questions of fact embraced in the issue, and to refer the law arising thereon to the court in the form of a special verdict. But it is optional with the jury thus to return a special verdict or not, and it is within their legitimate province and power to return a general verdict if they see fit. In thus rendering a general verdict, the jury must necessarily pa.s.s upon the whole issue, compounded of the law and of the fact, and they may thus incidentally pa.s.s on questions of law.

The opinion in this case was delivered by Chief-Justice Shaw, and is rather a discussion of what is a convenient distribution of powers between the court and jury than an examination into the actual state of the law; and he neither cites nor refers to a single authority from the beginning to the end of the opinion.

Again, the conclusions arrived at by the opinion admit the power of the jury to decide questions of law; and that, in cases where the jury acquit the defendant, there is no power to reverse or even to review the finding of the jury. And this opinion holds that the defendant, in all criminal cases, is ent.i.tled to address the jury upon the questions of law as well as of fact involved in the case. To maintain that the defendant has the right to address the jury upon matters which the jury have no right to determine, and yet that the jury possess the power--the ultimate and final power--to decide matters of law, and are nevertheless under moral obligation never to exercise the power, are palpable inconsistencies.

The Supreme Court of Vermont in State _vs._ Croteau, 23 Ver., 14, in a very able opinion, review these two cases and other subsequent decisions which follow their doctrine, and, after an able and critical examination of all the English and American cases, repudiate this new doctrine, and declare that in criminal prosecutions it is the ancient, common-law right of the jury in favor of the prisoner to determine the whole matter in issue--the law as well as the fact.

There are some American cases holding a contrary doctrine, but the current of American as well as of English authorities is overwhelmingly in favor of the proposition that juries in criminal causes are judges of the law as well as of the facts.[176]

In late years there has been considerable discussion, and some contrariety of judicial opinion, in regard to the moral right of juries to find a general verdict of not guilty against the instructions of the court on matters of law. This subject, however, need not be further discussed, because it is believed that no reported case can be found denying to juries the power of determining the law as well as the fact in all criminal cases.

The utmost extent to which any case goes is, that the jury, in deciding upon the law, are morally bound to adopt the opinion expressed by the court; but every case admits their power to do otherwise if they see fit. But admitting the existence of the distinction between the legal power and the moral right of juries, still the decision of the court on the trial of Miss Anthony was erroneous, because the court did not instruct the jury in regard to the law, and then leave the jury to perform their duty in the premises. On the contrary, the court took the case from the jury altogether and directed their verdict; thus denying to the jury not only the moral right, but even the power of rendering a verdict of not guilty; and refused the request of counsel to have the jury polled in regard to their verdict. No precedent has been shown for this proceeding, and it is believed none exists. It is altogether a departure from, and a most dangerous innovation upon, the well-settled method of jury-trial in criminal cases. Such a doctrine renders the trial by jury a farce. The memorialist had no jury-trial within the meaning of the Const.i.tution, and her conviction was therefore erroneous.

But it may be said that the ruling of the court was correct in point of law, and, had the court submitted the case to the jury, it would have been the duty of the jury to find the memorialist guilty; therefore she is not aggrieved by the judgment which the court p.r.o.nounced. Should this reasoning be adopted, it would follow that the memorialist had been tried by the court and by Congress; but it would still be true that she had been denied trial by a jury which the Const.i.tution secures to her.

It is not safe thus to trifle with the rights of citizens. The trial by jury--the judgment of one's peers--is the shield of real innocence imperiled by legal presumptions. A Judge would charge a jury that a child who had stolen bread to escape starvation had committed the crime of larceny, but all the Judges in Christendom could not induce a jury to convict in such a case. It is the humane policy of our law, that, before any citizen shall suffer punishment, he shall be condemned by the verdict of his peers, who may be expected to judge as they would be judged. To sustain the judgment in this case, is to strike a fatal blow at this sacred right.

But the question remains, What relief can be granted? I concur with the majority of the Committee that Congress can not remit the judgment; that would be to exercise the pardoning power.

