Weekly national intelligencer. [volume] (Washington [D.C.]) 1841-1869, 1851-11-22

dict Of guilty or not guilty.
Such my view of the respective duties OF the different
parts Of this tribunal ia the trial Of criminal cases, and have
not found single decision Of any court in England prior to
the formation Of the Constitution, which conflicts with IT, II
suggested the bar that Chief Justice Vaughns opinion
in Bushoes case State Trials SO, was in support OF the
right Of ures determine the law in criminal but
will be found that be confines himself narrow, though,
for the case conclusive line Of argument that the general
ISSUE embracing fact well law it never be proved
that the jury believed the testimony on which the Tact de-
pended and in reference to which the direction given,
and they be guilty Of any legal msdemeanor in
turning ydct though apparently against the direction OF
the Court in matter OF law.
Considering the intense interest excited, the talent and
learning employed aud consequently the careful researches
made, in England the close Of the last century, when
the law Of libel under discussion in the courts and IN
Parliament be doubted that any decision, having
the weight could have been pre- duced in support Of this
general proposition that ures judges of the law in cri
minal cases, it would then have been brought forward
not that any such was produced And the dec-
sion of the Kings Bench in Rer vs. the Dean Of st. Asaph,
T. 42S and the of the twelve judges 10 the
questions propounded by the House of Lords
necessary posulae what Lord Mansfield clearly declares
in TERMS that by the law Of England jures cannot ghuy
decide question Of law Passing what was asserted,
by ardent parsans snd eloquent COUNSEL will be found
that the great concerning what known 10 history
Mr.. Foxs Libel Bill carried upon quite different
ground by its leading frienda ground which, while 1t ad
ms that the Jury are not to decide the law denies that the
beous matter of law, ard asserts that 10 80 mix
ed with the fact that under the general issue it for the jury
TO find it fact Such understand to he the effect OF
that famous declarstory law St 80, Geo. 3, CO., The
defendants counsel argued that this law had declared that
trials for libel the jury should be allowed to pass law and
fact as other criminal Butthis is carIy erroneous
ns a ne
pose meaning. 4
.sThe court or judge before whom such Indictment in
formation shall be tried SHALL according their his dis
crstion give their or his opinion and directions the jury
the matter in issue between the King aud the defendant
IN like manner as in other criminal eases"
This carry the ceares implication that in
this and all other criminal the Jury may be directed by
the Judge and that while the object Of the statute de-
clare that there other Of fact besides publication
and the nnuendos be decided BY the ury it was not in
tended to interfere with the proper province Of the judge to
decide all matters Of law. That this is the received opinion
in England, and that the general rule declared in Rex vs
Dean Of ST. Asaph that juries cannot rghfuy decide the
law ia criminal cases. still the law of England, be
by reference the opinions Of Pake b. in Parnte Cope
land M Sc WHO'S, and Of Best G. j. in Levi u.s. Milne,
Bling, l95.
conclude them that when the Constitution the United
States formed il settled rule Of the common law
that in criminal well in civil the court decided the
law and the jury the facts ard it cannot be doubted that this
have important effect in determining VIVA, is meant
by the Constitution when it adopts trial by jury.
It is argued, however, that in passing the sedion law, st.
1885, a. Congress expressly provided that the jury
should have the right determine the law ard the fact under
the direction of the Court in other cases. and that this
shows that in other ues may decide the law contrary
to the direction Of the Court.
necessity Of this provisions by force Of the Constitution ures
such have both power and the right to determine all ques
tons in criminal caes And why they to be directed by
the Court! In Montgomery The State, Ohio r. APT,
the Supreme Court Of Ohio discussing the question whether
ues judges of the law, refer 10 article in the Bill Of
Rights Of that State, which in the words this
ton of the sedon and the opinion Of the Court then pro-
ceeds " would from this that the trainers Of our Bill
of Rights did not imagine that juries rghtfuy judges
Of law and fact criminal cases, independently Of the drec
ton of courts Their right judge ofthe law right to be
exercised only under the direction Of the Court and if they
go ABIDE from that direction and determine the law incorrect
y, they depart from their duty and commit public wrong
and this In criminal as well as civil cases."
There is however, another act Of Congress which has
most important bearing this question The act OF the 2Sth
of April 1902, in section 9th, after enacng that in Of
division of opinion between the Judges Of the Circuit Court
any question, such question may be certified to the SUI
preme Court, proceeds - And shall by the said court be
finally decided and the decision Of the Supreme Court and
their order in the premises shall be RENTED to the Circuit
Court and be there entered of record and have effect accord
ing to the nature Of such judgment and order The residue
of this section proves that criminal well civil cases are
embraced in it. and under many questions arising in crm-
nal have been certified to and decided by the Supreme
Court and persons have been executed by Of such
decisions.
Now can it be that after question arising in criminal
trial has been certified the Supreme Court and there in
the language of this act, finally decided and their order
med here and entered of record, when the trial
the jury may rghfuly revise and reverse this final decision
SUPPOSE in the of this trials the judges had divided in
opinion upon the question Of the consluonaly Of the
of $780, and that after final decision thereon by the SUI
preme Court and the receipt of its mandate here the trial
should before jury, does the Constitution Of the
United States which established that Supreme Court intend
that jury may matter of right revise and that de-
csion And not what becomes Of this supposed right
Are the decisions Of the Supreme Court binding ues and
not the decisions of inferior courts This will hardly be
tended and if it wee how is Tito be determined whether
the Supreme Court has has not in former in
effect settled particular question Of law In my Judgment
this act Of Congress is in accordance with the Constitution,
and designed to effect Of its important and even necessary
Objects uniform exposition and Interpretation OF the law OF
the United States, by providing for final decision Of
any question Of awfna respects every tribunal and eve
ry part of any tribunal in the country and, IT 1t not
only wholly inconsistent with the alleged power of ures to
the extent Of all questions decided but tends strongly to
prove that such right is claimed does exist
An examination Of the judicial decisions Of courts Of the
United States since the organization of the Government will
show think that the weight of authority is against the
position taken by the defendants counsel.
The earliest is Dallas, r. d. Chief Justice Jay
there reported have said to jury that questions of fact
the province of the jury questions OF law is the pro-
Of the decide and in the very next sentence he
informs them they have the take upon themselves to
determine the law well the fact and he concludes with
the statement that both law and fact lawfully within their
power Of decision.
help feeling much doubt respecting the accuracy
of this report only because the different parts OF the charge
in conflict with each other, but because scarcely be-
eve that the Chief Justice held the opinion that in civil
and this civil the jury had the right to decide the
law. Indeed, the whole case is anomaly Purports to
be trial by jury in the Supreme Court Of the United States
Of certain Of chance and the Chief Justice begins
by telling the jury that the facts all agreed, and the only
tho