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sioners of the United States, and of the state of Penn- rected to rendezvous at Bedford; and those of Marysylvania. This committee of conference was not em- land and Virginia, at Cumberland, on the Potomac. powered to conclude on any thing. They could only The command of the expedition had been conferred on receive and report the propositions which might be Governor Lec of Virginia; and the Governors of New made to them.
| Jersey and Pennsylvania commanded the militia of their Men of property and intelligence, who had contribu- respective states, under him. ted to kindle the flame under the common crror of be- The president, in person visited, each division of the ing able to regulate its heat, now trembled at the ex- army; but, being .confident that the force employed tent of the conflagration. It had passed the limits they must look down all resistance, he left the secretary of assigned to it, and was no longer subject to their control. the treasury to accompany it, and returned himself to
The committee of conference expressed themselves Philadelphia, where the approaching session of Conunanimously in favor of accepting the terms offered by gress required his presence. the government, and exerted themselves in the commit From Cumberland and Bedford, the army marched tee of safety to obtain a decision to the same effect. In in two divisions into the country of the insurgents. The that committee, the question whether they would sub greatness of the force prevented the effusion of blood. mit peaceably to the execution of the law, retaining ex. The disaffected did not venture to assemble in arms. pressly the privilege of using all constitutional means to Several of the leaders who had refused to give assuraneffect its rcpcal was debated with great zeal. The less vi- ces of future submission to the laws, were seized, and lent party carried it by a small majority: but, not thinking some of them detained for legal prosecution. themselves authorised to decide for their constituents But although no directand open opposition was made, on so momentous a question, they afterwards resolved the spirit of the insurrection was not subdued. A sour that it should be referred to the public.
and malignant temper displayed itself, which indicated This reference resulted in demonstrating that though but too plainly, that the disposition to resist had many were disposed to demean themselves peaceably, only sunk under the pressure of the great military yet a vast mass of opposition remained determined to obforce brought into the country, but would rise again struct the re-establishment of civil authority,
should that force be withdrawn. It was, therefore, From some causes among which was disaffection to the thought advisable to station for the winter, a detachparticular service, the prospect of bringing the quota of ment to be commanded by Major General Morgan, in troops required from Pennsylvania into the field, was at the centre of the disaffected country. first unpromising. But the assembly which had been Thus without shedding a drop of blood did the prusummoned by the Governor to meet on the first of Sep-dence and vigour of the executive terminate an insurtember, expressed in strong terms, its abhorrence of rection, which, at one time, threatened to shake the this daring attempt to resist the laws, and to subvert government of the United States to its foundation, the government of the country; and a degree of ardour That so perverse a spirit should have been excited in and unanimity was displayed by the people of other the bosom of prosperity, without the pressure of a sinstates, which exceeded the hopes of the most sanguine gle grievance, is among those political phenomena friends of the administration. Some feeble attempts which occur not unfrequently in the course of human were indeed made to produce a disobedience to the re- affairs, and which the statesman can never safely disrequisition of the President, by declaring that the people gard. When real il's are felt there is something posiwould never be made the instruments of the secretary live and perceptible to which the judgment may be diof the treasury, to shed the blood of their fellow citi. rected, the actual extent of which may be ascertainzens; that the representatives of the people ought to be ed and the cause of which may be discerned. But assembled before a civil war was commenced; and by when the mind, inflamed by supposititious dangers, avowing the extravagant opinion that the President could gives a full loose to the imagination, and fastens upon not lawfully call forth the militia of any other state, un- some object with which to disturb itself, the belief that til actual experiment had ascertained the insufficiency of the danger exists seems to become a matter of faith, that of Pennsylvania. But these insidious suggestions with which reason combats in vain. were silenced by the general sense of the nation, which Under a government emanating entirely from the loudly and strongly proclaimed that the government | people, and with an administration whose sole object and laws must be supported. The officers displayed was their happiness, the public mind was violently agian unexampled activity; and intelligence from every tated with apprehensions of a powerful and secret comquarter, gave full assurance that with respect to both bination against liberty which was to discover itself by numbers and time, the requisitions of the President the total overthrow of the republican system. That would be punctually observed.
