The following petition was presented in the Senate by Mr. Sargent, the present (1882) United States Minister to Germany, and in the House by Mr. Loughridge, of Iowa:
Forty-third Congress, First Session, Senate, Mis. Doc. No. 39. A petition of Susan B. Anthony praying for the remission of a fine imposed upon her by the United States Court for the Northern District of New York, for illegal voting. January 22, 1874. Referred to the Committee on the Judiciary and ordered to be printed.
To the Congress of the United States:
The petition of Susan B. Anthony, of the city of Rochester, in the county of Monroe, and State of New York, respectfully represents: That, prior to the late presidential election, your petitioner applied to the Board of Registry in the Eighth Ward of the city of Rochester, in which city she had resided for more than twenty-five years, to have her name placed upon the register of voters; and the Board of Registry, after consideration of the subject, decided that your petitioner was entitled to have her name placed upon the register, and placed it there accordingly. On the day of election your petitioner, in common with hundreds of other American citizens, her neighbors, whose names had also been registered as voters, offered to the inspectors of election her ballots for electors of President and Vice-President, and for members of Congress, which were received and deposited in the ballot-box by the inspectors. For this act of your petitioner an indictment was found against her by the grand jury, at the sitting of the District Court of the United States for the Northern District of New York, at Albany, charging your petitioner, under the nineteenth section of the act of Congress of May 31, 1870, entitled "An act to enforce the rights of citizens of the United States to vote in the several States of this Union, and for other purposes," with having "knowingly voted without having a lawful right to vote."
To that indictment your petitioner pleaded not guilty, and the trial of the issue thus joined took place at the Circuit Court in Canandaigua, in the county of Ontario, before the Honorable Ward Hunt, one of the Justices of the Supreme Court of the United States, on the 18th day of June last. Upon that trial the facts of voting by your petitioner, and that she was a woman, were not denied; nor was it claimed on the part of the Government than your petitioner lacked any of the qualifications of a voter, unless disqualified by reason of her sex. It was shown on behalf of your petitioner, on the trial, that before voting she called upon a respectable lawyer and asked his opinion whether she had a right to vote, and he advised her that she had such right, and the lawyer was examined as a witness in her behalf, and testified that he gave her such advice, and that he gave it in good faith, believing that she had such right. It also appeared that when she offered to vote, the question whether, as a woman, she had a right to vote, was raised by the inspectors, and considered by them in her presence, and they decided that she had a right to vote, and received her vote accordingly.
It was shown on the part of the Government that, on the examination of your petitioner before the commissioner on whose warrant she was arrested, your petitioner stated that she should have voted if allowed to vote, without reference to the advice of the attorney whose opinion she asked; that she was not induced to vote by that opinion; that she had before determined to offer her vote, and had no doubt about her right to vote. At the close of the testimony, your petitioner's counsel proceeded to address the jury, and stated that he desired to present for consideration three propositions, two of law, and one of fact: 1. That your petitioner had a lawful right to vote. 2. That whether she had a right to vote or not, if she honestly believed that she had that right, and voted in good faith in that belief, she was guilty of no crime. 3. That when your petitioner gave her vote she gave it in good faith, believing that it was her right to do so.
That the two first propositions presented questions for the court to decide, and the last question for the jury. When your petitioner's counsel had proceeded thus far, the judge suggested that the counsel had better discuss, in the first place, the questions of law, which the counsel proceeded to do; and, having discussed the two legal questions at length, asked then to say a few words to the jury on the question of fact. The judge then said to the counsel that he thought that had better be left until the views of the court upon the legal questions should be made known.
The district attorney thereupon addressed the court at length upon the legal questions, and at the close of his argument the judge delivered an opinion adverse to the positions of your petitioner's counsel upon both of the legal questions presented, holding that your petitioner was not entitled to vote; and that if she voted in good faith in the belief in fact that she had a right to vote, it would constitute no defense; the ground of the decision on the last point being that your petitioner was bound to know that by the law she was not a legal voter, and that even if she voted in good faith in the contrary belief, it constituted no defense to the crime with which she was charged.
