Worcester daily spy. [volume] (Worcester [Mass.]) 1850-1888, 1857-03-30
RIGHTS or JURoRs.
Speech delivered in the House Of ReP-
Fesensasives, Mnrch 26th, 1881.
BY D Z. PARKER, ESQ.

Z
willing to let pass by without full and decid-
| ed expression of my opposition to the repeal
\ of the jury law Of 1865. Il is with some diff
1 deuce that xpress this opinion, am willing to
admit, but hope to show you the representatives
Of the people, that my objections to the repeal If
the law are based upon the soundest principles OF
equity and law, and in support of my opinions
| propose to inquire:
| FIRsT-IVhat soers the po,0eyS of iaries aohen
! they 1oere firSt established By the people2
In answering this question, will prove to the
| House that the assertions of the member from
| Salem, that jurors ON the days Of Bunnymede 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 ver-
dict, both upoa matters Of iqs0 and Of fact, and
this opinion of Reeves is sustained by the learned
annotist of L. G. B. Gilberts History of the Com
mon Pleas, who tells us that the 'iurata' were
the sole Judges both of the law and the fact. So
that as Bracton, of the very earliest writers
upon English law, remarks, "Though it was
commonly SAID thattruth was the province of Jur-
ors, and judgment that of the Judge, it seems
that judgment belongs to the jurors, inasmuch as
they are to say upon oath whether one man dis
seized another.
Again, he says, "the c,gqG and DQyes 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-
cutoT 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 manif silly Judges,
both Of matters of lGU and matters of fact. L.
Z Baron Gilbert also says-''This common law
doctrine is also specially confined and explained
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 Jury
precisely to say, whether the matter before them
be dtSSei=eTS or not, the jurors must be left to their
otoR free aoittS in speaking the TRUTH" to which
the Chief Baron adds:-"Whether disseizen or no
dlssezen certainly is point of lGl0 and OF which
the Jurors are, by this statute, declared the sole
and only judges" Lyttleton I'm his Tenures
1867 declared "that if jury viii take upon them
the hnoUtedge of the laso, they may" upon which
Lord Coke says-"It is true las Lyttleton saith
that jury may take upon themselves the matter
| of law. but they had better give special verdict
for if they mistake the law they are liable to an
attaint" Here we have the united testimony of
Bracton, Lytteton, and Coke that in their days
| jurors could and did judge of the law and the
| fact. The member from Salem, in pursuing his
| researches into the musty records of the past
cites to US Townsend's case tried by the Court of
! Liveries in the lst and I'd of Philip and Mary,
and he tells us that in this case, the judges de-
clared that jurors were not judges of the law
Sir, why did he not tell us more, and cite also the
cases of Wilton VS.. 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
| III, 23l, 259, 1861 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 u.s. 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 as
not so, the judge shall adjudge according to the
matter of fact andnot necoTding to the conclusions
of the jury" "Fheir (the jury s)sayings does not
bind the party if the tdso be oteraciSe, for they
are not judges to adjudge matters of law, but
/ jurors to md the matter of fact" SO again in
the case of Grendon VS., Bishop of Lincoln, Us
and 10 of Ehz) that Kings Bench says, eff
that if the defendants had taken trainers to
their plea in Bar, they would have brought this
trial of this matter to Jury who are to try mat
ters of fact, and not matters Of lao, that is
here" Here to be sure is a 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 a0lTu5ly say, "tbe laeo IS so, when in
truth Il is not SO in the second case, "ther say
ing does not bind the party, If the law be other
wise" and in the third where the subject
matter is simply matter Of ta'o" 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 laid down by
the Recorder that the jury were judges of the law
(as customs) independent of any Tact being prov
! ed by one or more witnesses.
But Mr. Speaker there is one case more which
escaped the eye Of the member from Salem, and
which occurred in the very year that 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
l554. In that trial, find the first criminal case
in English jurisprudence where the prisoner at
the bar tells the jury that they are the sole Judges
/ oftbe a1gO}e question before them. He demanded
of Bromley, the Chief Justice to read the law OF
treason to the Jury. He refused, and said, 'We
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, "Now 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. t'the trial of oui
Sobole controUerSy-the trial of my innocency-
the trial of my life and goods, and the destruction
| of my posteriiy for ever, doth rest i'll your good
judgment" Nor did that jury betray the trust
he put in them. They returned averdict of mot
| guilty." and the Judges who said that they were
upon the bench to "declare law and would "give
law to the jury sent them to prison for their
verdict, and fined them E220 piece, because they
dared to judge Of the law and the facts
In the period that followed this case, no doubt
the judges, in certain cases, did decide like Brom.
ley, or else they equivocated 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 oil
her reign still it is undeniabe that in Elizabeths
time the trial by jury was a 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, when we consid
er what means the government possessed of Sc
curing it. The sheriff returned panel either
according to express direction-of which we hav.
proofs--or from what he judged himself of tbs
Crown S intention and interest. If a verdict hat
gone against the prosecution in matter OF mo
meut, the jurors must have laid their account
without appearing before the Star Chamber luckl
if they should escape on humble retraction, witt
sharp words, instead of enormous fines and in
definite imprisonment. The control of this arbi
trary tribunal bound down and rendered impoten
! all the minor jurisdictions. That primeval insti
1 tutions-those inquests of twelve true men, tn,
unadulterated voice of the people, responsible
alone to God and their consclences-which SHOULD
have been heard in the sanctuaries Of justice. al
fountains sprnging fresh from the lap of the earth
became like waters constrained in their course b,
art-stagnant and impure.'
This sad picture Of England's court Of justice
was still true to life during the reigns of james
l. and Charles l., in which time England wa,
cursed with tyrannical monarchs corrupt anC
venal judges, and by juries soho tgeye poaoerless
because they were in the hands of judges whC
were but the willing tools Of tyrant kings. Blu
brighter and happier days were in store for thu
land whose Trial by Jury had been the RICH
of the subject for six hundred years. Charles /
was dethroned and beheaded, and Cromwell, ono
the sturdy republican, became the protector of I
great and powerful commonwealth, and in hi