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Browsing: Legal Papers of John Adams, Volume 1

Docno: ADMS-05-01-02-0005-0005-0003

Author: Adams, John
Date: 1771-01

Adams' Notes of Authorities1

Suffolk Inferior Court, Boston, January 1771

1771. Jany. Court. Wright and Gill vs. Mein—The Jury.
The Jury found a Verdict for the Sum sued for. Kent moved that the Verdict should be rejected. I deny'd the Power of the Court to reject it, and said if he would move for a new Tryal, that would not be without a Precedent in the Superiour Court tho it would in an inferiour Court.2
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13 Ed. 1. c. 30. Barrington Obs. on Stat. 103. “Item ordinatum est quod Justitiarii ad Assisas capiendas assignati, non compellant Juratores dicere precise, si sit disseisina vel non; dummodo voluerint dicere Veritatem facti, et petere Auxilium Justiciariorum; sed si sponte velint dicere quod Disseisina sit, vel non, Admittatur eorum Veredictum sub suo periculo— The latter part of this Chapter shews, that the Contest between Judges and Juries was of a very different Nature at this Time, from what it hath been of late Years. The Reason of this arises from what I have before observed, with regard to it being very common anciently to bring Attaints against Juries, and an Angry or dishonest Judge therefore drove them to the finding an improper Verdict in order to subject them to the Prosecution by Attaint; Admittatur eorum Veredictum sub suo periculo—As this Law is unrepealed, there can therefore be no doubt but a Jury may find what Verdict they please, and the Misfortune is, that they run no Risque at present of an Attaint; there is however generally that Moderation in Juries, that they seldom abuse this Liberty. This Chapter is generally called the Statute of Nisi Prius; it relates to Actions depending in Utroque Banco, without any Notice of the Court of Exchequer.”3
“If you will take upon you to determine the Law, you may do it, but you must be very sure that you determine, according to Law, for it touches your Consciences, and you Act at your Peril.” Lord Mansfield in Baldwins Case. Junius to Lord M.4
3 Black. 378. “The Jury may, if they think proper, take upon themselves to determine at their own hazard, the complicated Question of fact and Law; and without either Special Verdict or Special { 220 } Case may find a Verdict absolutely, either for Plaintiff or Defendant. Vid. page [ . . . ].”5
5. Bac. Abr. 285. 286. relating to general and Special Verdicts.6
1. Inst. 228. a. Littleton §368. “Also in such Case where the Enquest may give their Verdict at large, if they will take upon them the Knowledge of the Law, upon the Matter, they may give their Verdict generally, as is put in their Charge; as in the Case aforesaid they may well say, that the Lessor did not disseise the Lessee, if they will &c.”7 Note. “Altho the Jurie, if they will take upon them (as Littleton here saith) the Knowledge of the Law, may give a general Verdict, yet it is dangerous for them so to do, for if they mistake the Law, they run into the Danger of an Attaint, therefore to find the Special Matter, is the safest Way, where the Case is doubtfull.”8
4. Rep. 53. b. Rawlins Case. 29–30. Eliz. B.R. “And in such Case the Jury ought, if they will, not find the Special matter, and leave it to the Judgment of the Law, [to] find it at their Peril according to Law.”9
2. Ld. Ray. 1493. Oneby's Case. “The Court are Judges of the Malice and not the Jury.” Page 1494. “Upon the Tryal of the Indictment the Judge directs the Jury thus 'if you believe such and such Witnesses, who have sworn such and such Facts, the Killing the deceased was with Malice prepense express, or it was with Malice implied, and then you ought to find the Prisoner guilty of Murder; but if you do not believe those Witnesses, then you ought to find him guilty of Manslaughter only.'”10
Foster. 255. “In every Case where the Point turneth upon the Question, whether the Homicide was committed willfully and maliciously, or under Circumstances justifying, Excusing, or alleviating; the Matter of Fact, vizt., whether the Facts alledged by Way of Justification, Excuse, or Alleviation are true, is the proper and only Province of the Jury. But whether upon a Supposition of the Truth of Facts such Homicide be justified, excused, or alleviated must be submitted to the Judgment of the Court. For the Construction the Law putteth { 221 } upon Facts stated and agreed or found by a Jury is, in this, as in all other Cases, undoubtedly the Proper Province of the Court. In Cases of Doubt and real Difficulty it is commonly recommended to the Jury to state Facts and Circumstances in a Special Verdict. But when the Law is clear, the Jury under the Direction of the Court in Point of Law, Matters of Fact being still left to their Determination, may, and if they are well advised always will find a general Verdict conformable to such Direction. Ad Quaestionem Juris non respondent Juratores.”11
[1] Burrows 393. Bright Exr. vs. Eynon.12 Lord Mansfield, “Tryals by Jury, in civil Causes could not subsist now, without a Power somewhere, to grant new Tryals, &c. &c.13 If an erroneous Judgment be given in Point of Law, there are many Ways to review and set it right. Where a Court judges of Fact upon Depositions in Writing, their Sentence or Decree may, many Ways, be reviewed and set right.
