John Mein's stormy career was cut short by two actions brought against him by John
Hancock under a power of attorney from Mein's London creditors. That Mein infuriated
the “well-disposed” and the Sons of Liberty is certain; that they rejoiced in his
difficulties, including these protracted lawsuits, is equally clear.
1 It is more doubtful whether Mein was correct in attributing to Hancock the responsibility
for initiating the litigation. The evidence tends somewhat the other way.
To begin with, there is no question that by late 1768, Mein had run up sizable debts
to two major London suppliers, Thomas Longman, the
{ 200 } bookseller of Paternoster Row, and a firm of stationers, Thomas Wright & William Gill.
2 Mein did swear that his credit would have remained good had not Hancock “with an
intent as this deponent believes to distress him the more wrote home letters to ...
Longman ... importing that the aforesaid Hancock would willingly accept of a power
of Attorney from ... Longman to whom this deponent was indebted as ... Longman alledges
in the sum of one thousand six hundred pounds or thereabouts in order to seize or
attach the effects of this deponent in Boston.”
3
But the other sources suggest that whatever zeal Hancock may ultimately have thrown
into the prosecution of the case, the initial impulse came from Longman, who in a
letter of 22 July 1769 invited Hancock's assistance in recovering the debt.
4 It is not certain just when this letter reached Hancock, nor has his reply survived.
Apparently he responded affirmatively on 24 October 1769, requesting a formal power
of attorney as well as Mein's account with Longman.
5
Between 22 July and 24 October, Mein's standing with the patriot
{ 201 } party had deteriorated even more sharply. On 21 August he had begun publishing the
manifests which incriminated many of the ostensible nonimporters.
6 On 5 September, John Robinson had caned James Otis in the British Coffee House, and
Mein had defied a mob to stand surety for W. S. Brown, accused of aiding Robinson.
7 Enraged, the patriots had on 10 September censured Mein for treating “the whole body
of merchants and traders in the most haughty, imperious, and insulting manner.”
8 “Mr. Mein at present is so obnoxious to the People on account of his publishing the
Manifests that he's obliged to go Arm'd” a contemporary wrote, “and tis but a few
Nights since that two Persons who resembled him pretty much were attack'd in a narrow
Alley with Clubs, and would in all probability have lost their lives if the Mistakes
had not been timely discover'd.”
9
Shortly after Hancock accepted Longman's commission, the final storm broke around
Mein. On 28 October, as he was walking up King Street, a threatening crowd began to
surround him. Pulling out his pistol, he faced down his assailants and slowly backed
his way toward the guardhouse at the head of King Street. There he gained safety,
but not before Thomas Marshall had laid the sharp edge of a shovel to Mein's back,
and Mein's pistol had somehow gone off. Hidden in the guardhouse, Mein managed to
elude the mob, even though Samuel Adams and William Molineux obtained a warrant and
personally searched the premises for him. Finally, he escaped to a ship in the harbor,
10 while ashore his effigy became the hate figure of the annual Pope's Day festivities.
11
It was impossible for Mein to return to Boston. When he asked Governor Hutchinson
for military protection to enable him to press his civil remedies against those who
had mobbed him, Hutchinson refused. “In Ireland perhaps where the people have been
long used to the military upon an apprehension only of violence from the populace
such a measure might have
{ 202 } been advisable. In the present state of the colonies I could not think so; and rather
thought it advisable for him to forebear prosecuting his complaint for some time.”
12 Only one thing remained for Mein to do, and he did it: return to Britain.
13
Longman meanwhile, having received Hancock's undertaking to act as attorney, immediately
himself executed and caused Wright & Gill to execute certified powers of attorney
which, together with bookkeepers' affidavits, were promptly sent to Boston. These
arrived on 1 March 1770; that very day, John Adams filled out the writs and had the
deputy sheriff seize Mein's property, which included his stock of books and, most
important, “Seven frames on which are sixty-five Cases with the Types &c. Two Printing
Presses with all the Materials thereto,” and “One composing Stone.”
