SCRUPLES OF JURORS AND WITNESSES.

37

to illustrate the effect of the motives alluded to upon the minds of jurors. A woman was indicted for stealing, in a dwelling-house, two guineas, two half guineas, and forty-four shillings in other money. She confessed the stealing of the money, and the jury found her guilty; but, as the stealing of such a sum would be punishable with death, they found the value of the money to be thirty-nine shillings only, which saved her from the sentence of death. Another female was indicted for stealing lace, for which she refused to take eight guineas, offering it for sale for twelve. The jury who convicted her of the theft, found the lace to be worth thirty-nine shillings. Two persons indicted for stealing the same goods privately in a shop, five shillings stolen in this manner making the offence capital, one of the prisoners was found guilty of thus stealing to the value of five shillings, and the other to the value of four shillings and ten pence.'

Lord SUFFIELD, Speaking on this subject in England, offered the following facts:

He held in his hand, he said, a list of five hundred and fiftyfive perjured verdicts, delivered at the Old Bailey, in fifteen years, beginning with the year 1814, for the single offence of stealing from dwellings, the value stolen being in these cases sworn above forty shillings, but the verdicts returned being 'to the value of thirty-nine shillings' only. If required, he would produce the name of every one of these five hundred and fifty-five convicts, and show the value proved to have been stolen. It deserved remark, that when the legislature raised the capital indictment to five pounds, in June, 1827, the juries at the same time raised their verdicts to four pounds nineteen shillings; thus still keeping it low enough to save the offender's life. This had happened under the one head of stealing from dwelling houses.*

* See Selections from the London Morning Herald, vol i. p. 280.

One of the last acts by Mr. Brougham, as a commoner, was to present this very subject. The following is his speech, taken from the London Times: 'Mr. Brougham said he had a petition to present, which he felt greatly honored by having been entrusted with, and to which he begged the particular attention of the House. The petition, which was very ably and clearly expressed, prayed for the abolition of the punishment of death for offences unattended by violence; and that a distinction might be drawn in our criminal laws between such offences, and offences which were marked by bloodshed or acts of violence. The petition came from householders of the city of London, who were liable to serve on grand juries. It was signed by many who had served, and by no less than six persons who had been foremen of grand juries (at the Old Bailey) last year. It was worthy of the attention of the

And in the same excellent work, vol. i. p. 27, we find the following anecdote:-'Some years ago, a man was tried at Carnarvon for forgery to a large amount on the Bank of England. The evidence was as satisfactory of the guilt of the prisoner as possible, and brought the charge clearly home to him. The jury, however, acquitted him. The next day, the same individual was tried on another indictment for forgery. Although the evidence in this case was as conclusive as in the former one, the jury acquitted the prisoner. The Judge (Chief Baron RICHARDS,) in addressing the prisoner, expressed himself in these remarkable words: "Prisoner at the bar-although you have been acquitted by a jury of your countrymen of the crime of forgery, I am as convinced of your guilt as that two and two make four." A short time after the conclusion of the sessions, I met with one of the jurymen, and expressed to him my surprise at the acquittal of the man who had been tried for forgery. He immediately answered me in the following words: "Neither my fellow-jurymen nor myself had the least doubt of the prisoner's guilt; but we were unwilling to bring in a verdict of guilty, because we were aware the prisoner would have been punished with death-a penalty which we conceived to be too severe for the offence."

House, on account of the reasons it contained, but more especially on account of the authority of the petitioners; for, who were so competent to speak of the scruples of jurors, as they who had felt those scruples?' The petition was signed not only by jurors, but by eleven hundred merchants, &c., who had served as jurors, or were eligible. His Royal Highness, the Duke of Sussex, in presenting it, said, 'When we see ninetyone naines, on the first skin of the petition, of merchants and others, whose annual returns in trade amount to no less a sum than ten millions sterling, I think I have stated to your lordships sufficient to convince you that this petition is entitled to great consideration and respect. These respectable persons state to your lordships their own private feelings, and the situation to which they are frequently reduced in fulfilling their painful duties.' The following extracts will express their views:

The petitioners view with deep regret the excessive and indiscriminate severity of the Criminal Laws, which annex to offences of different degrees of moral guilt the punishment of death, and confound the simple invasion of the rights of property with the most malignant and atrocious crimes against the person and the life of

man.