“But a general Verdict can only be set right by a new Tryal,” &c.14 “The Writ of Attaint is now a mere Sound, in every Case: in many, it does not pretend to be a Remedy.”
Vid. page 3 of this Statute.15
Holt. Rep. 702. Argent vs. Darrell. Holt. “We must not make ourselves absolute Judges of Law and fact too.”16
1 Tr. pr. Pais 28317 Littleton quoted, and then a Note. “The Court cannot refuse a general Verdict, if the Jury will find it; it was so held before Justice Wyndham, Lent Assizes 1681 in Verdons Case at Cambridge.“
Whether a Jury may give a Verdict on their own Knowledge, or on the Knowledge of any one of them, without being sworn as Witnesses? { 222 } Vid. 5. Bac. Abr. 292. Tit. Verdicts.18 Vaughan 147. Bushells Case.19 1. Salk. 405.20 Farr. 2.21 1. Sid. 133. Fitz James vs. Moys.22 Cro. Eliz. 616. Graves vs. Short.23 Obs. on Stat. 7424
Holt 701. 2. Ash vs. Ash. Jury shy of giving Reasons “thinking they have an absolute Despotic Power, but I did recti[fy that] Mistake for they are to [try] Causes with the Assistance of the Judges; and ought to give Reasons when required, that if they go upon any mistake they may be set right.”25
Holt 703. 704. Gay vs. Cross. A general Verdict, and Jury would give no Reason for it. Holt said, “he never had known the like, and that he would have but little regard for the Verdict of a Jury on a Tryal that would not at a Judges desire declare the Reasons which had induced them to give it; for as the Judges of the Courts do publickly declare the Reasons of their Judgments and thereby expose themselves to the Censure of all that be learned in the Law; yet [there is] no Law obliges them to it, but it is for public Satisfaction. So the Jury ought [likewise]” when requir'd by the Court to make known the Reasons but the Court would not grant a new trial tho the Judges were very much dissatisfy'd with the Jury. It was a trial at Bar.26
{ 222 } { 222 } { 223 }
Attaint. Cun. Diet. Tit. Attaint. In what cases an Attaint lies.27 Gilb. H.C.B. 128.28
Obs. on Stat. 74.29 Stat. West. 1st. 3. E. 1. A.D. 1272, chap. 38.30 Le Roi (de son office) donera31 Atteint sur enquestes en pleint de terre, ou de franchise, ou de chose qui touche frank Tenement.
[It is generally agreed, that] No Prosecution by Attaint hath been carried on against a Jury for the last 300 Years.” (Note this. Lord Coke lived 150 Years ago, so that the Attaint had been disused 150 Years when he wrote.) “This arises partly from the more modern Practice of granting new Tryals, and partly from the great Difficulty there is in convicting, as the Jury may give their Verdict upon what is known to themselves, though it hath not appeared in Evidence during the Course of the Tryal. It is indeed said, that a Juror having such private Knowledge of a Fact should disclose it, in open Court; but what signifies the mere Advice of a Judge, which cannot be inforced?”32
“It may [therefore] deserve Consideration, whether this method of Punishment, being now totally disused may not have occasioned a most material Alteration, and Deviation from the Principles, upon which Juries were originally instituted.33
“The Attaint [was trial by twenty-four jurors, of double the substance with the first jury; and it is to be observed that it] lay only in civil Cases, either by common Law or by this Statute. The Reason is, { 224 } a34 strong Presumption, that no Jury would condemn a criminal contrary to the Evidence: and that it would be inconsistent with the Principles of Liberty to permit the Crown [(when it might intend oppression)] to call in Question a Verdict of Acquittal.35 Since [that glorious aera] the Revolution, [the] Kings [of England] have [only] prosecuted as Patriae Patrise [when punishment hath been necessary for the safety of the whole]; but when we look into Tryals during preceeding Reigns, we cannot but revere the wise and noble Constitution established by our Ancestors against the vindictive Prosecution of a Plantaganet and36 a Stewart.”37
Common Law.
