Front Page Titles (by Subject) chapter xx.: independence of jus, continued.—trial by jury.—the advocate. - On Civil Liberty and Self-Government
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chapter xx.: independence of jus, continued.—trial by jury.—the advocate. - Francis Lieber, On Civil Liberty and Self-Government 
On Civil Liberty and Self-Government, 3rd revised edition, ed. Theodore D. Woolsey (Philadelphia: J.B. Lippincott & Co., 1883).
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independence of jus, continued.—trial by jury.—the advocate.
41.The judge cannot occupy a sufficiently independent position between the parties by the accusatorial proceeding alone. If there is not what may be called a division of the judicial labor, separating the finding of guilt or innocence, or of the facts, from the presiding over the whole trial and the application as well as the pronouncing and expounding of the law, the judge must still be exposed to taking sides in the trial. This division of judicial labor is obtained by the institution of the jury. This, it seems to me, is one of the most essential advantages of this comprehensive, self-grown institution. It is likewise a guarantee of liberty in giving the people a participation in the administration of justice, without the ruin and horrors of an administration of justice by a multitude, as it was in Athens. The jury is moreover the best school of the citizen, both for teaching him his rights and how to protect them, and for practically teaching him the necessity of law and government. The jury, in this respect, is eminently conservative. In this, as in many other respects, it is necessary that the institution of the jury exist for the civil trial as well as for the penal, and not, as in many countries, for the latter only. The necessity of the jury does not militate against the arbitration courts, which have proved, as has been stated, a great blessing in all countries in which they have been properly established, or against certain courts of minor importance which may be advantageously conducted without a jury.1
The results of trial by jury have occasionally been such that even in England and here, voices have been raised against it. Men feel the existing evil only; they do not see those evils that would result a hundredfold from an opposite state of things. Nor are those, who feel irritated at some results of the trial by jury, acquainted with the operation of trials without jury. So is occasionally the publicity of trials highly inconvenient; yet should we desire secret trials? Liberty, as we conceive it, can no more exist without the trial by jury—that “buttress of liberty,” as Chatham called it,1 and as our ancestors worshipped it—than without the representative system. But we must remember that in all spheres the exception is patent; the continuous operation of the rule is latent.2
The Declaration of Independence specifies, as one of the reasons why this country was justified in severing itself from the mother-country, that Americans have been “deprived in many cases of the benefits of trial by jury.”
It may not be improper here to enumerate briefly all the advantages of so great an institution, whether they are directly connected with liberty or not.
The trial by jury, then, if properly and intelligently administered, divides the labor of the administration of justice, and permits each part quietly to find the truth in the sphere assigned to it;
It allows the judge to stand, as the independent organ of the law, not only above the parties, hostilely arraigned against each other, but also above the whole practical case before the court;
It enables plain, common, and practical sense properly to admix itself with keen professional and scientific distinction, in each single case, and thus prevents the effect of that disposition to sacrifice reality to attenuated theory, to which every individual is liable in his own profession and peculiar pursuit the worship of the means, forgetting the end;1
It makes a participation of the people in the administration of justice possible without having the serious evil of courts, consisting of multitudes or mobs, or the confusion of the branches of the administration of justice, of judges and triers;
It obtains the great advantage of a mean of views of facts, regarding which Aristotle said that many persons are more just than one, although each of the many were less so than the one; without incurring the disadvantages and the injustice of vague multitudes;
It brings, in most cases, a degree of personal acquaintance with the parties, and frequently with the witnesses, to aid in deciding;
It gives the people opportunities to ward off the inadmissible and strained demands of the government;1
It is necessary for a complete accusatorial procedure;
It makes the administration of justice a matter of the people, and awakens confidence;
It binds the citizen with increased public spirit to the government of his commonwealth, and gives him a constant and renewed share in one of the highest public affairs, the application of the abstract law to the reality of life—the administration of justice;
It teaches law and liberty, order and rights, justice and government, and carries this knowledge over the land;1 it is the greatest practical school of free citizenship;
It throws a great part of the responsibility upon the people, and thus elevates the citizen while it legitimately strengthens the government;
It does not only elevate the judge, but makes him a popular magistrate, looked up to with confidence and favor; which is nowhere else the case in the same degree, and yet is of great importance, especially for liberty;
It is the great bulwark of liberty in monarchies against the crown;
It stands, in republics, as a committee of the people, between the accused and the people themselves, a more exacting king when excited than one that wears a crown;
It alone makes it possible to decide to the satisfaction of the public those cases which must be decided, and which, nevertheless, do not lie within the strict limits of the positive law;
It alone makes it possible to reconcile, in some degree, old and cruel laws, if the legislature omits to abolish them, with a spirit of humanity, which the judge could never do without undermining the ground on which alone he can have a firm footing;
It is hardly possible to imagine a living, vigorous, and expanding common law without it;
It is with the representative system one of the greatest institutions which develop the love of the law, and without this love there can be no sovereignty of the law in the true sense;
It is part and parcel of the Anglican self-government;
It gives to the advocate that independent and honored position which the accusatorial process as well as liberty requires, and it is a school for those great advocates without which broad popular liberty does not exist.