14
As Mein later swore, “On the afternoon of said day it was propos'd to Mr. Hancock's
Lawyer (Mr. Adams) to give undoubted security to stand the issue of the suit, he discharging
the attachments. This proposal was refused and Mr. Murray (Mr. Mein's friend who made
the proposal) given to understand that nothing would be satisfactory but an absolute
security for the debt independent of any suit. The day following, Mr. Murray sent
proposals of accomodation in writing to Mr. Hancock to which he receiv'd Mr. Hancock's
answer on the 3d of March. On the 7 of March Mr. Murray sent other proposals of accomodation
to Mr. Greenleaf the Sheriff which Mr. Greenleaf answer'd in a letter to Mr. Fleeming
the Friday following
[9 March]. On the 25th Mr. Murray again wrote to the Sheriff and receiv'd an Answer the 4th
of May.”
15
{ 203 } The texts of Murray's original proposals to Hancock have not been found. Charles Bolton,
who appears to have examined them in the early 1900's, when what are now the
Hancock Papers at the Massachusetts Historical Society were still in the possession of Charles Pelham
Greenough, reported that Murray wanted “to have the attachment withdrawn, allow the
suit for £1600 to go on in the King's Bench and abide by the judgment of the Court,
the property meanwhile to be appraised upon oath and to be delivered up to Hancock
as attorney when executions came to be issued.”
16 The reference to the Court of King's Bench may be inadvertent; on the other hand,
perhaps Murray contemplated a discontinuance of the Massachusetts action in favor
of proceedings in London, before an English jury instead of an American one. If it
was the local jury which Murray feared, later events proved his doubts well-founded.
And, as it turned out, Longman started a suit in the King's Bench anyway.
Despite the failure of the preliminary settlement negotiations, Murray was able, by
a means still unexplained, so to manage matters “with the Sheriff as to get him to
accept of a pledge for the value of Mr. Mein's Interest attached at the printing office.
This set the press a going again, much to the Surprize and Disappointment of Mr. H——
and his party, with whom this was the Capital Object in this Stroke of his. A method
has been since hit on to relieve the books also by a tender of other Goods.”
17
It is not clear whether the method of relieving the books ever went into operation.
On 18 May 1770, Hancock reported to Longman that Mein's “Effects are in the hands
of the Sheriff, and as soon as it has gone thro' the Law, and the Effects turn'd into
money, the neat proceeds shall be remitted you, and you will determine the settlement
between you and Messrs. Wright & Gill. Tho' I fear even the Whole of his Effects will
fall vastly short of the Debts, but I have got all and could get no more.” And Hancock
urged Longman to “get further Security of Mr. Mein in London.”
18 This Longman had already done, commencing an action in the King's Bench against Mein
for the amount of the debt and having him arrested and committed to prison “in hopes
of His having some Friends that would appear in His behalf.” Friends did appear, but
none apparently with funds sufficient to release the attachment and free Mein.
19
{ 204 } Meanwhile, back in Boston, Fleeming, who had been keeping the
Chronicle going, at last gave up. On 25 June 1770, he put out his final number, “shut up his
printing office and fled to the castle for protection.”
20 And the lawsuits droned on, having been entered at the April 1770 Suffolk Inferior
Court, but continued from term to term. As Hancock explained to Longman, “by a law
of the Province, when an Action is brought against a man who is out of the Province,
the action must be continued in the Inferior court six months. This was the reason
why the action against Mr. Mein was continued at first and when the six months were
expired, Mr. Kent, the lawyer, appeared for Mr. Mein at the request of Mr. Fleeming
who had a power of attorney from Mein, and moved in Court that these actions might
be continued three months longer, because he said Mr. Mein had since been arrested
in London for the same debt and was a prisoner in the King's Bench for them and therefore
desir'd time that they might get evidence of it, in order that the suits here might
be discharged. The Court granted the motion.”
