Justice Shallow

“ It is on such occasions that the great value of this institution appears,—then the jury hold a shield over the head of their brother and defend him from the malignity of the government and the Goliath of injustice, appointed its champion to defy the Law of the living God, is smote in the forehead by the smooth stone taken from a country brook, and lies there slain by a simple rustic hand; for in such cases the jury fall back on their original rights, judge of the Fact, the Law, and the Application of the Law to the Fact, and do justice in spite of the court, at least prevent injustice. ”

“ It might need as attestation of its reality the jury which it had brought forth. They were all early in their places, having been sequestered in charge of the sheriff, and having slept as it were under the wing of the law. The privilege accorded by law, in phrase of munificent bestowal,—to be tried by a jury of one’s peers,—seems at times a gigantic practical joke, perpetrated by justice on simple humanity. They were indeed Mink’s peers so far as ignorance, station,—for most of them were mountaineers,—poverty, and prejudice might suffice. Few were so intelligent, but none so lawless. ”

“ They have scarce stepped upon the sidepath when the report of a pistol resounds through the air. The ball struck a lamp-post, glanced, passed through the collar of Judge Sleepyhorn's coat, and brushed Mr. Snivel's fashionable whiskers. Madame Ashley, successor to Madame Flamingo, shrieks and alarms the house, which is suddenly thrown into a state of confusion. Acting upon the maxim of discretion being the better part of valor, the Judge and the Justice beat a hasty retreat into the house, and secrete themselves in a closet at the further end of the back-parlor. ”

“ As a textual matter, of course, it does not: a disproportionate punishment can perhaps always be considered "cruel," but it will not always be (as the text also requires) "unusual." The error of Solem § assumption is confirmed by the historical context and contemporaneous understanding of the English guarantee.
Most historians agree that the "cruell and unusuall Punishments" provision of the English Declaration of Rights was prompted by the abuses attributed to the infamous Lord Chief Justice Jeffreys of the King's Bench during the Stuart reign of James II. See, e.g., Schwoerer, supra, at 93 ”

“ We cannot allow the right of the master to be brought into discussion in the courts of justice. The slave, to remain a slave, must be made sensible that there is no appeal from his master; that his power is, in no instance, usurped, but is conferred by the laws of man, at least, if not by the law of God. The danger would be great, indeed, if the tribunals of justice should be called on to graduate the punishment appropriate to every temper and every dereliction of menial duty. ”

“ Here, for the reasons we have discussed, there is no cause to believe that the provision was meant to exclude the evil of a disproportionate punishment. Justice WHITE's argument has force only for those who believe that the Constitution prohibited everything that is intensely undesirable-which is an obvious fallacy, see Art. ”

“ A young man, unknown to the court or the jury, is trying his first case against a veteran of standing and character: what will the asseveration of the former weigh against that of the latter? In proportion, then, to the age, experience, maturity of judgment, and professional character of the man, who falsely endeavors to impress the court and jury with the opinion of his confidence in the justice of his case, in that proportion is there danger that injury will be done and wrong inflicted—in that proportion is there moral delinquency in him who resorts to it. ”

“ Justice MARSHALL has also explained that " ' [t] he jurist concerned with public confidence in, and acceptance of the judicial system might well consider that, however admirable its resolute adherence to the law as it was, a decision contrary to the public sense of justice as it is, operates, so far as it is known, to diminish respect for the courts and for law itself.' " Flood v. ”

“ The obligation should, nevertheless, be pointed out.
3. Impartiality and integrity concern above all civil justice. The duty which more especially concerns criminal justice, is equity; namely, a moderate justice, intermediary between a dangerous lenity and an excessive severity. In truth, in most cases, at least in the graver cases, the judge has scarcely anything more to do than to apply the law. It is for the jury, a sort of free and irresponsible magistracy, to decide upon the culpability or innocence of the prisoners. It is for the jury to find a just medium between harshness and lenity. ”

“ Today hundreds flocked to hear his pleading of a cause, judges leaned over alertly, as if learning their duty from him, and the very hangers-on of the courtroom acquired a larger view of the moral law when Shagarach expounded it.
"My own beginnings were as humble," he said.
"You are a criminal lawyer by choice, people say."
"The moral alternative of innocence or guilt, of liberty or imprisonment—sometimes, as now, of life or death—exalts a cause in my eyes far above any elevation to which mere financial litigation can attain." ”

“ George thanked him for coming, told him we had done nothing, and didn’t need an attorney.
Every day for a week we were taken out and questioned. At the end of that time, having exhausted their stock of questions and patience, the marshal and his deputy had us into the justice’s court charged with vagrancy. In ten minutes we were tried, convicted, and sentenced to six months each in the county jail at Blackfoot.
No matter how small the town is, somebody can be found to fix things. Mary was on the job and got the town fixer to “see the judge.” ”

“ Addressing the little girl it said, "We are here to place you on trial for the wrongs we Bush creatures have suffered from the cruelties of White Humans. You will meet with all fairness in your trial, as the proceedings will be conducted according to the custom of your own Courts of Justice. The Welcome Swallow, having built its nest for three successive seasons under the eaves of the Gabblebabble Court House, is deeply learned in human law business, and will instruct us how to proceed. Your conviction will, therefore, leave you no room for complaint so far as your trial is concerned." ”

“ Rather than set a precedent that might tend to such a result, that would shake popular confidence in the judiciary, that would lend any encouragement to violence, a judge, as Justice Field evidently felt, may well risk his own life for the welfare of the commonwealth. ”