Black. 63. bott. “[But, with us at present,] The Monuments and Evidences of our legal Customs, are contained in the Records of the several Courts of Justice, in Books of Reports, and judicial Decisions and in the Treatises of learned Sages of the Profession, preserved and handed down to us, from the Times of highest antiquity.”38 Page 73. “[And thus much for] the 1st. ground and chief corner Stone of the Laws of England, [which] is, general immemorial Custom, or common Law from Time to Time declared in the Decisions of the Courts of Justice; which Decisions are preserved among our public Records, explained in our Reports and digested for general Use, in the Authoritative Writings of the venerable Sages of the Law.”39
Question 1st. “Does the Opinion mean to declare, that upon the general Issue of Not Guilty, in the Case of a seditious Libel, the Jury have no Right by Law to examine the Innocence or Criminality of the Paper, if they think fit, and to form their Verdict with such Examination?
“2. Does the Opinion mean to declare, that in the Case above mentioned, when the Jury have delivered in their Verdict, Guilty, that this Verdict has found the Fact only, and not the Law?
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“3. It is to be understood by this Opinion, that if the Jury come to the Bar, and say, that they find the printing and publishing, but that the Paper is no Libel, that in that Case the Jury have found the Defendant, guilty, generally and that the Verdict must be so entered up?
“4. Whether the Opinion means to say, that if the Judge, after giving his Opinion of the Innocence or Criminality of the Paper, should leave the Consideration of that matter, together with the printing and publishing, to the Jury, such a Direction would be contrary to Law?
“5. I beg Leave to ask, whether dead and living Judges, then absent, did declare their Opinions in open Court, and whether the noble L—d has any Note of such opinions?
“6. Whether they declared such Opinions, after solemn Arguments, or upon any Point judicially before them?”
Questions put by Lord C——n to Lord M——d in answer to a Paper his Lordship left with the Clerk of the Room the day before. M——d refused to answer these Questions, saying he would not answer interrogatories. Newspaper.40
4. Blackstone 35441[But] An open Verdict may be either general, guilty, or not guilty; or Special, setting forth all the Circumstances of the Case, and praying the Judgment of the Court, whether for Instance, on the Facts stated, it be murder, Manslaughter, or no Crime at all. This is where they doubt the matter of Law, and therefore chuse to leave it to the determination of the Court; though they have an unquestionable Right of determining upon all the Circumstances, and finding a general Verdict, if they think proper so to hazard a Breach of their Oaths: and, if their Verdict be notoriously wrong, they may be punished and the Verdict set Aside by Attaint at the Suit of the King; but not at the Suit of the Prisoner, 2. H.P.C. 310.42 But the Practice, heretofore in Use of fining, imprisoning, or otherwise punishing Juries merely at the discretion of the Court, for finding their { 226 } Verdict, contrary to the direction of the Judge, was arbitrary, unconstitutional, and illegal: and is treated as such by Sir Thomas Smith, 200 Years ago; who 'accounted such doings to be very violent, tyrannical, and contrary to the Liberty and Custom of the Realm of England.'43 For as Sir Mathew Hale well observes 2. H.P.C. 31344 'it would be a most unhappy Case, for the Judge himself, if the Prisoners Fate depended upon his Directions: unhappy also for the Prisoner; for, if the Judges opinion must rule the Verdict, the Tryal by Jury would be useless.' Yet in many Instances, 1 Lev. 9,45 T. Jones 163,46 St. tr. 10. 416,47 where contrary to Evidence the Jury have found the Prisoner guilty, their Verdict hath been mercifully set aside, and a new Tryal granted by the Court of Kings Bench: for in such Case as hath been said, it cannot be set right by Attaint. But there hath yet been no Instance of granting a new Tryal, where the Prisoner was acquitted upon the first. 2. Hawk. 442.”48
4. Black. 431.49 The establishment of New Tryals, with the abolition of feodal Tenures, and the Act of Navigation, came out of the Times of Confusion.
