Chapter IX: Section III: The Oaths of Jurors

The oaths that have been administered to jurors, in England, and which are their _legal_ guide to their duty, _all_ (so far as I have ascertained them) corroborate the idea that the jurors are to try all cases on their intrinsic merits, independently of any laws that they deem unjust or oppressive. It is probable that an oath was never administered to a jury in England, either in a civil or criminal case, to try it _according to law_.

The earliest oath that I have found prescribed by law to be administered to jurors is in the laws of Ethelred, (about the year 1015,) which require that the jurors "_shall swear, with their hands upon a holy thing, that they will condemn no man that is innocent, nor acquit any that is guilty_."--_4 Blackstone_, 302. _2 Turner's History of the Anglo-Saxons, 155. Wilkins' Laws of the Anglo-Saxons_, 117. _Spelman's Glossary_, word _Jurata_.

Blackstone assumes that this was the oath of the _grand_ jury (_4 Blackstone_, 302); but there was but one jury at the time this oath was ordained. The institution of two juries, grand and petit, took place after the Norman Conquest.

Hume, speaking of the administration of justice in the time of Alfred, says that, in every hundred,

"Twelve freeholders were chosen, who, having sworn, together with the
hundreder, or presiding magistrate of that division, _to administer
impartial justice_, proceeded to the examination of that cause which
was submitted to their jurisdiction."--_Hume_, ch. 2.

By a law of Henry II., in 1164, it was directed that the sheriff "_faciet jurare duodecim legales homines de vicineto seu de villa, quod inde veritatem secundum conscientiam suam manifestabunt_," (shall make twelve legal men from the neighborhood _to swear that they will make known the truth according to their conscience_.)--_Crabbe's History of the English Law_, 119. _1 Reeves_, 87. _Wilkins_, 321-323.

Glanville, who wrote within the half century previous to Magna Carta, says:

"Each of the knights summoned for this purpose (as jurors) ought to
swear that he will neither utter that which is false, nor knowingly
conceal the truth."--_Beames' Glanville_, 65.

Reeve calls the trial by jury "_the trial by twelve men sworn to speak the truth_."--_1 Reeve's History of the English Law_, 87.

Henry says that the jurors "took a solemn oath, that they would faithfully discharge the duties of their office, and not suffer an innocent man to be condemned, nor any guilty person to be acquitted."--_3 Henry's Hist. of Great Britain_, 346.

The _Mirror of Justices_, (written within a century after Magna Carta,) in the chapter on the abuses of the Common Law, says:

"It is abuse to use the words, _to their knowledge_, in their oaths,
to make the jurors speak upon thoughts, _since the chief words of
their oaths be that they speak the truth_."--p. 249.

Smith, writing in the time of Elizabeth, says that, in _civil_ suits, the jury "be sworn to declare the truth of that issue according to the evidence, and their conscience."--_Smith's Commonwealth of England_, edition of 1621, p. 73.

In _criminal_ trials, he says:

"The clerk giveth the juror an oath to go uprightly betwixt the
prince and the prisoner."--_Ditto_, p. 90.[55]

Hale says:

"Then twelve, and no less, of such as are indifferent and are
returned upon the principal panel, or the _tales_, are sworn to try
the same according to the evidence."--_2 Hale's History of the Common
Law_, 141.

It appears from Blackstone that, even _at this day, neither in civil nor criminal cases_, are jurors in England sworn to try causes _according to law_. He says that in civil suits the jury are

"Sworn well and truly to _try the issue_ between the parties, and a
true verdict to give according to the evidence."--_3 Blackstone_,
365.

"_The issue_" to be tried is whether A owes B anything; and if so, how much? or whether A has in his possession anything that belongs to B; or whether A has wronged B, and ought to make compensation; and if so, how much?

No statute passed by a legislature, simply as a legislature, can alter either of these "issues" in hardly any conceivable case, perhaps in none. No _unjust_ law could ever alter them in any. They are all mere questions of natural justice, which legislatures have no power to alter, and with which they have no right to interfere, further than to provide for having them settled by the most competent and impartial tribunal that it is practicable to have, and then for having all just decisions enforced. And any tribunal, whether judge or jury, that attempts to try these issues, has no more moral right to be swerved from the line of justice, by the will of a legislature, than by the will of any other body of men whatever. And this oath does not require or permit a jury to be so swerved.

In criminal cases, Blackstone says the oath of the jury in England is:

"Well and truly to try, and true deliverance make, between our
sovereign lord, the king, and the prisoner whom they have in charge,
and a true verdict to give according to the evidence."--_4
Blackstone_, 355.