The decision of the judge upon those questions was read from a written document, and at the close of the reading the judge said that the decision of those questions disposed of the case and left no question of fact for the jury, and that he should therefore direct the jury to find a verdict of guilty. The judge then said to the jury that the decision of the court had disposed of all there was in the case, and that he directed them to find a verdict of guilty; and he instructed the clerk to enter such a verdict.
At this time, before any entry had been made by the clerk, your petitioner's counsel asked the judge to submit the case to the jury, and to give to the jury the following several instructions. [See page 680.]
The judge declined to submit the case to the jury upon any question whatever, and directed them to render a verdict of guilty against your petitioner. Your petitioner's counsel excepted to the decision of the judge upon the legal questions, and to his direction to the jury to find a verdict of guilty, insisting that it was a direction which no court had a right to give in any criminal case.
The judge then instructed the clerk to take the verdict, and the clerk said, "Gentlemen of the jury, hearken to your verdict as the court hath recorded it. You say you find the defendant guilty of the offense charged; so say you all." No response whatever was made by the jury, either by word or sign. They had not consulted together in their seats or otherwise. Neither of them had spoken a word, nor had they been asked whether they had or had not agreed upon a verdict. Your petitioner's counsel then asked that the clerk be requested to poll the jury. The judge said, "That can not be allowed. Gentlemen of the jury, you are discharged;" and the jurors left the box. No juror spoke a word during the trial, from the time when they were empaneled to the time of their discharge. After denying a motion for a new trial, the judge proceeded upon the conviction thus obtained to pass sentence upon your petitioner, imposing upon her a fine of $100 and the costs of the prosecution.
Your petitioner respectfully submits that, in these proceedings, she has been denied the rights guaranteed by the Constitution to all persons accused of crime, the right of trial by jury, and the right to have the assistance of counsel for their defense. It is a mockery to call her trial a trial by jury; and unless the assistance of counsel may be limited to the argument of legal questions, without the privilege of saying a word to the jury upon the question of the guilt or innocence in fact of the party charged, or the privilege of ascertaining from the jury whether they do or do not agree to the verdict pronounced by the court in their name, she has been denied the assistance of counsel for her defense.
Your petitioner also respectfully insists that the decision of the judge that good faith on the part of your petitioner in offering her vote did not constitute a defense, was not only a violation of the deepest and most sacred principle of the criminal law, that no one can be guilty of crime unless a criminal intent exists; but was also a palpable violation of the statute under which the conviction was had; not on the ground that good faith could, in this, or in any case, justify a criminal act, but on the ground that bad faith in voting was an indispensable ingredient in the offense with which your petitioner was charged. Any other interpretation strikes the word "knowingly" out of the statute, the word which alone describes the essence of the offense. The statute means, as your petitioner is advised, and humbly submits, a knowledge in fact, not a knowledge falsely imputed by law to a party not possessing it in fact, as the judge in this case has held. Crimes can not, either in law or in morals, be established by judicial falsehood. If there be any crime in the case, your petitioner humbly insists it is to be found in such an adjudication.
To the decision of the judge upon the question of the right of your petitioner to vote, she makes no complaint. It was a question properly belonging to the court to decide, was fully and fairly submitted to the judge, and of his decision, whether right or wrong, your petitioner is well aware she can not here complain. But in regard to her conviction of crime, which she insists, for the reasons above given, was in violation of the principles of the common law, of common morality, of the statute under which she was charged, and of the Constitution—a crime of which she was as innocent as the judge by whom she was convicted—she respectfully asks, inasmuch as the law has provided no means of reviewing the decisions of the judge, or of correcting his errors, that the fine imposed upon your petitioner be remitted, as an expression of the sense of this high tribunal that her conviction was unjust.
Susan B. Anthony.
Dated January 12, 1874.
In the Senate of the United States, June 20, 1874, Mr. Edmunds submitted the following report:
The Committee on the Judiciary, to whom was referred the bill (S. 391) to enable Susan B. Anthony to pay a fine imposed upon her by the District Court for the Northern District of New York, and a petition praying for the remission of said fine, report:
That they are not satisfied that the action of the Court was such as represented in the petition, and that, if it were so, the Senate could not legally take any action in the premises, and move that the Committee be discharged from the further consideration of the petition, and that the bill be postponed indefinitely.