“ And it may be observed that the circumstances attending that trial were such as to induce him to weigh every word embodied in his elaborate written charge to the jury. That he understood the gravity of the occasion, so far as it related to the conduct of the trial, is manifest from his referring in the following language to certain considerations that had been advanced in argument: 'That this court dare not usurp power is most true. That this court dare not shrink from its duty is not less true. No man is desirous of placing himself in a disagreeable situation. ”

“ The procedural protections of the Constitution protect the guilty as well as the innocent, but it is not their objective to set the guilty free. That some clever criminals may employ those protections to their advantage is poor reason to allow criminals who have not done so to escape justice. ”

“ If it is not unusual, that is, if an objective examination of laws and jury determinations fails to demonstrate society's disapproval of it, the punishment is not unconstitutional even if out of accord with the theories of penology favored by the Justices of this Court. ”

“ A roar of laughter burst from the crowd and and the owner of the umbrella administered the coup de grâce by the remark:
“Bluff didn't go, did it, old Skeezicks? Come—clear out, quick!”
There may be heroic souls who would have risen to the occasion. But the Judge did not. His temper was at boiling-point, and he saw he must punch the fellow's head or leave at once. He turned and fled, asking only to escape.
When the court was again in session, the Judge—who had been a little late—proceeded to deliver his charge to the jury. ”

“ She seems very small, and harmless."
"That doesn't matter at all, you've got to get her made out as guilty by the jury. It's good human law," snapped the Swallow, and all the creatures said "Oh!" "Now for the defence," said the Swallow briskly; "there ought to be someone for that. ”

“ For a similar reason we have, in our determination of society's moral standards, consulted the practices of sentencing juries: Juries "'maintain a link between contemporary community values and the penal system'" that this Court cannot claim for itself. ”

“ The civil courts had to be removed, and the military courts had to be introduced for the purpose of rooting out the weeds, replacing the old scales of justice by new ones, and infusing life into the deteriorated conceptions of right and wrong. Further, I call upon the chairman to draw the attention of the accused man Lamm to the fact that he is not to talk unnecessarily nor to interrupt the proceedings. ”

“ For more than six hundred years—that is, since Magna Carta, in 1215—there has been no clearer principle of English or American constitutional law, than that, in criminal cases, it is not only the right and duty of juries to judge what are the facts, what is the law, and what was the moral intent of the accused; but that it is also their right, and their primary and paramount duty, to judge of the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of, such laws. ”

“ Clinch was at his wits' end, and went so far as to entreat the prisoner to plead in the proper form: "Good woman, I pray you put yourself to the country. There is no evidence but a boy against you, and whatsoever they (the jury) do, yet we may show mercy afterwards." She was moved not a whit; and then Rhodes, the other judge, broke in: "Why stand we all day about this naughty, wilful woman?" Yet once again she was entreated, but as vainly as before; it was evident that the law must take its course; and "then the judge bade the sheriff look to her, who pinioned her arms with a cord." ”

“ Next he took up the case of one of the talesmen examined with reference to his taking a place on the jury, who swore that, having been for three years connected with the office of the Prosecuting Attorney in the State of New York, he found in himself that the habit of thought and life to which he had there devoted himself had created in him a predisposition to believe every accused man guilty, which, in his own deliberate judgment before God, disqualified him from sitting as an impartial juror in a criminal case. ”

“ Lawful judges must on the contrary keep one ear unbiassed for the accused. If they give both to the pleadings of the opponents, and deliver a sentence acceptable to them, I shall put up with the injustice as bringing me nearer to the kingdom of heaven, and shall await that impartial tribunal, where there is neither prosecutor, nor counsel, nor witness, nor distinction in rank, but judgment of deeds and words and righteous retribution. ”

“ If in anything I have offended against the law, I am not so popular in this community as that it would be difficult to convict me. You have courts and judges and juries; they find nothing against me. And now you come together for the purpose of driving out a confessedly innocent man, for no cause but that he dares to think and speak as his conscience and his God dictate. Will conduct like this stand the scrutiny of your country, of posterity, above all, of the judgment-day? For remember, the Judge of that day is no respecter of persons. ”

“ Why, there on the Plaza you spoke in their their defense!"
"No, sir! No, sir! I did not! With the last breath that is in my body, sir, I will defend any man's right to trial trial by jury. I will defend any man's right to all the safeguards prescribed by law—but seek to have have guilty men acquitted, no! ”

“ A growl from the crowd, almost like that of a beast stirring its lair, then a quick cessation of all hubbub as every one turned to the judge to whose one-sided charge they attributed this release.
Again he was a changed man. With the delivery of this verdict he had regained his natural poise, and never had he looked more authoritative or more pre-eminently the dominating spirit of the court than in the few following moments in which he expressed the thanks of the court to the jury and dismissed the prisoner. ”

“ The [Pg 50] tribunal that convicts without sufficient evidence may decide according to the fact; but the next jury, acting on the same principle, may condemn an innocent man. If this be so, is not the prisoner in every case entitled to have the evidence carefully sifted, the weak points of the prosecution exposed, the reasonable doubts presented which should weigh in his favor? And what offence to truth or morality does his advocate commit in discharging that duty to the best of his learning and ability? What apology can he make for throwing up his brief? ”

“ The Caldwell rule, though, is a prerequisite to reliability in capital sentencing. Not unlike the right to counsel, the right to a jury that understands the gravity of its task is essential to the vindication of the other sentencing guarantees. ”