Trial by Jury in Civil Suits

THERE is in the community a widespread distrust of the trial by jury. Its results are commonly spoken of as utterly uncertain. It is said that reasons alien to the merits of a cause are likely to decide it; that the relative ability of the parties to bear an unfavorable verdict is often quite conclusive; that a corporation has little chance of justice ; that the plaintiff, having the closing argument, has an undue advantage ; that a decently veiled unscrupulousness in the advocate is pretty sure to win, when opposed only by learning, talent, and integrity. Such charges are constantly made, and meet with little contradiction. Nor is this merely the loose talk of irresponsible grumblers. Baron Bramwell, on examination before the Law Courts Commission (Scotland), said, “ If I wanted nothing but the truth in a particular case, I should prefer the verdict of a judge, and it seems to me impossible to doubt he is the preferable tribunal.

. . . In an action against a railway company, they [juries] generally go wrong ; in actions by tradesmen against gentlemen, in questions whether articles supplied were necessary to an infant or wife, they are sure to go wrong; in actions for discharging a servant, they generally go wrong; in actions as to malicious prosecution, they are always wrong.” Mr. Patrick Fraser, well known as an advocate and law author, before the same commission said, “ I think it [jury trial] the biggest farce that ever was instituted for the investigation and settlement of civil rights. ... In a number of cases, unless the judge takes the case out of their hands, the verdict is sure to be one way. . . . But, apart from my opinion, the practical result is this : we have tried it for fifty years, and it has entirely failed. You can't bring people to the jury court.

Merchants in Glasgow say they would rather resign their rights and interests altogether than submit their cases to a jury.”

On the other hand, the institution has been the subject of a great deal of indiscriminate eulogy. Blackstone declares it to have been in use among the earliest Saxon colonies ; to be more than once insisted on in Magna Charta as the principal bulwark of liberty ; to be the most transcendent privilege which any subject can enjoy or wish for. And he concludes that Montesquieu had no right to infer that the liberties of England must in time perish from the fact that Sparta, Carthage, and Rome had lost theirs, since they were strangers to the trial by jury. So Judge Story, speaking of the seventh amendment of the constitution, says, “It places upon the high ground of constitutional right the inestimable privilege of trial by jury in civil cases.” So, De Tocqueville : “ C’est done le jury civil qui a réellement sauvé les libertés de l’Angleterre.”

The founders of our state and national governments regarded it as all important. By the constitution of 1780 it was secured for Massachusetts; and eight years later the opponents of the federal constitution found their most hopeful point for attack in the failure to provide for it in express terms. The friends of the constitution replied that it was already provided for in fact, if not in terms; but they yielded to the objection so far as to accompany the adoption of the constitution with a proposal to amend in this particular ; and the amendment was made.

It is generally true that institutions have at some time met actual needs, or, at least, were the best attainable when they originated ; but it does not follow that they are adapted to the wants of a subsequent age. Time takes the soul out of them, and leaves the form, like the husks and stalks of last year’s corn,—rubbish fit only to be burned. So it comes that they often continue to be long after they cease to be useful, and that the fact of being is small proof of the right to be. It may be considered as at least doubtful whether this institution has any rightful place in the world of to-day.

A brief sketch of the origin and history of trial by jury in civil suits, showing the modes of trial it displaced and the wants it met, will be a fitting introduction to an inquiry into its adaptation to the needs of modern society.

Recent investigations have shown Blackstone’s statement that it was in use among the earliest Saxon colonies to be erroneous. It came into being by gradual development, and it would be as difficult to say when it began to be as to say when the acorn-sprout becomes an oak-tree; but it may be safely said that nothing that can properly be called by its name existed in England prior to the Norman Conquest.

Mr. Hallam has published a translation of an ancient record of a suit tried in a county court about 1025. It is invaluable for the light it throws upon the mode of conducting civil suits among our Saxon ancestors. We have room only for an abstract: “ It is made known by this writing ” that in the shiregemot held at Agelnothesstane there sat the bishop, the alderman and his son, and Leofwin, Wulfig’s son, and the sheriff, and all the thanes of Herefordshire. Then came to the mote Edwin, son of Enneawne, and sued his mother for some lands. The bishop asked who would answer for his mother. Thurkil the White said he would if he knew the facts, which he did not. Then three thanes went to her and inquired what she had to say about the lands. She replied she had no lands that belonged to her son, and fell into a “ noble passion ” against him ; and calling for Leofleda, her kinswoman, the wife of Thurkil the White, said to her, before them all, “ This is Leofleda, my kinswoman, to whom I give my lands, money, clothes, and whatever I possess, after my life,” and bade them be witnesses. Then they rode to the mote, and told all the good men what she had enjoined them. Then Thurkil addressed the court, and requested all the thanes to let his wife have the lands; and thus they did ; and Thurkil rode to the church of St. Ethelbert, with the leave and witness of all the people, and had this inserted in a book in the church.