5. Rep. 104.50 Bakers Case. “Upon Evidence in an Ejectione firmae between Middleton and Baker, it was resolved by the whole Court, that if the Plantiff in Evidence sheweth any matter in Writing, or of Record, or any Sentence in the ecclesiastical Court, upon which a Question in Law doth arise, and the Defendant offereth to demurr in Law upon it, the Plantiff cannot refuse to join in Demurrer, but he { 227 } ought to join in the Demurrer or waive his Evidence. So if the Plantiff produceth Witnesses to prove any matter in Fact, upon which a Question in Law doth arise, if the Defendant admitteth their Testimony to be true, there also the Defendant may demurr in Law upon it, but then he ought to admit the Evidence given by the Plantiff to be true; and the Reason hereof is, that matter in Law shall not be put to Laymen. So may the Plantiff demurr upon the Defendants Evidence, mutatis mutandis; But if Evidence be given for the King, in Information or other suit, and the Defendant offer to demurr upon it, the Kings Council are not tied to join in Demurrer, but in such Case the Court ought to direct the Jury to find the Special matter, and upon that they shall adjudge the Law as it appeareth 34. H. 8. Dyer 53.51 But that is by the Kings Prerogative who also may waive a Demurrer, and take issue at his Pleasure quod Nota.”
Mem. every Thing that is said by the Court to the Jury, is uniformly styled in our Books a Direction. So the Court give a Charge to the grand Jury to present a particular offence, &c. But the Question is whether the Jury are bound, in Point of Conscience, or of Law, to observe that Direction and find according to it? Are they subject to any Penalty, or Fine, or Imprisonment, or corporal Punishment, if they find contrary to that Direction? No Man will say that they are.52
Question. Whether Ind[ebitatus] Ass[umpsit] may be maintained for “Sundries” or “Sundry Goods Wares and Merchandizes,” or “sundry Goods Chattells and Articles,” without any Account or Schedule of Particulars annexed to the Writ, or enumerated in the Declaration. Saunders 69. Peacock vs. Bell & Kendal, 70, 71.
“Ind. fuisset pred. Ri. and Ben. in £39 L.M.” “Pro diversis Merchandizis et Mercimoniis, per pred. Ri. and Ben. eidem Johanni Peacock, ad Specialem instanciam et Requisitionem ipsius Jo. Peacock, ante Tempus i[llud] vendit et deliberat. Et sic &c.”53
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2. Instructor cler. 161, 2. “If one be indebted unto another upon simple Contract, and the Plantiff sue for it upon a Promise to pay it, he must shew how the first Debt grew due and for what; as upon an Ind[ebitatus] Ass[umpsit] where the Debt is the Consideration of the Promise.”54
Sed Vid. [ . . . ] 55 is not said how particular you must be. See 2. Ins. Cler. 157 a Declaration for diverse Merchandizes sold and deliverd.56
1. In JA 's hand. Adams Papers, Microfilms, Reel No. 185. These notes were written on several sheets which may once have formed a gathering but are now loose and worn. JA partly paged them, but the order of the material, written at different times and hurriedly, is not always clear.
2. In the margin appears the following: “See, however, The several Titles of Mistrial, New Tryal &c. Verdict may be set aside and a venire facias de novo [new jury, that is, new trial] awarded.” The precise treatise or treatises to which JA here refers have not been identified. See, however, 5 Bacon, Abridgment 240, tit. Trial: “A new Trial ought not to be granted by an inferior Court, and if the Judge thereof does grant one a Mandamus lies for a Procedendo ad Judicium upon the first Verdict.”