21
Finally, on 15 January 1771, the actions came on for trial in the Suffolk Inferior
Court, with Adams representing the creditors, and Benjamin Kent defending Mein. Our
account of what took place is conjectural, for Adams' trial notes have not survived;
we have only a list of authorities which he used in argument. The reconstruction which
follows has been based on the Hancock correspondence and the court files.
In both actions, the writ had originally sounded in ordinary
indebitatus assumpsit, based on an account annexed to the writ, which set out in rudimentary double entry
form the amount of Mein's purchases over the years, the sums he had paid on account,
the balance due, and (in Wright & Gill's case) the interest.
22 When the cases came on, according to Hancock, “an objection was made by Mr. Mein's
Council to the Generality of
[Longman's, and, presumably, Wright & Gill's] account, that it was not sufficiently explicit, and that the particulars should be
Exhibited.” This was, Hancock assured his London correspondents, a mere delaying ruse.
None•
{ 205 } theless, “it is best at the next Trial to be ready to answer and remove their objections.”
So he forwarded “Mr. Adams's (my attorney) minutes to me in order to Transmit you,
by which you will see what is necessary for you to do, and I pray you will so soon
as possible after the receipt of this prepare the necessary papers and accounts and
be as explicit as possible. ... You will Communicate this to Messers. Wright & Gill.”
That Adams considered the accounts essential to the case may be deduced from the fact
that Hancock sent his letter in duplicate by two separate vessels.
23
It is not certain whether by 16 January 1771, the date of Hancock's letter, the trials
had been held; the court files contain a summons in Adams' hand to “Alexander Reid
Stationer, and William Miller both of Boston,” dated 17 January 1771; the return indicates
that these witnesses were actually subpoenaed on 19 January.
24 Possibly the court heard the preliminary objections and then continued the matters
for trial later on in the term; the cases were certainly tried at this term.
25 At the trial Adams apparently put into evidence the depositions of the respective
bookkeepers which established the facts of the debts; he may also have called Reid
and Miller for evidence on the reasonableness of the Wright & Gill prices or even
to prove that Mein had actually received the goods in question.
26 Whether the defense adduced any evidence is an open question.
From Adams' authorities (
Document II) and Hancock's letter of 16 January, referred to above, it appears that the court,
on whatever evidence the plaintiffs had brought forward, or perhaps on the basis of
defendant's objections to the legal sufficiency of the accounts, had directed a finding
for the defendant in one or perhaps both of the actions, and that the
{ 206 } respective juries had notwithstanding brought in plaintiff's verdicts. The material
at the end of the Adams notes suggests that the objection reported by Hancock had
been the basis for the court's charge that the accounts lacked particularity.
At any rate, the juries seem to have treated the cases individually. In the Wright
& Gill action, the account annexed had listed every single shipment which made up
the debt; the verdict was for the net balance, plus the claimed interest. Longman,
on the other hand, had sued on an account whose first item was simply “To a Ballance
due as per Account then sent ... £1453:10:0,” the other items being individual shipments.
27 In reaching its verdict for Longman, the jury deducted the preexisting balance from
the balance on the account, thus in a sense giving some effect to defendant's objection
and the court's direction. As Adams noted: “Verdict for Longman for about £200, far
short of the whole. Apld. both sides.”
28
It is clear that the defendant moved for a new trial in the Inferior Court, possibly
in both actions, although Adams' collection of authorities on this point bears only
the title “Wright and Gill vs. Mein—The Jury.” In his quasi-brief (
Document II), the simple point of commercial evidence on which the cases really turned quickly
became obscured in the constitutional argument over the sacred right of jury trial,
an argument which Adams expounded even more vigorously in the apparently contemporaneous
fragment reprinted here from his diary as
Document III.
Whether the “free speech” theme which underlay Adams' references to current English
political turmoil echoed some of the bitterness of the Boston journalistic controversy,
and whether Adams was attempting to inject contemporary local partisanship into an
otherwise quiet legal dispute are matters well beyond the scope of the present note.