Your petitioners, as bankers, are deeply interested in the protection of property from forgery, and in the conviction and punishment of persons guilty of this crime—that your petitioners find, by experience, that the infliction of death, or even the probability of the infliction of death, prevents the prosecution, conviction, and punishment of the criminal, and thus endangers the property which it was intended to protect-that your petitioners therefore pray that your Honorable House will not withhold from them that protection which they would derive from a more lenient law.*

*A banker said that his name had been forged as the acceptor of a bill of exchange; and that, recollecting the severity of the law, rather

In all criminal cases, the maxim of the constitution of England is, that jurors are judges both of the law and the fact.

The petitioners go on to say,

That, in the present state of the law, juries feel extremely reluctant to convict, where the penal consequences of the offence excite a conscientious horror on their minds, lest the rigorous performance of their duties as jurors should make them accessory to judicial murder. Hence, in courts of justice, a most unnecessary and painful struggle is occasioned by the conflict of the feelings of a just humanity with the sense of the obligation of an oath.

In this petition we learn another fact respecting the reluctance of witnesses:

That witnesses also are very frequently reluctant to give evidence, lest they might bring upon their consciences the stain of blood; and thus criminals, who, under a more rational and considerate code of laws, would meet the punishment due to their crimes, escape with impunity! For these and other reasons, the petitioners pray that the House may take the criminal laws into consideration, for the purpose of the revision and amendment of the same, by drawing a distinction between the simple invasion of the rights of property and crimes of violence and blood, and by abolishing the penalty of DEATH in all cases in which the legislative power cannot justify, in the eyes of God and man, that last and dreadful alternative-the extermination of the offender!*

In addition to this testimony, hear the language of Sir William Blackstone, about seventy-five years ago: 'So dreadful a list † (of capital punishments) instead

than divulge the circumstance, he acknowledged the acceptance to be his, and paid the money.'

* Selections from the London Morning Herald, vol. i. p. 79.

† At one time, according to Judge STORY, England presented the dark catalogue of one hundred and sixty capital offences. The Selections from the London Morning Herald say two hundred. See vol. i. p. 122.

of diminishing, increases the number of offenders. The injured, through compassion, will often forbear to prosecute; juries, through compassion, will sometimes forget their oaths, and either acquit the guilty, or mitigate the nature of the offence; and judges, through compassion, will respite one half the convicts, and recommend them to the royal mercy. Among so many chances of escaping, the needy and hardened offender overlooks the multitude that suffer. He boldly engages in some desperate attempt to relieve his wants, or to supply his vices; and if, unexpectedly, the hand of justice overtakes him, he deems himself peculiarly unfortunate in falling, at last, a sacrifice to those laws which long impunity had taught him to contemn.'

Such is the testimony borne by this great and learned judge, to the evil of sanguinary laws, and the temptations which they throw in the way to commit what he elsewhere calls 'pious perjuries.' And if men are tempted to commit 'pious perjuries' by the law, the crime is with those who make it, and not on those who pray for such an alteration as may remove that temptation forever.*

* 'Observe that juryman in a blue coat,' said one of the judges at the Old Bailey to Judge Nares. Do you see him?' 'Yes.' 'Well, there will be no conviction of death to-day.' And the observation was confirmed by the fact.-Works of JEREMY BENTHAM, vol. i. p. 450. Edinburgh; 1843.

A circumstance which shows the reluctance of jurors to bring in verdicts affecting life, happened in the case of Isaac Leavitt, who was tried for murder in Plymouth, Mass. The jury called up the judge about midnight, to know if they could enter a verdict of manslaughter. The reply was in the negative. They then agreed to bring in a verdict of murder, but unanimously to petition the executive for a commutation of the sentence to imprisonment, which, by the exertions of a philanthropist, whose name is dear to the writer, was afterwards effected.