The American Judiciary

by Simeon E. Baldwin

Its best defense is that temptations to corruption are thus removed. So long as one juror, by refusing to concur with the rest, whether with or without reason, can prevent a verdict, there will be defendants seeking to prevent the recovery of what they know to be a just demand, who will be ready to buy a vote. In 1899, seven of the bailiffs in attendance on the Chicago courts were accused of lending themselves to such negotiations, and twenty men who had been jurors confessed that they had either taken or been offered bribes.[Footnote: Report of the New York State Bar Association for 1904, 51.]

The Anglo-American jury is unique because it is nothing unless unanimous, and because it may render a general verdict, stating no reasons for the decision, on which a general judgment, save in exceptional cases, is entered as of course.

In the early judicial history of the American colonies juries were less under the control of the judge than they are now.[Footnote: See Chap. XIV.] In some colonies they received no instructions as to the law, the chance of an unjust decision being guarded against in civil cases, as previously stated, by an absolute right in the losing party to claim a new trial before another jury.

The general tendency of judicial practice in later years has been to emphasize the influence of the judge upon verdicts. This often extends to directing a verdict, peremptorily, for one party or the other, when the law is clear upon the facts claimed or admitted. Still more often it takes the shape of a caution as to the weight that can properly be given to certain testimony, or an opinion as to what really are the controlling sources of evidence. Without the guidance of an intelligent judge, a jury would frequently come to unfortunate and even unjust conclusions. That there should be such guidance is an essential part of the jury system, and it is generally given most effectually where the judges are the ablest and the most independent.

The judge has at common law and by practice in most American States a right in his charge to comment on the evidence and intimate his opinion as to the weight which should or should not be given to any particular testimony. It is a right to be cautiously exercised, for juries are greatly influenced in their conclusions by remarks of that character. They feel that he is the head of the court, and there is a certain sentiment of loyalty to him as well as of respect for any one occupying the position in which they find him placed by the authority of the State. Sometimes this power is abused. The judge desires to indicate a decided opinion. He fears that if he put it in plain words it might seem so strong as to indicate partiality, and furnish ground of appeal. He therefore uses language, perhaps in reference to the credibility of a witness, which looks fair and even colorless on paper, but by the tone or emphasis in which some vital word is uttered, or with the aid of a shrug or glance, carries to those whom he is addressing an unmistakable conviction that he means it to be taken in a certain sense. Any such judicial action, however, is rare, and would be looked upon with disapprobation by the bar.[Footnote: See Metropolitan Life Insurance Co. v. Howle, 68 Ohio State Reports, 614; 68 Northeastern Reporter, 4.]

If the case is one which has been pressed by counsel especially upon the sympathies of the jury, such as a suit arising out of a labor strike, or by a widow to recover for an injury resulting in her husband's death, it is customary for the court to caution them in their charge that justice and not sympathy is their rule of duty.[Footnote: Bachert v. Lehigh Coal and Navigation Co., 208 Pennsylvania State Reports 362; 57 Atlantic Reporter, 765.]

The American colonies were settled at a time when the English criminal code was extremely harsh, and the English judges were disposed to administer it in such a way as to favor the crown. If the government promoted a prosecution, there was little hope for the defendant, except from the jury. The courts held that on criminal proceedings for publishing a libel it was for them to say whether the paper was libellous, and for the jury to decide only as to its publication by the accused. This was the occasion of the Charles James Fox Libel Act of 1792, and of many constitutional provisions to the same effect in this country, under which juries, even in libel cases, can render a general verdict of Not Guilty.

It was under the influence of these ideas, and in view of the fact that the colonial judge often knew no more law than the jury, that it became common in this country either to give a jury in a criminal cause no instruction as to the law at all or to charge them that they were judges both of the law and fact.[Footnote: 2 Swift's "System of the Laws of Connecticut," 258, 401.] In some of the States, a charge to the effect last stated is now sometimes required by statute.

A jury trial is a poor mode of doing justice, if there is a rule of law which, as applied to certain facts, should control the verdict, unless that rule of law be both stated by the judge, and so stated as to impress upon the jury that it is their sworn duty to apply it, if the facts which they may find to exist are such as to come under its operation. That they should be so instructed, even if declared by express statute to be the judges both of the law and the facts, is the prevailing opinion of American courts and jurists.[Footnote: Commonwealth v. Anthes, 5 Gray's Reports, 185; Sparf v. United States, 156 U. S. Reports, 51, 71.]

It is of especial importance that the duty of juries to take the law from the court should be clearly stated to them in a country of written Constitutions. Most crimes are defined by statute. It is easy for the defendant's counsel to claim that the statute on which the prosecution is based is unconstitutional. If it be, the accused is entitled to an acquittal; but if the jury acquit him on that ground, and the ground is false, injustice is done. Any such claim must be disposed of by the court, in order to give the Constitution its due supremacy.[Footnote: State v. Main, 69 Conn. Reports, 123, 132; 37 Atlantic Reporter, 80; 61 American State Reports, 30.]