Worcester daily spy. [volume] (Worcester [Mass.]) 1850-1888, 1857-03-31


TO you, the representatives of the people, to
answer this question, not doubling the response
You will make.
We have now examined fairly, and as l believe,
candaly, the powers, rights, and Responsiveness
of jurors and judges, as laid down by the highest
Judicial authority in England, and now let us see
what will be-
LIST. The RIGHTS OF THE JUDGE UNDER THE
LAW OF 1855 answer, in the first place, that
he will be the erec1iItg officer Of the court, guid
ing il in its deliberations and nstructng It IN
the means OF its attaining the ends o. justice,
and a6Iriag penalties to ali crimes Of aehieh par
ties may be guilty,
81. He will decide all points Of lao in regard
to the admssibility Of evidence, thus giving to
each party the right of filing bills of exceptions
and thus carrying the case up to the highest
courts for final adjudication.
Sd and the most important Of all-he will, as
now, sHm W The evideace to the jury, and deliver
to them his opinion Of theta thus instructing
them ssin the iatr," but not possessing the polcer
to bind them by his opinion.
Am 1 told, sir, that the opinion of the judge,
under this law, is nullity Sir, deny it; for
TO day, God be thanked, the old axiom of the an
clients is true--'' knowledge is Power" No law
wipe out from the mini this God-given truth,
and there is not a jury, under heaven, hut their
opinloRS, ideas, and sentiments will he moulded
by the learning and knowledge OF an honest, up
right, and hberty-loving judge, Sir, every man
will honor them, and leave TO them every power
and every Iight consonant with the principles Of
justice and the safety Of the rights and preroga-
tives Of free and Intelligent community.
But, sir, go farther than this. and assert and
will prove, that so long Jury are g judges of
the fact, no judge can possess more power over
them or even bind them in points of law" And
why? answer briefly, that before the fact or
crime is found, there lao to apply TO it, and
no party arTaigned is subject to the penalty of
any law, until twelve good men and true have
agreed 10 the fact with which he is charged. This
is the universal language of the law and the
united opinion of its judges from the bloody JET
fries up to the pure minded teacher Of England's
Common Law, my Lord Hale.
Says Chief Justice JetFries, '.The law always
arises upon point Of fact /" Again, "There
can be no doubt in point If law, till there be a
settlement in point Of fact Justice Withins,
in the same case, also says, % l cannot give you
my opinion in law, till the fact be stated" Lord
HaIes in his Pleas Of the Grown. expresses this
opinion ;-sIt was impossible any matter Of laao
could come tn question, till the matter of fact
sOere settled, stated, and agreed to by the jury and
of such matter Of fact they were the only compe-
tent Judges" H eas aaqa
Sir, could human testimony be stronger than
this, in regard to the judges powers And yet
let me'close upon this point by bringing before
the House the additional, united opinion Of the
Kings Bench, as delivered by c. ]. Vaughan, in
the case of Bushell vs. the King. e Without
(say theyA fact agreed, it is as impossible for
Judge or any other to know the lao, relating to
teoS feet az 70 know an accident that hath TO
subject nsncc, it follows, that the Judge can
nepee direct DhGt the 1aso IS, IN any matter con.
troverts&, wSshou5 frs, knowing the fact and
then it follows, that without his previous know
ledge Of the fact the jury cannot go against his
directions IN tylU, for he eoald not direct"
With this evidence, leave this point and take
up the next query
tWhat will be the powers Of the jurors under
this act | answer briefy-lst. TO judge if
the evidence, prove the fact alleged. ID To de-
termine il the fact SO proved constitutes crime;
and lastly, they are to define of what nature that
crime is, aud to what class it belongs thus
blending together and deciding both the lao and
the fact Thus, if murder be charged in the in
dictment, the Jury determine, first, the fact of
killing; second, the motive for the deed and
lastly, they decide whether it be murder, man
slaughter or jusifahle homicide and no Judge
ever did or ever can oblige the Jury to declare
murder justihable, or gice UeYSd. Sir, these pro.
