An Inquiry Into the Right of Criminal Juries to Determine the Law in Colonial America Stanton D
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Journal of Criminal Law and Criminology Volume 89 Article 3 Issue 1 Fall Fall 1998 An Inquiry into the Right of Criminal Juries to Determine the Law in Colonial America Stanton D. Krauss Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation Stanton D. Krauss, An Inquiry into the Right of Criminal Juries to Determine the Law in Colonial America, 89 J. Crim. L. & Criminology 111 (1998-1999) This Criminal Law is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. 00914169/98/8901-0111 THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY Vol. 89, No. I Copyright 0 1999 by Northwestern University, School of Law Printed in U.S.A. AN INQUIRY INTO THE RIGHT OF CRIMINAL JURIES TO DETERMINE THE LAW IN COLONIAL AMERICA STANTON D. KRAUSS" It was late August, 1814. The British army had scattered the American force at Bladensburg, burned the Capitol, the Execu- tive Mansion (which has been known as the White House since the soot was painted over), and much of official Washington. The road to Baltimore was open, and the northward march was on. During the redcoats' advance, four stragglers and a deserter were taken into custody by civilians from a nearby town that had previously surrendered to the British. When the invaders learned of this treachery, they took hostages and warned that the town would be razed and the townspeople killed if the five "Professor of Law, Quinnipiac College; B.A. 1975, Yale College; J.D. 1978, Univer- sity of Michigan. This article is part of a larger study of the historical right of Ameri- can criminal juries to determine the law. That project has benefited from the generous support of Quinnipiac College School of Law and from a grant from Wash- ington University School of Law. The questions and comments of participants in col- loquia at Quinnipiac College School of Law, Boston University School of Law, and the University of Cincinnati College of Law have contributed greatly to the develop- ment of my work. I have also been helped immeasurably by the staffs of Yale Univer- sity's Beinecke Rare Book and Manuscript Library and the Historical Societies of Maryland, Massachusetts, and Pennsylvania, and by librarians Cristina DeLucia, Linda Holt, Peggy McDermott, and Mary Beth Reid, who have devoted a considerable amount of their time to helping me track down old books, pamphlets, and other pa- pers, without ever losing their good cheer. Finally, I am deeply indebted to Akhil Amar, Stuart Banner, Stephen Gilles, Tom Green, Charles Heckman, Nancy King, Dave Konig, Bruce Mann, Linda Meyer, Frank Miller, and Kitty Preyer, each of whom was kind enough to read and comment on at least one draft of this paper. It is a much better article because of their criticisms and suggestions. Unfortunately, I have only myself to blame for its remaining flaws. STANTOND. KRAUSS [Vol. 89 men were not returned by the following noon. Leaders of the defenseless town, includingJohn Hodges, decided to capitulate. Hodges, along with others, was directed to satisfy the British demands. He did so, putting the deserter in mortal danger, but in the end the town was saved and no one was harmed. A grateful federal government rewarded Hodges by charg- ing him with treason.! Because the return of British troops amounted to giving "aid and comfort" to the enemy,2 the only issue at his trial was whether the underlying circumstances pro- vided a good excuse for this conduct. Treason being defined by Article 1I of the Constitution,3 this was ultimately a question of constitutional law. The prosecutor claimed that nothing but a threat to Hodges' own life could justify his conduct,5 and he asked the court for an instruction that Hodges' defense was legally insuffi- cient. Defense counsel William Pinkney vigorously disputed this view of the law in his closing argument. After giving the matter 'This account of Hodges' case is drawn from Report of the Trial ofJohn Hodges, Esq., on a Charge of High Treason ....