those who were charged with these designs, were so The governor of Pennsylvania compensated for the destitute of the means as well as of the will to effect defects in the militia law of that state, by his personal them, did not shake the firm belief of their existence. exertions. From some inadvertence, as was said, on Disregarding the apparent partiality of the administhe part of the brigade inspectors, the militia could not tration for France, so far as that partiality was compatibe drafted, and consequently the quota of Pennsylvania ble with an honest neutrality, the zealots of the day ascould be completed only by volunteers. The governor, cribed its incessant labours for the preservation of peace, who was endowed with a high degree of popular elocu-to a temper hostile to the French republic; and while tion, made a circuit through the lower counties of the themselves loudly imprecating the vengeance of heaven state, and publicly addressed the militia, at different and earth on one of the belligerents, and openly rejoicplaces where he had caused them to assemble, on the ing in the victories of the other; while impetuously Crisis in the affairs of their country. So successful were rushing into a war with Britain, and pressing measures these animating exhortations, that Pennsylvania was not which would render accommodation impracticable,behind her sister states in furnishing the quota required they attributed a system calculated to check them in from her.
this furious career, not to that genuine American spirt On the 25th of September, thc President issued a which produced it, but to an influence which, as far ais second proclamation, describing in terms of great energy, opinions are to depend on facts, has at no time insinuathe obstinate and perverse spirit with which the lenient ted itself into the councils of the United States. propositions of the government had been received; and in popular governments, the resentments, the suspideclaring his fixed determination, in obedience to the cions, and the disgusts, produced in the legislature by high and irresistible duty consigned to him by the con. warm debates, and the chagrin of defeat; by the desire stitution "to take care that the laws be faithfully execut. of gaining, or the fear of losing power; and which are ed,” to reduce the refractory to obedience..
created by personal views among the leaders of parties, The troops of New Jersey and Pennsylvania were di. I will infallibly extend to the body of the nation. Not only will those causes of dissatisfaction be urged which sion, have disseminated, from an ignorance or peryerreally operate on the minds of intelligent men, but cvery sion of facts, suspicions, jealousies, and accusations of instrument will be seized which can effect the purpose, the whole government." and the passions will be inflamed by whatever may serve Notwithstanding the disagreement between the ereto irritate them. "Among the multiplied evils generated cutive and one branch of the legislature concerning by faction, it is perhaps not the least that it has a ten-self-created societies, and the policy observed towards dency to abolish all distinction between virtue and foreign nations, the speech of the President was treated vice; and to prostrate those barriers which the good and with marked respect; and the several subjects which it wise have erected for the protection of morals, and recommended engaged the immediate attention of Conwhich are defended solely by opinion. The victory of gress. A bill was passed authorizing the President to the party becomes the great object; and, too often, all station a detachment of militia in the four western measures are deemed right or wrong as they tend to counties of Pennsylvania; provision was made to compromote or impede it. The attaininent of the end is pensate those whose property had been destroyed by considered as the supreme good, and the detestable doc- the insurgents, should those who had committed the intrine is adopted that the end will justify the means. jury be unable to repair it: and an appropriation exceed. The mind habituated to the extenuation of acts of moral ing one million one hundred thousand dollars was made
turpitude, becomes gradually contaminated, and loses to defray the expenses occasioned by the insurrection. • that delicate sensibility which instinctively inspires hor! Many of the difficulties which had occurred in draw. 4. ror for vice and respect for virtue. In the intempering out the militia were removed, and a bill was intro
ate abuse which was cast on the principal measures of duced to give greater energy to the militia system gone. the government, and on those who supported them, in rally; but this subject possessed so many intrinsic diffi.
the violence with which the discontents of the oppo-culties, that the session passed away without effecting * nents to those measures were expressed, and especially any thing respecting it.
in the denunciations which were uttered against them by the democratic societies, the friends of the adminis
From the Philadelphia Gazette. tration searched for the causes of that criminal attempt THE DISTRICT COURT OF THE UNITED · which had been made in the western parts of Pennsyl.