The thanes were the larger landholders. It is said that the ownership of six hundred acres carried with it the right to the dignity and name of a thane.

It is to be noticed that this is a trial of the title to land, the most important of Anglo-Saxon possessions ; that the decision is made by the whole body of the thanes in the county, and without evidence ; that, apparently, the bishop is presiding ; that the mother’s unwritten will is allowed while she is still living; that the court appears to have no records of its own doings ; and that the plaintiff loses his title to the lands if he had any, and the chance of inheriting from his mother if he had none. Here was a case of “ trial by the country,” probably, in the original sense of the term. It would seem to us that, under such a system, the right of property would be about as secure as if held at the will of a town-meeting.

There has floated down to our time an account of another trial of a title to land. The case was first heard by the county court, and afterwards was submitted by the court to thirty-six thanes, chosen by the parties. This seems an admission that the tumultuous assembly of the freeholders was not competent to deal with the question, and marks a greater advance toward the better methods of later times than we can elsewhere find among the scanty memorials of the Saxon period.

We next cite a case which occurred soon after the Conquest. It is from Dugdale’s Origines Juridiciales, credited to an ancient manuscript in the Cottonian library. It related to land in Kent, claimed by the sheriff for the king, and by the Bishop of Rochester as belonging to his see. The king commanded that all the men of the county, that is, probably, all the freeholders, should assemble to determine which had the better right. The decision was in favor of the king. The Bishop of Baieux, who presided, was not satisfied with the result, and commanded that if they knew their verdict to be true they should select twelve of their number to confirm on oath what all had said. The selection was made. The twelve retired to consider, and, as the account states, were alarmed by a message from the sheriff. Finally they took the oath. Afterwards some of the twelve confessed that the verdict was false, and the bishop had his land again.

Probably the appointment of a limited number to confirm on oath the verdict of the whole was not without precedent, but it does not appear to have been usual. In another suit for land, in the same reign, the decision is said to have been by all the men of the county — French, and especially English — skilled in the ancient laws and customs.

The grand assize was introduced in the reign of Henry II., about 1155. Glanville, writing about 1181, speaks of it as a royal benefit emanating from the clemency of the prince with the advice of his nobles, and designed to enable men to possess their rights in safety, and at the same time to escape the hazard of infamy and premature death in the duel. He gives a full detail of the proceedings. It applied only to real estate, and rights and services connected with it. After what would seem to us intermiuable excuses and delays, the defendant appeared to answer. The plaintiff then set forth his demand, and the defendant had his election to defend by the trial by battle or submit his case to the assize. If he elected the latter, the king’s writ was issued requiring the sheriff to summon four lawful knights of the vicinage to elect twelve lawful knights of the vicinage, who knew the truth, to return on oath whether plaintiff or defendant had the better right. If, when the twelve assembled, it appeared that a part or all of them were ignorant of the matter, resort was had to others, until twelve at least were found who knew the truth of the matter. Their information of the merits of the cause must be “ either from what they had personally seen and heard, or from the declarations of their fathers and from other sources equally entitled to credit as if falling within their own immediate knowledge.” If the twelve found to possess adequate knowledge of the facts did not agree, others were added, until twelve at least were found who agreed in favor of one party or the other. Each of the knights summoned swore that he would neither utter falsehoods nor conceal the truth.1 When Glanville wrote, it seemed to be unsettled whether, if twelve could not be found in the county who knew the facts, a smaller number could be heard at all.

The grand assize had authority to try only such cases as would otherwise be submitted to the trial by battle, and by no means all such cases. Glanville informs us that “debts arising either from a purchase or a borrowing are substantiated by the general mode of proof in court; in other words, either by a writing or by duel.” It was undoubtedly moulded in a great measure upon forms of procedure already in use for other purposes.