Mr. Carpenter asked, and obtained, leave of the Senate to present the following as the views of the minority:
The Committee on the Judiciary, to whom was referred the memorial of Susan B. Anthony, praying to be relieved from a certain judgment, rendered against her by the Circuit Court of the United States for the Northern District of New York:
. . . . . . . . . .
The majority of the Committee have determined that inasmuch as the relief prayed for by the memorial can not be granted, the Committee will ask to be discharged from its further consideration, and will not express any opinion as to the correctness or incorrectness of the course pursued on the trial of Miss Anthony.
The House of Lords in England or the Senate of the United States may engage in any investigation looking to legislation, although, as an incident to, or a result of, such investigation, it may appear that some officer who is impeachable has been guilty of conduct for which he might be impeached. Then, surely, in a case like this, where there is neither suggestion nor suspicion of corrupt conduct on the part of the estimable judge before whom the trial was conducted, it can not be improper for a committee of the Senate to inquire whether, in the trial of a citizen for alleged violation of the laws of the United States, a precedent dangerous to the liberties of every citizen has been set. Indeed, the injurious effect of every judicial departure from sound principle is in proportion to the eminence and purity of the judge by whom it is committed. The outrages perpetrated by Scroggs and Jeffreys in the administration of criminal justice were grievous upon the individuals unjustly or illegally convicted, but do no harm as precedents. A vicious precedent, set by an infamous judge, is harmless; while a similar violation of the law by a pure and upright magistrate is attended by far-reaching and detrimental consequences.
It is fashionable, we know, just now to heap contumely upon women who demand to be allowed to enjoy their civil political rights. Ridicule is the chief weapon employed against them, and is freely applied to all who advocate their cause. Gentlemen who would blush to be thought negligent in the offices of frivolous gallantry lack the manhood to accord to women their substantial rights. And, strange to say, ladies dwelling in luxurious ease join with the fops of society to cast contempt upon the earnest aspirations of woman for the possession of her just rights. We have acted upon the doctrines of the Declaration of Independence, so far as to make all men equal before the law; but women, our mothers, our wives, our sisters, and our daughters, we condemn to inequality—many to servitude. But the cry of women, who, in poverty and want, are driven from the employments of honest industry to indulgence in vice and to the haunts of shame, is rising on every hand, and appeals to the heart with as much power as the wailings of a slave beneath the lash of his master.
The wrongs of Martin Koszta in a foreign land touched the heart of the nation. But the denial of her rights to Miss Susan B. Anthony in a court of the Union is thought to be unworthy the attention of the American Senate. To those who are indifferent whether a woman be deprived of or be permitted to enjoy even the rights which are secured to her by the Constitution, it may be suggested that a bad precedent set in the trial of a woman who has presumed to express her choice as to those who should make laws for her, laws by which her rights are to be affected and her property be taxed, may stand in the way of some man's rights hereafter. It may yet happen, in the revolutions of time, that some one of the majority of your committee may be subjected to an unjust and false accusation, which must be submitted to the judgment of twelve men in the jury-box or of one man on the bench; twelve men fresh from the people and warmed with the instinctive sympathies of humanity, or one man, separated from the people by his station and by the habits of a life passed in seclusion and study. A jury-trial must be the same whether a man or woman be arraigned. And the subject under consideration is important even to men who are regardless of the rights of women.
I shall, therefore, proceed to inquire, as I think the committee ought to have done, whether the memorialist has been deprived, as she alleges, of the right of trial by jury secured to her by the Constitution of the United States. The memorialist claims that the court erred in its ruling, and in taking the case from the jury and directing a verdict against her; and also in refusing to have the jury polled in regard to their verdict; and she prays that her fine may be remitted by act of Congress.
The first question is, whether in a criminal trial, plea not guilty, the jury have a right to render a general verdict involving questions of law as well as fact, under instructions by the court upon matters of law; or whether, when the testimony is not conflicting, the court may take the case from the jury and direct a verdict of guilty to be entered.
