Where two persons were jointly indicted for an offense committed
against the United States,
viz., a murder committed upon
the high seas, and were tried separately, it was not competent for
the person first tried to call the other as a witness in his
behalf.
The trial took place in Virginia, and the evidence would have
been competent under a law of Virginia passed in 1849.
But the 34th section of the Judiciary Act of 1789, declaring
that the laws of the several states shall be regarded as rules of
decision in trials at common law in the courts of the United
States, meant only to include civil cases at common law, and not
criminal offenses against the United States.
The law by which the admissibility of testimony in criminal
cases must be determined is the law of the state as it was when the
courts of the United States were established by the Judiciary Act
of 1789.
Without laying down any general rule how far the affidavits of
jurors impeaching their verdict ought to be received, it is decided
that the affidavits of two jurors, stating that, whilst empanelled,
they read a newspaper report of the preceding evidence, but which
had no influence upon their verdict, were not sufficient ground for
a new trial.
The facts are all stated in the opinion of the court.
MR. CHIEF JUSTICE TANEY delivered the opinion of the Court.
This case comes before the court upon a certificate of division
between the judges of the Circuit Court for the District of
Virginia.
Thomas Reid and Edward Clements were jointly indicted for
murder, committed by them on the high seas on board the American
ship
J. B. Lindsey.
They were, by the permission of the court, separately tried, and
upon the trial of Reid, he proposed to call Clements as a witness
on his behalf. The court rejected the testimony, being of opinion
that, as he was jointly indicted with the prisoner on the trial, he
was not a competent witness. Reid was found guilty by the jury.
At a subsequent day, he moved for a new trial upon two grounds
-- 1st, because the testimony of Clements was improperly rejected,
and 2d, for misbehavior in two of the jury who tried the cause. In
support of the second objection, he offered in evidence the
voluntary affidavits of the two jurors, one of
Page 53 U. S. 362
whom deposed:
"that while the case was on trial and the jury were empanelled,
a newspaper was sent to him by some of his family from his counting
room. It was a newspaper for which he was a subscriber which was
regularly left at his counting house, and which he was accustomed
to read. He looked slightly over it, and saw that it contained a
report of the evidence which had been given in the case under
trial, a part of which he read and put the paper in his pocket;
that while the jury were in their room deliberating on their
verdict, he read over the report of the evidence in the newspaper;
he read it from curiosity, and thought it correct, and that it
refreshed his memory; but it had no influence on his verdict, and
that he had made up his mind before he read it. There was no
conversation about the newspaper report in the jury room, nor did
he speak of it there to anyone, nor does he know that the other
jurors knew that the report of the evidence was in the newspaper
they saw him reading."
The other juror deposed
"that he saw this newspaper while the jury was empanelled in the
court room, and, upon looking at it, saw that it contained a report
of the evidence that had been given in the case under trial. He
looked over a few sentences and put the paper aside, and did not
see it afterwards. He did not think the report accurate; it had not
the slightest influence on his judgment."
Upon the argument of the motion above mentioned, the following
questions arose:
1st. Ought the court to have received the evidence of Clements
in behalf of the prisoner, and does the refusal of the court to
admit his testimony entitle the prisoner to a new trial?
2d. Ought the affidavits of the two jurors to be received, and
do the facts stated in them entitle the prisoner to a new
trial?
And upon each of these points the judges of the circuit court
were opposed in opinion, and ordered that the questions be
certified to the supreme court for its decision.
The difficulty in the first question arose upon the construction
of the 34th section of the Act of Congress of 1789.
By a statute of Virginia adopted in 1849 it is provided
"That no person who is not jointly tried with the defendant
shall be incompetent to testify in any prosecution by reason of
interest in the subject matter thereof."
And if the section in the Judiciary Act above referred to
extends to the testimony in criminal cases in the courts of the
United States, then the testimony of Clements was improperly
rejected.
The section in question declares that the laws of the
several
Page 53 U. S. 363
states, except where the Constitution, treaties, or statutes of
the United States shall otherwise require or provide, shall be
regarded as rules of decision in trials at common law in the courts
of the United States in cases where they apply.