Our early law writers speak of the jury; Bracton discusses it quite fully; but, writing for contemporaries, they omit explanations quite essential to us. Questions of fact were tried by it, but we know little of the extent or nature of its jurisdiction or its mode of procedure. The jury consisted usually, but not always, of twelve persons. Sometimes we find it resorted to to settle collateral questions arising in an assize, as whether a party was of full age, whether plaintiff and defendant were descended from the same stock, etc.

In Glanville’s time, the chief difference between the jury and the assize seems to have been in the nature of the questions tried by them, and this distinction was soon lost, and both came to be known as “ the jury.” But the fact important to this discussion is that whatever the name of the tribunal, the trial was but a recognition, a method of proof. The jurors were witnesses to what they knew or were supposed to know. Their duty was to find some fact or facts within their knowledge. As we have seen in the case of the assize, the knowledge required was not always what we call personal knowledge. Tradition and to some extent reputation were regarded as sufficient. When property consisted principally of land and domestic animals, the ownership would usually be known by persons in the vicinity. If the facts in controversy were not likely to be known, other methods of proof were resorted to. We find in the Year Books the following report of a case tried in 1292 : A had leased a mill to B for ten marks. A’s executors sued B for the ten marks, and claimed a jury. B said he did not owe the money and demanded the right to defend by wager of law. The plaintiffs replied that if their claim were for money lent, B might so defend; but inasmuch as they were demanding a debt on the lease of a mill, of which B was then seized, it was a matter of which a jury might well have knowledge. B was allowed his defense, and made it “ twelve handed,” that is, swore he did not owe the debt, and produced eleven of his neighbors who swore they believed him.

It seems highly probable that trial by recognition was of Norman origin, and was not known in England until after the Conquest. It is certain that it existed in Normandy. We have in the Grand Coustumier de Normandie an interesting account of the method of proceeding, which we may assume was substantially the same as in England : “ The names of the jurors having been called over in open court, the parties are at liberty to take any legal exceptions to them. The jurors are then individually sworn to speak the truth. The judge shall, in the next place, solemnly charge them to return a true verdict. . . . The jurors shall then consult upon their verdict, and in the mean time shall be strictly guarded, lest they be corrupted. Having considered of their verdict, if they all agree, one of them shall deliver it to the judge in open court.”2 After the verdict was delivered, if the case required it, the judge interrogated each juror as to his means of knowing what he had testified to.

The Chronicle of Joscelyn de Brackelonde, published by the Camden Society, furnishes some illustrations of the practical value of jury trial in this stage of its development. The Chronicle is a record of the monastery of St. Edmondsbury during the administration of Abbot Samson, about the beginning of the thirteenth century. In one case the question was whether certain land was the property of the church. The result is thus stated: “ Juraverunt recognitores se nunquam scivisse illam terram fuisse separatam ab ecclesiâ” In another, a recognition was taken to determine the right of the abbey over three manors. The abbey produced a deed, but it went for nothing. The recognitors said they knew nothing of any deeds or private agreements; that they believed the other party and his father and grandfather had held the manors for a hundred years. Still another case is reported, which we commend to the believers in the degeneracy of modern times. Five of the recognitors came to the abbot to know what they should swear, meaning to receive money. He gave them nothing, but bade them swear according to their consciences. They went away in anger, and found against him.

From the fact that anciently the jurors were witnesses only, came the rule that they must be taken from the vicinity ; strangers would not know the facts. Here also we find the origin of the law of attaint. It would be horrible to subject a juror to forfeiture of property and perpetual imprisonment for an error in judgment, but for a false finding of a fact within his knowledge he might well be punished as we punish perjury. So, also, the ancient practice of keeping a jury “ without food, drink, fire, or candle” until they were agreed seems somewhat less absurd if we understand it to mean until they will all testify to facts within their knowledge, rather than until they think alike in relation to the weight of evidence laid before them. If such discipline were found wise in the latter case, it would be well to inquire whether something like it might not be applied to the judges of our supreme court, to hasten their unanimity in deciding questions of law.

