Worcester daily spy. [volume] (Worcester [Mass.]) 1850-1888, 1858-12-04


The fifth volume of Gray's Massachusetts, Re-
ports contains decision of the Supreme Court,
by which it is, in effect, determined, that the
right OF the jury in all criminal cases to render
a general verdict comprehending both the law and
the fact-s right co eval with English history and
long anterior to the establishment Of Republican
institutions in this country, and confirmed by
them-shall have no longer force or effect in this
Commonwealth And this has been done, in the
face Of the repeatedly declared will Of the peo-
pie, as expressed by large majority in several
recent Legislatures, in their refusal TO repeal
that wise statute chapter 1872 of the laws oflS55.
That infringement Of popular right, which could
not be attained by operating upon the represen-
tatves of the people, by inducing them to repeal
a repeatedly confirmed legislative enactment, has
thus, it seems, been successfully accomplished by
appeal to the Supreme Judicial Court, and the
judgment Of the court on the matter is one of the
strongest arguments which can beladduced, in fa-
vor of change in the constitution, making the
judges elective by the people.
The following is the opening statement Of the
points of the case, decided Aug. q, 1857, at Bos-
ton. which has elected from the Supreme Bench
this daring usulpatoD Of the rights of the peo-
Pile, With brief statement of the positions of the
several justices, thereon, from which it will
be seen tina, Judge Thomas stands solitary and
alone in fall affirmation of the sacred right in
question on all the points raised and that
Judge Dewey concided with Judge Thomas on
three Of the four points, but not including the
full right asserted
m III -
Commonwealth before the St. Of 1855, C 49, the
jury, in criminal trials, had no rigntiul power to
determine the questions of law involved in the is
sue against the instructions of the court. Thorn
as j., dissenting
Since the St. OF 1856 which declares that 'in
all trials for criminal off, nees it shall be the du-
ty of the jury to try, according to established
forms and principles OF law, all cases which shall
be committed to them, and, after having received
the instructions of the court, to decide at their
discretion, by general verdict, both the fact and
the law involved in the issue, or to return a spe-
cial verdict at their election the jury have no
rightful power to determine questions of the
court Dewey and Thomas, J. j., dissenting
Whether the st. OF 1866, C. l52, purports to al
low TO the Jury, in criminal trials, the rightful
power to determine, against the instructions of
the court questions of law involved in the issue,
qtaere BY Dewey. Bigelow, md Thomas, ] J.,
that it does. BY Shaw @. j., Metcal, and Mer-
rick, J. +, that it does not.
the Legislature cannot, consistently with the
constitution of the Commonwealth, confer on tina
jury, in criminal trials, the rightfu power to de-
termine questions of law involved in the issue,
against the instructions of the court; even by
statute which also progides that the jury shall
try the cases according to established forms and
principles of law, and that the court shall super
intend the course of the trials. decide npon the
admission of evidence, and upon all questions of
law raised during the trials, and upon collateral
and incidental proceedings, and charge the jury,
and allow bills of exceptions and may grant
trial in of conviction. By Shaw, c.
J., Metcaf and Merrick, C. j. Contra, Dewey
and Thomas, J J."
Judge Thomas, in his able opinion, which &C.
eupes fifty pages OF Grays Reports, sums up, in
conclusion. its result. as follows:
That by the common lew, as used and practiced
on in the Colony, Province, and Commonwealth,
the jury, in criminal causes, had. with the limita-
tons hereafter expressed the rightful power TO
decide by general verdict, all questions Of Law
and fact involved in the general issue that, in
deciding, their Office is judicial, and they are
bound to adhsre to the established principles of
law.
That the nstruc tons of theCourt are the usual
evidence of what are the established principles Of
law, butthat the jury may far depart from
these instructions as to acquit the prisoner, if
they are satisfied either that there is no such law
as that which the defendant is charged with VIC.
lating, or that the facts proved do not show such
violation
That under the settled usage and practice il
this Common wealth, the accused is always emit
tied to the benefit of the instructions of thu
Court, in matter of law, favorable to his cause
and that the jury cannot against such instruc
tons, convict him.
That the statute of 1855, chapter l52, but
declares and afirms the common law as thereto
fore and until recent period, used and "prac
ticed on" in the Commonwealth;
That If the statute Of 1855 has, in favor OF the
liberty Of the subject enlarged the power of tht
jury, in criminal cases, it conflicts with no pro
Vision Of the Declaration of Rights OF Frame o.
Government;
That IN either view, the statute is a censtitu-
tional and valid act.
1t is greatly to be regretted that jurist
such ability and soundness of views as Judge
Thomas should leave the bench at this time W.
trust a successor, worthy to sustain his reputa
ton, may be selected, that it may be said at eas
ono of the six Justices Of the Supreme Cour
holds the right doctrine on this important ques
ton, so interviewer with the dearest rights ant
interests of the people.