Certainly in Boston, free speech and the power of the jury were related subjects.
Three years before, after a series of vicious attacks on then-Governor Bernard had
stimulated Chief Justice Hutchinson to a detailed charge upon the subject of criminal
libels to the Grand Jury,
29 the jurors refused to indict—because they were tampered with, Bernard claimed; because
they were “worthy and independent,” the Sons of Liberty boasted.
30 And the inter•
{ 207 } weaving of press and jury, as the issues had arisen in England, was brought vividly
to Boston's attention at the very time of the Mein cases, for the
Boston Gazette of 28 January 1771 had reprinted the “Junius” letter to Lord Mansfield which Adams
quoted in his brief; and the battle between Lord Camden and Lord Mansfield was reported
in the
Boston Gazette of 4 February 1771.
31
Of course, the Bernard libels and the Junius-Mansfield-Camden imbroglio all dealt
with the power of a criminal jury to decide law as well as fact. The interesting features
of the Mein litigation are that it was an ordinary civil action, and that the court
agreed with Adams and allowed the verdict to stand, a point to be considered more
fully later in this note.
In view of the right of appeal, why did Mein's attorneys bother to resist the outcome
at the Inferior Court stage? Perhaps they felt that some tactical gain would result
from a delay. It is noteworthy that Adams did not seek a new trial in the Longman case, where the jury had returned a verdict so much less than the amount sued for.
The explanation for that seems to lie in the court's not having directed a larger
verdict; thus the smaller verdict did not (so far as plaintiff was concerned) contravene
a favorable direction.
The double appeals in the Longman case and Mein's appeal in the Wright & Gill case
were entered at the February 1771 Suffolk Superior Court, whence they were continued,
possibly because the additional accounts were still in London.
32 By August they had arrived, full of enough bibliographical detail to support a doctoral
dissertation. Hancock “immediately” delivered them to his “Attornies ... in full Expectation
of the
{ 208 } matter being Determined at our August Term, but the Judges saw fit to Refer it to
November.”
33
At the November adjournment, Adams chose not to rely solely on the fortified evidence.
On 26 November 1771, he filed new declarations, alleging, in addition to the promise
to pay, language comprising what Massachusetts lawyers then and now would call “the
common counts,” a phrase which is shorthand for stereotyped language stating the debtor
creditor relationship in every conceivable way. Moreover, Adams increased the amount
of the alleged debt; instead of suing merely for the net amount due, he stated as
damages the total of Mein's purchases.
34
It is impossible accurately to calculate the date of trial from the minute books.
Hancock's letter to Wright & Gill of 30 November says: “The Jury yesterday at Superior
Court gave in their Verdict in our favor in Mein's Affairs, but Mr. Mein's Council
mov'd for a New Trial. How that will be Determined, I know not, but will inform you
and as soon as I obtain Execution will turn the Effects into money as soon as possible.
Please to inform Mr. Longman of this as I have not time now to write him.”
35
The jury, which had been the same in both cases, although they had been tried separately,
brought in verdicts in the amount of the outstanding balances. It is worth noting,
in view of the earlier arguments concerning the right of the jury to bring in a general
verdict, that the verdicts as the jury originally returned them read, in each instance,
“the jury find for the appellant [in Longman —”for the appellees” in the other action]
the net amount sued for.” Each verdict was then amended to conform with the pleading
in assumpsit to read: “the jury find that the [original defendant] made the promise
alledged in the Declaration & assess damages.”
36
{ 209 } There is no indication when, if ever, motions for new trials were heard. If they did
come on for hearing, they were apparently denied because, on 23 December 1771, executions
were issued.
37 Then began the problem of trying to realize on the security. As far back as 24 April
1771, Hancock had warned Longman that despite the assurances of Mein's friends about
the adequacy of Mein's effects to cover the claim, “you will find on the settlement
of the matter here, it will fall vastly short of their Expectation and manifest their
suggestion to be utterly groundless.”