STATES.-Junc, 1832. vania to oppose the will of the nation by force of arms. The United States, Had those misguided men believed tbat this opposition was to be confined within their own limits, they could Fourteen packages L not have been so mad, or so weak, as to have engaged of goods. Kir
o n mou
On motion for a new trial. in it. The ideas of the President on this subject were by, Beard and freely given to some of his confidential friends. “The Kirby, claimants.) real people,” he said, “occasionally assembled to ex
Orixion OF JUDGE HopkinsON, press their sentiments on political subjects, ought never to be confounded with permanent self-appointed socie.
Numerous reasons have been filed in this case against ties, usurping the right to control the constituted au
the verdict; and to support the motion on the part of the thories, and to dictate to public opinion. While the for.
claimants for a new trial. Some of them have not been mer was entitled to respect, the latter was incompatible
touched o: insisted upon in the argument on the motion, with all government, and must either sink into general
qand therefore will not require particular attention from disesteem, or finally overturn the established order of
the Court. Such as have been maintained in the arguthings."
ment, will be considered and disposed of. The reaIn his speech at the opening of Congress, the Presi.
sons are, dent detailed at considerable length the progress of oppo- ' ;.
1 and 2. “Because the Jury were sworn to try the sition to the laws, the means employed both by the legis. Kinh
PO issue between the United States and Kirby, Beard and lature and executive to appease the discontents which
Kirby, whereas no such issue exists upon the record. had been fomented, and the measures he had finally
Because the Jury were incorrectly qualified.” taken to reduce the refractory to submission,
I have no doubt that the Jury were properly sworn As commander in chief of the militin, when called
both as regards the real parties in interest, and as they into actual service, he had, he said, visited the places.
" appear upon the record; but I shall put the dismission of general rendezvous, to obtain more correct informa. |
s of this exception on another ground. tion, and to direct a plan for ulterior movements. Had
11 The first four Jurors called to the book, were sworn there been room for a persuasion that the laws were se
to try the issue between the United States and fourcure from obstruction, "he should have caught with
teen packages of goods, whereof Cardwell, Potter and avidity the opportunity of restoring the militia to their
Co., were the claimants. The counsel for the claimfamilies and homes. But succeeding intelligence had
ants immediately interrupted the clerk, and observed to tended to manifest the necessity of what had been done;
him that Cardwell, Potter and Co., were not the claimit being now confessed by those who were not inclined
ants, but the agents of the claimants, who were Kirby, to exaggerate the ill conduct of the insurgents, that
Beard and Kirby, and that the Jury should be so sworn their malevolence was not pointed merely to a particu
Under this direction, to which the District Attorney lar law; but that a spirit inimical to all order had actua.
agreed, the four Jurors were re-sworn according to it,
and all the other Jurors were also so sworn. It is now ted many of the offenders.
objected to the verdict, that the Jury should not have After bestowing a high encomium on the alacrity and been so sworn or qualified; that Kirby, Beard and Kirby promptitude with which persons in every station had are not the claimants on the record, but the issue was come forward to assert the dignity of the laws, thereby between the United States and Card well, Potter and furnishing an additional proof that they understood the Co, claimants. Can it be imagined that a court holdtrue principles of government and liberty, and felt their ing the power to set asidle a verdict, and grant a new inseparable union; he added—“To every description of trial, for the purposes of justice, would exercise that citizens let praise be given. But let them persevere in power under such circumstances, when the error, if their affectionate vigilance over that precious depository any, was the error of the party who would now take of American happiness,--the constitution of the United advantage of it; and which is confessedly a mere mat. States. And when in the calm moments of reflection, I ter of form, and pure technicality, having no influence they shall have retraced the origin and progress of the or bearing on the merits of the case' It is impossible, insurrection, let them determine whether it has not been This is the first class or head of reasons; the next refomented by combinations of men who, careless of con-| lates to alleged errors of the court. sequences, and disregarding the unerring truth that l 1 and 2. "In admitting the three appraisements to be those who rouse cannot always appease a civil convul. 'received in evidence."
