New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1856-02-18
TRIALBY JURY IN nAssACHUsETTs

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TRIAL BY JURY IN nAssACHUsETTs.
In tho first years of the present century the rela-
tive rights of Jures and of Judges attracted good
deal of attention. The subject was very fully dis
cussed. and very strong opinions in favor of the
rights Of the Jury in criminal cases to decide by
their verdict the law well the facts were pro-
nOunced BY the most eminent professional menu
beers of the most conservative party of those times,
who saw in this right the best and, as they thought,
the most necessary safeguard against uncOnstltu-
tional and tyrannical legislation.
Foremost in advocating this right of the Jurywas
Alexander Hamilton. 1t is admitted, he argued,
that Juries have the power to return general YER
diets embracing both the law aud the fact, with
which yerdicts, in criminal cases, the Court has no
power nor any right TO interfere. But In politics,
power and right are equivalent and convertible
terms Having the power, the Jurors have the
right to return such verdcts. If they had not the
right-if, in returning such verdcts contrary to
the instruction of the Court, the Jury transcribed
their lust authority-the law certainly would and
must provide some means of rectifying the wrong
done. In not providing any such means, the law
recognizes the verdict of the Jury not only as con-
elusive and final as 30 that case, but as clearly
within the range of Jury's right and duty. Such
was the view Of Mr. Hamilton; and it was also
held BY Judge-afterward CbsncellOr-Kent thena
Justice Of the Supreme Court of New-fork, who
in an opinion delivered from the bench, fortified this
general augmentation by a cOpiOus citation of
authorities.
AT the close of the year 1907 the party then
having the control of the Federal Government
which control they had been greatly aided in
obtaining by vehement denunciatlons against their
predecessors in power as the authors OF the alien
and sedilOn acts, which we're stigmatzed as having
been passed BY an unconstitutional usurpaton OF
authority-proceeded, themselves, to pass an act
which for its violent straining of Federal power,
has never been surpassed down to the passage Of
the Kidnapping act of 1850. The act of lcO7 to
which we refer was the famous embargo, BY which
il was attempted to put total and indefinite stop
to the foreign commerce of the United States.
In Massachusetts and in New England generally
this law was regarded as unconstitutional. Eva
sons and open defances of it were exceedingly fire.
quent; but attempts to punish them aud to enforce
the grieyous penalties by which, in act after act it
was attempted to bolster up the embargo, were
for the most part defeated by the 6rmness of Jurie',
which persisted in returning general verdicts of
not guilty.
Ii was at this crisis that it seemed good TO the
Legislature of Massachusetts, TO revise their Jury
lava thing of the more consequence because
under the Federal Judiciary Act the Federal
Courts as to the matter of Juries, are obliged to
conform to the State Laws. At this time, when
Parsons, Harrison Gray Otis and other very dis-
tnguishcd and highly conservative lawyers had
leading influence in her councils, Massachusetts,,
for the better protection of the COmmon-Law
rights of Juries, saw fit to insert into an act
passed on the 10Th day Of March, 1903, proyis-
ion recurring Petit Juries to try according to
"the established forms and principles of the law
call causes which shall be committed TO them,
and 10 decide at their discretion, by general
"vtrdict, both the law and the fact involved 10
"the issue or to find special verdict, or gen.
"ersl verdict subject to the opinion of the Court
on a case or point stated and reserved by agree
"ment of the parties or their counsel under di.
"rectOns of the Court, making a part of the
"record and to be entered as such"
In 1886 a revision took place OF the laws of
Massachusetts, under the superintendent of two
distinguished lawyers, Horace Mann and Theron
Metcah. The latter is now one of the Judges of
the Supreme Court OF Massachusetts,; the former
was at that time much less Democratic in his
opinions than be has since become. In that re-
vision the clause above cited was quietly dropped,
and thus disappeared from the statute book.
In that state OF the case, Judge Merrick, now
OF the Supreme Court, then Of the Common Pleas,
held, upon an indictment before him, that the Jury
had no right TO judge Of the law, and he accord
ingly refused TO allow points of law 20 be argued
10 them. The case vas carried up on this point TO
the Supreme Court, by which very odd and
with all due be il said-a very ridiculous
decision was rendered. The Court held that, by
points of law to the jury. and on that ground they
sent back the cause TO be rsheard; but at the same
time they held that the jury hal TO right 10 pay
the least attention 10 these arguments of counsel,
but were bound to take the law as it was laid
down to them by the Court And this opinion
was relied upon by Judge Curtis of the Supreme
| Court Of the United States, in the trials which
took place before him Circuit Judge some time
since at Boston, upon indictments found under the
Kidnapping Act of 1850, as good authority for
holding as he did. that the Jury had no right "