trial-by-jury-book/original/10.markdown

\chapter{Moral Considerations for Jurors.}

The trial by jury must, if possible, be construed to be such that a man
can rightfully sit in a jury, and unite with his fellows in giving
judgment. But no man can rightfully do this, unless he hold in his own
hand alone a veto upon any judgment or sentence whatever to be rendered
by the jury against a defendant, which veto he must be permitted to use
according to his own discretion and conscience, and not bound to use
according to the dictation of either legislatures or judges.

The prevalent idea, that a juror may, at the mere dictation of a
legislature or a judge, and without the concurrence of his own
conscience or understanding, declare a man "_guilty_," and thus in
effect license the government to punish him; and that the legislature or
the judge, and not himself, has in that case all the moral
responsibility for the correctness of the principles on which the
judgment was rendered, is one of the many gross impostures by which it
could hardly have been supposed that any sane man could ever have been
deluded, but which governments have nevertheless succeeded in inducing
the people at large to receive and act upon.

As a moral proposition, it is perfectly self-evident that, unless juries
have all the legal rights that have been claimed for them in the
preceding chapters,--that is, the rights of judging what the law is,
whether the law be a just one, what evidence is admissible, what weight
the evidence is entitled to, whether an act were done with a criminal
intent, and the right also to _limit_ the sentence, free of all
dictation from any quarter,--they have no _moral_ right to sit in the
trial at all, and cannot do so without making themselves accomplices in
any injustice that they may have reason to believe may result from
their verdict. It is absurd to say that they have no moral
responsibility for the use that may be made of their verdict by the
government, when they have reason to suppose it will be used for
purposes of injustice.

It is, for instance, manifestly absurd to say that jurors have no moral
responsibility for the enforcement of an unjust law, when they consent
to render a verdict of _guilty_ for the transgression of it; which
verdict they know, or have good reason to believe, will be used by the
government as a justification for inflicting a penalty.

It is absurd, also, to say that jurors have no moral responsibility for
a punishment inflicted upon a man _against law_, when, at the dictation
of a judge as to what the law is, they have consented to render a
verdict against their own opinions of the law.

It is absurd, too, to say that jurors have no moral responsibility for
the conviction and punishment of an innocent man, when they consent to
render a verdict against him on the strength of evidence, or laws of
evidence, dictated to them by the court, if any evidence or laws of
evidence have been excluded, which _they_ (the jurors) think ought to
have been admitted in his defence.

It is absurd to say that jurors have no moral responsibility for
rendering a verdict of "_guilty_" against a man, for an act which he did
not know to be a crime, and in the commission of which, therefore, he
could have had no criminal intent, in obedience to the instructions of
courts that "ignorance of the law (that is, of crime) excuses no one."

It is absurd, also, to say that jurors have no moral responsibility for
any cruel or unreasonable _sentence_ that may be inflicted even upon a
_guilty_ man, when they consent to render a verdict which they have
reason to believe will be used by the government as a justification for
the infliction of such sentence.

The consequence is, that jurors must have the whole case in their hands,
and judge of law, evidence, and sentence, or they incur the moral
responsibility of accomplices in any injustice which they have reason to
believe will be done by the government on the authority of their
verdict.

The same principles apply to civil cases as to criminal. If a jury
consent, at the dictation of the court, as to either law or evidence, to
render a verdict, on the strength of which they have reason to believe
that a man's property will be taken from him and given to another,
against their own notions of justice, they make themselves morally
responsible for the wrong.

Every man, therefore, ought to refuse to sit in a jury, and to take the
oath of a juror, unless the form of the oath be such as to allow him to
use his own judgment, on every part of the case, free of all dictation
whatsoever, and to hold in his own hand a veto upon any verdict that can
be rendered against a defendant, and any sentence that can be inflicted
upon him, even if he be guilty.

Of course, no man can rightfully take an oath as juror, to try a case
"according to law," (if by law be meant anything other than his own
ideas of justice,) nor "according to the law and the evidence, _as they
shall be given him_." Nor can he rightfully take an oath even to try a
case "_according to the evidence_," because in all cases he may have
good reason to believe that a party has been unable to produce all the
evidence legitimately entitled to be received. The only oath which it
would seem that a man can rightfully take as juror, in either a civil or
criminal case, is, that he "will try the case _according to his
conscience_." Of course, the form may admit of variation, but this
should be the substance. Such, we have seen, were the ancient common law
oaths.