Mr. Hallam, speaking in his work on the Middle Ages of “the grand principle of the Saxon polity, the trial of facts by the country,” says, “from this principle (except as to that preposterous relic of barbarism, the requirement of unanimity) may we never swerve—may we never be compelled in wish to swerve—by a contempt of their oaths in jurors, a disregard of the just limits of their trusts.” To these latter words I shall only add, that the fact of the jury's being called by the law the country, and of the indicted person's saying that he will be tried by God and his country, are facts full of meaning, and expressive of a great part of the beauty and the advantages of the trial by jury.1 There is, however, no mysterious efficacy inherent in this or any other institution, nor any peculiar property in the name. Juries must be well organized, and must conscientiously do their duty. They become, like all other guarantees of liberty, very dangerous in the hands of the government, when nothing but the form is left and the spirit of loyalty and of liberty is gone. A corrupt or facile jury is the most convenient agent for despotism, or a sure road to anarchy.
The jury trial has been mentioned here as one of the guarantees of liberty, and it might not be improper to add some remarks on the question whether the unanimous verdict ought to be retained, or whether a verdict as the result of two-thirds or a simple majority of jurors agreeing ought to be adopted. This is an important subject, occupying the serious attention of many persons. But, however important the subject may be, and connected as I believe it to be with the very continuance of the trial by jury as a wholesome institution, and with the supremacy of the law, it is one still so much debated that a proper discussion would far exceed the limits to which this work is restricted; and the mere avowal that it is my firm conviction, after long observation and study, that the unanimity principle ought to be given up, would be of no value.1 I beg, however, to add, as a fact at all events of interest to the student, that Locke was against the unanimity principle: His constitution for South Carolina has this provision: “Even' jury shall consist of twelve men; and it shall not be necessary they should all agree, but the verdict shall be according to the consent of the majority.”
The “duke's laws” in New York, generally ascribed to the Lord Chancellor Clarendon, the father-in-law of the Duke of York, demanded seven jurors, and unanimity only in capital cases.1
It is, besides, well known that our number of twelve jurymen, and the principle of their unanimity, arose from the circumstance that in ancient times at least twelve of the compurgators were obliged to agree before a verdict would be given, and that compurgators were added until twelve of them agreed one way or the other.2
I conclude here my remarks on the institution of the jury, and pass over to the last element of the independence of the law—the independent position of the advocate.
42. Where the inquisitorial trial exists, where the judiciary in general is not independent, and where the judges more or less feel themselves, and are universally considered, as government officers, it is in vain to look for independent advocates, as a class of men. Their whole position, especially where the trial is not public, prevents the development of this independence, and the consideration they have to take of their future career would soon check it where it might occasionally happen to spring forth.3
The independence of the advocate is important in many respects. The prisoner, in penal trials, ought to have counsel. Even Lord Jeffreys, who among judges is what Alexander VI. was among popes, declared it, as far back as the seventeenth century, a cruel anomaly that counsel were permitted in a case of a few shillings, but not in a case of life and death. But counsel of the prisoner can be of no avail if they do not feel themselves independent in a very high degree. This independence is necessary for the daily protection of the citizen's rights. It is important for a proper and sound development of the law; for it is not only the decisions of the judges which frequently settle the most weighty points and rights, but also the masterly arguments of the advocates; and, lastly, it is important in all so-called political trials.