(1815) (S# 35768) [hereinafter Hodges' Trial]. A slightly abridged version of this report appears in 10 Am. St. Trials 163 (1815). A much more abbreviated version can be found at 26 F. Cas. 332 (C.C.D. Md. 1815) (No. 15,374). [Editors' Note: Charles Evans' AMERICAN BmIUOGRAPhiY (1903-1959), Roger P. Bristol's SUPPLEMENT TO EvANs's AMERICAN BiBUOGRAPHY (1970), and Ralph R. Shaw & Richard Shoemaker's AMERICAN BIBIOGRAPHY (19 vols. 1958-1963)" have catalogued every book published in America before 1820. These catalogues list all the libraries at which these scholars were able to find each book. Readex Microprint Corp., in association with the American Antiquarian Society, has made microfiche sets of all the locatable books in Evans or Shaw & Shoemaker's catalogues (the titles of these respective microfiche sets are EARLYAMERCAN IMPRuINS and EARLYAMEPCAN IMTRINTS SECOND SERIES). The author has included the catalogue number, preceded by (Evans #) or (S #), whenever he cites to a book that has not been reprinted in modem times.] 2"Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort." U.S. CONST. art. III, §3. 'See id. The prosecution was brought under a statute following the Treason Clause in haec verba, Act of April 30, 1790, 1 Stat. 112, ch. 9, § 1, and no one suggested that there was any difference in meaning between the two: In any event, were the Act to have been broader in scope than the Clause, it would have been to that extent inva- lid. ' This seems to have been a correct statement of the law, as interpreted by the judges. See JAMES WIUARD HURST, THE LAW OF TREASON IN THE UNITED STATES: COLLECrED ESSAYS 223 n.28 (1971). 1998] COLONIAL JURES some thought, Supreme Court Justice Gabriel Duvall, one of two judges presiding at this circuit court trial, told the jury that he believed Hodges had no legally cognizable defense. He con- tinued, however, by saying, "The jury are not bound to conform to this opinion, because they have a right, in all criminal cases, to decide on the law and the facts. 7 At this point, the other ju- rist on the bench, District Judge James Houston, "said he did not entirely agree with [Justice Duvall] in any, except the last remark."8 Pinkney then arose again and addressed the jury. "Gentlemen of the jury," he proclaimed, "The opinion which [Justice Duvall] has just delivered [denying the validity of Hodges' defense] is not, and I thank God for it, the law of this land."9 Evidently the jury agreed, as Hodges was acquitted. This incident bears vivid testimony to the fact that the jury was once widely said to have the "right" to judge "the law and the facts" in American criminal trials. Although Alexander Hamilton once argued otherwise, 10 that "right" imported more 6 Multi-member circuit courts vested with trial and appellate jurisdiction were cre- ated by the judiciary Act of 1789, 1 Stat. 74, ch. 20, § 4 (1789). At the time Hodges' case was tried, each circuit court consisted of one Supreme Court Justice and one federal district court judge. See CHARLES ALAN WRIGHT, THE LAW OF THE FEDERAL CouRTs 4-6 (5th ed. 1994). For more on the historical use of multi-judge trial courts in colonial America and the early Republic, see infranote 54 and accompanying text. 7 Hodges' Trial, supra note 1, at 28, 10 Am. St. Trials at 176, 26 F. Cas. at 334. Be- fore the judges retired to consider the prosecutor's requested jury charge, indeed, before arguments on the motion had begun, Pinkney questioned the propriety of the court's giving binding instructions on the law at the request of the State. Presumably speaking through Justice Duvall, "the Court said they were bound to declare the law whenever they were called upon, in civil or criminal cases; in the latter, however, it was also their duty to inform the jury that they were not obliged to take their direc- tion as the law." Hodges Trial, supra note 1, at 20, 10 Am. St. Trials at 170, 26 F. Gas. at 332. Thus, the comment quoted in the text doesn't simply reflect the view that a jury must determine the law for itself when the judges are evenly divided. Similar charges were given by federal judges in the absence of any division on the bench. See, e.g., United States v. Hoxie, 26 F. Gas. 397, 402-03 (C.C.D. Vt. 1808) (No. 15,407). ' Hodges' Trial, supra note 1, at 28, 10 Am. St. Trials at 176, 26 F. Gas. at 334. 9 Hodges' Trial, supra note 1, at 28, 10 Am. St. Trials at 176, 26 Fed. Cas. at 335. '0 See People v. Croswell, 3 Johns. 336, 355, 362 (N.Y. 1804); GEORGE CAINES, THE SPEECHES AT FULL LENGTH OF MR. VAN NESS .... AND GENERAL HAMILTON, IN THE GREAT CAUSE OF THE PEOPLE AGANSTHARRY CROswELL ... 72, 75-76 (1804), reprinted in 1 THE LEGAL PAPERS OF ALExANDER HAMILTON, at 823, 828-29 (Julius Goebel ed., 1964). See also 16 Am. St. Trials 40, 66-67, 72-73 (1804). STANTOND. KRAUSS [Vol. 89 than even an unchecked power. A moment's reflection identi- fies both the distinction and its significance.