· This exception was passed over on the argument. In: The ad error under this fourth head relates to the deed I know not what could have been said for it, as appraisements and was not noticed in the argument. the appraisements in question were not only a part of The 3d error of this head, which relates to "the the proceedings directed in such cases by the act of small invoice" was also passed by in the argument. As Congress, but were read to the Jury on the express call to that paper I told the Jury, that there was a mystery • of the counsel of the claimants.
about it which had not been explained; not merely be. 3d. "In admitting in evidence the invoices of John cause it gave a different valuation to the goods, from that Siter. William Chaloner, Joseph Brown and John Bury." in the regular invoice by which the goods were offered
As to the invoices of Siter, Chaloner and Brown, they for entry--but that it purported to be a bill of sale from were neither offered nor given in evidence. Those | Kirby, Beard and Kirby, to Potter, Cardwell and Co.. gentlemen had severally made importations of articles
when in truth no such was made; but the goods were similar to those in question, and they were examined as
eramined as sent to this country for and on account of Kirby, Beard to the prices they had paid for them. They did refer, and Kirby, and Potter, Cardwell and Co., were but the without objection, to their invoices to assist their me consignees, having no ownership in them, nor interest mories in ascertaining the prices; but the invoices were
but as consignees. I stated other circumstances which not read to the Jury, or, in any other manner, made a threw a cloud of suspicion over this part of the casc, topart of the evidence of the cause. No exception was gether with the explanations that were offered on the taken or noted by the claimants to the decision of the part of the claimants; and left the whole to the Jury court on the admissibility of the question "what were for their consideration, with this observation—"The the prices paid by the witnesses for these articles?” alJury must say what this paper means, and whether it though the question was objected to; and as to the gives rise to any suspicion of an unfair intention.” invoices, they were used in no other way than that men
4th error''In instructing the Jury that the appraise.
ments were made with great care and were therefore tioned.
entitled to great weight in the consideration of the The invoice of John Bury was offered and read in! evidence-and also the letter which accompanied it !
As these appraisements were received in evidence, I because both the invoice and the letter came from the
cannot perceive in what was the error or the mischief claimants, and were clearly evidence against them. If
to say that they had been made with great care. this were not so, their admission can afford no ground of
appraisers appeared before the Jury and made the same exception to the verdict, as they were given to the Jury
appraisements under their Ouths taken here, as they had without objection.
under their official oaths taken at the Custom House, These are all the reasons founded on supposed errors
They explained particularly the time, which was seveof the court in the course of the trial; another class re
ral days, occupied in the business, and the means they lates to alleged errors in the charge to the Jury.