positions would seem to need no proof but-to
our shame be il said-they are denied, and now
let us hear the testimony of Englands most
learned and able judges and lawyers. Baron
EyTes, in his charge in Col. Gordons case, says :;
81 am bound to declare to you what the law is,
asapplied TO this case, in all the different views
in which it can be considered by you upon the
evidence. OF this lao and Of the facts as you
shall find them, your verdict must be compound
ed" SO also the Annotist lof Gilbert's History
of the Court Of Common Pleas, in speaking Of
the Plea Of Demurrer, which divides the matter Of
fact from matter Of late, says that this is indeed
isaTina in ctvsl law jurisprudence, but it does
not bind an English Jury, for by the Common
Law Of the land, the jury are judges as well Of
the matter Of law as of fact with this difference
only--that the Judge on the bench is to give them
no assistance in determining the matter Of fact.
Ifthey have any doubt amongst themselves relat-
ing TO matter Of law, they may request him TO
explain it to them, which, when he hath DONE
and they are thus become well informed, they and
they only become competent judges of the matter
of lao. And this is the province of the Judge on
the bench-namelY, to sheso, or to teach the law,
but not TO take upon him the trial of the delin-
quent, either IN matter Of fact or in matter Of
law" Chief Justice Holt, and Willis, Dun
combe, in his Trial Per Pals, De Lolme, in his
English Constitution, Tower, in his British BIZ
ography, DR.. Ellis, Bishop of St, David, and
Lord Hale, all admit this doctrine Of the right Of
the juror to judge Of the law.
Thus far Mr. Speaker, we have examined mi
nutelys and, trust, not pnproftably, the origi
nal powers, rights, and duties of jurors, and let
me conclude my remarks upon this subject, by
answering this question, wiz - S ..- t-5-ts
Why we should confide to jurors the right to
judge of the law as well as the fact answer at
once because in that nations history that has had
ajnry trial for eight centuries, jurors have been
the guardians of freedom, and judges have been
the betrayers Of liberty. Sir, what says the re-
cords of England history In the day of AL
fred the Great forty Judges were executed for de-
liyering extra judicial opinions. In the days of
Richard H., Chief Justice Tressalan and five
other Judges and two attorneys were hanged, for
advising the king that he might cancel a statute
made for the safety of his peoples; and in the days
Of Edward l., the Chief Justice of the King S
Bench. the Q, ]. of the G. G. r., and the Baron
Of the Exchequer, were all arraigned and heavily
fined for delivering extra Judicial opinions. So,
when Elizabeth wanted to rob the people of Eng
land, by her Levy of ship money, she found twelve
judges ready TO declare that it was legal and they
were headed by Lord Bacon, Of whom it has been
said that he was .'the greatest and meanest Of
mankind So also when James l. wanted case
offs commendams declared legal. the highest
judicial power in England did his bidding like
supple, ready slaves apd when Charles l, de-
manded Of his people forced loan, in order that
be might dispense with parliaments, the judges
said il was right and legal; and when Hampden,
Of glorious memory, he who loved liberty better
than life, de6ed is kingly power, base, traitor
GUS bench OF judges ayerred that ship money was
legal tax. These were the days of the High
Court Of Commissioners, Court Of Request, and
she Star Chamber days, in which jury trial was
but farce because sycophantic, periured Judges
decided then the law and the facts also, ~ 4
What says Saddler in his Rights Of the King.
d0Hns written in those times. He remarks -
eIt the work of God, not of man, to reform
abuse in all English courts of justice. Hercules p
sayshe, 'sdid never cleanse so great, so foul
stable or stalLl Truly has Hallam said, . til a
in those days courts ofjnstice in eases Of treason
we're but httle better than cayerns OF murder, anC
the general behavior ofthe bench, under the Stu
arts, had covered it with infamy" Again, h,
says, 4 there was good reason to distrust oul
courts of justice, Never We're our tribunals &
disgraced by the brutal manners and iniqutous
Partiality Of the BENCH as in the days of Charles
H." Those were the times when the judges told
james L that be could lawfully exercise the dis.
gensing power, and those were the days when an
English JURY Of the people, in defiance Of the