The language of this section cannot, upon any fair construction,
be extended beyond civil cases at common law, as
contradistinguished from suits in equity. So far as concerns rights
of property, it is the only rule that could be adopted by the
courts of the United States, and the only one that Congress had the
power to establish. And the section above quoted was merely
intended to confer on the courts of the United States the
jurisdiction necessary to enable them to administer the laws of the
states. But it could not be supposed, without very plain words to
show it, that Congress intended to give to the states the power of
prescribing the rules of evidence in trials for offenses against
the United States. For this construction would in effect place the
criminal jurisprudence of one sovereignty under the control of
another. It is evident that such could not be the design of this
act of Congress, and that the statute of Virginia was not the law
by which the admissibility of Clements as a witness ought to have
been decided.
Neither could the court look altogether to the rules of the
English common law as it existed at the time of the settlement of
this country, for reasons that will presently be stated. Nor is
there any act of Congress prescribing in express words the rule by
which the courts of the United States are to be governed, in the
admission of testimony in criminal cases. But we think it may be
found with sufficient certainty, not indeed in direct terms, but by
necessary implication, in the acts of 1789 and 1790, establishing
the courts of the United States, and providing for the punishment
of certain offenses. And the law by which, in the opinion of this
Court, the admissibility of testimony in criminal cases must be
determined, is the law of the state as it was when the courts of
the United States were established by the Judiciary Act of 1789.
The subject is a grave one, and it is therefore proper that the
court should state fully the grounds of its decision.
The colonists who established the English colonies in this
country, undoubtedly brought with them the common and statute laws
of England, as they stood at the time of their emigration, so far
as they were applicable to the situation and local circumstances of
the colony. And among the most cherished and familiar principles of
the common law was the trial by jury in civil, and still more
especially in criminal cases. And however the colonies may have
varied in other respects in the modifications with which the common
or statute law was adopted,
Page 53 U. S. 364
the trial by jury in all of them of English origin was regarded
as a right of inestimable value, and the best and only security for
life, liberty, and property.
But as the law formerly stood, the value of this right was much
impaired by the mode of proceeding in criminal cases. For when a
person was accused of a capital crime and his life depended upon
the issue of the trial, he was denied compulsory process for his
witnesses, and when they voluntarily appeared in his behalf, he was
not permitted to examine them on oath, nor to have the aid of
counsel in his defense, except only as regarded the questions of
law.
It is true that Lord Coke, in his 3 Inst. part 3, 79, declares
in strong terms that the rule which prohibited the witnesses for
the accused from being examined on oath, was not founded in law.
Yet the rule, at the period we speak of, was daily sanctioned and
acted on in the English courts. 2 Hale P. 283, 4 Bl.Com., 355, 358,
359, and was in full force when the English colonies were planted
in this country.
This oppressive mode of proceeding had been abolished in England
and the Colonies also by different statutes before the declaration
of independence. But the memory of the abuses which had been
practiced under it had not passed away. And the thirteen Colonies
who united in the declaration of independence, as soon as they
became states, placed in their respective Constitutions or
fundamental laws, safeguards against the restoration of proceedings
which were so oppressive and odious while they remained in force.
It was the people of these thirteen states which formed the
Constitution of the United States, and engrafted on it the
provision which secures the trial by jury, and abolishes the old
common law proceeding which had so often been used for the purposes
of oppression. And the provisions in the Constitution of the United
States in this respect are substantially the same with those which
had been previously adopted in the several states. They were
overlooked in the Constitution of the United States as originally
framed. But as soon as the public attention was called to the fact
that the securities for a fair and impartial trial by jury in
criminal cases had not been inserted among the cardinal principles
of the new government, they hastened to amend it, and to secure to
a party accused of an offense against the United States the same
mode of trial, and the same mode of proceeding, that had been
previously established and practiced in the courts of the several
states.
It was for this purpose that the 5th and 6th Amendments were
added to the Constitution. The 6th Amendment provides that in all
criminal prosecutions, the party accused shall be entitled
Page 53 U. S. 365
to a trial by jury, to be confronted with the witnesses against
him, to have compulsory process for the witnesses in his favor, and
to have the aid of counsel in his defense.
The Judiciary Act of 1789, § 20, provides for the manner of
summoning jurors, and directs that in all cases of course including
criminal as well as civil cases they shall be designated by lot or
otherwise in each state, according to the mode of forming juries
therein as then practiced, so far as the law of the state shall
render such designation practicable by the courts or marshals of
the United States, and that the jurors shall have the same
qualifications as were requisite for jurors by the law of the state
of which they are citizens, in the highest court of law in the
state. Both of these provisions are confined by plain language to
the state laws as they then were.
