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if it be constitutional, the great duty of sustaining the government, of sustaining its forms inviolate, overrules all such objections, and requires obedience, as long as the act is in force. There is too strong a tendency to overlook this consideration—not so much among ourselves, for by the blessings of God we have enjoyed a greater share of quiet than most of our neighbors; but the contagion is around us and may be among us, and it is our special duty, as courts and juries, to use cvery precaution to prevent its introduction. It may be thought that the establishment of a despotism in this country is impossible; but, whenever the people shall deem it a light and trifling matter to disregard laws, of which they deem themselves the very fountain-head, then will they be in a fair way to anarchy and confusion; and from anarchy, under our social forms, there is no escape but through despotism. When a democracy passes into anarchy, nothing but the iron weight of a despotism can repress and bring within due compass the elements of disorder and confusion.
I have thus, gentlemen, endeavored to show why it is, that all that is truly law, considered with reference to its origin, is equally sacred; and that there can never be any wilful violation of it, without some degree of moral as well as legal guilt in the offender. It seems to be not inappropriate at this time to call your attention to this great truth, and to remind you that, in obeying the letter of the law and the intent of the law-making power, you obey something higher than either, you are acting in obedience to those eternal laws of mind, by which God governs in the progress and destiny of our race.
THE RELATIVE DUTIES OF COURT AND JURY.
GENTLEMEN OF THE GRAND JURY:
BEFORE entering upon a description of such offences as may at this time require your special consideration, I propose to say something of the tribunal to which your presentments are to be made. I propose in particular, to point out, as briefly as may be, the line of distinction which the law draws between the duties of the petty jury in the trial of causes, whether civil or criminal, and those of the court in delivering its opinion in the charge. It is true that, in doing this, I am departing in some degree from the common routine of duty; but you, gentlemen, are the grand inquest of the county, and as such, you judicially represent it, and through you the court may promulgate its views to parties and counsel, and to all those who may, at present and hereafter, be called on to discharge the important duty of trying an issue to the country.
I am the rather induced to present these views at this time, from a belief that juries have, in several instances, within my own limited judicial experience, disagreed among themselves and failed to find verdicts, from not clearly distinguishing between those responsibilities which belong to the court, and those which belong to themselves. The act of '27, reorganizing this court, recognizes this distinction, and construed in connection with other laws, leaves it, in civil cases, too definite and certain to admit of a doubt. This act makes it the imperative duty of the court to instruct the jury in the law, and by necessary implication it makes it the correlative duty of the jury to receive the court's instruction as such. But this distinction, though plainly the necessary construction of the act, appears to be sometimes forgotten and sometimes rendered obscure, by the habits formed in the public mind through a long succession of years, when it was rare for the jury to receive instructions from the court. Under the influence of this habit, giving a wrong direction to their sense of duty, the most conscientious jurors have, doubtless, sometimes been induced to assume responsibilities which they would otherwise have most decidedly shunned. For it cannot be in the nature of any man, unless prompted by a sense of duty, real or supposed, to assume a burthen which belongs to another, when, by that assumption, he gains nothing but the inconvenience of bearing it.
You all know, gentlemen, that prior to the act of '27, every issue to the country, involving law and fact, was argued exclusively to the jury --that the jury then retired without any instructions from the court, and, in their chamber, always found themselves under the necessity of discharging the double duty of jury—to determine the fact-and, of a judicial tribunal, to establish or decide on general legal principles They there reviewed the ingenious arguments of counsel-weighed authority against authority-precedent against precedent—and sometimes sophism against sophism--till lost and confounded in the complexity of the discussion, they gave up the hopeless task of untying the gordian knot of the case and cut it assunder by a compromise of individual opinions—or, (an event equally to be regretted,) in consequence of disagreeing on a legal point, failed to find any verdict at all, and so left the parties to travel over the same ground again, with scarcely a better hope, than when they commenced, of finding an end of the law.
It was therefore an object, well worthy of the act of '27, reorganizing this court, to remove, as far as might be, these imperfections in jury trials. And by expressly requiring a charge from the court, it was manifestly one of its principal objects, to confine the jury to the appropriate duty of weighing the evidence—a duty which they are abundantly better fitted to perform than the court, and at the same time, to relieve them, in all civil cases, from the very responsible burthen of deciding questions of law, by imposing that responsibility on the court, to whom it should alone belong.