took to obtain information, to assist them in ascertaining 1st. "In instructing the Jury, that there was nothing the true value of the articles at the time and place rein the objection that the act of 28th May, 1830, was quired by the law. Was there any error in telling the unknown to the house of Kirby, Beard and Kirby be- Jury that appraisements thus made, for whatever purfore they shipped the goods in question,”
pose they were given in evidence, were entitled to their I cannot withhold the expression of my surprise that respect in proportion to the care with which they had this reason should be seriously urged to the court, how.) been made! I think not. ever expedient it might have been to address it to a
31 The 5th error under this head, has not been insisted Jury, to enlist their feelings for the claimants on a sup. upon; indeed it is a mistake in point of fact. The Jury pused ignorance of the law they were offending. What were told to consider John Bury's testimony, of special is the purport and effect of the law of 28th May, 1830? importance, because it came from the claimants themIs it to create a new offence to make that unlawful selves; but this was not said as to Mr. Siter's evidence. which was before lawful? Certainly not so. The of.! We come now to the 5th general class.-."Because fence they have committed was always a violation of the the court did not instruct the Jury upon the rule of law. laws of the United States, visited by certain and severe
cited hv certain and severe pressed in argument by the counsel of the claimants, in penalties. But these penalties were found not to be reference to the testimony of Donald Mcllvain, viz: adequate to prevent the offence. The temptations to That he was entitled to belief unless impeached, and cupidity were too strong to be restrained by an increase that no such attempt having been made, he stood before of duties on the goods which were falsely invoiced. the Jury entirely worthy of credit; but on the contrary The penalty was therefore enlarged to an entire and remarked that it was strange he did not purchase at absolute forfeiture of the goods. The plea of the claim. the prices named.” ants is 'we knew that by making up this false invoice, If the Judge had instructed upon the point as the with intent to defraud the revenue of the United States, exception requires him to do, he might indeed have .we were violating one of their laws but we supposed been charged with invading the rights of the Jury. If that in case of a detection we should suffer only by an there be any thing which peculiarly belongs to them in increased charge upon our goods and not by their for the trial of a cause, it is to judge of the credibility of feiture, and therefore we are innocent; therefore we witnesses, and it is not for the court to “direct or inshould be acquitted of all penalty and the Jury should struct” them who is "entitled to belief-or who stands have so rendered their verdict.” This is a most extra. before them "entircly worthy of credit." As to the ordinary course of reasoning in law or morals. Besides, evidence of Donald McIlvain, if I had told the Jury my did Messrs. Kirby, Beard and Kirby, require to have a opinion of it, it would have been that it was impeached knowledge of the enactments of the act of 28th May, by all the evidence of the cause, and by circumstances 1830, to teach them that fraud and perjury are crimes testified by himself. I repeat now, what I said to the every where, under all circumstances and upon all sub. Jury, it is difficult to reconcile the evidence of Donald jects? And it was only by and through fraud and per- Mcllvain with his conduct; it is difficult to discover jury that the offence charged and proved upon them why, if he were desirous of purchasing goods for himby the verdict of a most respectable and intelligent Jury, self, and had orders to do so from others, he did not could have been perpetrated. But, in their code of take them at the prices he says they were offered to morals, fraud and perjury are nothing unless they are to him for, as these prices were certainly lower than any be followed by a forfeiture of goods. These remarks other sales or offers we had any account of, and much are reluctantly made; but they are rendered necessary lower than the actual sales made about the same time. by the perseverance and zeal with which the reason bas! It is difficult also to reconcile his testimony with the been pressed first upon the jury and now again upon letter and invoice received by John Bury, from Kirby, the court.
Beard and Kirby, in which the pins are charged at a much higher price than Donald Mcllvain says the same ing between contradictory testimony which is best enhouse offered them to him for, at or near the same time, titled to belief; with such comments as will clearly erand which prices Kirby, Beard and Kirby assured Mr. plain to them the view taken by the court of the case, Bury were their lowest. After these remarks I told the All that is necessary is, that the Jury should distinctly Jury that nevertheless, Mr. Mellvain had sworn posi. and explicitly understand that such observations are to tively to the fact, and they would give the weight they be received by them merely for the purpose of assisting thought proper to his evidence, under all the evidence them in their deliberations, of recalling their recollecand circumstances of the case.