3. Barrington, Observations upon the Statutes 103–104. Quotation marks supplied. The Latin expression is from the Statute of Westminster II, 13 Edw. 1, c. 30 (1285): “And also It is Ordained, That the Justices assigned to take Assises shall not compel the Jurors to say precisely whether it be Disseisin or not, so that they do shew the Truth of the Deed [fact] and require Aid of the Justices; but if they of their own head will say, that it is [or is not] Disseisin, their Verdict shall be admitted at their own Peril.” 1 Statutes of the Realm. 86 (London, 1810).
4. This paragraph is written in the margin. Quotation marks supplied. Rex v. Baldwin (K.B. 1770) was apparently never reported. See 20 State Trials 922; Frederick Siebert, Freedom of the Press in England 387–388 (Urbana, 111., 1952). The quotation here is taken, with only pronominal changes, from Junius' letter to Lord Mansfield, 14 Nov. 1770 (No. XLI), 2 Letters of Junius 159, 174–175 (London, ed. Woodfall, 1814).
5. 3 Blackstone, Commentaries *378. Quotation marks supplied. This paragraph is also written in the margin.
6. 5 Bacon, Abridgment 285–287. This collects the authorities, many of which JA cites or quotes later in the present minute.
7. Coke, Littleton 228a. Quotation marks supplied.
8. Coke, Littleton 228a. The note is Coke's. Quotation marks supplied.
9. Rawlyn's Case, 4 Co. Rep. 52a, 53b, 76 Eng. Rep. 1007 (K.B. 1585). Quotation marks supplied. JA has erroneously inserted a comma between “they will” and “not find”; also “it” between “find” and “at their Peril.”
10. Rex v. Oneby, 2 Ld. Raym. 1485, 1493–1494, 92 Eng. Rep. 465, 470–471 (K.B. 1727). Quotation marks in part supplied.
11. Foster, Crown Cases 255–256 (1762). Quotation marks supplied. The Latin phrase means, roughly: “The jurors do not answer questions of law.”
12. Bright, Executor v. Eynon, 1 Burr. 390, 393, 97 Eng. Rep. 365, 366 (K.B. 1757). Quotation marks supplied. Action on note to testatrix; defense: discharge in defendant's hand, signed by testatrix; reply: forgery. No evidence of the forgery being introduced, the trial judge (Lord Mansfield) left it to the jury to say whether there had been (1) forgery or (2) fraud. The jury found for the defendant. On motion for new trial, held, rule to set aside verdict made absolute, because by “the Evidence on both Sides, the Transaction to get her Hand to this Writing must have been fraudulent.” 1 Burr, at 396, 97 Eng. Rep. at 368.
13. The “&c.'s” do not appear in the printed text.
14. JA omits: “which is no more than having the Cause more deliberately considered by another Jury; when there is a reasonable Doubt, or perhaps a Certainty, that Justice has not been done.”
15. Marginal note. The reference is obscure.
16. Argent v. Sir Marmaduke Darrell, Holt K.B. 702, 90 Eng. Rep. 1288 (1699). Quotation marks supplied. This paragraph appears in the margin of the MS .
17. Duncombe, Trials Per Pais 283 (1766). The quotation from Littleton appears in the JA minutes, at note 7 77 above.
18. 5 Bacon, Abridgment 292. The general subject is “In What Cases a Verdict is Bad Upon the Account of a Misdemeanor in One or More of the Jurors”; and at the page cited Bacon collects authorities (including those in the next four footnotes) on the question whether the jury's verdict must rest solely on evidence adduced in court.
19. Bushell's Case, Vaughan 135, 147, 124 Eng. Rep. 1006, 1012 (C.P. 1670): “[The jurors] may have Evidence from their own personal knowledge, by which they may be assur'd, and sometimes are, that what is depos'd in Court, is absolutely false. ... The jury may know the Witnesses to be stigmatiz'd and infamous, which may be unknown to the parties, and consequently to the Court.” For a discussion of Bushell's Case see text at notes 56–60 above.
20. Anonymous, 1 Salk. 405, 91 Eng. Rep. 351 (K.B. 1696): “If a jury give a Verdict on their own Knowledge, they ought to tell the Court so, that they may be sworn as Witnesses; and the fair Way is to tell the Court before they are sworn, that they have evidence to give.”
