The Newhampshire gazetteer — Exeter, N.H., 1792-10-31 00:00:00, page 1

I Newhampfhire
Hon. Judge Wilson's
CHARGE
To the Grand Jury —delivered at the
opening of the Circuit Court in
Exeter the 23d infant.
Gentlemen of the Grand fury.
" a free Government its
'?"°^ are P ut in mo-
I "° n originally by the
[ people, by the people
also, its adminiftratjon
I/ is consummated.—
\ The firft part of the
remark relates to the
great rights and duties, which are enjoyed
and performed at Elections : The second
p^rt of it relates to the rights and duties
equally great which are enjoyed and per
formed by juries.
This second part deserves in my hum.
ble judgment a greater degree of atten
tion and difeufflon than it has hitherto
received.
The principles on which juries are in
stituted, the rules by which they are gov
erned, the ends for which they are de
figned,and the exquisite manner in which
those principles end rules and ends are,
in our judicial system, arranged and ad
justed and proportioned, ail these should
become the Itudy, and after having been
the study, will toon obtain the admira
tion of everv citizen of the United States.l
To assist in diffusing the knowledge of
fabjeds, so important, both in theory and
in praftice, is I apprehend one. leading
purpose of Charges delivered on occa
sions, such as this, on which we are now
assembled.
When 1 foeak of juries, gentlemen, [
mean a convenient number of citizens,
fele&ed and impartial, who on particular
occafions,or in particular causes, are vett
ed with a discretionary power to try the
truth of fads, on which depend the pro
perty, the lioerty,the reputation, and the
lives of their fellow citizens.— 3
Os this description the part by which
your moR marked attention has been ar
rested, is probably that, which represents
the power vetted in juries as a discretion
ary power—that part thefore merits the
firft illqßration.—
It will be remembered all along, that
the discretionary power of juries is, in its
general nature, a power to try the truth
of fads. The truth of fads is tried
by evidence.
What is evidence? It is much more
easily felt than described: Its influence
we experience, but we cannot always ex.
plain. A man may have.a good eye,
and may make agood use of it too, though
he cannot unfold the theory of vision.—
What we feel to be evidence, cannot,
perhaps, be expressed better than by fay.
ing—it is that which produces belief.
• Belief is a simple operation of the ,un
derstanding and cannot be defined. For
its nature, the appeal mutt be made to the
confeioufnefs which every one has of
what paffe within himfelf.—
By this he is informed, that belief arises
from many different sources, and is fuf
teptible of many different degrees
The principal species of evidence,
which comes before juries is the teftimo.
ny of wicueffes.—
This source of belief is altogether orig
inal ; it is sometimes indeed corroborated,
but it is more frequently corrected, by con-
Adorations drawn from experience.
WEDNESDAY, Odober 31, 1792.]
EXETER, (New-Hamffoire) Printed by HENRY RANLET, at Nine Shillings per annum.
Proof has been distinguished into that
which is full — and into that which is half
full. Even of half probation, there is
often a deficiency: This is made up
sometimes by torture, sometimes by the
fuppletory oath of the party.
Concerning circumstantial proofs, rules
unsatisfactory, because unfounded, have
been tacked to rules ; volumes have been
piled upon volumes; and evidence has
been added, and divided, and fubtraded,
and multiplied, like pounds, and (hil
lings, and pence, and farthings.
The Parliament of Thouloufe we are
told admitted of quarters anl eigh hs of a
proof, one hearsay, for instance, was
considered as a quarter ; another hear
say, more vague, was rated only as an
eighth ; and by this mode of computation
a number of hearsays, reverberated
Echos, perhaps, of the fame groundless
report, confticuted a full proof. On a
combined series of this kind, poor Cato
was condemned to the wheel.
Though the degrees of belief cannot,
like those of heat or cold be afeertained
by the precise Icale of an artificial Ther
mometer ; yet they are naturally felt and
diflieguifad by a mind which isfound and
healthful.
When application was made by one of
the Roman Judges, to the Emperor Ha
drian for a refcript, containing particular
dire&ions on this fabjed; he wrote an
answer, in which the doctrine I have
mentioned, is beautifully exhibited.
No certain rule, fays he, can be given,
with regard to the degree of evidence,
fufficient in every cause, which may oc
cur. This only I can recommend to
you in general—that you by no means
confine yourfelf to any one kinder degree;
but that according to the nature and the
circum/lances of every case, you estimate
in your own mind what you believe ; and
what you do not think to be Sufficiently
proved.
Upon the fame principle proceeds the
common law, fraught with the wisdom
of immemorial ages. The ,qualifica.
tions and folemnitics which that law pre.
scribes with regard to witnesses, and
testimony, we have seen, is the principal
evidence before juries, are directed to
competency not to credibility—to the ad
mission of what is offered, not to the ope
ration of what is heard.
Let us draw to a conclusion on this
point.
If evidence of faffs can be afeertained
or estimated by no system of general rules,
the consequence unavoidably is, that the
evidence in every case, must depend upon
its owncircumilaoces, —
The further confequenee unavoidably
is, that the power of deciding on evi
dence of fads, mutt be a discretionary
power; since it is a power of deciding on
a fubjed arnfufceptible of general princi
ple; or rules. —:
, And—after all, is it at last, come to
this ? Do we then live by diferetion ?
of the boasted trial by jury is this the fi
nal result?
Belief it is true, is susceptible of many
different degrees. But it is equally true,
that those different degrees cannot be as
certained by any system of general rules ;
nor can they be diOindly marked on any
graduated scale. They are determined
by fextiment not by calculation.