May we never have reason to wish it otherwise! The limits of the advocate, especially as counsel in criminal cases, and which doubtless form a subject connected with liberty itself, nevertheless belong more properly to political and especially to legal ethics. As such I have treated of them in the Political Ethics. I own, however, that, when writing that work, the topic had not acquired in my mind all the importance and distinctness which its farther pursuit, and the perusal of works on this important chapter of practical ethics, have produced. I am sorry to say that very few of these works or essays seem manfully to grapple with it and to put it upon solid ground. It is desirable that this should be done thoroughly and philosophically. This is the more necessary, as the loosest and vaguest notions on the rights of the advocate are entertained by many respectable men, and the most untenable opinions have been uttered by high authorities.1
In this work, however, all that I am permitted to do is to indicate the true position of the advocate in our Anglican system of justice, and to allude to the duties flowing from it.
Most writers discuss “the time-honored usage of the profession in advocating one side,” and of saying all that can be said in defence of the prisoner. No one at all conversant with the subject has ever had any doubt upon this point. It is a necessary effect of the accusatorial procedure. Indeed, it forms an essential part of it. But the writers go on maintaining that therefore the advocate may, and indeed must, do and say for his client all that the latter would do and say for himself, had he the requisite talent and knowledge. And here lies the error, moral as well as legal.2
No man is allowed to do wrong, for instance to tell an untruth, or to asperse the character of an innocent person, either in his own behalf or for another. The prisoner would do wrong in lying, and no one has a right to do it for him The lawyer is no more freed from the moral law or the obligation of truth than any other mortal, nor can he divest himself of his individuality any more than other men. If he lies, he lies as every other man, at his own individual peril. If, as Lord Brougham stated it, the only object of counsel is to free the prisoner, at whatever risk, why, then, not also do certain things for the prisoner which he would do were he free? Many an indicted murderer would make away with a dangerous witness, if the prison did not prevent him. Why, then, ought not the lawyer to do this for him? Because it would be murder? And why not? If the advocate is to say and do all the prisoner would do and say for himself, irrespective of morality, the supposed case is more glaring, indeed, but in principle the same with many actual ones. The fact is, the rights of the advocate, or the defence of his speaking on one side, cannot be put on a worse foundation than by thus making him a part of the prisoner's individuality, or a substitute. Nor could there be a more degrading position than that of letting one's talent or knowledge for hire, no matter whether for just or unjust, moral or immoral purposes. Indeed, why should this knowledge for hire begin its appropriate operation during the trial only, if escape is the only object? Why not try to foil the endeavors of the detective police? Is it only because the retaining fee has not yet been paid, and that, so soon as it is in the advocate's hand, he has a right to say, with the ancient poet: I deem no speaking evil that results in gain?1 This cannot be. All of us have learned to venerate Socrates, whom Lord Mansfield calls the greatest of lawyers, for having made victorious war on the sophists, and having established ethics on pure and dignified principles; and now we are called upon to sanction everything, without reference to morality and truth, in an entire and highly privileged class, and in the performance of the most sacred business of which political man has any knowledge. If lawyers insist upon this revolting exemption from the eternal laws of truth and rectitude, they ought to consider that this will serve in the end as a suggestion to the people of returning to the Athenian court of the people.
The true position of the advocate in the Anglican accusatorial trial, and in a free and orderly country, is not one which would almost assimilate him to the “receiver.” It is a far different one. Nearly in all free countries, but especially in all modern free countries, has the advocate assumed a prominent position. He is an important person as advocate, and as belonging to that profession from which the people necessarily must always take many of their most efficient law-makers, from which arise many of the greatest statesmen,—whatever the English prejudice, even of such men as Chatham, to the contrary may long have been,—and which has formed in free states many of their immortal orators.1
The advocate is part and parcel of the whole machinery of administering justice, as much so as the jury, the judge, or the prosecutor. He forms an integral part of the whole contrivance called the trial; and the only object of the trial is to find out legal truth so that justice may be administered. In this trial, it has been found most desirable to place the judge beyond the parties, to let both parties appear before him, and to let both parties say all they can say in their favor, so that the truth may be ascertained without the judge's taking part in the inquiry, and thus becoming personally interested in the conviction, or in either party. The advocate is essentially an amicus curiæ; he helps to find the truth, and for this purpose it is necessary that all that can be said in favor of his client or in mitigation of the law be stated; because the opposite party does the opposite, and because the case as well as the law ought to be viewed from all sides, before a decision be made. The advocate ought not only to say all that his client might say had he the necessary skill and knowledge, but even more; but the client or prisoner has no right to speak the untruth in his own behalf, nor has the lawyer the right to do it for him.