I tion to the facts testified, and turning their attention to There is another answer to this exception to the the true points of inquiry; but that the decision to be charge of the court which I mention not because it is made upon the evidence belongs altogether to them, necessary in the case, but on account of its general im- and that no direction or authoritative instruction is to portance.
be given concerning them. These doctrines are fully · If the counsel in a cause desire to have the opinion recognized and strongly enforced by Starkie, (1 Evid. of the court given to the Jury upon any point or matter 440. 1.) This respectable author says: "The pracof law, it is their duty to state it explicitly, and to ask tice of advising the Jury, as to the nature, bearing, the opinion of the court, or they cannot make the si. tendency and weight of evidence, although it be a duty lence of the court, or an omission to instruct the Jury on which, from its very nature, must be, in a great measure that point, a ground for a new trial. Misdirection is al. discretionary on the part of the Judge, is one, which ways a good ground, but not an omission to direct, does not yield in importance to the more definite and where no direction is required. It is not enough to ordinary one of directing them in matters of law. The say, that the counsel “pressed a point in his argument;" trial by Jury is a system admirably adapted to the inveshe must do more-no court is bound to give specific an- tigation of truth, but, in order to obtain the full benefit swers to, or notices of, all the matters the counsel may to be derived from the united discernment of a Jury, it think it expedient to press upon them in the argument. must be admitted to be essential, that their attention When a charge or opinion of the court is wanted on a should be skilfully directed to the points material for particular point, it must be particularly stated and asked their consideration." After some further remarks, this for; such is the practice, and such it ought to be; or author adds that-"Jurors unaccustomed, as they usuverdicts would be perpetually in danger from concealed ally are, to judicial investigations, require in complica. objections.
ted cases, all the aid which can be derived from the er. The 6th error, “Because the court told the Jury that perience and penetration of the Judges, to direct their the claimants had known the testimony of the United attention to the essential points, and enable them to arStates for eighteen months and yet produced none to rive at a just conclusion." Again, after saying that the contradict it; there being no proof of that knowledge Jury should have "excluded from their consideration all made at the trial, and the court being entirely mistaken such evidence as is likely to embarrass, mislead or preas to the fact.”
judice them in the course of the inquiry,” he proceeds The entire mistake as to the fact is found in the ex. "much yet remains to be done of a nature which cannot ception and not in the court. I speak not of my per- l be defined; to divest a case of all its legal incumbransonal knowledge that this case was formerly heard be- ces; to resolve a complicated mass of evidence into its fore me and proceeded on to the close of the testimony most simple elements; to exhibit clearly the connexion, on the part of the United States, when it was dismissed bearing, and importance of its distinct and separated on discovering that it was a case for a Jury and not for parts, and their combined tendency and effects, stripthe Judge alone. But on this trial of the cause, the ped of every intrinsic and superfluous consideration, foriner hearing was repeatedly referred to by the counsel which might otherwise embarrass and mislead a Jury; on both sides Indeed in the cross-examination of some and to do this in a manner suited to the comprehension of the witnesses of the United States, they were ques- and understanding of an ordinary Jury, some of the tioned by the claimants' counsel as to what they had most arduous as well as the most important duties inci. said-as to the evidence they had given-on the former dent to the judicial office." In this powerful delinca. hearing. I reminded the Jury of this fact, that there tion of what a charge to a Jury ought to be, who is not had been a former hearing at which these witnesses ' reminded of the clear and luminous order; of the strong had been fally examined in the presence of the claim. and satisfactory discriminations; and the admirable comants' counsel and cross-examined by him; and remark-bination of facts and circumstances, with which Judge ed to them that by this means the claimants had been , Washington discharged this most arduous as well as made acquainted with the cvidence by which they were most important duty of the judicial office? assailed, and had had full time to repel it; but that they į I have quoted the opinions of this author which he had not produced a single importer of pins in the United sustains by authority, thus at large, because I think States, to prove that he had purchased pins at the pri- them replete with good sense and practical ability; and ces of their invoices, nor any manufacturer in England, that it is only by following them that the trial by Jury to say that he had sold them at such prices. I see no I will be attended by invaluable advantages which belong error or extension of the court over the Jury in these to it. It is a solecism to say that a court may set aside observations; or departnre from the evidence in this the verdict of a Jury, if, in the opinion of the court, it case.