It is the practice in civil causes for the court, if there is no conflict in the evidence, to direct a verdict for the plaintiff or for the defendant, because in such case the court may set aside a verdict and grant a new trial in favor of plaintiff or defendant. It would, therefore, be a barren form to require the jury to deliberate and find a verdict in a case where if the verdict was not one way, the court would set it aside and order a new trial, and so on, until a verdict should be found that was satisfactory to the court. So in practice it is usual for the court to direct the jury to acquit the prisoner in a criminal case; because, if the jury find against the prisoner, the court may set the verdict aside and order a new trial, and continue to do so until a verdict of acquittal shall be rendered; though it is doubtful whether, even in a civil cause, the court could refuse to let the jury be polled, or could enter a verdict for the jury to which they did not agree. The court could direct the jury what to do, and set aside the verdict if they did otherwise; but it is not admitted that, even in a civil cause, the court could enter a verdict against the wishes of the jury.
But at the common law and in the Federal courts it is certain that where the jury render a verdict of acquittal, even against the evidence and the instructions of the court on propositions of law, the court can not set aside the verdict and order another trial. From this it follows that the court can not take from the jury this power of acquittal in a criminal case, by directing and compelling a verdict against the prisoner, and refusing to have the jury polled. But the importance of this question requires its examination not only in the light of reason, but of authority. The Constitution of the United States provides:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and a public trial by an impartial jury of the State and district wherein the crime shall have been committed, etc.
The Constitution does not define or regulate the trial by jury, but secures it as it was then known to the common law. This is a proposition so well settled by judicial determination that I shall spend no time upon it beyond citing the following authorities: Norval vs. Rice, 2 Wis., 22; May vs. R. R. Co., 3 Wis., 219; Byers & Davis vs. Com., 42 Penn. St., 89; United States vs. Lorenzo Dow, Taney Decis., 35; Lamb et al. vs. Lane, 4 Ohio Stat., 167.
Therefore, if it can be shown that, at the time the Constitution was adopted, it was well settled that the jury in a criminal cause might find a general verdict, including both law and fact, then this right is secured to juries in the Federal courts by the Constitution itself; and not even an act of Congress could take it away. What the law was at that time, is mere matter of historical inquiry, wholly different from another question, which is so often mistaken for it, whether juries ought to possess the right.
What, then, was the law upon this subject when the Constitution was adopted? Mr. Hargrave, in one of his annotations upon Lord Coke's first Institute, declares that, inasmuch as the jury may, as often as they think fit, find a general verdict, it was unquestionable that they might so far decide upon the law as well as fact, such a verdict necessarily involving both.
In this opinion, says Mr. Hargrave, I have the authority of Littleton himself, who writes, "that if the inquest will take upon them the knowledge of the law upon the matter, they may give their verdict generally."
In People vs. Croswell, 3 Johnson's Cases, 336, Chief-Justice Kent reviewed all the preceding authorities with great care, and discussed the philosophy of the doctrine under consideration, with the ability which characterizes his most celebrated opinions; and his decision in this case stands to this day as one of the landmarks upon this subject. After reciting the authorities, he says:
To meet and resist directly this stream of authority is impossible. But while the power of the jury is admitted, it is denied that they can rightfully or lawfully exercise it without compromitting their consciences, and that they are bound implicitly in all cases to receive the law from the court. The law must, however, have intended, in granting this power to a jury, to grant them a lawful and rightful power, or it would have provided a remedy against the undue exercise of it. The true criterion of a legal power is its capacity to produce a definitive effect, liable to neither censure nor review. And the verdict of not guilty in a criminal case is, in every respect, absolute and final. The jury are not liable to punishment, nor the verdict to control. No attaint lies, nor can a new trial be awarded. The exercise of this power in the jury has been sanctioned and upheld in constant activity from the earliest ages. It was made a question by Bracton (fol. 119, a. b.), who was to sit in judgment and decide upon points of law on appeals in capital cases. It could not be the king, he says, for then he would be both prosecutor and judge; nor his justices, for they represented him. He thinks, therefore, the curia and pares were to be judges in all cases of life and limb, or disherison of heir, where the crown was the prosecutor. And, indeed, it is probable that in the earliest stages of the English juridical history the jury, instead of deciding causes under the direction of the judge, decided all causes without the assistance of the judge. (Barrington on the Statutes, 18, 26, 311.)