"The issue" to be tried, in a criminal case, is "_guilty_," or "_not guilty_." The laws passed by a legislature can rarely, if ever, have anything to do with this issue. "_Guilt_" is an _intrinsic_ quality of actions, and can neither be created, destroyed, nor changed by legislation. And no tribunal that attempts to try this issue can have any moral right to declare a man _guilty_, for an act that is intrinsically innocent, at the bidding of a legislature, any more than at the bidding of anybody else. And this oath does not require or permit a jury to do so.

The words, "_according to the evidence_," have doubtless been introduced into the above oaths in modern times. They are unquestionably in violation of the Common Law, and of Magna Carta, if by them be meant such evidence only as the government sees fit to allow to go to the jury. If the government can dictate the evidence, and require the jury to decide according to that evidence, it necessarily dictates the conclusion to which they must arrive. In that case the trial is really a trial by the government, and not by the jury. _The jury_ cannot _try an issue_, unless _they_ determine what evidence shall be admitted. The ancient oaths, it will be observed, say nothing about "_according to the evidence_." They obviously take it for granted that the jury try the whole case; and of course that _they_ decide what evidence shall be admitted. It would be intrinsically an immoral and criminal act for a jury to declare a man guilty, or to declare that one man owed money to another, unless all the evidence were admitted, which _they_ thought ought to be admitted, for ascertaining the truth.[56]

_Grand Jury._--If jurors are bound to enforce all laws passed by the legislature, it is a very remarkable fact that the oath of grand juries does not require them to be governed by the laws in finding indictments. There have been various forms of oath administered to grand jurors; but by none of them that I recollect ever to have seen, except those of the States of Connecticut and Vermont, are they sworn to present men _according to law_. The English form, as given in the essay on Grand Juries, written near two hundred years ago, and supposed to have been written by _Lord Somers_, is as follows:

"You shall diligently inquire, and true presentment make, of all such
articles, matters, and things, as shall be given you in charge, and
of all other matters and things as shall come to your knowledge
touching this present service. The king's council, your fellows, and
your own, you shall keep secret. You shall present no person for
hatred or malice; neither shall you leave any one unpresented for
favor, or affection, for love or gain, or any hopes thereof; but in
all things you shall present the truth, the whole truth, and nothing
but the truth, to the best of your knowledge. So help you God."

This form of oath is doubtless quite ancient, for the essay says "our ancestors appointed" it.--_See Essay_, p. 33-34.

On the obligations of this oath, the essay says:

"If it be asked how, or in what manner, the (grand) juries shall
inquire, the answer is ready, _according to the best of their
understandings_. They only, not the judges, are sworn to search
diligently to find out all treasons, &c., within their charge, and
they must and ought to use their own discretion in the way and manner
of their inquiry. _No directions can legally be imposed upon them by
any court or judges_; an honest jury will thankfully accept good
advice from judges, as their assistants; but they are bound by their
oaths to present the truth, the whole truth, and nothing but the
truth, to the best of their own, not the judge's, knowledge. Neither
can they, without breach of that oath, resign their consciences, or
blindly submit to the dictates of others; and therefore ought to
receive or reject such advices, as they judge them good or bad. * *
Nothing can be more plain and express than the words of the oath are
to this purpose. The jurors need not search the law books, nor tumble
over heaps of old records, for the explanation of them. Our greatest
lawyers may from hence learn more certainly our ancient law in this
case, than from all the books in their studies. The language wherein
the oath is penned is known and understood by every man, and the
words in it have the same signification as they have wheresoever else
they are used. The judges, without assuming to themselves a
legislative power, cannot put a new sense upon them, other than
according to their genuine, common meaning. They cannot magisterially
impose their opinions upon the jury, and make them forsake the direct
words of their oath, to pursue their glosses. The grand inquest are
bound to observe alike strictly every part of their oath, and to use
all just and proper ways which may enable them to perform it;
otherwise it were to say, that after men had sworn to inquire
diligently after the truth, according to the best of their knowledge,
they were bound to forsake all the natural and proper means which
their understandings suggest for the discovery of it, if it be
commanded by the judges."--_Lord Somers' Essay on Grand Juries_, p.
38.

What is here said so plainly and forcibly of the oath and obligations of grand juries, is equally applicable to the oath and obligations of petit juries. In both cases the simple oaths of the jurors, and not the instructions of the judges, nor the statutes of kings nor legislatures, are their legal guides to their duties.[57]