be contrary to evidence; and yet that is an invasion of The 7th crror-"That the general tenor of the the right of the Jury over the facts, if the court should charge was such as to take away the question of fact present to them their views of the evidence to prevent from the Jury.”
the error instead of correcting it. In the case in quesThe generality of this exception admits only of a gen- tion no instance has been pointed out in which the eral answer and it might be disinissed for the reason court exceeded or even filled the space allowed. The that it specifies nothing; but I will take the occasion to evidence given on the trial was arranged in the order of state what I believe to be the right, and duty of a court ! the points to be considered and decided, but its effect in charging a Jury, beyond which not a step was taken was left fully and without prejudice to the Jury. The in this case. That the question of fact should not be witnesses were named, and the circumstances alluded taken from the Jury by the court is too clear to be the to which might detract from or give weight to their subject of discussion; but I hold it to be equally certain, testimony, but their credibility, positive and comparathat it is the right and duty of the court to give its aid to tive, was distinctly submitted to the judgment of the the Jury in explaining the evidence; in collating its va. Jury. Finally, the allegation of the exception, that the rious parts; in drawing their attention to the most ma- "charge of the court was such as to take away the terial facts in proof and their application to, and bear. question of fact from the Jury” has not been supported ing upon the important points of the case; in ascertain l by any reference to the charge, or any part of it, found in the notes of the Judge, or in those of any of the proper, on his own responsibility. But is was a strong counsel, nor by the recollection of either of any fact so intimation by the court, that it was his duty to render taken from the Jury.
his verdict on, and according to the evidence given in The 8th error. “Because the court remarked that court under oath, in the presence of the court, the parties it was extraordinary, that Kirby, Beard & Kirby, should and the public; and not to disregard such evidence in have examined Boughton, a man in their own em- favor of his private knowledge or opinions, derived from ploy." If any such remark had been made by the more uncertain and unsafe sources. It would have been court, it would be an extraordinary reason for setting idle in the court to attempt to prohibit what it could aside a verdict. But no such remark was made. It not prevent; for a Juror may give his verdict as he wills was said that it was extraordinary they had not examin- to do, and no body has a right to question him for his ed some other witnesses on the question of market va- reasons. All the court can do, is to inform him of what lue, but had relied upon him, especially as he knew the law expects and his duty requires of him; that is, nothing of the market price and value of the article, well and truly to try the issue submitted to him, and a but was a workman or manufacturer, and neither a buy- true verdict to give according to the evidence and it er nor seller of the article.
cannot be doubted that the evidence intended by the The 9th error. “Because the court erred in saying, law and the Juror's oath, is the evidence openly given that the various expressions in the acts of Congress upon on the trial before the court; certainly this is the the subject of value, and the computation of advalorem true theory of the open, public, trial by Jury, by wit. duties, were unimportant in the case; also in saying that nesses, by evidence, in presence of the court, of the to prove the value in London, value at Manchester, parties, of the public, with the benefit of cross examinaLiverpool and Warrington could be a guide.”
