law, and, had the court submitted the case to the jury, it would have been the duty of the jury to find the memorialist guilty; therefore she is not aggrieved by the judgment which the court pronounced. Should this reasoning be adopted, it would follow that the memorialist had been tried by the court and by Congress; but it would still be true that she had been denied trial by a jury which the Constitution secures to her.
It is not safe thus to trifle with the rights of citizens. The trial by jury—the judgment of one's peers—is the shield of real innocence imperiled by legal presumptions. A Judge would charge a jury that a child who had stolen bread to escape starvation had committed the crime of larceny, but all the Judges in Christendom could not induce a jury to convict in such a case. It is the humane policy of our law, that, before any citizen shall suffer punishment, he shall be condemned by the verdict of his peers, who may be expected to judge as they would be judged. To sustain the judgment in this case, is to strike a fatal blow at this sacred right.
But the question remains, What relief can be granted? I concur with the majority of the Committee that Congress can not remit the judgment; that would be to exercise the pardoning power. Congress can not grant a new trial; that would be an exercise of judicial power. There is no Court of the Government which has jurisdiction to review the case. In Commonwealth vs. Austin, 5 Gray, 226, Chief-Justice Shaw says:
Now, when a new statute is passed, and a question of law is raised by counsel, it must first come before the court, charged by law with the conduct and superintendence of a jury trial; and, in any well-ordered system of jurisprudence, provision is made that it be re-examinable by the court of last resort. When this question is definitively adjudged by the tribunal of last resort—the principles on which it is adjudged being immutable, and the rule of law adjudged in any one case being equally applicable to every other case presenting the same facts—the decision is necessarily conclusive of the law. I do not say how and after what consideration it maybe considered as definitively decided. In the first instance it may be misunderstood or feebly presented. It may have been misapprehended by the judges, and not considered in all its bearings, or they may have wanted time and means for a careful and thorough investigation, and may therefore consent and desire to reconsider it one or more times. But I only say that, when thus definitively adjudged, the decision must be deemed conclusive and stand as a rule of law.
Unfortunately the United States has no "well-ordered system of jurisprudence." A citizen may be tried, condemned, and put to death by the erroneous judgment of a single inferior judge, and no court can grant him relief or a new trial. If a citizen have a cause involving the title to his farm, if it exceed two thousand dollars in value, he may bring his cause to the Supreme Court; but if it involves his liberty or his life, he can not. While we permit this blemish to exist on our judicial system, it behooves us to watch carefully the judgments inferior courts may render; and it is doubly important that we should see to it that twelve jurors shall concur with the Judge before a citizen shall be hanged, incarcerated, or otherwise punished.
I concur with the majority of the Committee that Congress can not grant the precise relief prayed for in the memorial; but I deem it to be the duty of Congress to declare its disapproval of the doctrine asserted