Tedious and painful it would be, to
trace the many steps, which have been
trod by civilians, with a tend desire of
forming evidence into detachments and
subdivisions, proportioned as to strength
and numbers, by the ttrideft rules of so.
renfic art. —
THE
1. Before society was formed, the right
of punilhing, or to speak with more pro
priety, of preventing the repetition of a
crime, belonged to him, against whom
it was committed.
Let this reference be as comprehen
sive as possible: If we must live by dis
cretion, let the exercise of that discretion
be unanimous in the highest attainable
degree : let it be such as would Secure
the fandion of universal assent.
In pursuing this train of thought, I as
sume the following position— That the
evidence Upon which a citizen is con
demned ; Should be such as would gov
ern the judgment of the whole society.
I enquire :// —is this position reafona.
ble?— 2d —would its eftabliihment give
to the citizen a Sufficient security against
the improper exercise of diferetionary
power ?—3/—can this theory be reduced
to practice ?—
In formed society this right is devolv
ed on the community. To the commu
nity therefore, instead of the individual,
he who committed the crime, is now to
answer. To answer to the community
for his conduct was a part of the social
contrad, which,by becoming a member,
he tacitly and voluntarily made.
The social contrast, when analifed in
to its Several ingredients, is found to be
an assemblage of agreements, equal in
number, to the number of all the mem
bers of which the society is composed-
To each of these agreements there are
two parties One member of the soci
ety is the party on one fide, all the
other members form the party on the
other fide.
Upon the principles which I have laid
down, each of those two pre-requisites
muff be equally the aft of the whole lo
ciety.
With regard to each, the society may
aft either personally or by deputation.—
If they aft by deputation, they may
entrust to one class of deputies one pre
requisite, to another, the other.
On a near and minute view of things,
however, we shall difeover a ~moft mate
rial difference between the modes proper
for the management of those two pre
requisites ; b^caufe on a nearer and mi
nute vie* of things, we ffiall dilcover a
most material difference in the situation
of the parties to the social contrast.
Punishments may be adjusted and as
certained by general rules, and against
In Turkey, life and every thing pre
cious in life, vibrate by the nod of one
man; here, it seems, by that of twelve.
A difference, indeed, there is in number;
but in principle, where is the difference?
Such however is, and fucb mult be our
doom. On all hands it has been agreed,
that in every State there must be feme
where a power, supreme, arbitrary,
absolute, uncontrollable. Thele imply
diferetion strongly. The only question
is, where should this diferetionary power
reside?
Though it be impracticable to afcer.
tain the force of evidence by determinate
rules, is it, for this reason impracticable
also to give and to receive a proper con
ception of that force, by a general refer
ence to something elle ? perhaps it is not.
Let us not despair ; let us look around
us ; we shall perhaps descry foihe emerg.
ing spot, where amidit this nnttable, wat
ery feene,which surrounds us,we may be
able to find rest for the soles of our feet.
The punishment of a crime in regu
lated society presupposes two things—
lft — That the crime must be authenti
cated- 2d —That the penalty must be
afeertained.
Gazetteer.
[Numb. XVII of Volume VIT.
all the members of the society indiscrim
inately. On this fubje& every member
may be affedrd in a double capacity—as
the individual party to one agreement, or
as one of the numerous party to each of
the other agreements, of which we have
seen the social contrast to be comcofed.
Impartiality therefore in the conduct of
every member may rationally be expect
ed.
Here no general rules can be adopted
here no measures can be taken, which
will equally and indiscriminately affect
all the different members of the commu
nity in their turn. Here the parties to
one of the agreements which form the so
cial contrast appear in Qeir original Ra
tions —on the one fide, an indiviual,
on the other, all the members of the so
ciety, except himfelf—on one fide those
who are to try, on the other he who is to
be tried.
In this inflated situation in which
the party necessarily, but unfortunately
stands, if the society ad by Representa
tives,lt is reasonable to demand, and it
is just '0 grant the reafonabie demand,
that nothing lets than the unanimous
voice of those who represent, and are
parties, as well as judges, should be fuf
ficient to warrant a sentence of condem.
nation. This unanimous Suffrage, may
well be deemed necessary to found a fair
preemption, concerning the Sentiments
of the whole community, had the whole
community been personally present. In
such a situation, therefore we recur to our
position—that the evidence, upon which
a citizen is condemned, fhculd be such
as would govern the judgment of the
whole society: And we are juftified in
requiring the unanimous fuffrage of the
deputed body who try—as the proper
presumption of that judgment.
2. I proceed to the fecund queflion—-
Would the establishment of this position
give to the citizen a just degree of secu
rity against the improper exercise of dif<
creuonary power?
In every State, as we have seen, dis
cretionary power mull be placed fomc
where. The great body of the peopleis
their proper permanent aepofitory.
But on some occasions, and for f° m ^
purposes, they must be delegated. When
they are exerciled by the people them
selves, the voice of a majority,it deemed
the voice of the whole. When they are
exercised by delegation,in the case of an
individual, it would be difficult to sug
gest for his security, any provision more
guarded than this. Nothing shall be
luft'ered to operate against him without
the unanimous consent of the delegated
body.
This provision however may be forti
fied with additional precautions. The
manner of forming the delegated body
may be an object of fefotous pare. 1c
cannot on every occasion, be feleded by
the people themselves ; but it may on ev.
ery occasion be felefled by an officer,
confidential, impartial,alia appointed for
this very purpose.
If notwithstanding this cautious mode
of feleaion, an improper chara^er appear
among the delegated body, every reason
able exception may be allowed against
his competency to ad.
To a necessary exercise of dilcretiona
ry powers, on one hand, the indulgence
of a discretionary power, may be oppos
ed; on the other, leave may be given to
But when we attend to the manage,
ment of the other pre-requifite, that of
authenticating the crime, a new prof
ped of men and of things opens to cur
view.