New-York daily tribune., 1858-11-26
FROM BOSTON.
TRIAL BY JURY IN MASSACHUSETTS.

r,sbts of the Jures, as il existed Tor o0'P
hspdred years, or up to the decision 10 "a" .''''
Commonwealth set. Porter. Commendaes pro
sr.. has been mad. 10 the work OF restoration, lh
Al. ,h,r,,e, ,es,s sh hich have elapsed since that
a.n;.;o, made ard hazard little in saying
That Il N not take thirteen years more to resto-e
the law. and place on an 'nmutaoie iounoation 'he
,;,h, of the Jury 10 decide the law well as the
fact 10 criminal cases.
tn the Constitutional Convention OF -53 belongs
The credit of making the FIRST attemp 70 re7erse the
decision Of the Court 10 Porter's The amenf-
ment which they proposed 10 Introduce info the
Constitution wss voted down by majority some
what larger than that which was given ag1lnst the
otfer progis,ors OF the new instrument. 10 1855,
however the present Jury law was passed, and
tbousb strenuous efforts We're made III lsoO, 1857,
and 1858 to repeal il, they failed each year, and
there CHI, b., no doubt whatever that the people are
disposed to stand by it, The law is in these terms
IN an trials for CRIMINAL oflapses, 1t shall be tue
dpt, of The jury to try riding 10 esta aosed forms
anc principles Of law, all causes which sha b. con-
mtad 10 them ard aft, having received the insruc-
tions of the Cont to decide at their discretion, by
s,reral verdict both the fact and the law involved 10
the i.tue iud specis verdict, Al tbeir eection
hut IL ,hall be the duty of the Court to superntend
the uf the trials tO decide upon the admission
snd rejection of deDce aod upon all questions OF law
sa-so during the rias and upon collateral aud incl
dental proceedings aud also 10 charge the jury ana 10
allow bills Of exception; aud the COurt may gfAl'
trfal In cases CT convlctlob.
At various times siace 1855 the question has
been raised in the Court of Common Pleas, IN the
trial of liguor cases. to the cOnstutiOnalty and
construction of this law. Judge Briggs has held
the hw TO be valid. Judge Sangcr has held that
by it the Jury had right to judge OF the meaning
Oi law but not Of it's cOnsituti0uality. This dis
tinction is rejected by all the Judges Of the Su-
pr.me Court-both those who condemn and those
WHO sustain the law. In August, le57, the Court
decided q Norfolk County case, and Their decision,
with the dissenting opinions, has just appeared IN
the 5th volume of Gray's reports. The case is
called Commonwealth VS.. Antilles. 1t occupies
one hundred and twenty pages, fifty of which are
taken by the Chief Justice, fifty -four by Judge
1hOlnas and The remainder BY Judge Dewey, with
tie exception of half page by Judge Bieelow.
Judge Sbsw's decision is cOncurred IN by Judges
Netcalf and Merrick and SO far as the unc0nsitu-
fionality of the act goes, by Judge Bigeow, who,
however, s not able TO agree that the Legislature
did not meen to change the law in POrter's
case, or that they did not have enough to put
their intention into language which should answer
the purpose. Judge Shaw says that the statute is
decaIotOry, ard makes no substantial change IN the
law, which is, that it is the province Of the Court
to aduiicate gDup the law, and of the Jury to sd-
iudicste upon the facts. lie argues that this is
made plain by tie fact that in where the facts
are admitted in motions to quash indictment
and 80 o,J the Judges decide the law and there IL
no controversy as to tbeir power to do so This
rule is net controlled by the urdoubted fact that
the Jury have the power Sf declaring the
81 law as veil us tie fact, by general Terdict"
The verdict is criminal case must be guilty or not
guilty. Says the Cbief-Justice:
"1be Judge drec's the jury IN all matters o. law at
each tiep the trial questODs arise and ultimately
~ appcsoD TO tie facts of the Gaze, If proved by
the evid, submitted TO them. AS the Judge can
not fors see cw the uy will fad the facts Until tcey
have r.tued 30 consider of Their verdict these droc-
tons are of necessity hvpohetscal iftry find certain
facts proved he directs them that the law afiSe to
thea a certain cbaracte-, and so upon eech material
point af law AID then they hud 80, the accused is
guilty; if otherwise, not guilty; And that they are To
return their verdict accordingly.
Thus the general verdict is full answer to TIE
compound questions of law and fact. at any rate,
the Jury cannet be irquired Of and it they |
exceed the luits of their powe- by disregard !
ing the ilstructoos of the Court, that fact IN not
known From the nature of the proceeding, |
there is no power BY which any verdict can be |
reversed If in favor of the accused. There IS
DO mode of separating the result, on the record,
o. to the law and the fact. The Jury have night |
IN sdudicate the facs, and they are presumed to
obey the Court on the law Tie verdict ls there |
fore conclusive and unquestionable Passing upon |
the law means merely "embraciDg II IN their yer.
"dict aud thus bringing it upon the record witk |
"tbeir finding Of the facts
Judge Thomas makes rather an awkward hole In |
this reasoning when, after quoting the language OF
the statute that it ia the duty Of the Jury to decide
both the tact and the law, he takes n0tlce OF the
fact that the word {" decide . is used to de-
6ne the duty OF the Court as TO the rejection OF
evidence, and then says:
al can see no good reason for ssying hat in the
psme clause in the statute, and upon the same SUBJECT
matter the Legislature have used the word TO express
wholly different idens; that, when used as to the
Court il to deliberate, to weigh the reasons Tor
ard az aiIst and TO determine; and when used as 10
tte jury it means TO follow implicitly the Judgment
and discretion OF another.
Judge Shaw foriGes his position by the old doc
trine of attaint. He holds that the reason why
Juror was punishable for wrong verdict, uncer
that practice. was because he had exceeded his au-
thority in judging of the law. He also relies upon
Chiei-Justice Vaughan, in Bushels case; Lord
RAYMOND, in the case Of Rex VS.. Olney, and Lord
Uardwick in the King Poole. These cases
occurred before the change in the law of libel by
Mr. Fox's bill. The Chief Justice proceeds to
discuss this last matter, coming to the conclusion
that it sustsins his side of the controversy, ana
finishes this branch of the subject by the conclusion
that up 10 the time of the separation OF this coun-
ty from England, the law IN England was clearly
OH the side he maintains
lie then discusses the effect OF the statute Oh
1855, and comes TO this conclusion:
"If then, the Court, a jury trial. are asked to
insiruot the jury that they have legitimate right AMI
power, under this statute, to eojudcafe the law
apan the ruling OF the Court, 10 my judgment the
answer should be That they have not.
elf they be asked 10 icstruct the jury that they
have a tight 10 return general verdict, aud that by
dorg go their verdict will be conclusive, both on the
aw and the fact, # be IN favor OF the defendant, IN
INV Judgment the answer ought to be that they have
II however. says the Chief Justice, the oppo
..e construction is contended for, aud the Legi.la
e. Ala intend In change the Law, then IL becomes