21. Note, Farr. (7 Mod.) 2, 87 Eng. Rep. 1056 (Q.B. 1702), a paraphrase of the case in note 90 20 above.
22. Fitz-James v. Moys, 1 Sid. 133, 87 Eng. Rep. 1014 (K.B. 1663): One of the jury, having heard the evidence, was himself sworn as a witness, testified, and yet continued on the jury.
23. Graves v. Short, Cro. Eliz. 616, 78 Eng. Rep. 857 (Q.B. 1598). No error for juror to show his fellows a paper not otherwise in evidence but favoring one of the parties. The case is cited in 5 Bacon, Abridgment at 291.
25. Ash v. Lady Ash, Holt K.B. 701–702, 90 Eng. Rep. 1287 (1696). Quotation marks and words JA omitted are supplied. This paragraph appears in the margin of the MS and is partly worn away.
26. Gay v. Cross, Holt K.B. 703, 90 Eng. Rep. 1288 (1702). Quotation marks and words JA omitted are supplied. This paragraph was inserted in the margin and between paragraphs written earlier in the MS .
27. Cunningham, Law Dictionary , tit. Attaint: “[S]o this is the only curb that the law has put in the hands of the judges to restrain jurors from giving corrupt verdicts.”
28. Gilbert, Common Pleas 128: “Now the Jury may be attainted two Ways; First, where they find contrary to Evidence, 2dly, where they find out of the Compass of the Allegata; but to attaint them for finding contrary to Evidence is not easy, because they may have Evidence of their own Conuzance of the Matter by them, or they may find upon Distrust of the Witnesses on their own proper Knowledge.”
29. Barrington, Observations upon the Statutes 74. Quotation marks are supplied throughout the passages from Barrington, text at notes 32, 33, and 37 102, 103, and 107 , below.
30. Thus in MS and Barrington, Observations upon the Statutes 58. The correct date is 1275, 1 Statutes of the Realm 36 (1810). Statute of Westminster II, 3 Edw. 1, c. 38: “[T]he King, of his office, shall from henceforth grant Attaints upon Enquests in Plea of Land, or of Freehold, or of anything touching Freehold, when it shall seem to him necessary.”
31. Thus in MS . “Durra” in Barrington, Observations upon the Statutes 74, and in the statute. Barrington, Observations upon the Statutes 74 note, says: “De son office should be translated of right ...; durra, which follows, is put corruptly for donera.”
32. Barrington, Observations upon the Statutes 74. Quotation marks and words JA omitted are supplied. JA omits Barrington's footnote: “It should seem to have been understood in the time of Henry the Third, to have been the duty of the judge to control the verdict of the jury,” citing Bracton, lib. iv, c. 19.
34. Thus in MS . The text reads: “The reason of which seems to have been grounded upon the strong Presumption.” Barrington, Observations upon the Statutes
35. Beside the words in brackets, JA omits: “It is for the same reason when a crime is prosecuted by appeal (the remedy of a private person) and not by indictment (which is the suit of the crown), that there is no intervention of a grand jury to find the bill. Happily for this country ...”
36. Thus in MS ; “or” in Barrington.
37. Barrington, Observations upon the Statutes 75. Words JA omitted are supplied.
38. 1 Blackstone, Commentaries *63–64. Closing quotation marks supplied.
39. 1 Blackstone, Commentaries *73. Closing quotation marks supplied.
40. Quotation marks supplied. Lord Mansfield's conduct of the trial of Woodfall for the publication of the Junius letters having been the subject of Parliamentary debate, Mansfield deposited with the Clerk of the House a copy of his charge to the jury in that case. The next day, 11 Dec. 1770, Lord Camden propounded these questions, which Mansfield never answered. 16 Parliamentary History 1312–1322 (London, 1813); C. H. S. Fifoot, Lord Mansfield 44–46 (Oxford, 1936); James Stephen, History of the Criminal Law of England, 2:325–326 (London, 1883). Camden was a legal hero to the patriots, Quincy on one occasion referring to him as “undoubtedly the first common lawyer in England.” Josiah Quincy, Josiah Quincy, Jr. 272. Which “Newspaper” JA took these “Questions” from is not known.
41. 4 Blackstone, Commentaries *354–355. Quotation marks in part supplied.
42. 2 Hale, Pleas of the Crown 310, discusses the means of punishing a jury for finding against evidence.
