Worcester daily spy. [volume] (Worcester [Mass.]) 1850-1888, 1857-03-31
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regal power Of Cromwell, he told the iurv thai
they were the keepers Of the liberties Of England
and that they we're judges of the law as well as Of
the fact" ftF 9i IL
That jury did Judge as LillburDe told them. and
IN defiance Of the instructions Of CromwelPs
| Judges, they declared him not guilty. and
| when summoned before the Protectors Coun-
ell, to explain the reason Of their verdict,
their noble answer was .swe Judged of the
| law as well as the fact" From that day. the
brightest in England's judicial history, that lust
| prerogatlve OF the jury has been constantly as
seited' and ask the attention of the House to
some OF the marked cases. where the assertion
of the right has been the means Of nreserging
unlmpaired, the rights and liberties of England.
Let US first take the case of the iury who were
| imprisoned for acquitting William Penn and
Mead; IN the End year of Charles II, 1870 In
regard to William Penn, there is no need Of. NV
| telling this House who he was, for noble Com
| momwealth in this Union tells the story of his
probity, his honor and his fame; so suffice it to
say that Penn and Mead were arrested for tu-
| multuous assembly," or, in plain English for
| preaching to their brother Quakers, and on their
| trial at the sold Bailey" the Jury declared
| them "not guilty" The Crown Judge, the paid
! legal hireling Of an infamous king, ordered the
Jury 70 De imprisoned, which being done, Bush
ell applied for habeas corpus, and the case
was argued before the Kings Bench, Chief jus
tlce Vaughan delivering the opiEion the Court.
The return made upon this writ was, that said
Bushell was imprisoned
| lst For finding verdict against manifold
e0.aeece' the judges thus claiming, even at that
late day, the right to be sole judges of the fact
and eeidence, but this point was oyer-ruled unani
mously by the Court, but the second reason came
nome TO the question we now have before US for
the return says -
/ "That the jury did acquit those indicted
against the direction of the Court IN matter of
laa0 openly given and declared to them in Court
| Here we have the whole question brought Direct
| ~ before the highest Court in England, and /
ask this House to weigh well the deliberate opin.
ions OF mat court upon this right Of ttej jury as
I delivered by the Chief Justice. He says:--
lst, The words, " That the Jury did aeduit,
| against the direction of the Court in matter of
law" literally taken and de plano are insignif-
cant and not intelligible for issue can be join
| ca OF matter IN law, nc jury can be charged with
the trial of matter in law harely,no evidence ever
was or can be given to jury of what is law or not
nor no such oath can be givento or taken BY iury
totry matters inlaw nor attaint can lie forsueh
| false oath' and they then add: t'If the meaning
| OF these Words finding against the direction of
the Court IN matters of tatc' be- that if the Judge
| having heard the evidence given in court, flor he
knows no other) shall tell the Jury upon this evil
dence, The law is for the plaintiff or for the de-
/ PENDANT, and you are under the pain OF fine and
imprisonment to find accordingly then the Jury
/ go out to do so. Every man sees that the ury is
| but troublesome delay great charge, and of no
use ~ deternlsng right or acro1g, aud therefore
/ the trials by them may be better abolished than
/ cuutHheu winch were a strange new-fOund con-
| clusion after trial so celebrated for many hun
dred years. For if thejudge from the evidence,
shall, by his own judgment, first resolve upon any
trial what the fact is, and so knowing the fact
shaH then resotpe t0hat the lao is, and under the
jury penalty to find accordingly what either me-
cessary OF convenient can be fancied OF iuries
or to continue trial by them at all /"
puch was the opinion Of the Kings Bench in
that case, which firmly established the right Of
Jurors and led the way to the noble, fearless
| iurvi in fhat
| trial OF the seven bishops in 1858, With the de-
tails OF that most marked event in English histo-
! ry,,eyery member upon this floor is conversant,
and snail only allude to it, to say, that in that
1 case Chief Justice Wright told the jury that the
| bishops were guilty Of libel, and they must so
| ind: Alleybone, another justice, said the same
j Holloway told the jury that they we're to Judge
whether It was libel or no and they did Judge,
ana y dehanee Of tyrant king andcorrupt Judge,
| they declared the bishops not guilty. ".' 80
| Let us now take the case Of Owen tried in 1875.
