I would here remark that the principal original reezon for summoning freeholders of the vicinage, waz that of their supposed personal knowlege of the fact in dispute. The jurors were properly the witnesses. This iz evident from circumstances and from the positiv testimony of the erly law-riters. The first mention of a proper jury, in any public act, iz in the constitutions of Clarendon, 1164, where the sheriff iz directed, quòd faciat jurare duodecim legales homines de vicineto, seu de villa, quòd inde veritatem secundum conscientiam suam manifestabunt. It iz said in old writers that the jury must speek the truth, if they know it. If the twelv men first summoned knew the truth, they were compelled to declare it, under the penalty of perjury. If some knew the facts and others did not, the latter were dismissed and others summoned, till twelv were found who knew the facts, ether by what they had seen and heerd themselves, or from such testimony of their fathers and others, az gained full credit.
Without attending to juries in this light, the laws respecting them appeer beyond measure absurd and tyrannical. Their being sworn to speek the truth, would be absurd on any other ground; for had they judged of facts on testimony, they would hav been sworn to declare their opinion, and not the truth. Their verdict, vere dictum, derives its name and propriety from the same circumstance; and the present practice of swearing them to "a tru verdict giv," when they judge of facts only by the perhaps contradictory testimony of several witnesses, iz, strictly speeking, absurd.
The keeping juries, without meet, drink or fire, can be accounted for only on the same idea; it waz a method to compel an agreement among men, who were acquainted with facts, some of whom might at times be obstinate, and not willing to disclose them. But how ridiculous would it be to punish men for not agreeing in opinion, about what others testified!
All this iz still more evident from the manner in which many questions respecting real estates were ascertained and determined. It waz customary for the jurors, after they were chosen, to go upon the land to find the tru state of the fact in question, and then deliver their verdict. Hence the propriety of the expression in closing issues; and this he prays may be enquired of by the country.
I would observe further, that the reezon, why appeels from the verdict of a jury were not allowed, iz simply this, that the jurors were supposed to hav decided from their own knowlege. It waz certainly a wise provision that the solemn declaration of men under oath, living in the naborhood, and eye or eer witnesses of the recent transactions between the parties, should not be overthrown by other testimony; for all other evidence must hav necessarily been of an inferior nature. But the reezon haz ceesed, and there iz now nothing more sacred in the verdict of a jury, given on the testimony of others, than there iz in the opinions of arbitrators, referees or auditors under oath. The laws respecting juries are all founded on the idea that the men were acquainted with the facts in dispute. Their verdict waz formerly a declaration of facts; it iz now a mere matter of opinion. In short, the original design of the institution iz totally changed, and mostly superseded. Since juries rely on testimony, they need not be collected from the vicinage; it iz even safer to hav men who are strangers to both plaintiff and defendant. Jurors cannot be punished for perjury, for how can a man perjure himself in giving hiz opinion? They cannot be starved to deth, nor carted about town for disagreement; for how iz it possible for twelv men always to think alike, when they hav to form their opinions on clashing testimonies? In short, juries do not now answer one of the purposes for which they were at first instituted; and however necessary they may be deemed to the preservation of civil liberty, it appeers to me they are, in a great measure, useless.
I cannot leev this subject without remarking the influence of habit, in maintaining forms, when the substance no longer exists. This iz neerly the case with the whole institution of juries; but particularly in the manner of administering the oath to them. The practice of swearing the foreman and the other jurors separately, still exists in some of theze states, altho the reezon no longer remains. It originated in the manner of delivering the verdict, which waz, for every juror separately to answer the interrogatories of the judge. While this practice remained, it waz very proper that eech juror should take a separate oath; altho this formality iz dispensed with, in administering the oath to witnesses, in modern courts; the words, "you and eech of you swear," being substituted for a separate administration of the oath.
No. XXIV.
HARTFORD, SEPTEMBER, 1789.
The INJUSTICE, ABSURDITY, and BAD POLICY of LAWS against USURY.