38 Now the event proved his prophecy. Longman's original attachment had covered “a large
number of books, a parcell of Stationery Ware, an Iron Stove, a Wooden press, some
Patent medicines, magazines, Reviews and other pamphlets, pewter plates for Engraving,
forty five trunks with a variety of other articles,” which had been stored during
the litigation in a house owned by Samuel Fitch, and upon which the Sheriff levied
on 27 December 1771. The appraisers were three Boston bookseller-stationers, Henry
Knox, the future Secretary of War (appointed by the Sheriff), Joseph Edwards (appointed
by Hancock), and John Langdon (appointed by Fleeming). After ten days' contemplation,
the appraisers valued the assortment at £1,038 8s. 10d. Massachusetts money. Deduction
of various costs (including an appraisement fee of £32 15s. 5d.) brought the figure
even lower: on 18 February 1772, all outstanding fees having been deducted, Hancock
signed a receipt for “books, other goods and Effects” valued at £956 4s. 6d.
39
The dividend on Wright & Gill's claim was similarly slight. On 10 November 1770, three
printers—Richard Draper, John Green, and Thomas Fleet—had appraised the printing plant
at £185 17s. 4d., of which half belonged to Fleeming. After Sheriff Greenleaf levied
execution upon this equipment on 26 December 1771, they again appraised it at the
same figure. Some bookbinding equipment being caught within the execution, Langdon
and Edwards returned to appraise it, too. Once again, costs were deducted, and Hancock
receipted for £94 11s. 6d. worth of bookbinder's tools and printing gear.
40
Liquidating the collection was difficult. Not until the fall of 1772 was Hancock able
to remit anything to England and even then he had to confess that “to this Day have
not Received the Whole Money. There is now outstanding about £100 Lawful Money. However,
rather than keep them any longer, I have taken it upon myself and now close the whole.”
41
{ 210 } Whether the underlying motive in these suits was financial or political, they did
raise questions of broader significance than Mein's inability to pay his debts or
even the patriots' desire to close his newspaper. The issue of a jury's right to decide
the law independent of the court's direction or in violation of it (and the closely
related question, whether or not counsel could argue law to the jury) claimed much
attention in 18th century England and America. It was present not only in this case,
but also in
Cotton v. Nye,
No. 3, and in
Rex v. Richardson,
No. 59. The problem arose also in the Massacre Trials (
Nos. 63,
64) where Adams very carefully urged the jury to rely on the authorities which he was
citing (and which the prosecution did not dispute), in order to enable the jury correctly
to determine the law itself.
42 Josiah Quincy, on the other hand, more “carried away by zeal for his client,”
43 argued that the law was the court's concern, and that on the facts, the accused must
be acquitted.
The extent of the jury's power and the means by which the judges may impose and maintain
bounds on that power agitate the profession even today.
44 At early common law, a court at Westminster, when considering the result of proceedings
at nisi prius, could, if it “thought that there had been irregularity in the proceedings
... decline to proceed and leave the parties to start proceedings afresh. In other
words, there was a new trial.”
45 In the 17th century, “it became the practice for the judge, with the consent of the
parties, to give leave to move the court to enter a verdict for the other side, if
they considered that his direction to the jury had been erroneous.”
46
By the beginning of the 18th century, the idea of granting a new trial for misdirection
had become rooted in the supervisory functions of the Westminster courts.
47 Other grounds for the granting of new trials included the judge's error in admitting
evidence or excluding it,
48 and a “wrong” finding by the jury. This latter phenomenon divided itself into
{ 211 } two classes, verdicts “contrary to the evidence” or “against the evidence” and verdicts
“against the weight of the evidence.” The distinction does not always emerge clearly
from the reports and the abridgments, but the difference seems certain. A verdict
contrary to evidence was one in which all the evidence adduced, no matter by whom,
tended toward one party and none toward the other. A verdict against the weight of
the evidence was one in which, although favorable evidence had been produced for both
parties, the evidence, taken as a whole, preponderated for one side or the other.
The difference may be illustrated by an anonymous case of 1743. At the trial there
had been six witnesses for each side, and the judge certified “that the jury found
for the defendant, which was against his opinion, but that he could not take upon
himself to say that this was a verdict against evidence, because there was evidence
on both sides.”
49
Generally, “if the Jury have found a Verdict contrary to the Evidence, the Court will
grant a new Trial,”
50 the theory being “that the Jury ought to ground the Verdict intirely upon the Evidence
given in Court.”
51 But, where the trial had seen evidence for both sides, the problem was more difficult.
After all, a certification by the trial judge that the verdict was against the weight
of the evidence was (and is today) nothing more than a judicial evaluation of the
testimony, a difference of opinion between one man and twelve. Which estimate, or
rather whose estimate, should prevail, seriously troubled the English judges: “It
has been held in some Cases, that if the Jury have found a Verdict which is in the
Opinion of the Judge before whom the Cause was tried contrary to the Weight of the
Evidence this is a good Reason for the granting of a new Trial.... But it has been
held in other Cases that the Court ought not to grant a new Trial; because the Jury
have in the Opinion of the Judge before whom the Cause was tried found a Verdict contrary
to the Weight of the Evidence.”
52
An unreported case set out in Bacon's Abridgment sums up the state of the law on this point. On the motion in the Common Pleas for
a new trial, Chief Justice Pratt, before whom the trial had been held at nisi prius,
said: “If I had been upon the Jury, and had known no more of the Witnesses than I
did when this Cause was tried, I should have thought that the Verdict which is for
the Plaintiff ought to have been for the Defendant; but I do not chuse to declare
myself dissatisfied therewith: Because wherever there is a flat Contrariety of Evidence
as to the principal Matter in Issue, and the Characters of the Witnesses on both Sides
stand unimpeached, the Weight of Evidence does not altogether depend upon the Number
of Witnesses: for it is the Province of the Jury who may know them all to determine
which Witnesses they will give Credence to; and in my Opinion no Judge has a Right
to blame a Jury for exercising their Power of determining in such a Case.”
{ 212 } Clive, J., said: “The granting of a new Trial in this Case would be taking away that
Power which is by the Constitution vested in the Jury. It has been said that it is
the Duty of the Judge to enlighten the Understanding of the Jury, but that he ought
not to lead the Jury by the Nose.”
Bathurst, J.: “As there was in this Case strong Evidence for the Plaintiff a new Trial
ought not to be granted, although the Weight of the Evidence was in [the trial judge's]
Opinion with the Defendant.”
Gould, J.: “It is very difficult to draw a Line between the Cases in which there ought
or ought not to be a new Trial; and perhaps the granting of a new Trial must in every
Case depend upon the particular Circumstances of the Case. In the present Case there
is no Reason to grant one.”
53
And in so-called “hard” cases, that is, actions which the court felt should not in
conscience have been prosecuted, new trials were denied after verdicts for the defendant,
even though against evidence.
54 As Bacon put it: “It has been held in divers Cases that the Court will not grant
a new Trial unless the Justice of the Case requires it, although the Jury have found
a Verdict contrary to the Evidence.”
55
No consideration of the judge-jury problem in English law could properly omit some
mention of
Bushell's Case,56 which established the principle that a jury which refused to convict, in defiance
of the judge's direction, could not be fined and imprisoned.
Shortly after it was decided, the case was cited in support of the argument that the
jurors need not respect the court's direction in anything pertaining to their verdict.
In a chapter entitled “That Juries are not Finable, or any way to be punish'd, under
Pretence of going contrary to Evidence, or against the Judges Directions,” Henry E.
Care, the author of
English Liberties, set out large portions of the opinion “to satisfy you that a Jury is in no way punishable
for going according to their Conscience, though against seeming Evidence.”
57 A close reading of Chief Justice Vaughan's holding indicates, however, that it very
narrowly restricts and qualifies the jury's role. Because of the significance of the
case, and because Adams apparently cited it in his argument in the instant cases,
58 a reappraisal of
Bushell's Case is worthwhile here.
Bushell had been one of the jurors who had disregarded the court's instructions and
had refused to convict the Quakers Penn and Mead at their
{ 213 } trial in the Old Bailey. As a result, the judges had imprisoned the jurors and literally
starved them. Finally, Bushell's lawyers obtained a writ of habeas corpus from the
Court of Common Pleas, and the Sheriffs of London, bringing Bushell with them, came
into Court to justify the imprisonment. The main reason was “That the Jury acquitted
those indicted against the direction of the Court in matter of Law, openly given and
declared to them in Court.”
59 Vaughan admitted that “no Issue can be joyn'd of matter in Law, no
Jury can be charg'd with the tryal of matter in Law barely, no Evidence ever was, or can
be given to a
Jury of what is Law, or not; nor no such Oath can be given to, or taken by, a
Jury to try matter in Law.” But he denied that the judge “having heard the Evidence given
in Court (for he knows no other)” could tell the jury “upon this Evidence, the Law
is for the
Plaintiff, or for the
Defendant, and you are under the pain of Fine and Imprisonment to find accordingly.”
However, he said plainly that the judge could before verdict ask the jury whether
it had found a particular fact and, depending on the answer, could “declare 'The matter
of Fact being by you so found to be, the Law is for the Plaintiff, and you are to find accordingly for him.'” And a finding for the defendant “may be
thought a finding in matter of Law against the direction of the Court; for in that case the Jury first declare the Fact, as it is found by themselves, to
which fact the Judge declares how the Law is consequent.”
And even after verdict, the judge may “ask, 'How do you find such a Fact in particular?'
And upon their answer he will say, 'then it is for the Defendant,' though they found for the Plaintiff, or e contrario, and thereupon they rectifie their Verdict.”
It was also proper, Vaughan said, to put the matter to the jury hypothetically: “If you find the Fact thus (leaving it to them what to find) then you are to find for the Plaintiff; but if you find the Fact thus, then it is
for the Defendant.”
But, because the law of the case depended on the facts, and because the jury alone
could find the facts, it was impossible for any judge to direct the jury. “If the
Jury were to have no other Evidence for the Fact, but what is depos'd in Court, the
Judge might know their Evidence, and the Fact from it, as equally as they, and so
direct what the Law were in the Case.” But the jurors, the neighbors of the parties,
have knowledge of their own, going either to the issues or to the credibility of the
witnesses. It is, therefore, “absurd a Jury should be fined by the Judge for going against their Evidence, when he who fineth knows not what it is. ... [F]or
the better and greater part of the Evidence may be wholly unknown to him; and this
may happen in most Cases, and often doth.” “[T]he evidence in Court is not binding
evidence to a Jury.”
Finally, Vaughan noted, although in some situations, such as demurrers to the evidence,
the decision goes “upon the
Judge's Opinion of
{ 214 } the Evidence given in Court, [and] the
Plaintiff becomes
Nonsuit, when if the matter had been left to the
Jury, they might well have found for the
Plaintiff,” in all general issues, the jury merely “find for the
Plaintiff or
Defendant upon the Issue to be tryed, wherein they resolve both Law and Fact complicately,
and not the Fact by itself.”
Bushell's Case thus rests principally on a concept of the jurors as quasiwitnesses, an idea which
remained very much alive down to Adams' time, as the quotation from Chief Justice
Pratt demonstrates. To the Vaughan Pratt view, which is unanswerable once its major
premise be accepted, the Massachusetts lawyers added an interpretation of
Bushell's Case which had come to them through Care's book, that the jury should always decide the
law as well as the fact. On 13 March 1769, the
Boston Gazette ran an unsigned letter setting out a long passage from
English Liberties, including this sentence: “'Tis by applying Matter of Fact and Law together, and from
their due Consideration of, and right Judgment upon both, that a Jury brings forth
their Verdict.”
