Worcester daily spy. [volume] (Worcester [Mass.]) 1850-1888, 1857-03-31
C5e 9aiIgy sply.
RIGHTS OF JURORS.
Speech delivered in the House of Rep-
resentRtives March Goth, 1851. IL
BY D P. Parker, ESQ a.#

which thepeople at large feel so deep an interest
as they do in the one before US. 1t is a question
affecting the life, liberty and property of every
citizen of this Commonwealth, and l for one am lot
willing to let it pass by without full and decid
ed expression of my own opposition to the repeal
of the Jury law of 1855. 1t is with some diff.
dence that ! express this opinion, am willing to
admit, but hope to show you.the representatives
of the people, that my objections to the repeal Of
the law are based upon the soundest principles Of
equity and law, and in support of my opinions
propose to inquire:
FIRsT-- What acre the po,oegs of jtn'ies aohen
they 10ere first established 6y the peogle?
In answering this question, l will prove to the
House that the assertions of the member from
Salem, that jurors from the days of Runnymede TO
1904, were not considered to be Judges of the
law as we'll as the fact, is untrue and contrary to
the teachings OF the law and history. Reeves in
his History of English Law, tells us that as early
as the tenth century, when they were called 'sec-
tatores" or ''jurata, they gave Judgment or YER
dict, both atpon matters of lao and of fact and
this opinion Reeves is sustained by the learned
annotst of L. c. B. Gilbert's History of the Com
mon Pleas, who tells us that the "jurata" were
the sole judges both of the law and the fact So,
that as Bracton, one of the very earliest writer's
upon English law, remarks aThough it was
commonly SAID thattyasth was the province of Jur-
orS, and judgment that of the Judge, it seems
that judgment belongs to the jurors inasmuch as
seized another"
Again, he says, ssthe oas,7a and pares were
necessarily the judges in all cases Of life, limb,
crime, and disherison, of the heir in capite. The
king could not decide, for then-he would be prose-
cntor and Judge; neither could his justices, for
they represent him. So, also, in treating upon
the matter of Attaint, Bracton cites many pre-
cedents In which the jury are manifestly judges,
both of matters of lao and matters of fact. L.
e. Baron Gilbert also says-"phis common law
ralcC i
by IL Ed. LIST. cop 80, in the following words -
ITEM, it is also ordained that the justices as
signed to take assizes shall not compel the i1ry
precisely to say, whether the matter before them
be d'ssetzeS or not the jurors aaust be left to their
oaCR free 10lttS in speaking the truth" to which
the Chief Baron adds" Whether disseizen or no
dissezen certainly is point of lGao and of which
the jurors are by this statute, declared the sole
and only Judges" Lyttleton lin his Tenures,
5o6l declared sthat if a jury will take upon them
the E'lo'otedge OF the A1to, they may," upon which
Lord Coke says-''lt is true Gas Lyttleton saith
that a jury may take upon themselves the matter
Of law, but they had better give special verdict
for if they mistake the law, they liable to an
attant." Here We have the united testimony of
Braeton, Lyttleton, and Coke, that in their DAYS
jurors could and did jndge of the law and the
fact. The member from Salem, in pursuing his
researches into the musty records of the past,
cites to us Townsends case, tried by the Court Of
Llveries in the LIST and I'd OF Philip and Mary,
and ne tells US that in this case, the judges de-
elared that jurors were not Judges of the law
Sir, why did he not tell more, and cite also the
cases of Wilton Berkeley, Hales VS.. Petit, and
Grendon VS. The Bishop of London, where such
opinions as these were expressed either by the
judges or the attorneys, (see Plowden's Reports,
ia, 23l, go, 1867 and all Of them upon cases
relating solely to law questions.
