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THE SUBJECT CONTINUED.
JURIES form, with a few exceptions, another constituent part of courts: they form, especially, a constituent part of courts exercising criminal jurisdiction.
I mentioned, in a former lecture, that I love and ad'mire the trial by jury; and that my love and admiration of it spring from proper principles. Those principles I am now to unfold.
When I speak of juries, I feel no peculiar predilection for the number twelve: a grand jury consists of more, and its number is not precisely fixed.
When I speak of juries, I see no peculiar reason for confining my view to a unanimous verdict, unless that verdict be a conviction of a crime-particularly of a capital crime. In grand juries, unanimity is not required.
When I speak of juries, I mean a convenient number of citizens, selected and impartial, who, on particular occasions, or in particular causes, are vested with discretionary powers to try the truth of facts, on which depend the property, the liberty, the reputation, and the lives of their fellow citizens.
Having described what I mean when I speak of juries, it is proper that I should assign, in the fullest and clearest manner, my reasons for some parts of my description.
The first part in this description, which has drawn your most marked attention, is, probably, that which represents the powers, vested in juries, as discretionary. This part, therefore, merits the first illustration. It will be remembered all along, that the discretionary power vested in juries is a power to try the truth of facts. “Ad quæstionem facti respondent juratores."
The truth of facts is tried by evidence. The principal species of evidence, which comes before juries, is the testimony of witnesses.
In a former lecture, I had occasion to observe, that human testimony is a source of evidence altogether ori. ginal, suggested by our constitution; and not acquired, though it is sometimes corroborated, and more frequently corrected, by considerations arising from experience. I had occasion further to observe, that, in no case, the law orders a witness to be believed; for the testimony of a thousand witnesses may not produce belief; and that, in no case, the law orders a witness not to be believed ; for belief may be the unavoidable result of his testimony. These general positions, then laid down, it is now our business to fortify and apply. If we shall be successful in fortifying and applying them; we shall see, in a new and in a very striking light, the sublime principle of the institution of juries.
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It is tedious, and it is painful, to travel through all the numerous degrees, into which it has been attempted to arrange the force of evidence. Some writers on the subject have divided proofs into such as are near, and such as are remote. Others have been adventurous enough to define the precise number of each, which is necessary to superinduce the condemnation of a person, who is accused. One says, two will be sufficient: a se. cond says, three are necessary: a third fixes upon a number different from either. They have never reflected, that evidence arises from the circumstances attending the fact: that those circumstances should be considered in a collected and not in a separate view; and that on the more or less intimate connexion which subsists between them, the strength or weakness of the evidence resulting from them depends.
The truth of this remark will sufficiently appear, if we consider separately any of the presumptions enumerated by those writers on the criminal law. There is not one of them, which may not appear favourable, or un. favourable, or indifferent to the person under trial. A man, with a bloody sword in his hand, is seen running from a house. On entering it, a person run through the body, and no other person, is found there. Would not the presumption be strong, that the man, who ran from
the house was the assassin ? But should a jury be compelled, on this evidence, to convict him? Should he . not be allowed to prove, if he can, the connexion of this strong circumstance against him with another, in his favour, equally strong-that, passing the door of the house, he was drawn, by the cries of the person assassinated, to his assistance, and suddenly seized the poignard which the assassin had left in his side? The weight of any one circumstance cannot be ascertained independently of others: the number and connexion of those others cannot be specified, previously, in a didactick treatise upon the degrees of evidence.
Thus it is with regard to evidence arising from circumstances : will more success attend an attempt to ascertain systematically the degrees of evidence arising from positive testimony?. This depends upon the character of him who delivers, and upon the character of him who receives it. That, which would be believed from the mouth of a witness famed for his integrity and good sense, would be disbelieved, if told by a witness remark. able for falsehood or credulity. A person, hackneyed in the ways and vices of the world, who has deceived and who has been deceived a thousand times, is slow to credit testimony. An undesigning countryman, who has never practised nor experienced the artifices of fraud, believes implicitly every thing he hears. Can the characters of witnesses—can the characters of jurors be graduated in a dissertation upon evidence? And yet, in each particular case, the force of evidence must depend upon the character both of witnesses and jurors.
For these reasons, we find, in the institutions of an tiquity, no general rules prescribed concerning the force
of testimony, or the weight of presumptions : the emperour Hadrian expressly declares the impracticability of prescribing them. When one of his judges applied to him for a rescript, containing particular directions upon this subject; the emperour wrote him an answer, in which the sentiment we have mentioned is beautifully exhibited. “ No certain rule," says he,“ can be given with regard to the degree of evidence, which will be sufficient in every cause that shall occur. This only I can recommend to you in general; that you by no means confine yourself to any one kind or degree; but that, according to the nature and the circumstances of every case, you estimate, in your own mind, what you believe, and what you do not think to be sufficiently proved.".
The evidence of the sciences is very different from the evidence of facts. In the sciences, evidence depends on causes which are fixed and immovable, liable to no fluctuation or uncertainty arising from the characters or conduct of men. In the sciences, truths, if selfevident, are instantly known. If their evidence depend on their connexions with other truths, it is evinced by tracing and discovering those connexions. In facts, it is otherwise. They consist not of principles which are selfevident ; nor can their existence be traced or discovered by any necessary connexion with selfevident principles. As facts, therefore, are neither principles, nor necessarily connected with principles; the evidence of facts is unsusceptible of a general theory or rules.
Let us then forbear to attempt a graduated scale of this kind of evidence. It is the philosopher's stone of
< 2. M‘D, Ins. 631.