Chief-Justice Hale severely reproves the misstating authorities and thus misleading the court; but why should this be wrong, and the misstating of facts not? Many prisoners would certainly misstate authorities if they could. Trials are not established for lawyers to show their skill or to get their fees, nor for arraigned persons to escape. They are established as a means of ascertaining truth and dispensing justice; not to promote or aid injustice or immorality. The advocate's duty is, then, to say everything that possibly can be said in favor of his case or client, even if he does not feel any strong reliance on his argument, because what appears to himself weak may not appear as such to other minds, or may contain some truth which will modify the result of the whole. But he is not allowed to use falsehood, nor to injure others. Allowing this to him would not be independence, but an arbitrarily privileged position, tyrannical toward the rest of society.1 To allow tricks to a whole profession, or to claim them by law, seems monstrous. There is no separate decalogue for lawyers, any more than for king, partisan, or beadle.
The lawyer is obliged, as was stated before, to find out everything that can be found in favor of the person who has intrusted himself to his protecting care, because the opposite will be done by the opposite party. He has no right to decline the defence of a person, which means the finding out for him all that fairly can be said in his favor, except indeed in very peculiar cases. Declining the defence beforehand would amount to a prejudging of the case; and in the division of judicial labor every one ought to be defended.2 The defence of possible innocence, not the defeat of justice, is the aim of counsel.
Great advocates, such as Romilly,1 have very distinctly pronounced themselves against that view which still seems the prevailing one among the lawyers; and Dr. Thomas Arnold was so deeply impressed with the moral danger to which the profession of the law, at present, exposes its votary, that he used to persuade his pupils not to become lawyers; while Mr. Bentham openly declared that no person could escape, and that even Romilly had not remained wholly untainted.
It ought to be observed, however, that a more correct opinion on the obligations of the advocate seems to be fast gaining ground in England. At present it seems to be restricted to the public; but the time will come when this opinion will reach the profession itself. Like almost all reforms, it comes from without, and will ultimately force an entrance into the courts and the inns. We are thus earnest in our desire of seeing correct views on this subject prevail, because we have so high an opinion of the importance of the advocate in a modern free polity.2
[1.]For the history of this institution in general, the reader is referred to William Forsyth, History of the Trial by Jury, London, 1852.
[1.]Lord Erskine, when he was raised to the peerage, adopted the words Trial by Jury, as the scroll of his coat of arms.
[2.]The laxity now unfortunately so common in the administration and execution of the laws, the crying evil that in our large cities numerous idlers, of a low character, make their living, during court time, by being ready to serve as jurymen when called upon, of which they are now very sure, owing to the facility with which judges excuse citizens from serving; the frequency of non-agreement and consequent new trials; the length to which the doctrine is carried that juries are judges of law as well as fact; and many other things, have induced several persons loudly to call for the abolition of the jury. They do not seem to know much of history, or they would know that courts without juries are not exempt from falling into abuses or from becoming actual nuisances. Let us imagine our present elective judges without jury: would that mend matters? The opposite is hardly ever the cure of an evil. A glutton would not take the right step of amendment by the resolution of starving himself to death. Our jury trials exhibit many deplorable facts, in the present time, owing to the general spirit of disorder; but the administration of justice, it would seem, suffers far more from want of energy in the judges. Let us fervently hope that the recuperative power which has been shown by modern nations, and by modern nations alone, will manifest itself also with us. At any rate, no good is done, when the thin of state is in danger, by cutting away the very ribs of the ship.
[1.]And this is the reason that nearly all great reforms have worked their way from without, and from the non-professional to the professional, or from below upward.
[1.]The whole history of the libel, down to Charles Fox's immortal bill, may serve as an illustration.
[1.]Lord Chancellor Cranworth said, in February, 1853, in the house of lords:
[1.]On all these subjects connected with the jury I must refer to the Political Ethics.