He then proceeds to review the trial of Lilburn for high treason in 1549; Bushell's case, Vaughan, 135, and Sir T. Jones, 113; Algernon Sidney's case, 3 State Trials, 817; Tuchin's case, 5 State Trials, 542, and other cases. Again, he says:
To deny to the jury the right of judging of the intent and tendency of the act, is to take away the substance, and with it the value and security of this mode of trial. It is to transfer the exclusive cognizance of crimes from the jury to the court, and to give the judge the absolute control of the press. There is nothing peculiar in the law of libels to withdraw it from the jurisdiction of the jury. The twelve judges in their opinion in the House of Lords (April, 1792), admitted that the general criminal law of England was the law of libel. And by the general criminal law of England, the office of the jury is judicial. "They only are the judges," as Lord Somers observes (Essay on the Power and Duty of Grand Juries, p. 7), "from whose sentence the indicted are to expect life or death. Upon their integrity and understanding the lives of all that are brought into judgment do ultimately depend. From their verdict there lies no appeal. They resolve both law and fact, and this has always been their practice."
And, after referring to the case of Franklin, and other cases holding a contrary doctrine, he denounces them as innovations, and adding that the subject underwent a patient investigation and severe scrutiny upon principle and precedent in Parliament, says:
And a bill declaratory of the right of the jury to give a general verdict upon the whole matter put in issue, without being required or directed to find the defendant guilty merely on the proof of publication and the truth of the innuendoes, was at length agreed to, and passed with uncommon unanimity. It is entitled "An act to remove doubts respecting the functions of juries in cases of libel"; and, although I admit that a declaratory statute is not to be received as conclusive evidence of the common law, yet it must be considered as a very respectable authority in the case, and especially as the circumstances attending the passage of this bill reflect the highest honor on the moderation, the good sense, and the free and independent spirit of the British Parliament.
And again he says: The result, from this view, is, to my mind, a firm conviction that this court is not bound by the decisions of Lord Raymond and his successors. By withdrawing from the jury the consideration of the essence of the charge, they render their function nugatory and contemptible. Those opinions are repugnant to the more ancient authorities which had given to the jury the power, and with it the right, to judge of the law and the fact, when they were blended by the issue, and which rendered their decisions, in criminal cases, final and conclusive. The English bar steadily resisted those decisions as usurpations on the rights of the jury. Some of the judges treated the doctrine as erroneous, and the Parliament at last declared it an innovation by restoring the trial by jury, in cases of libel, to that ancient vigor and independence by which it had grown so precious to the nation as the guardian of liberty and life, against the power of the court, the vindictive persecution of the prosecutor, and the oppression of the government.
This celebrated opinion may safely be relied upon as a correct statement of the law as it stood when it was delivered in 1804. But still more conclusive authority remains to be considered. The sedition act of 1798, after defining what should be a criminal libel, and declaring that the defendant might give the truth of the matter in evidence, provides as follows:
And the jury who shall try the cause shall have a right to determine the law and the fact, under the direction of the court, as in other cases. (1 Stat. at L., 507.)
The language of this act, "as in other cases," recognizes the right here contended for. In the celebrated Callender trial, in 1800, which was a prosecution under this statute, Mr. Justice Chase, whose general bearing was so unfriendly to the defendant as to secure his impeachment by the House of Representatives, admitted this right of the jury. He said:
We all know that juries have the right to decide the law as well as the fact. (Wharton's State Trials, 710.) And again he says:
I admit that the jury are to compare the statute with the facts proved, and then to decide whether the acts done are prohibited by the law, and whether they amount to the offense described in the indictment. (Ib., p. 713.)
