it is impossible that they can act as counsel for the prisoner exclusively; and the importance of counsel, exclusively for the prisoner, is admitted in all cases of treason. Why not equally so in other capital cases? Such is a very general outline of the trial by jury under the common law. It is deemed of immense value in England, and among the dearest rights of the people. In America, it is quite as dear, and is deemed of such high importance, that the right to a trial by jury, in all criminal cases, is secured by the constitution of every state in the Union, and is also provided for, in all civil cases at common law, where the amount in controversy is of any considerable value. The constitution of the U. States, has provided, "that the trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be had in the state where the said crimes shall have been committed. But when not committed within any state, the trial shall be at such place or places as the congress may by law have directed." And farther, "that no person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court." And again, “that no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger. Nor shall any person be subject, for the same offence, to be twice put in jeopardy of life or limb; nor shall he be compelled, in any criminal case, to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law." 'And again, "that in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law; and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defence." And again, "that in suits at common law, where the value in controversy shall exceed twenty dollars, the right of a trial by jury shall be preserved; and no fact, once tried by a jury, shall be otherwise reexamined in any court of the U. States than according to the rules of the common law." Provisions of a similar nature, in

a private person. However, it is usual, at least in England, if a juror is objected to by the government, not to call upon the government to show cause until the panel is gone through, and then, if sufficient jurors are not found and sworn, the cause of the challenge may be inquired into; for, if there is a full jury without the persous objected to by the government, there is no strong reason to insist upon their being sworn, although no good cause has been shown. There are some other provisions favorable to prisoners accused of capital offences, and especially of political offences, which deserve notice. În England, in cases of treason, the prisoner is entitled to a copy of the indictment five days before his arraignment for trial, and a copy of the panel of jurors who are summoned, and their professions and places of abode, ten days before his trial, and a list of the names of the witnesses to be produced against him, the like length of time before the trial. He is also entitled, at the expense of the government, to have witnesses summoned in his behalf, to establish his defence, and to have counsel assigned to assist him in his defence. In America, in cases of treason, similar provisions in substance exist, with a difference only in respect to the length of time allowed for the copy of the indictment, and lists of jurors and witnesses. And in many of the states, an equally humane provision exists in respect to all other capital offences. By the laws of the U. States, the prisoner is entitled to have counsel assigned to him, and to have his witnesses summoned at the expense of the government, in all capital cases. In cases of treason, a copy of the indictment is required to be delivered three days before the arraignment, and also a copy of the list of jurors and witnesses summoned by the government, three days before his trial. In other capital cases, the time is two days, instead of three. The right to employ counsel in defence, is also secured to all persons accused of any crimes in the U. States. But in England, it is confined to cases of treason, and to mere misdemeanors. In capital cases, not of treason, counsel are not permitted to be employed in England, except in arguing questions of law. The quaint and unsatisfactory reason given for this exclusion is, that the judges are counsel for the prisoner, a reason which, if good in any, is sufficient in all cases. But there is more of speciousness than of truth in the remark; for, though the judges ought to take care that the prisoner has a fair and impartial trial,

VOL. VII.

25

substance, will be found in most, if not in all, the state constitutions of the Union. They demonstrate the extreme jealousy of the people of the right of trial by jury, and their extreme solicitude to place it beyond the reach of the passions, and prejudices, and political objects, of those who, as rulers, may be called at any time to administer the government. This strong attachment to the trial by jury, both in England and America, after the experience of it for centuries, furnishes no small argument in favor of its efficacy as a security of right, and a redress of wrongs. It is perpetually spoken of as the palladium of our public rights and liberties; and in all the various fluctuations of public opinions, it has remained untouched and unsuspected. It is not surprising that those, who know it only in theory, or who at present see the administration of its powers and duties in a very imperfect state in the civil law countries, or who are accustomed to a jurisprudence foreign to its principles, should entertain doubts of its advantages, and should feel a deep sense of its defects. The first part of this article shows how difficult it has been found to transfer to France the trial by jury, and to administer it with the same beneficial effects as in England. The errors in France may have resulted, in part, from the imperfect knowledge of the courts, as well as of the juries, from the novelty of this mode of trial, and their want of experience in the management of it. Perhaps, too, there may be something in the other institutions of France, or in the temperament and character of the people, which may disturb its proper operation. It may be useful for us, before concluding this article, to review some of the grounds on which the trial by jury has been hitherto vindicated, and to glance at some of the defects which it is supposed to involve, as well as at some of the objections to which it is supposed to be liable-Fas est et ab hoste doceri. And, in the first place, it is not necessary to contend that, as an instrument of public or private justice, it is an institution absolutely perfect; that it is incapable of abuse; or that it never occasions error. That would be to require of it what belongs to no human institution whatsoever. Every work of man is, by his very nature, imperfect. Every form of government involves some inconveniences, and errors, and abuses. Every effort to administer justice must necessarily fall short of perfect correctness, from defects of evidence, from the infirmity of judges, from