[1.]My conviction has been much strengthened since the original writing of this work. The Scottish jury (consisting of fifteen members) decides by majority. Our continued failures of verdicts would cease. Whenever the jury is out more than half an hour, it is a pretty sure sign that the unanimity is, after all, only one in form and not in truth. Perhaps most professional men adhere to the unanimity principle; but reforms very rarely proceed from the profession, in any sphere. It was not the theologians of the pope from whom the Reformation proceeded. We can add, however, high authority in favor of our opinion. In January, 1859, Lord Campbell, chief justice of England, declared in court, after the jury had pronounced an absurd verdict, which he declined accepting, that he intended to propose a bill, in parliament, for the purpose of adopting the majority principle in civil cases; and while I was revising these pages, a very respectable petition, urged even by judges, to allow judges to decide in. civil cases by the majority of jurymen, when they cannot agree on a unanimous verdict, was presented to the Massachusetts legislature. I consider, however, the principle of verdicts by two-thirds in penal cases even more important than in civil cases.
[1.]Judge Daly's, Historical Sketch of the Judicial Tribunals of New York, New York, 1855, page 53.
[2.]Forsyth, History of the Trial by Jury.
[3.]Feuerbach, in his Manual of the Common German Penal Law, 10th edition, § 623, says that in the inquisitorial proceeding we have to represent the judge to our minds as the representative of the offended state, inasmuch as it is his duty to see justice done for it according to the penal law; as representative of the accused, inasmuch as he is bound at the same time to find out everything on which innocence or a less degree of criminality can be founded; and finally, as judge, inasmuch as he must decide upon the given facts. Why not add to this fearful triad the jailer, the executioner?
[1.]For instance, Lord Brougham's well-known assertion tittered at the trial of Queen Caroline—often commented upon, but never taken back or modified by the speaker,—p. 91, Legal and Political Hermeneutics. See also an article on License of Counsel in the January number, 1841, of Westminster Review. The case of Sir Arthur Pigott, attorney-general of the Duchy of Cornwall, stating in court, for the Prince of Wales, that he had never heard of bonds of the Dutch loan, which the prince and some of his brokers had made, has been referred to before. The list of shameful tricks—actual tricks—to which counsel have occasionally resorted in our courts, would require a large space.
[2.]Consult Hortensius: an Historical View of the Office and Duties of an Advocate, by William Forsyth, London, 18-3.
[1.]Δοκῶ μὲν οὐδὲν ρῆμα σὺν κέρδει κακόν.
[1.]There was a time when diplomacy and dishonest subtlety were nearly synonymous—when it was discussed how signatures might be written so that after a number of years they would vanish. Since that time, diplomacy has signally improved. We are now living in an age in which a corresponding improvement is manifestly going on in legal ethics. We discuss the pertinent topics at least, and public attention is alive. The following article, taken from the London Spectator, Sept. 3, 1853, may find an appropriate place in a note:
[1.]The famous case of Mr. Philips, now on the bench, when defending Courvoisier, is treated at considerable length in Townsend's Modern State Trials, under the trial of Courvoisier. It must be allowed that the defence is not successful, though ingenious. On page 312 of vol. i. of that work, the reader will also find the titles of numerous writings bearing on the moral obligations of the advocate, to which may be added those I have mentioned in the notes appended to my remarks on the advocate in the 2d vol. of the Political Ethics. I also refer to pp. 59 and sequ. in my Character of the Gentleman, Charleston, S.C., 1847.
[2.]At the very moment that these pages are passing through the press, (in 1853,) a case has occurred in an English court, of a young man indicted for burglariously entering the room of some young woman. His counsel in the defence suggested that probably the young lady had given an appointment to the prisoner. “That is not in the brief,” cried the prisoner himself, and the court justly reprimanded the barrister. It ought to be added that in this case the barrister wrote a letter of submission to the court. This has not been done in other cases quite as bad in principle. Thus, another publicly reproved barrister insisted that he had done what the profession required when he had resorted to the following trick. He had subpoenaed the chief witness against his client, so that he could not appear, and then argued that the prosecutor must know his client to be innocent, else he would certainly have produced his witness, etc.
[1.]There is a very excellent passage on this topic in the reflections of Sir Samuel Romilly on himself and the good he might do should he be appointed lord chancellor, page 384 and sequ. of vol. iii. of his Memoirs, 2d ed., London, 1840.
[2.]This was written in 1853.