43. Thomas Smith, Commonwealth of England and Manner of Government Thereof 203 (London, 1640).
44. 2 Hale, Pleas of the Crown 313: “And to say the truth, it were the most unhappy case that could be to the judge, if he at his peril must take upon him the guilt or innocence of the prisoner, and if the judge's opinion must rule the matter of fact, the trial by jury would be useless.”
45. Rex v. Read, 1 Lev. 9, 83 Eng. Rep. 271 (K.B. 1661): No new trial in the event of an acquittal.
46. Rex v. Smith, T. Jones 163, 84 Eng. Rep. 1197 (K.B. 1682): Verdict of guilty, against the judge's direction, set aside and new trial awarded.
47. Ashley v. Simons the Jew, 10 State Trials 411 (K.B. 1752); reported also from MS sub nom. Rex v. Simonds, 5 Bacon, Abridgment 243. The facts appear in No. 59, note 180 7 .
48. 2 Hawkins, Pleas of the Crown 442: “[I]t hath been adjudged, That if the Jury acquit a Prisoner of an Indictment of Felony against manifest Evidence, the Court may, before the Verdict is recorded, but not after, order them to go out again and reconsider the Matter; but this is by many thought hard, and seems not of late Years to have been so frequently practiced as formerly.”
50. Baker's Case, 5 Co. Rep. 104a, 77 Eng. Rep. 216 (Q.B. 1600). Quotation marks supplied.
51. Rex v. Muschampt, Dyer 52b, 53b, 73 Eng. Rep. 116 (Exch. 1543): Information for maintenance and buying of pretended titles. “[T]he Court charged the jury to enquire of the whole matter, and to find it, and upon such finding the Court would adjudge upon the law.”
52. The state of the MS suggests that this paragraph was written at a later time than the one which precedes it. The observations are apparently original with JA .
53. Peacock v. Bell and Kendal, 1 Saund. 69, 71, 85 Eng. Rep. 81, 82 (K.B. 1667). Quotation marks supplied. “[Peacock] was indebted to the said Richard [Bell] and Benjamin [Kendal] for £39 lawful money ... for divers merchandises and wares which the said Richard and Benjamin had before that time sold and delivered to the same John Peacock at his special instance and request.” There is dictum in the report that the declaration as here set out was faulty for failure to allege where the goods had been sold and delivered.
54. Gardiner, Instructor Clericalis 161–162. Quotation marks supplied.
55. This is a marginal note, with a tear in the MS .
56. Gardiner, Instructor Clericalis 157. The declaration there set out does not allege the place where the goods were delivered.

Docno: ADMS-05-01-02-0005-0005-0004

Author: Adams, John
Date: 1771-02-12

Adams' Diary Notes on the Right of Juries1

1771. Feby. 12.

At a Time, when the Barriers against Popery, erected by our Ancestors, are suffered to be destroyed, to the hazard even of the Protestant Religion: When the system of the civil Law which has for so many Ages and Centuries, been withstood by the People of England, is permitted to become fashionable: When so many Innovations are introduced, to the Injury of our Constitution of civil Government: it is not surprizing that the great Securities of the People, should be invaded, and their fundamental Rights, drawn into Question. While the People of all the other great Kingdoms in Europe, have been insidiously deprived of their Liberties, it is not unnatural to expect that such as are interested to introduce Arbitrary Government should see with Envy, Detestation and Malice, the People of the British Empire, by their Sagacity and Valour defending theirs, to the present Times.
There is nothing to distinguish the Government of Great Britain, from that [of] France, or of Spain, but the Part which the People are by the Constitution appointed to take, in the passing and Execution of Laws. Of the Legislature, the People constitute one essential Branch–And while they hold this Power, unlimited, and exercise it frequently, as they ought, no Law can be made and continue long in Force that is inconvenient, hurtful, or disagreable to the Mass of the society. No Wonder then, that attempts are made, to deprive the Freeholders of America and of the County of Middlesex, of this troublesome Power, so dangerous to Tyrants and so disagreable to all who { 229 } have Vanity enough to call themselves the better Sort.–In the Administration of Justice too, the People have an important Share. Juries are taken by Lot or by Suffrage from the Mass of the People, and no Man can be condemned of Life, or Limb, or Property or Reputation, without the Concurrence of the Voice of the People.