tion; and the usefulness and safety of this admirable We find in this exception, the same error which at- mode of trial will be greatly imparied if Jurors are to tends so many of those we have to consider in this case; | understand that it is no usurpation of power, no viola. that is, an entire mistake of what was said by the court. tion of their duty, when they get secretly together in I will transcribe from my notes, what I did say to the their private room, to put aside all the evidence of the Jury on this subject, “ All the evidence which has cause and bring together as the foundation of their verbeen given of prices, of market value, or fair market dict, all the opinions, prejudices, rumors and hearsays, value, or current value, or actual value, is to bring you which they may call their previous and personal knowto the same conclusion, to a satisfactory answer to the ledge of the subject. The same rule must be applied question you are trying: Is the valuation of these goods to criminal as to civil cases, and the accused can never in this invoice a false valuation as charged in the infor- be assured of safety, although the whole evidence given mation, which is the offence described in the act of in his presence may testify his innocence, if he is to be Congress of 1830, on which this information is founded? tried secretly, by other evidence in the Jury room. Were these goods really worth more in the London mar. These principles find ample support, and no contradicket? Were the buying and selling prices higher in that tion, from every authority in relation to them. In Tidd's market, than those charged in this invoice at the time Prac. 327-speaking of the insufficiency of the writ of when 'this invoice was made up? However the phra- attaint as a remedy for a false verdict, it is said there ses may vary in the different acts of Congress-current are numberless cases of false verdicts without any corvalue-actual value-or market value, the inquiry with ruption or bad intention of the Jurymen. They may you always is-does the invoice contain a true valuation have heard too much of the matter before the trial, aná of these pins, or a false one and the phraseology of the imbibed prejudices without knowing it.” This hearlaw is important on this issue, only as it may assist you say, and these prejudices, are precisely what a Juror in answering and deciding this question. Were these might call and conceive to be a previous knowledge of pins, or similar pins, bought and sold in the London the subject; and this error can be guarded against only market, in June, 1830, at these prices? Are the valu. by excluding them as far as practicable, altogether ations of this invoice true or talse?” I see no error in from the mind of the Juror, and referring him for any part of these remarks. As to the other branch of this his verdict, to the proper and legal evidence of the exception, that the court erred in saying “that to prove case. We find, every where, the principle sustained. value at London, value at Manchester, Liverpool and that every thing which is to influence ihe verdictofa Jury Warrington, could be a guide,”-the Jury were con- should be openly determined in the presence of the coure stantly kept in mind that they were to inquire into Thus in Hale 306_“Ifa Jurymın have a piece of evi. and decide upon the value at London, and that the pri- dence in his pocket, and after the Jury are sworn and ces and value at the other places mentioned, of which gone out together, he showeth it to them, that is a mig. evidence was given on both sides, were to be consider- demeanor in the Jury.” So again “If the Jury send ed by them only as auxiliary to that purpose, and they for a witness to repeat his evidence that he has given might make it so, as the witness had stated what was openly in the court, it will avoid a verdict.” The same the ordinary difference of prices in these markets, law is stated in Metcalf v. Dean. Cro. Eliz. 189. Again when any existed.
"If the Jury after their departure from the bar, desire Some illustrations were given to show that the evi. to hear the testimony of a witness again, they may be dence was not to be confined literally to the time and sent for into court, and the witness may be heard again place of exportation, or it would tie us down to the hour openly, when the court or parties may ask what ques. and to the exact spot where the manufactory or ware- tions they think fit." Salk. 405-"If a Jury give a ver house stands.
dict on their own knowledge, they ought to tell the The 10th error. "Because when the Jury came in, court so, that they may be sworn as witnesses; and the and one of them asked, whether in making up his opi. fair way is to tell the court before they are sworn, that nion, he was at liberty to avail himself of his own pre- they have evidence to give." vious knowledge, the court replied -"your oath is to In the case before as, the question asked by the Judecide according to the evidence; that is the only pro- ror, and the answer given by the court, are thus stated per guide to your decision.”
on my notes. They were read at the time to the Juror The language used by the court to the Jury was not in the presence of the counsel, and agreed to be correct. precisely that stated in the exception; although the dif- One of the Jurors asks-"Whether he may avail him. ference may not be important. I am willing to give my self of any previous knowledge he has of the subject answer its full and fair meaning, such as was probably in giving his verdict, the court replied that the ques. understood by him. It certainly was not, nor was it tion is answered by the oath of the Juror to try the intended to be, a prohibition to the Juror, to avail bim- cause, and a true verdict give, according to the evi. self of his knowledge of the subject; to his giving his dence.” verdict on any ground, or for any reason he might think I think, indeed, (although it is not on my notes,) that