This act requires the court “ to instruct the petit jury in the law that may be applicable to cach cause by them tried, by giving them publicly in charge, before they retire to consider their verdict, the opinion of the court upon the law.” If this language could admit of a doubt, what I have already said of the evils, which it was designed to remedy, would render its meaning perfectly clear. But its words are clear and need no resort to the occasion of its provision in order to aid in its interpretation. It is made the duty of the court to instruct by giving its opinion in charge, and, when it does so instruct, it is the correlative duty of the jury to be instructed by it, to receive its charge as an exposition of the law expressed by the organ designated by the
legslature, and, not as mere matter of advice, to be adopted or rejected as may best suit the convenience or feelings of the moment. It can never be admitted that, whilst the opinions of legal writers and foreign courts are read to the jury as law, that the legislature intended that the enjoined opinions of their own supreme judicial tribunal should be received by the jury as mere matter of advice. It would be, indeed, a singular state of things, in which jurors should feel themselves bound to accept law from foreign courts, whilst they would receive nothing but advice from their own.
It is an error to suppose that the oath of the juror, in civil cases, (and it is of these only that I now speak) is inconsistent with this act. That oath does not require him to decide what the law is, but to give a true verdict according to it, and the evidence given him. In order to decide according to law, when uninstructed in it by the court, he must indeed decide for himself what the law is. But this he will not do in virtue of his oath, for he has a right to call for the court's opinion—but in consequence of the absence of judicial instruction. This was ever the situation of the jury, with the exception of a few years prior to the act of '27, and this circumstance, perhaps, has caused the necessities, arising from that situation, to be confounded with the obligations of their oath. As the oath, to give a verdict according to evidence, presupposes the existence of evidence and of a court to decide what is evidence and what is not—so when the same oath requires a verdict according to law, it in like manner presupposes the existence of a competent tribunal to determine what is law and what is not law —what act is constitutional and what unconstitutional—what is repealed and what unrepealed—what has fallen into disuse and become obsolete, and what is still in force. And when the law is thus determined, the jury, by their oaths, are to return a verdict according to it. The opposite construction of their oath invests the jury with judicial power, and involves the whole judicial system in contradiction. According to such construction, the jury decide questions of law by their verdict under oath, whilst the court are invested with authority to set aside their verdict as against law—their oath obliges them to decide what the law is, and yet they may return a special verdict, and ask the opinion of the court on the law. The truth is, that the oath prescribed by our statute, is in effect nothing more than the common law oath, well and truly to try the issue between the parties, and a true verdict to give according to the evidence. Under both oaths, the jury in the first place determine the facts, and then apply the law, as the same has been determined by the court, and bring in their verdict accordingly. If the jury choose to rely on any authority, other than that of the court, for the law, they do so on their own responsibility, and if they err, they err without the possibility of redeeming their error. It is not so with the court—ample means are in its hands for the correction of its mistakes. We know, gentlemen, that we have our full share of human fallibility. We know that in the common course of things we shall err, and perhaps greatly err; but the law foresees this, and has made a special provision for it. The jury on returning their verdict depart never again to meet; but the court remains a permanent body, and has it in its power, on an application for a new trial, to revisedeliberately revise its decisions and correct its errors. Let it not be supposed, that anything like pride of opinion will prevent its reversing a wrong decision or granting a new trial, on a wrong direction to the jury. Pride of opinion can never actuate a court that knows its duty. That man, in a public or private station, who is too poor in character or intellect to honor the draft of an occasional error, is already a bankrupt in both.
The sources of error are too numerous not to exact the most unremitted vigilance, and, at the same time, afford an ample apology for all ordinary mistakes in judgment. The cases which are called for trial are generally such as the court know nothing of until the moment they are presented for its consideration, and that mind must be great indeed and far beyond any thing that the person addressing you can pretend to, which can, at the moment, seize the essential point in controversy and concentrate all its natural energies and all its legal acquisitions, to illustrate whatever in it is obscure, and develope whatever is com plicated. To a mind engaged in the progress of a trial, in separating from the case that which is irrelevant, and, in reducing to order and appropriate graduation the various details of a mass of evidence, but little time is given for deliberation, and its passing opinions must often be the mere expression of its present and unpremeditated impressions.
As to all cases having a novel and complicated aspect, much must depend on their preparation by the counsel. The labor of counsel should be such as to abridge the labor of the Court. Too much time is no doubt often consumed on the minor details of a case—too much wasted on irrelevant matters, but, with all this deduction, the aid which counsel do or should bring to the court, in the preparation of every complicated case, is indespensable to the dispatch of business and often to the correctness of the court's decision. Present such a case without such preparation to any tribunal, and what is it, but a mass of facts without order, suggesting a variety of legal principles, some relevant