As the Constitution requires, that, the popular Branch of the Legislature, should have an absolute Check so as to put a peremptory Negative upon every Act of the Government, it requires that the common People should have as compleat a Controul, as decisive a Negative, in every Judgment of a Court of Judicature. No Wonder then that the same restless Ambition, of aspiring Minds, which is endeavouring to lessen or destroy the Power of the People in Legislation, should attempt to lessen or destroy it, in the Execution of Lawes. The Rights of Juries and of Elections, were never attacked singly in all the English History. The same Passions which have disliked one have detested the other, and both have always been exploded, mutilated or undermined together.
The british Empire has been much allarmed, of late Years, with Doctrines concerning Juries, their Powers and Duties, which have been said in Printed Papers and Pamphlets to have been delivered from the highest Trybunals of Justice. Whether these Accusations are just or not, it is certain that many Persons are misguided and deluded by them, to such a degree, that we often hear in Conversation Doctrines advanced for Law, which if true, would render Juries a mere Ostentation and Pagentry and the Court absolute Judges of Law and fact. It cannot therefore be an unseasonable Speculation to examine into the real Powers and Duties of Juries, both in Civil and Criminal Cases, and to discover the important Boundary between the Power of the Court and that of the Jury, both in Points of Law and of Fact.
Every intelligent Man will confess that Cases frequently occur, in which it would be very difficult for a Jury to determine the Question of Law. Long Chains of intricate Conveyances; obscure, perplext and embarrassed Clauses in Writings: Researches into remote Antiquity, for Statutes, Records, Histories, judicial Decisions, which are frequently found in foreign Languages, as Latin and French, which may be all necessary to be considered, would confound a common Jury and a decision by them would be no better than a Decision by Lott. And indeed Juries are so sensible of this and of the great Advantages the Judges have [to] determine such Questions, that, as the Law has given them the Liberty of finding the facts specially and { 230 } praying the Advice of the Court in the Matter of Law, they very seldom neglect to do it when recommended to them, or when in any doubt of the Law. But it will by no Means follow from thence, that they are under any legal, or moral or divine Obligation to find a Special Verdict where they themselves are in no doubt of the Law.
The Oath of a Juror in England, is to determine Causes “according to your Evidence”–In this Province “according to Law and the Evidence given you.” It will be readily agreed that the Words of the Oath at Home, imply all that is expressed by the Words of the Oath here. And whenever a general Verdict is found, it assuredly determines both the Fact and the Law.
It was never yet disputed, or doubted, that a general Verdict, given under the Direction of the Court in Point of Law, was a legal Determination of the Issue. Therefore the Jury have a Power of deciding an Issue upon a general Verdict. And if they have, is it not an Absurdity to suppose that the Law would oblige them to find a Verdict according to the Direction of the Court, against their own Opinion, Judgment and Conscience.
[It] has already been admitted to be most advisable for the Jury to find a Special Verdict where they are in doubt of the Law. But, this is not often the Case–1000 Cases occur in which the Jury would have no doubt of the Law, to one, in which they would be at a Loss. The general Rules of Law and common Regulations of Society, under which ordinary Transactions arrange themselves, are well enough known to ordinary Jurors. The great Principles of the Constitution, are intimately known, they are sensibly felt by every Briton—it is scarcely extravagant to say, they are drawn in and imbibed with the Nurses Milk and first Air.
Now should the Melancholly Case arise, that the Judges should give their Opinions to the Jury, against one of these fundamental Principles, is a Juror obliged to give his Verdict generally according to this Direction, or even to find the fact specially and submit the Law to the Court. Every Man of any feeling or Conscience will answer, no. It is not only his right but his Duty in that Case to find the Verdict according to his own best Understanding, Judgment and Conscience, tho in Direct opposition to the Direction of the Court.
A religious Case might be put of a Direction against a divine Law.
The English Law obliges no Man to decide a Cause upon Oath against his own Judgment, nor does it oblige any Man to take any Opinion upon Trust, or to pin his faith on the sieve of any mere Man.
1. 2 JA, Diary and Autobiography 3–5. As to the genesis of this material, see id. at 5 note.