[John Milton Binckley, “The Death Penalty.” The Lakeside Monthly. Vol. IX. January to June, 1873. Chicago: F. F. Browne and Company, 1873. Part 4: pages 333-334. Extra paragraph breaks made for easier reading.]
Here is its peculiarity: It is a trial neither by arbitrators, nor by magistrates; neither by the king as an autocrat, nor by the law as a code; but by the country. To be sure, on all sides the jury is hedged in by the law; yet there is undoubtedly an element in the idea of a jury which is contradistinguished from ordained law.
Trial by jury, in its essence, is a mixture of the judicial will with the undelegated will of the people. This is manifest from the whole history of jury trial in England, if critically studied, and of its analogue in northern Europe, and more anciently in Greece.
The Athenian court, called the Heliaea (from alia, "multitude,") consisted of 6,000 of the people of the city, chosen out of the whole every year by lot. Of these 6,000, an abstract of a smaller number, down to fifty, was drawn expressly for each separate case, in a manner and by officials carefully prescribed by law, very much as jurymen are selected in our own time, from citizens named in the lists. They received three oboli per day for their services, sat upon wooden benches covered with rugs, and heard the advocates who argued before them from their designated places (bemata).
Pettingall, Mitford, Mr. Justice Wilson, Sir William Jones, and others, have sufficiently demonstrated the antiquity of the idea of a jury, which we maintain. It is essentially the sovereign people sitting as a court, their recorded and delegated will being represented by the law and its officers, and their undelegated will by an impartial abstract from their own numbers.
The philosophy of it is, that average public sentiment, spontaneously arising, is a good ingredient in statutory administration. It is, in its lowest terms, as a British institution, a partnership court between the king's judge and what Americans call Judge Lynch.
Long since the necessity for conciliating a justly suspicious commonalty by admitting them, with their prejudices and opinions, into a participation with magisterial government, has passed away; but, there has never yet ceased a most healthful agency for keeping jurisprudence from becoming a barren abstraction, and a court of justice from becoming an inscrutable nidus for corruption, in the necessity of having all essential business of both rendered intelligible to and brought under the vigilant scrutiny of the common people, as represented in the jury box.
A common law court, then, is composed as essentially of a jury as it is of judges. The people and the magistracy unite and agree in settling causes of action. It may be compared to the Roman Senate, tempered by the rabble, personified in their tribune. It was no legislature without the tribune any more than our senate would be a legislature without the lower house. Nor do we scruple to say that to abolish the latter would be no greater innovation than to abolish jury trial in the courts of the United States.
It is, therefore, not by grace of metonymy that we identify the jury and the people; it is the doctrine of the law. A jury is an "abstract of the country," and is presumed to be fairly representative of the average feeling, opinion and capacity of the country.
It is not a civil right to sit on a jury or to be eligible as a juryman. The law deems it a burden, from which a man may be "exempted," but to which no body can be promoted. So exclusively is it the country's right, not the individual's, that the right is not capable to vest in any individual.
The greatest of forensic lawyers declared before the whole kingdom that the king, the cabinet, the army and navy, the judges, and even Parliament itself, in its omnipotence, were but guards, conservators and ministers around the British jury-box. If this was more eloquent than accurate, no jurist has ever said so. Those "guards" are the cup that holds, steady, shapely and even, the essential jury; but that jury has been dipped from the vast, changeful, some times stormy, sea of the people.
So far, then, from attempting to repress murder by tampering with the jury system, the opposite indication is strenuously demanded. The jury is now disburdened of its true, high and arduous function.
After a homicide, the killer is to be tried "by the country," in the ancient, significant, and most apposite words of the pleadings. Well, then, how does the country try him ? The answer is, in the following manner, viz.: Such citizens as think fit resort to the chambers of the Governor, to supplicate mercy for a man whose life is imperilled. Who shall limit the resources of precatory appeal ? Heaven forfend the day that hinders any species of eloquence or art which pity evokes!
Such is the trial. It is wholly ex-parte, besides being purely emotional. The contest between the firmness of an individual and the melting importunities of imploring men and women, bears hardly any analogy to a rational process for the decision of a judicial question.
Accident has in it a potency greater than reason. But in any view, the firmness of any man's will against his heart is extremely subject to his state of body. A bite of old cheese costs one poor wretch his life, while a bland and genial cup of Oolong opens a gubernatorial countenance, thereby redoubling a petitioner's zeal, and a wife-killer is licensed to marry and kill again.