The next step forward that we can trace was in “adjoining” witnesses to the jury, to inform them of some fact which, from its nature, was not likely to be known to them. It appears that about the middle of the fourteenth century the witnesses to a deed were “adjoined” to the jury, but without a right to participate in the verdict. Here began the change which in the end made jurors judges. This change cannot be fully traced. We find that in 1410 witnesses were examined at the bar, in the presence of the court and jury, and the jury, having heard the testimony, retired to consider their verdict; but for two or three centuries after that they continued to found their verdicts, when need be, in part on their own knowledge. In 1670 an attempt was made to punish certain jurors for finding a verdict against “full and manifest evidence.” Vaughan, C. J., and his associates held that the law required jurors to be taken from the vicinage upon the presumption that they had sufficient knowledge of the facts to try the issue, if no evidence were produced; and that, although the evidence produced in court might seem to the court full and manifest, the court had no power to punish the jurors for their finding, since it might have been based upon other evidence within their own knowledge. About the beginning of the eighteenth century, it appears to have been first held that if a juror knew any fact in a case on trial he should make it known to the court, and be sworn and testify in the presence of the court. Since then jurors, in theory at least, consider only the testimony laid before them in the presence of the court.

Our ancestors brought with them to this continent trial by jury as part of their inheritance of English law ; but the several colonies modified it somewhat by legislation. Thus the Body of Liberties, supposed to have been adopted in 1641, provided that when any ju rors are not clear concerning any case before them “ they shall have liberty in open court to advise with any man they shall think fit to resolve or direct them, before they give in their verdict;” and also, “ if they cannot find the main issue,” they shall have liberty “ to find and present in their verdict so much as they can.” These singular provisions were retained as late as 1672.

We have thus traced the rise and progress of this institution as accurately as we can from the scanty records which have come down to us, and as fully as our limits will permit. There seems little in its history to show that it has any adaptation to the present. Originally, as a trial by recognitors, it was welcomed because it offered an escape from intolerable evils. It took the place of the Saxon trials by the freeholders of the county and by wager of law, and the Norman trial by battle; and thus in a large class of cases furnished a mode of settling rights of property by the aid of human knowledge and intelligence, previously determined by force or accident, or at best by the whim of a popular assembly, acting with or without evidence, and guided by no settled rules. In the course of centuries its character changed, to meet, so far as it might, changing needs. It became what it now is when the forms of property and business relations were so unlike those of the present that if it could be shown to have been the best, or the best attainable, for that time, no inference could be drawn that it has now a right to continued existence.

It must, then, stand upon its merits. If, as has been claimed, it is the great bulwark of liberty, even if it be important among the causes that have developed and now uphold constitutional government, we need inquire no further. Its value as a means of administering justice is of secondary importance. The safety of the state is paramount. It is, however, difficult to see how public liberty can be affected for good or evil by the fact that a court, in determining whether a parcel of land or a sum of money belongs to A or B, proceeds with or without a jury. Courts of admiralty, equity, and probate try questions of fact without juries. It cannot be said that their influence is unfavorable to free government. Can we trace any connection between this form of trial of civil suits and Magna Charta, the habeas corpus, the petition of right, the Revolution, the responsibility of the king’s ministers, the life tenure of judges, the reform bills, or any of those great national attainments by which constitutional government has been advanced, regulated, and consolidated ?

We have seen that Blackstone supposed trial by jury to be secured by Magna Charta, but modern investigations have shown that it is not so. The institution now known by that name and secured by the American constitutions is several centuries younger than Magna Charta. Indeed, that instrument does not mention recognitors even. They were not called “pares,” nor was their finding called “judicium.”

If we seek the reason why England has been able to maintain and perfect a free constitution, and why, among all the peoples springing from her and speaking her language, freedom and social order coexist, we shall find it not in the trial by jury, but in race. Most other races seem to lack capacity for social organization. The alternative for Ireland seems to be between anarchy and something very like despotism. Is there any hope for Mexico ? The past of France fails to give assurance of her future. The Latin and the Celtic races have often been able to destroy oppressive governments, but not to establish liberty under the reign of law.

Trial by jury proves the existence of a free government; it is the exercise by the people of one branch of supreme power. When we say it founds or upholds it, we put the effect for the cause. But suppose its value for the conservation of liberty in the past were admitted, it does not follow that it is needed now for the like purpose. Officials are powerless beyond constitutional limits. Judges by the tenure of office are beyond the influence of executive power, and generally of the ballot-box. The end now to be sought is that the law, as the expressed will of the people, should be everywhere and always supreme and uniform in its administration. The disturbing influences now to be feared are popular clamor on the one hand, and on the other great accumulations of wealth by corporations and individuals.

And so we come to this vital question : Is justice according to fixed rules of law more likely to be attained by our present system, or by one in which both fact and law are settled by the court without the intervention of a jury ?