Say they, "for the Office of twelve men is no
other than to inquire of matters Of fact and not to
adjudge what the lao is, for that is the Office of
the court and not of the jury, and if they find the
matter of fact at large, and further say that
therefore the law is so, when in truth The law Is
not SO, the judge shall adjudge according to the
matter of fact ndnot nccordng to the conclusions
of the jury" "Their 1.-THE jury )sayings does not
bind the party if the lalo be otberaoiSe for they
are not Judges to adjudge matters of law, but
Jurors to find the matter of fact" So again in
the case of Grendon VS., Bishop Of Lincoln, us
and 10 of Eliz that Kings Bench says, eff
that if the defendants had taken a trainers to
their plea in Bar, they would have brought this
trial of this matter to jury who to try mat
tiers of fact, and not matters of iaaU as that is
here" Here to be sure is general denial of the
right Of the jury to judge of the law, but the de-
NAL is based in the first case upon the fact that
the jury a0tkttLty say, 'the lao Is so, when IN
truth 1t IS not So, in the second case, their say
ing does not bind the party, If the law be other
wise" and in the third case where the subject
matter is simply ''nlatter of laao," and not law
and fact compounded together. So these cases of
themselves prove nothing, but in these same days
in the case of Reniger VS., Fogasse. before Re
corder Brooks Of London, it was laid down by
the Recorder that the jury were judges Of the law
las customs) Independent of any fact being prove
ed by one or more witnesses. 10 lI3I gar .a1
But Mr.. Speaker, there is one case more which
escaped the eye of the member from Salem, and
which occurred in the very year thot Townsend
was tried, and which marks an epoch in the his
tory of jury trial in England. refer TO the trial
of Sir Nicholas Throckmorton for treason, in
1854. In that trial, find the first criminal case
in English Jurisprudence where the prisoner at
the bar tells the jury that they thes0le Judges
of the aogOIe question: before them He demanded
ofiBromley, the Chief Justice, to read the law of
treason to the Jury. He refused, and said, ave
know the law" Upon which the prisoner said,
"What is your knowledge of the law to these
mems (the jury satisfaction, which have my trial
in hand ~ Again he says after repeating the law
from memory to the. jury, Snow l pray you of my
jury, which have my life in trial, note we'll what
things at this day be treason and how these trea-
sous must be tried and discerned;" and in closing
his plea, he says to the jury. "the trial of our
aolsoie contr0ee,Sy--the trial of my innocency--
the rialofmy life and goods, and the destruction
of my posterity for ever, doth rest in your good
judgment" Nor did that jury betray the trust
he put in them. They returned averdct Of mot
guilty." and the judges, who said that they were
upon the bench to "decare law" and would "give
law to the Jury" sent them TO prison for their
dared to Judge of the law and the facts. 80 sers
In the period that followed this case, no doubt
the judges in certain cases, did decide like Brom-
ley, or else they equlvocated upon the matter be-
fore them.
But though such was the character Of the de-
nal Of the power Of the jury in the early part Of
her reign still it is undenable that in Elizabeth's
time the trial by jury was fraud upon the peo-
pie; and before the Star Chamber Of her court,
and the arrogance of her judges, its once dazzling
light slowly faded away, and became obscured and
hidden-but, thank God, not lost. Truly has
Hallam said Of justice in those days -
"There is no room for wonder at any verdict
that could be returned by Jury, whenwe consid-
er what means the government possessed of ser
curing it, The sheriff returned a panel, either
according to express direction--of which we have
proofs--or from what he Judged himself Of the
Crowns intention and interest. If verdict had
gone against the prosecution in matter Of mo-
ment the jurors must have laid their account
without appearing before the Star Chamber, lucky
if they should escape on humble retraction, with /
sharp words; instead of enormous fines and in /
definite imprisonment. The control of this arbi- 1
ItraTy tribunaibound down and rendered mpotent I
all the minor Jurisdictions. That primeyal insti-
tutions--those inquests Of twelve true men, the 4
unadulterated voice Of the people, responsible 4
alone to God and their nscIences-whch should 1
have been heard in the sanctuaries Of justice, as
fountains sprnging freshfrom the lap Of the EARTH
became like waters constrained in their course by
art--stagnant and impure" -,f-
This sad picture of Englands court Of Justice
was still true to life during the reigns Of James
/. and Charles l., in which time England was
cursed with tyrannical monarchs. corrupt and
venal judges, and by juries i0ho toere poperless,
because they were in the hands Of judges who
were but the wiling tools of tyrant kings. But
brighter and happier days were in store fot the
land whose "Trial by Jury" had been the right