the wrong biases of human opinion, from errors in reasoning, from ignorance, and passion, and prejudice, independently of all intentional wrong, or corrupt motives, or malice, or dishonesty, or deliberate baseness. The only question is, what, on the whole, is the best means of administering justice, taking human nature as it is, and human infirmity as it must ever operate. If crimes are to be tried and punished, if rights are to be enforced and wrongs redressed by judicial tribunals, what is the best structure of the institution for the purpose of trial and decision? There seems to be but a narrow circle of means, out of which the choice is to be made. Shall the tribunal be composed of executive officers of the government, or of judges appointed by the government for each case, or of judges holding their office at the pleasure of the government? Or shall the tribunal be composed of judges holding their offices permanently, and independently of the government? Or shall the tribunal be composed of jurors chosen at large, pro hac vice, or chosen permanently for that duty, without any previous qualifications of legal experience, learning or superior ability? And if so, by whom, and in what manner, shall they be chosen? Or shall the tribunal be of a mixed character, composed of judges learned in the law, permanent in rank and station, and of jurors selected for the occasion in an impartial manner, and the trial be had before the judges expounding the law, and the juries deciding the facts? In cases of crimes, the object is to protect the innocent and to punish the guilty. Where does the danger chiefly arise? In political accusations, the government not only is a party, but has a strong motive to produce conviction. In other cases, it may not have so strong a motive, but it may be subject to influences of an equally fatal character. If the king or other executive, or officers selected by him for that purpose pro hac vice, are to decide upon the guilt or innocence of the party, according to their own discretion and such proofs as are satisfactory to themselves, there is no security whatsoever against unjust convictions. decision will be arbitrary, and according to the will of the prince or his favorites, or according to state policy, or perhaps public prejudice, actuated by strong resentment. If the trial be by judges solely appointed by the government, and holding their offices permanently, there may be dangers arising from other and different sources, from their political opinions, from

The

their state interests, from their irresponsibility to public opinion, and from influences of character and profession, which insensibly warp the judgment. If the trial be by permanent jurors, there will be still greater dangers from their want of the proper learning, and general weight of character, 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 qualifications, and of the same rank, and having the same general interests, as the accused. They are not permanently employed, and have no common connexion with each other, and no habits of fixed coöperation. They are, or may be, strangers to each other, and to the accused, until the moment when they are empanneled. They are subject to no reasonable exception, 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 intercourse 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 admitted 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 public 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 favor of the accused, and disables the

government from practising oppression upon any citizen, by successive 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 12 of his peers or equals. 6. It has been said that the facts are often complicated, 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 arranging 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 have 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 counsel may deceive them, and blind them to the truth. But the answer is, that they have an equal opportunity to hear the opposite side, and that, generally, the judges assist them, when there is any attempt to misstate 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, consult 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 Jeffreys, referred to in the preceding part of 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 behavior, or life. He was a devoted partisan of the crown, and has 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 reprobation, 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 please. 9. It is said, that juries may be influenced by improper motives, and sometimes disregard the law, and give a false verdict. This is possible, and, indeed, has probably sometimes hap pened. But the occasions 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. Generally, 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 of fence, they have sometimes exhibited a repugnancy to convict; but they rarely have acquitted the party, unless there were circumstances 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 justice. 10. It is not true, as is sometimes supposed, that juries are ready to convict on slight proofs, or insufficient evidence. Our law declares, on the contrary, 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 prisoners, 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 charged, they find their verdict according to the proofs, and the court inflict only the moderated punishment. And any other course would be flagrant injustice. But a jury cannot, upon a trial for one offence, find a man guilty of another offence, not of the nature of the one charged; for instance, upon a charge of murder, they cannot find him guilty of forgery; but if he is charged with stealing two watches, they may find him guilty of stealing one only. 12. It is also objected, that juries often favor criminals. But this is not generally true, except to the extent that the law favors them. There may be cases of a popular cast, or of an odious nature, where juries have occasionally shown improper biases for the accused; but this objection applies to all tribunals, and is founded on human infirmity generally. Juries do not, even in cases of this sort, often depart from their duty; and the exceptions are so few, that they are seldom felt or urged in free governments. 13. But an objection the most pressed by those who are not practically acquainted with the trial by jury, is, that unanimity is required in pronouncing a verdict of acquittal or condemnation. It is true, that no verdict can be received, which has not the assent of all the 12 jurors; and there are no means of compelling an assent; and yet, practically speaking, few cases of disagreement occur, except where there is a solid foundation for real doubts and difficulties. Unanimity is more common than, at first view, might be suspected. In the first place, the jury reason with each other upon all doubtful points, and if they at first differ, the differences are often removed by further discussion. Pride of opinion is not enlisted on either side, and sometimes each recedes from the first limits of his own opinion. In the next place, the differences of opinion are more often upon inferences and conclusions from known facts than upon the facts themselves; and more often upon doubts as to the proper application of the law to those facts; and still more often upon mere collateral questions, where there is no common standard of measure, as in assessing damages. In criminal cases, fewer difficulties ordinarily arise than in civil cases, because doubts weigh favorably for the accused, and often produce an acquittal. But, after all, there is not probably one in twenty cases, tried by a jury, in which there is a final disagreement; and it is by no means sure, that a decision could be had more just or fair