Worcester daily spy. [volume] (Worcester [Mass.]) 1850-1888, 1857-02-19
GBs 9allp spp.
FEBRUARY 10. 1857.
Du,le. and Right. Of Jurors.

rors." The bill 10 that effect, reported by the
Committee on the Judiciary, is now under dis
sussion, in that body, with, we fear, some chance
ofpassaEe, though we hope and trust the House.
as did that Of last year. will refuse to concur IN 50
unwise aproposition. 1t certainly should receive
the reprobation Of every friend of progress and
reform.
The riobt Of the Jury to judge of the law as well
"A the fact. in all criminal prosecutions, is OF as
Recognized, long standing validity as the great
r;oht of iury trial itself The few instances in the
history of English aud american Jurisprudence
in which this right has ever been questioned Of
withheld BY the Court, are only exceptions to the
general rule and in these few instances the ruling
of the Court has been set aside by Legislative stat
ute. fully guaranteeing the great popular right
in question.
The frst case on record of any attempt to
abridge the right of trial by jury, was in 1885,
when Alsernon Sidney was the victim OF the in
famous Judge Jefffeys, who said toll the jury who
were forced to convict under his tyrannical rul-
ing, the point of law you are to take from the
Court, gentlemen, thus furnishing poor pre-
cedent OF a very poor principle, which appears to
be defended by some even at this day. But, to
the credit Of our ancestors nearly two centuries
ago, tina. principle never was law even then, for.
Parliament immediately set aside the verdict
against Sidney, solely on the ground of the
misdrection of the Court to the jury"
The next attempt to abrdge the right of jury
trial, was in the case of the Dean of Asaph, in
1884, in whi.h the judge, Lord Mansfield, against
the disclaimer Of his associate on the bench. de.
~. fha
had the right to judge of the law as we'll as the
fact in criminal cases, and remanded them back
again to their rooms the third time, compelling
them to render verdict against their own judg-
ment. But that verdict, too, was repudiated by
declaratory act of Parliament, setting it aside,
thus establishing the law on a permanent basis
where it has ever since remained, undisturbed,
constituting the juries Judges of the law
AZ well as the facts in all criminal prosecutions
A similar contest to that in England, arose in
this country in 1903, IN New York, in the case of
Crosswe under the famous !" alien and sedi-
tion " laws Of Congress, in which the judge
charged the jury according to Jefreys' and
MansReld's construction Of the laws, (and as de-
Tended, we lament to say, by some even at this
day, in old Massachusetts, Crosswell con-
bench and argued the succeeding year, by Alex
ander Hamilton and others. The argument of
Gen. Hamilton on the occasion, was one of the
ablest ever delivered, and had such weight, from
the soundness of its positions, in favor of the
'.right well as power Of juries to judge of the
Law, against the direction Of the court" that the
next year the Legislature Of that State settled
the whole matter, by passing act giving to
juries the right to determine both the law and
the fact. And the Supreme Court of the United
States, in 1884, decided, through Chief Justice
Jay, that g the jury have the right to take upon
themselves to Judge of both law and fact, and to.
determine the law as we'll as the fact in contro-
versy."
And this is now the settled law of the country
few lights Of the legal profession in Massachu-
setts, who wish to all history and all pre-
eedent in the matter, to the contrary, notwiih-
standing.
In this State, the decisions of the Supreme
Court, until 1876 (when strange infatuation got
possession Of that bench), have uniformly been of
the same tenor. as repeatedly declared by Chief
Justices Parsons, Parker, and Shaw, and Associ-
ate Justices Putnam, Wilde. and Morton. For
instance, Chief Justice Shaw, IN giving the opin-
ion of the Court, in the case of Commonwealth
vs. Kneeland, in 1888, said ;--'' In all criminal
cases, the jury are to pass upon the whole matter
Of law and fact, and to render verdict of gnty
or not guilty. upon the s0hole matter including
al questions Of lao and of fact"
And this is exactly what the law of 1855, for
the repeal nf which an effort is now being made,
was intended to affirm. 1t is similar in its pro
visions to the Law of 1908, which remained mn.
molested on the statute book till 1885, when.
either by accident OF on the superstition that no
opposition would ever be manifested to so wise
and established construction of the law, it was
omitted from tSe Revised Statutes. But it seems
the Supreme Court have in few instances taken
advantage Of that omission, and since given
decisions-the FIRST one in 1876, in liquor
ease-seriOusly conficting,not only with all their
previous decisions, but with all the established
Judicial decisions elsewhere. The necessity of
having such law on the statute book Tor in
the constitution itsel), is shown in this tendency
2 Of the Court to eHtrench upon the rights of the
Jury. We trust the Legislature of 1857 will suf-
fer it to remain there, beacon light, to guard
that sacred popular right from extraction,
through any such tendency hereafter.
To those who may be led to form an incorrect
idea Of the matter by any Of the speeious argu-
mentation now adduced, that ''the whole power
Of deciding questions Of law should be vested in
the Judge" we commend the following extract
from the able speech of Hon. Charles Allen
in the late Constitutional Convention Of this
State, in 1853. in favor of constitutional
provision identical in sentiment and language
with the law Of 1855 on ',The Duties and Rights
Of Jurors
Sir, IL seems to me that the paDgs and fears
which haunt my friends, at the very idea that
jury should be allowed to pass upon the law in
criminal cases, after all the opportunity they have
had, derived from the instruction Of learned
Court, results from unreasonable dstrust of
that institution. The fear is that that which
our fathers regarded the palladium Of our lib
cities, should prove to be their destruction and
that there 10 safety for freedom to be found hut
upon the bench Now, sir, have no such fear
Neither the experience Of the past, nor nv own
rejection, have hlled me with any such appre
tensions In the course OF somewhat long nro-
tessionAl career, from year to year have learned
20 respect more and more the deci sions NJ ;pr;es
have learned to rest there az the last resort ad
defence Of my liberties. my rights, and INV nrivi.
3 leges. The Legislature may pass unreasopahi.
and unconstitutional laws, and conServsti.e
courts may sustain them, but will trust 10 III
Jury, with the Constitution and the Bill of Rivh,s
IN their bonds, TO protect me against any uncon.
ntitntonal or unreasonable dangers. Sir, in ar.
binary cases. The jusies will always take the Law
from the Court, which relieves them from great
responsible y--a responsibility from which they
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