The History of Trial by Jury. I might begin with Tacitus, and show how the contest arose in the forest of Germany more than two thousand years ago; how the rough virtues and sound common sense of that people established the right of trial by jury, and thus started on a career which has made their posterity the foremost race that ever lived in all the tide of time. The Saxons carried it to England, and were ever ready to defend it with their blood. It was crushed out by the Danish invasion; and all that they suffered of tyranny and oppression during the period of their subjugation resulted from the want of trial by jury. If that had been conceded to them the reaction would not have taken place which drove back the Danes to their frozen homes in the north. But those ruffian sea-kings could not understand that, and the reaction came. Alfred, the greatest of revolutionary heroes and the wisest monarch that ever sat on a throne, made the first use of his power, after the Saxons restored it, to reëstablish their ancient laws. He had promised them that he would, and he was true to them because they had been true to him. But it was not easily done; the courts were opposed to it, for it limited their power—a kind of power that everybody covets—the power to punish without regard to law. He was obliged to hang forty-four judges in one year for refusing to give his subjects a trial by jury. When the historian says he hung them, it is not meant that he put them to death without a trial. He had them impeached before the grand council of the nation, the Witenagemot, the parliament of that time. During the subsequent period of Saxon domination no man on English soil was powerful enough to refuse a legal trial to the meanest peasant. If any minister or any king, in war or in peace, had dared to punish a freeman by tribunal of his own appointment, he would have roused the wrath of the whole population; all orders of society would have resisted it; lord and vassal, knight and squire, priest and penitent, bocman and socman, master and thrall, copyholder and villein, would have risen in one mass and burnt the offender to death in his castle, or followed him in his flight and torn him to atoms. It was again trampled down by the Norman conquerors; but the evils resulting from the want of it united all classes in the effort which compelled King John to restore it by the Great Charter. Everybody is familiar with the struggles which the English people, during many generations, made for their rights with the Plantagenets, the Tudors, and the Stuarts, and which ended finally in the revolution of 1688, when the liberties of England were placed upon an impregnable basis by the Bill of Rights. Many times the attempt was made to stretch the royal authority far enough to justify military trials; but it never had more than temporary success.
—Judge Jeremiah S. Black, in the Milligan
case, U. S. Supreme Court,
Washington, D. C., Dec., 1866
Testimony. I will go through the case fairly and discuss it fully. I will nothing extenuate, nor aught set down in malice. I will base my argument upon the testimony, not as I would have it, but as it is. I will speak not to the world, but to you, who can correct and hold me in judgment, if I fail to redeem the promises of fairness and candor which I make. Heaven can witness for me that I desire no fame at the expense of these unfortunate men. I will use no bitter words, I will affect no bitter loathing; I will assail neither man, woman, nor child, except under the urgent pressure of duty and necessity. I wish I could be spared the painful task of doing so at all.
—J. A. Van Dyke, in conspiracy case,
Detroit, Mich., Sept., 1851
description
Conscience. Lady Macbeth must needs walk by night in her sleep and rub her hands as if to wash them, and cry out: “Out, damned spot, out I say!” But all Neptune’s ocean will not wash the stain away; all the perfumes of Arabia will not sweeten the murderer’s hand. Conscience, the greatest gift of God, the child itself of God, working and acting obedient to the same law by which your system and mine, by their nature, will attempt to throw off disease, that which is imperfect and that which is poison, I say by that same law conscience seeks to throw off its load of guilt.
—State’s Attorney Frank M. Nye, in People v.
Hayward, Minneapolis, Minn., Dec., 1895
Consent Under Protest. Sir, the consent of Maine to part with her soil and her sovereignty was given with a bleeding heart; it was like the consent of him who bares his own right arm to the surgeon’s knife when advised that his life can only be preserved by its amputation; she consented as one consents to commit to kindred dust the children of his body; she consented as the red man consents to be driven from his happy hunting grounds, the graves of his fathers and the banks of the streams where he sported in childhood; she consented, as was said by another, as “the victim consents to execution because he walks and is not dragged to the scaffold which has been erected to receive him.”
—Daniel S. Dickinson, Speech in reply to
Webster on the Northwestern Boundary
question, U. S. Senate, April 9, 1846
Duties of Juries. Gentlemen of the jury, I have about concluded my duties in this case. Yours will follow. I ask from you nothing in the world but the intelligent judgment of twelve intelligent men on the evidence before you. I have only one little picture more to offer. It is Burns’s picture of the Scottish farmer in the seclusion of his family. His day’s work done, he draws his little family about him. He has laid aside his cap and has taken the old family Bible from its shelf. He calls Jane and James and the old mother and reads to them from God’s promises. Then all bow their heads in prayer. “In scenes like these old Scotia’s grandeur lies.” Some of you here are wont to keep that sacred tryst. Into that tryst you would never admit this paper.