| for libel upon Parliament whom he denounced
gnsparingly for imprisoning Alex. Murray. In
that trial the Crown Solicitor told the jury But
as you are upon your oaths you Judge of thefacts
we have laid before you now in Court and only
them The Judge also told them, Owen was
guilty, and they ought SO to bring him in and,
after two hours absence, the jury returned with
Veralct OF IN OF guilty, upon which, 1.-THE Judge
attempted to question them, but their only
answer was, !" that is our verdict my Lord, and
we abide it. A noble answer and Howell
in his State Trials, remarking upon it SAYS,
','Ihey found Owen not guilty on the whole Of
the case taking that which included guilt or not,
and Judged as tofactS, lar, and Justice of the ,
whole. We now coma TO the case Of the Dean
of st. Asaph, tried in 1888 for libel on the gov
eminent. During that trial, Sir John Erskine
asked the judge upon the bench, f'Is there any
Judge now in England who will say, that when
a jury are sworn to try a cause upon the
general issue, that the jttd9aae9it of The Iuso +
as nell as the fact, does kotFe 10Th them and the
judge did not deny but that such was the received
opinion, and Bancroft the Grown SoLIoIroR,
admitted the right of the jury thus to decide upon
the law, as well as the fact, and added, s,There3
7 IS no law in this country that can prevent Jury
from finding general verdict admit rejoice
init admire and reverence the prinaiple as the
palladium of the constitution, . and he then cites
approVingly the case Of the Seven Bsops acquitted
BY the jury IN defiance of the instructions OF the
Judge This was the last great case for political IL
bel tried upon British soil for soon after alibelwas3
was enacted (l793) establishing the rights Of
Jurors to give general verdict Of "Guilty, ? or
''Not Guilty. upon the whole matter, but to,
issue on the Indictment or information, law,
which Lord Mansfield, Kenyon, Thurlow, and
Chief Justice Fuller said 'swould produce infinite
disorder and confdsion;" but so far from that
being the case, 10 has proved blessing to Eng
land from that to this, because it secured to Eng
lish patriots the right Of free speech - and It
will ever remain in the future, as noble and en-
during monument of the wisdom Of a Fox, and
shS anu eiOqueuce OF an EEbkluet Let
u.s. in passing, now notice the ease of Peter ZEN
ger, tried for libel in New York, in l745, because
he told the people of that state, through his
paper, that British tyranny was undermining
their liberties. Chief Justice De Lancy was upon
the bench, and Hamilton was counsel for Zenger,
who, at once admitted that the words alleged to
be libel were published by his client, and he
told the jury they were to Judge whether they
we're h0ellous or not Justice DELANEY said they
were libels and they must convicts but the Jury
returned verdict Of 'sNot G0ilty,H contrary to
the Instructions of the Court. b. fi's n38i fst's
so much Tor precedent; but it is asked by the
member from Salem, why, if jurors in former
times were judges of law in both civil and
criminal cases, we do not give them the same
power, instead Of restricting them to criminal
cases only To which, answer, that in the
early stages of jury trial, lands in England were
held first of the king and then If the lords,
which lands esoheated 10 the king in all cases Of
treason, felony, suicide, &C., and the only power
that stood between him, or the lord, and the
people, was the jury who protected the people
from robbery, because, In those times, parliament
was too feeble to do &c. With the abolition Of
Ieudal privileges the necessity for jurors judging
Of the laws In civil cases was entirely abrogated.
Again he asks Why if jurors possess by thecon-
nso'S ta'o this rghtwe contend for, need we de-
clare It BY statutory enactment ~ Sirupon this
point history teaches us lessons When Jeifnes
wentthe round of his sBloodys Assizs. !, and his
victim was Alice LILLE, a piousa quaker LADY, too
deaf to hear, too timid 10 speak, whowas accnsed
OF treason because she sheltered IN her house two
fugitive soldiers from Monmouth army, thrice
the Jury refused to bring herin guilty, and thrice
Jetlrles told them the law was that she was
guilty. and at last intnaidata tad Inv m an yvhoaa