Though, with seeming want of logic, he held that the jury could not decide whether the statute was constitutional or not. But the full admission that the jury were judges of the law as well as the fact, shows the general understanding upon this subject, though the judge may have erred in applying the principle in the case before him. In Fries's case, who was tried for treason, 1799-1800, the jury were instructed by Judge Peters as follows:
It is the duty of the court to declare the law; though both facts and law, which, I fear, are too plain to admit a reasonable doubt, are subject to your consideration. (Wharton's State Trials, 587.)
And, in the second trial of Fries, Judge Chase instructed the jury as follows:
It is the duty of the court in this case, and in all criminal cases, to state to the jury their opinion of the law arising on the facts; but the jury are to decide in the present, and in all criminal cases, both the law and the facts, on their consideration of the whole case. (2 Chase's Trial, Appendix 1.)
In the answer of Judge Chase to articles of impeachment against him, he says:
He well knows that it is the right of juries, in criminal cases, to give a general verdict of acquittal, which can not be set aside on account of its being contrary to law, and that hence results the power of juries to decide on the law as well as on the facts in all criminal cases. This power he holds to be a sacred part of our legal privileges, which he has never attempted, and never will attempt to abridge or obstruct. (1 Chase's Trial, pp. 5, 34, 35.)
In Georgia vs. Brailsford, 3 Dallas, 4, in 1794, Chief-Justice Jay charged the jury as follows:
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 pass.
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 Constitution.
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 institutions 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 constitutional 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 assured 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 circumstances 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 circumstances 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, unconstitutional, 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 illustrated; 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 Constitution was adopted, and for nearly a quarter of a century afterward, juries were understood and declared to possess the right to pass 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 Constitution.
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 Massachusetts 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 pass upon the whole issue, compounded of the law and of the fact, and they may thus incidentally pass 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 entitled 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 Constitution, 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 pronounced. 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 Constitution 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 passed, 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 title 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 asserted 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.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and a public trial by an impartial jury of the State and district wherein the crime shall have been committed, etc.
In this opinion, says Mr. Hargrave, I have the authority of Littleton himself, who writes, "that if the inquest will take upon them the knowledge of the law upon the matter, they may give their verdict generally."
To meet and resist directly this stream of authority is impossible. But while the power of the jury is admitted, it is denied that they can rightfully or lawfully exercise it without compromitting their consciences, and that they are bound implicitly in all cases to receive the law from the court. The law must, however, have intended, in granting this power to a jury, to grant them a lawful and rightful power, or it would have provided a remedy against the undue exercise of it. The true criterion of a legal power is its capacity to produce a definitive effect, liable to neither censure nor review. And the verdict of not guilty in a criminal case is, in every respect, absolute and final. The jury are not liable to punishment, nor the verdict to control. No attaint lies, nor can a new trial be awarded. The exercise of this power in the jury has been sanctioned and upheld in constant activity from the earliest ages. It was made a question by Bracton (fol. 119, a. b.), who was to sit in judgment and decide upon points of law on appeals in capital cases. It could not be the king, he says, for then he would be both prosecutor and judge; nor his justices, for they represented him. He thinks, therefore, the curia and pares were to be judges in all cases of life and limb, or disherison of heir, where the crown was the prosecutor. And, indeed, it is probable that in the earliest stages of the English juridical history the jury, instead of deciding causes under the direction of the judge, decided all causes without the assistance of the judge. (Barrington on the Statutes, 18, 26, 311.)
To deny to the jury the right of judging of the intent and tendency of the act, is to take away the substance, and with it the value and security of this mode of trial. It is to transfer the exclusive cognizance of crimes from the jury to the court, and to give the judge the absolute control of the press. There is nothing peculiar in the law of libels to withdraw it from the jurisdiction of the jury. The twelve judges in their opinion in the House of Lords (April, 1792), admitted that the general criminal law of England was the law of libel. And by the general criminal law of England, the office of the jury is judicial. "They only are the judges," as Lord Somers observes (Essay on the Power and Duty of Grand Juries, p. 7), "from whose sentence the indicted are to expect life or death. Upon their integrity and understanding the lives of all that are brought into judgment do ultimately depend. From their verdict there lies no appeal. They resolve both law and fact, and this has always been their practice."