We have already adduced the testimony of experienced witnesses that in certain classes of cases juries are likely to go wrong, and it is safe to say that no judge, lawyer, or man of business with practical knowledge of the subject will deny it. Take, for illustration, suits against railroad and insurance corporations; the corporation is always at an immense disadvantage before a jury. Now, although great corporations may be dangerous and need restraint, it will not do to restrain them by injustice and the violation of jurors’ oaths. The ideal tribunal is no respecter of parties. If litigants are not equal before the law, a fundamental principle of good government is violated. Here, then, we have an enormous evil that seems inseparable from this mode of trial.

Again, in cases in which we may assume that jurors would have no bias, it is obvious that they are greatly liable to error from the want of proper qualifications for the work they are to do. It was found in the beginning that the world’s work could not be done without special preparation for special duties. Our neighbor may be a great man, but we do not call upon him to set a broken limb unless he has had the training of a surgeon. Much as we may esteem our physician, we do not ask his advice when a claim is set up to the estate we inherited and supposed our own. We never go to our shoemaker for a coat, nor to our tailor for boots. In our late war, we sometimes, when smarting under defeat, talked wildly about military genius and West Point machines; but in the end the value of military education was splendidly vindicated, while the civilians, who early in the war, by political influence or otherwise, obtained independent commands in the army, for the most part failed miserably, involving the country in vast loss and suffering The average juryman is unaccustomed to continuous thought. He has never learned by practice to weigh and compare evidence, nor to judge of the truthfulness of witnesses. In protracted trials it is impossible for him to carry the testimony in his memory, or to aid his memory effectively by notes. At the close of the testimony the court instructs him in the law applicable to the case, and then it becomes his duty to make up his verdict by applying as best he may legal principles often imperfectly understood to testimony imperfectly remembered. We should not set a man to cultivate a farm or make a shoe without practical acquaintance with his work. We should expect nothing from him but failure, if his preparation had been only a lecture or a course of lectures. And yet we set jurors to the performance of the most responsible and difficult of all duties, with such preparation and aid only as they can receive from the arguments of the lawyers and the charge of the court.

Again, the juryman is impressed into the service. Often he brings with him the cares of the business from which he was taken; and if anxiety about the harvesting, the notes that must be paid before the banks close, or the conduct of the boy who thinks “ epsom salts means oxalic acid” distracts his attention, he will console himself by the reflection that his responsibility is shared by eleven others.

On the other hand, the judge brings to the work a mind disciplined by years of study, followed by years of study and practice. His knowledge of law enables him to see what facts are to be proved, and on which of the parties rests the burden of proving them, and so, as each witness delivers his testimony, to appreciate its probative value. Practice has taught him to read witnesses. For him not words only, but the manner, the tone, the gesture, the countenance, have force and meaning. He is not likely to be misled. He has opportunity to take full notes, if need be, and afterwards to revise and compare the statements of witnesses. The duties of his office are his work. His attention is not distracted by outside cares.

So much for the relative capacity of judge and jury to administer justice. Let us look next to their relative inducements to fidelity.

We assume that their sense of duty, man’s highest motive, will be equal. This motive, however, with most men may be usefully reinforced by others less worthy. The individual juryman neither wins nor loses good name or fame by the verdicts of a tribunal of which he is a twelfth part. His brief term of office over, he returns to his business, and no one except the parties knows or cares what are the merits of the verdicts of the twelve, much less of his part in them. He need not give reasons for his votes in the jury-room. If he will, he can, without restraint or censure, act from pique, prejudice, or sympathy. On the other hand, the judge has a reputation to make or mar. Usually he gives the reasons for his decrees, and the law may require him always to do so. He alone is responsible. He cannot afford to be negligent or hasty, or to found judgments upon insufficient grounds.