Congress can not grant a new trial; that would be an exercise of judicial power. There is no Court of the Government which has jurisdiction to review the case. In Commonwealth _vs._ Austin, 5 Gray, 226, Chief-Justice Shaw says:

Now, when a new statute is pa.s.sed, and a question of law is raised by counsel, it must first come before the court, charged by law with the conduct and superintendence of a jury trial; and, in any well-ordered system of jurisprudence, provision is made that it be re-examinable by the court of last resort. When this question is definitively adjudged by the tribunal of last resort--the principles on which it is adjudged being immutable, and the rule of law adjudged in any one case being equally applicable to every other case presenting the same facts--the decision is necessarily conclusive of the law. I do not say how and after what consideration it maybe considered as definitively decided. In the first instance it may be misunderstood or feebly presented. It may have been misapprehended by the judges, and not considered in all its bearings, or they may have wanted time and means for a careful and thorough investigation, and may therefore consent and desire to reconsider it one or more times. But I only say that, when thus definitively adjudged, the decision must be deemed conclusive and stand as a rule of law.

Unfortunately the United States has no "well-ordered system of jurisprudence." A citizen may be tried, condemned, and put to death by the erroneous judgment of a single inferior judge, and no court can grant him relief or a new trial. If a citizen have a cause involving the t.i.tle to his farm, if it exceed two thousand dollars in value, he may bring his cause to the Supreme Court; but if it involves his liberty or his life, he can not. While we permit this blemish to exist on our judicial system, it behooves us to watch carefully the judgments inferior courts may render; and it is doubly important that we should see to it that twelve jurors shall concur with the Judge before a citizen shall be hanged, incarcerated, or otherwise punished.

I concur with the majority of the Committee that Congress can not grant the precise relief prayed for in the memorial; but I deem it to be the duty of Congress to declare its disapproval of the doctrine a.s.serted and the course pursued in the trial of Miss Anthony; and all the more for the reason that no judicial court has jurisdiction to review the proceedings therein.

I need not disclaim all purpose to question the motives of the learned Judge before whom this trial was conducted. The best of judges may commit the gravest of errors amid the hurry and confusion of a _nisiprius_ term; and the wrong Miss Anthony has suffered ought to be charged to the vicious system which denies to those convicted of offenses against the laws of the United States a hearing before the court of last resort--a defect it is equally within the power and the duty of Congress speedily to remedy.

MATT H. CARPENTER.

Mr. Tremaine, from the House Judiciary Committee, reported adversely on the prayer of Miss Anthony's Pet.i.tion, and Benjamin F. Butler favorably.

Forty-third Congress, 1st Session, House of Representatives, Report No. 608, Susan B. Anthony, May 25, 1874, recommitted to the Committee on the Judiciary and ordered to be printed.

Mr. B. F. BUTLER, from the Committee on the Judiciary, submitted the following Report to accompany bill H. R. 3492:

_The Committee on the Judiciary, to whom was referred the memorial of Susan B. Anthony, of the city of Rochester, in the State of New York, praying that a fine alleged to have been unjustly imposed on the pet.i.tioner by a judgment of the Circuit Court of the United States for the Northern District of New York, may be remitted, having considered the prayer of the pet.i.tioner and the statement of facts set forth in the memorial, respectfully beg leave to report_:

Are these positions of the pet.i.tioner well founded? By necessary division there arise two questions: First, has Congress any power, or is there any precedent for entertaining such pet.i.tion for such purpose? And, secondly, are the acts and order of the judge in accordance with the law of the land, and not in derogation of the right of the citizen to trial by jury at common law as guaranteed by the Const.i.tution, as known and practiced in the courts of the United States? If the first should be answered in the negative, of course the committee and the House would be spared the discussion of the second.

It seems to your committee that there are two very noted and historical cases which may form the precedents for this application, and favorable action thereon by Congress--in the proceeding concerning the fines imposed by the courts on Matthew Lyon and General Jackson.

Lyon was fined by a United States judge for a seditious libel. He pet.i.tioned for a remission of fine upon the ground that the law was unconst.i.tutional under which he was convicted. That pet.i.tion was very fully considered, and, in 1820, a report was presented to the Senate by Mr. Barbour, of Virginia, which, after elaborating the considerations, concludes thus: