Page:The Green Bag (1889–1914), Volume 06.pdf/504

 Are Juries the Judges of the Law in Any Case? Connecticut has such a statutory provision. Does this condition of things impute the want of confidence in the judicial discretion and integrity of the judges in those States? Assuredly not. More like the mummified remains of the old spirit of opposition driven out of England by the plague of legal re form. The conservative spirit as shown in these constitutional provisions of the States above named is a fair illustration of how slow pro gress may be along the line of legal reform. Prometheus bound to the rocks was not more effectually hampered in his efforts to free himself than are we hampered by legal tra dition in our effort at reform to a degree of consistency. Can it be said that some part of the fear expressed by Claudianus, so long ago, in the words, " He is next to the Gods, whom reason, and not passion, impels; and who, after weighing the facts, can measure the punishment with discretion," dictated the ac tion, or aroused the feeling which led to the adoption of such constitutional provisions? Hardly so, it seems. But rather the Cicero nian sentiment: "Great is the weight of conscience in deciding on your own virtues and vices; if that be taken away, all is lost." The conscience of a juror was recognized as the supreme " power behind the throne." If the evidence was reasonably clear and the law made so by the court, jurors with an abnormally developed, or an elastic con science, might, if conscience was the ruling guide, cause a verdict to be rendered, as they sometimes do, absurd upon its face. Under the present status of the law, if this verdict is an acquittal, nothing more may be done. But if the jury bring in a verdict of guilty, a remedy is at hand. In some cases a summary remedy. But why not bind the conscience as well as the reason, if as a metaphysical proposition these may be separated. The conscience is too elastic, too sentimental, too immaterial in one man to make it the guardian of another's fate. It

467

may be a good mentor for the one who con trols it, at least to an extent. But you do not always find the conscience so governed by good sense as in the case of Judge Thompson, whilom on the bench of the Uni ted States Circuit Court of New York. It was said that while in the trial of a criminal case in that court he was requested to charge the jury that they were the judges of the law as well as of the facts, when he replied in the terse, if not polite language, " I shan't, they ain't." The Supreme Court of the State of Ver mont, after attempting to establish this doctrine by repeated judicial decision and opinion, beginning with the case of State v. Croteau,' and not always as a harmonious whole, and at times the subject of sarcastic reference, as supporting a mere dogma, by the courts of sister states2 have, just recently, through Mr. Justice Thompson, in the case of State v. Burpee3 announced the opinion that the doctrine that jurors are paramount judges of the law as well as the facts in criminal cases, is contrary to the common law, contrary to the constitution of the state and of the Federal Constitution. What more could they say? This decision overrules a long line of previous decisions on this question in this State. The opiniort of Mr. Justice Thompson in this case, State v. Burpee, is an exhaustive and able resume of the adjudicated cases, not only of his own State, but of English case and common law. Concluding his opinion he remarks, "We are thus led to the conclu sion that the doctrine that jurors are the judges of the law in criminal cases is unten able; that it is contrary to the fundamental maxims of the common law from which it is claimed to take its origin, contrary to the uniform practice and decisions of the courts of Great Britian, where our jury system had 1 23 Vt. 14. 2 See Commonwealth v. McManus, Pa. 14, Crim. Law Mag. 18. 3 25 Atl. Rep. 964.