The probability of attempts to influence a tribunal by unlawful means will be in proportion to the danger and the chance of success. Bald bribery is perilous, and therefore unusual; but there remains a wide range of other influences that may be brought to bear upon the juryman, without risk, and hopeful. His residence and place of business are easily ascertained; and a party willing to approach him will have no great difficulty in becoming acquainted with his weaknesses, wants, and prejudices. Considering the material of which juries are made, it is at least somewhat probable that frequently some one or more of the twelve may be found controllable by other means than those used in the presence of the court. Indeed, it is quite possible that a juryman may be thus swayed without consciousness of wrong. Since the practice of lobbying legislators in matters of private interest has come into use, there has grown up a looseness of thinking on such subjects that did not exist before. If a railroad corporation that seeks from the public a grant of land or a right of way may without scandal give the railway committee free tickets, or invite them to dinner, or press their claims on its members outside the committee room, why not use similar influence with a jury ? It is difficult to see the distinction between the tribunal that is to determine whether a corporation shall be authorized to take A’s land against his will and the jury that is to determine how much he is to be paid for it ; between a committee that is to decide how much the state owes B and the jury that is to decide how much C owes him.

No doubt the danger is considerable that justice may thus suffer shipwreck in the hands of jurors ; is it less with judges?

This question we have in part answered already. We may add that a judge, from his professional training, must know what may properly influence his judgment, and if he is swayed by any other consideration he sins willfully. The history of the English courts from the day they became independent of the crown, and of our own where the life tenure of office has been preserved, leads to the conclusion that justice is safe in the hands of judges.

Few persons will be found to deny that we are more sure of justice according to law without juries than with them; but it is said that their verdicts are generally just, and if not according to law it is because the operation of the law is hard in the particular case. This may sometimes be true, but such verdicts are dangerous. They involve the violation of jurors’ oaths, and substitute such notions of right and wrong as the twelve may chance to have for the expressed will of the community; and in view of them no man knows his rights or obligations.

We have spoken of the institution as a conservator of liberty, and as a means of administering justice. There are some other considerations that should not be overlooked. It is best that men should not be tempted. If we are right in supposing that jurors are more likely to be swayed by improper influences than judges, it follows that in the same proportion is the temptation to approach them greater. If unscrupulous advocacy is more likely to be successful with the jury than with the judge, so much greater is the temptation of the advocate to attempt to obtain verdicts by improper means, and of clients to employ unscrupulous advocates.

It is sometimes said that the institution is important as a means of public education. There is undoubtedly some truth in this. The small portion of the community who are called to act as jurors acquire during their term of office some knowledge of law, and some skill in weighing and comparing testimony. But if it be true that this mode of trial is not the best mode of administering justice, it is certain that the community cannot afford to furnish such means of education. To set men to decide controversies that they may learn how is no better than setting them to amputate limbs for the same purpose.

Probably a proposition to amend our constitution so as to take away the right to a jury in civil suits would meet with small favor. Men would fear that something terrible would come of it. Tradition and prejudice on this subject can-

not yet be controlled by reason. Practically, in their own causes parties are usually quite willing to waive the right, except when on the winning side of one of those suits in which a jury is pretty sure to be wrong. In England the county courts, established in 1847, have jurisdiction to the amount of fifty pounds, with the right in either party to have a jury if the amount is over five pounds. It is said the right is not claimed in five cases in a thousand. In the United States, for nearly forty years, either party to a civil suit in admiralty, for a cause of action arising on the lakes or waters connecting them, has had by law the right to claim a jury, but we learn that suitors have seldom availed themselves of the privilege.

We do not propose to discuss the usefulness of juries in criminal trials. It is undoubtedly true that in the past juries have often maintained the right of persons accused against executive tyranny. Thus Throckmorton was saved from the tyranny of Mary. A jury delivered Lilburne out of the hands of Cromwell, and the seven bishops out of the hands of James. When judges held their places at the will of the crown, the jury was the only hope of the subject if the government sought his conviction. Even after the Revolution, juries rendered inestimable service in upholding the liberty of the press against Lord Mansfield’s harsh constructions of the law of libel. In modern society the danger is rather from the mob than the ruler ; and here the lesson of history is that in times of popular excitement nothing is to be hoped from juries. They availed the victims nothing against the madness of the Popish Plot, or the Salem Witchcraft. Courts and juries were alike swept away by the storm. In ordinary criminal trials the chance of acquittal is greater with a jury than with the court, and this fact seems conclusive in favor of the jury. For although many guilty persons may thus escape punishment, it is safer that no man should be convicted unless the evidence is such as to leave no reasonable doubt in the mind of any one of the twelve. Conviction of an infamous crime is ruin to the convict, and the proof that justifies a community in laying such a burden on one of its members ought to be conclusive.

John C. Dodge.

  1. Glanville, Book II. chap. xvii., Beames’ translation.
  2. Grand Coust. de Normandie, c. 96.