[Many thanks to William Myers, Mary Davy and Sally Young for their ongoing research collaboration.]
Here is its peculiarity: It is a trial neither by arbitrators, nor by magistrates; neither by the king as an autocrat, nor by the law as a code; but by the country. To be sure, on all sides the jury is hedged in by the law; yet there is undoubtedly an element in the idea of a jury which is contradistinguished from ordained law.
Trial by jury, in its essence, is a mixture of the judicial will with the undelegated will of the people. This is manifest from the whole history of jury trial in England, if critically studied, and of its analogue in northern Europe, and more anciently in Greece.
The Athenian court, called the Heliaea (from alia, "multitude,") consisted of 6,000 of the people of the city, chosen out of the whole every year by lot. Of these 6,000, an abstract of a smaller number, down to fifty, was drawn expressly for each separate case, in a manner and by officials carefully prescribed by law, very much as jurymen are selected in our own time, from citizens named in the lists. They received three oboli per day for their services, sat upon wooden benches covered with rugs, and heard the advocates who argued before them from their designated places (bemata).
Pettingall, Mitford, Mr. Justice Wilson, Sir William Jones, and others, have sufficiently demonstrated the antiquity of the idea of a jury, which we maintain. It is essentially the sovereign people sitting as a court, their recorded and delegated will being represented by the law and its officers, and their undelegated will by an impartial abstract from their own numbers.
The philosophy of it is, that average public sentiment, spontaneously arising, is a good ingredient in statutory administration. It is, in its lowest terms, as a British institution, a partnership court between the king's judge and what Americans call Judge Lynch.
Long since the necessity for conciliating a justly suspicious commonalty by admitting them, with their prejudices and opinions, into a participation with magisterial government, has passed away; but, there has never yet ceased a most healthful agency for keeping jurisprudence from becoming a barren abstraction, and a court of justice from becoming an inscrutable nidus for corruption, in the necessity of having all essential business of both rendered intelligible to and brought under the vigilant scrutiny of the common people, as represented in the jury box.
A common law court, then, is composed as essentially of a jury as it is of judges. The people and the magistracy unite and agree in settling causes of action. It may be compared to the Roman Senate, tempered by the rabble, personified in their tribune. It was no legislature without the tribune any more than our senate would be a legislature without the lower house. Nor do we scruple to say that to abolish the latter would be no greater innovation than to abolish jury trial in the courts of the United States.
It is, therefore, not by grace of metonymy that we identify the jury and the people; it is the doctrine of the law. A jury is an "abstract of the country," and is presumed to be fairly representative of the average feeling, opinion and capacity of the country.
It is not a civil right to sit on a jury or to be eligible as a juryman. The law deems it a burden, from which a man may be "exempted," but to which no body can be promoted. So exclusively is it the country's right, not the individual's, that the right is not capable to vest in any individual.
The greatest of forensic lawyers declared before the whole kingdom that the king, the cabinet, the army and navy, the judges, and even Parliament itself, in its omnipotence, were but guards, conservators and ministers around the British jury-box. If this was more eloquent than accurate, no jurist has ever said so. Those "guards" are the cup that holds, steady, shapely and even, the essential jury; but that jury has been dipped from the vast, changeful, some times stormy, sea of the people.
So far, then, from attempting to repress murder by tampering with the jury system, the opposite indication is strenuously demanded. The jury is now disburdened of its true, high and arduous function.
After a homicide, the killer is to be tried "by the country," in the ancient, significant, and most apposite words of the pleadings. Well, then, how does the country try him ? The answer is, in the following manner, viz.: Such citizens as think fit resort to the chambers of the Governor, to supplicate mercy for a man whose life is imperilled. Who shall limit the resources of precatory appeal ? Heaven forfend the day that hinders any species of eloquence or art which pity evokes!
Such is the trial. It is wholly ex-parte, besides being purely emotional. The contest between the firmness of an individual and the melting importunities of imploring men and women, bears hardly any analogy to a rational process for the decision of a judicial question.
Accident has in it a potency greater than reason. But in any view, the firmness of any man's will against his heart is extremely subject to his state of body. A bite of old cheese costs one poor wretch his life, while a bland and genial cup of Oolong opens a gubernatorial countenance, thereby redoubling a petitioner's zeal, and a wife-killer is licensed to marry and kill again.
[Many thanks to William Myers, Mary Davy and Sally Young for their ongoing research collaboration.]
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