60
The author of Appendix II to Quincy's
Reports thought that, until the 1800's, Massachusetts civil juries had the right to decide
both law and fact, in support of which position he cited
Stickney v. Atwood.61 From Dane's digest of this unreported case, it appears that one of the purported
grounds for a new trial was that the verdict was against the court's opinion. The
court apparently overruled the motion, however, holding that the verdict was “not
against the court's opinion, if the facts be true, of which the jury must judge.”
Thus the case seems to stand only for the proposition that if court and jury disagree
over the
facts, the jury's mind will control.
The distinction between (1) the jury's disregarding the court's direction in a matter
of law, and (2) the jury's disregarding the court's opinion of the facts was not entirely
clear in 18th-century Massachusetts, although the English decisions, even the Junius cases, made the difference plain. In each of those criminal libel cases, the jury
had been asked to find only the bare fact of publication, with the legal effect of
publication—the guilt or innocence of the accused—to be decided then by the judge.
That is, the court was asking the jury to respond to a kind of special interrogatory:
“Did the defendant publish the statement in question?” Or, to put it another way,
the courts were attempting to force the jury to return a special verdict (a verdict
in which the jury found certain specific facts, leaving it to the court to determine
which party should prevail). In a general verdict, on the other hand, the jury found
“generally,” that is, for the plaintiff (with assessed damages), or for the defendant
according to the plea. It was the juries' insistence on bringing in a general verdict
(not guilty) which, combined with judicial attempts to regard these general verdicts
as special ones, touched off the controversy. But not even Lord Mansfield himself
ever directed a jury to find the simple fact of publication.
Inability to distinguish between the differences stemmed in part, as
{ 215 } Adams himself noted, from the practice of styling anything the court said a “direction.”
62 Thus what today would be considered a judge's summing up, or perhaps his commentary
on the evidence,
63 might, in Adams' time, be regarded as an attempt to direct a jury's finding. Expressions
like “contrary to the mind of the Court,”
64 or “against the mind of three in four of us Judges,”
65 could be interpreted either way.
Of course, no one took the position that all questions whatsoever were for the jury.
Even Adams admitted that there were numerous classes of litigation whose intricacies
“would confound a common Jury and a decision by them would be no better than a Decision
by Lott.”
66 But Adams' point was that the jury would recognize its own limitations and would
voluntarily bring in a special verdict in such cases. He argued that it should be
the jury's decision rather than the judges' whether or not a special verdict should
be employed, and that the jury, if it liked, could decide to determine the law, no
matter what the court thought. The opposing view found expression in a letter to
The Censor, signed “A.Z.,” which insisted that the losing party receive a new trial “when a jury
will pertinaciously determine matters of law directly against the opinion of the Court.”
67 A middle view came from Robert Auchmuty and Chief Justice Hutchinson. Arguing against
a new trial in a 1763 case, Auchmuty had said: “I confess I wish for a Power in the
Court to set aside Verdicts, but not for an unlimited one. ... The Court is not to
be Judge of the Law and Fact too absolutely; if it should be, it takes away all Verdicts
but such as are agreeable to the Mind of the Court.” And Hutchinson asked: “Are you
not agreed, that, were it evidently against Law and Evidence, there the Court may
grant a new Trial, but not where there is Evidence on both sides?”
68
Whatever the division of powers and function between court and jury, it is apparent
that in Massachusetts anyhow, after a verdict the judges could not enter up judgment
for the losing party, no matter how strong they thought his case to be. The most he
could get was a new trial. Even
{ 216 } “A.Z.” asked for nothing more than that. It was not until the middle of the 19th century
that the Massachusetts Court ruled that if a civil plaintiff's evidence was so weak
that “the Court would set aside any number of verdicts rendered upon it,
toties quoties, then the cause should be taken from the jury by instructing them to find a verdict
for the defendant.”
69