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April 2017 Policy Study, Number 17-6


A Commentary on the Bill of Rights


Part 17



In 1803, a man named Croswell was brought to trial before the Supreme Court of the State of New York on an indictment for libel against the President of the United States.  The Chief Justice of the court, Justice Lewis, instructed the jury “that the question of libel or no libel was an inference of law from the fact, and that the law as laid down by Lord Mansfield in The Dean of St. Asaph’s case was the law of this State” (Mr. Justice Gray).  The Dean of St Asaph’s case is properly entitled the case of Rex v. Shipley.  It can be found in 21 Howell’s State Trials, 847.  This trial took place in England in 1783.  The importance of this trial is that at this period of our own history, this case, in the words of Mr. Justice Gray, “has been the principal reliance of those who deny the right of the jury to decide the law.”  (Today, the case that is used to deny this right is Sparf and Hansen v. United States.  It is my personal opinion that a careful reading of this case will only reveal the finding that “it is not mandatory that a Judge inform the jury of its right to judge the law.”  It does not deny to the jury the right to judge the law.  And it does not proscribe a judge in any future court case from informing the jury of their right to judge the law.)


The defendant was convicted and appealed for a new trial on the grounds of the correctness of those instructions.  People v. Croswell was brought before the full court in 1804.  It can be found at 3 Johns. Cas. 337 - 342.  In this trial, Hamilton pleaded:


That in criminal cases, nevertheless, the court are the constitutional advisers of the jury in matter of law; who may compromit (compromise) their conscience by lightly or rashly disregarding that advice, but may still more compromit their consciences by following it, if exercising their judgments with discretion and honesty they have a clear conviction that the charge of the court is wrong.  (Hamilton’s Works, 335, 336).


The several following paragraphs spring from the deliberations of that court.  They are the words of Justice Kent, who later became Chief Justice and Chancellor, and were excerpted by Mr. Justice Gray.  To my mind, they capture the essence of the virtue and necessity of a trial by jury.  Please weigh these ideas carefully.  Justice Gray begins, “Judge Kent drew up a careful opinion, in which he reviewed the leading English authorities, and from which the following passages are taken.”  He continues:


In every criminal case, upon the plea of not guilty, the jury may, and indeed they must, unless they choose to find a special verdict, take upon themselves the decision of the law, as well as the fact, and bring in a verdict as comprehensive as the issue; because, in every such case, they are charged with the deliverance of the defendant from the crime of which he is accused.


The law and fact are so involved, that the jury are under an indispensable necessity to decide both, unless they separate them by a special verdict.  This right in the jury to determine the law as well as the fact has received the sanction of some of the highest authorities in the law.  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 neither to censure nor review.  And the verdict of not guilty, in a criminal case, is, in every respect, absolutely 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.


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 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 vigour (sic) 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.  (See Fox’s laws for Parliament’s action.)


I am aware of the objection to the fitness and competency of a jury to decide upon questions of law, and, especially, with a power to overrule the directions of the judge.  In the first place, however, it is not likely often to happen, that the jury will resist the opinion of the court on the matter of law.  That opinion will generally receive its due weight and effect; and in civil cases it can, and always ought to be ultimately enforced by the power of setting aside the verdict.  But in human institutions, the question is not, whether every evil contingency can be avoided, but what arrangement will be productive of the least inconvenience.  And it appears to be most consistent with the permanent security of the subject, that in criminal cases the jury should, after receiving the advice and assistance of the judge as to the law, take into their consideration all the circumstances of the case, and the intention with which the act was done and to determine upon the whole, whether the act done be, or be not, within the meaning of the law. 


This distribution of power, by which the court and jury mutually assist, and mutually check each other, seems to be the safest, and consequently the wisest arrangement, in respect to the trial of crimes.  The constructions of judges, on the intention of the party, may often be (with the most upright motives) too speculative and refined, and not altogether just in their application to every case.  Their rules may have too technical a cast, and become, in their operation, severe and oppressive.  To judge accurately of motives and intentions does not require a master’s skill in the science of the law.  It depends more on a knowledge of the passions, and of the springs of human action, and may be the lot of ordinary experience and sagacity.  (Emphasis added).  (3 Johns. Cas. 366 - 376.  Judge Kent, cited by Justice Gray).


In the August term of 1805, the court unanimously awarded a new trial in the above cause.


Until nearly forty years after the adoption of the Constitution of the United States, not a single decision of the highest court of any State, or of any judge of a court of the United States, has been found, denying the right of the jury upon the general issue in a criminal case to decide, according to their own judgment and consciences, the law involved in that issue . . .   (Emphasis added).


And it cannot have escaped attention that many of the utterances, above quoted, maintaining the right of the jury, were by some of the most eminent and steadfast supporters of the Constitution of the United States, and of the authority of the national judiciary.  (Mr. Justice Gray, Sparf and Hansen v. United States, 168, January, 1895).




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