The Crimes act, as it is usually called, of 1790, § 29,
makes some further regulations, which it is not necessary here to
specify, in relation to the proceedings and right of peremptory
challenge in criminal cases before the jury are empanelled.
But neither of these acts make any express provision concerning
the mode of conducting the trial after the jury are sworn. They do
not prescribe any rule by which it is to be conducted, nor the
testimony by which the guilt or innocence of the party is to be
determined. Yet as the courts of the United States were then
organized and clothed with jurisdiction in criminal cases, it is
obvious that some certain and established rule upon this subject
was necessary to enable the courts to administer the criminal
jurisprudence of the United States. And it is equally obvious that
it must have been the intention of Congress to refer them to some
known and established rule, which was supposed to be so familiar
and well understood in the trial by jury that legislation upon the
subject would be deemed superfluous. This is necessarily to be
implied from what these acts of Congress omit, as well as from what
they contain.
But this could not be the common law as it existed at the time
of the emigration of the colonists, for the Constitution had
carefully abrogated one of its most important provisions in
relation to testimony which the accused might offer. It could not
be the rule which at that time prevailed in England, for England
was then a foreign country, and her laws foreign laws. And the only
known rule upon the subject which can be supposed to have been in
the minds of the men who framed these acts of Congress, was that
which was then in force in the respective states, and which they
were accustomed to see in daily and familiar practice in the state
courts. And this view of the subject is confirmed by the provisions
in the act of 1789, which refers its courts and officers to the
laws of the respective states
Page 53 U. S. 366
for the qualifications of jurors and the mode of selecting them.
And as the courts of the United States were in these respects to be
governed by the laws of the several states, it would seem
necessarily to follow that the same principles were to prevail
throughout the trial, and that they were to be governed in like
manner, in the ulterior proceedings after the jury was sworn, where
there was no law of Congress to the contrary.
The courts of the United States have uniformly acted upon this
construction of these acts of Congress, and it has thus been
sanctioned by a practice of sixty years. They refer undoubtedly to
English works and English decisions. For the law of evidence in
this country, like our other laws, being founded upon the ancient
common law of England, the decisions of its courts show what is our
own law upon the subject where it has not been changed by statute
or usage. But the rules of evidence in criminal cases are the rules
which were in force in the respective states when the Judiciary Act
of 1789 was passed. Congress may certainly change it whenever they
think proper, within the limits prescribed by the Constitution. But
no law of a state made since 1789, can affect the mode of
proceeding or the rules of evidence in criminal cases, and the
testimony of Clements was therefore properly rejected, and
furnishes no ground for a new trial.
The first branch of the second point presents the question
whether the affidavits of jurors impeaching their verdict ought to
be received.
It would perhaps hardly be safe to lay down any general rule
upon this subject. Unquestionably such evidence ought always to be
received with great caution. But cases might arise in which it
would be impossible to refuse them without violating the plainest
principles of justice. It is, however, unnecessary to lay down any
rule in this case or examine the decisions referred to in the
argument. Because we are of opinion that the facts proved by the
jurors, if proved by unquestioned testimony, would be no ground for
a new trial. There was nothing in the newspapers calculated to
influence their decision, and both of them swear that these papers
had not the slightest influence on their verdict.
We shall therefore answer the first question in the negative,
and to the second, that the facts stated in the affidavits of the
jurors do not entitle the prisoner to a new trial, and certify
accordingly to the circuit court.
Order
This cause came on to be heard on the transcript of the
Page 53 U. S. 367
record from the Circuit Court of the United States for the
Eastern District of Virginia, and on the points or questions on
which the judges of said circuit court were opposed in opinion, and
which were certified to this Court for its opinion, agreeably to
the act of Congress in such case made and provided, and was argued
by counsel. On consideration whereof, it is the opinion of this
Court 1st, that the said circuit court ought not to have received
the evidence of Clements in behalf of the prisoner, and that the
refusal of the court to admit his testimony does not entitle the
prisoner to a new trial, and 2d, that the facts states in the
affidavits of the jurors do not entitle the prisoner to a new
trial. Whereupon it is now here ordered and adjudged by this Court,
that it be so certified to the said circuit court.