New-York daily tribune., 1858-11-26
e,a in I. no purpcse whatever; fer this nigh. was
-, .". u,~,ti tioned in THE Common D~e4sth.'
Rather Keen criticism, this upon the ground taken
| Shnu M,t-.lf and Mcrrck

eqJtc says Judge Thomas, fes's on 10 80 Id iJahha
ton The power has existed in the jury from it, hr-t
--ttotian. II has been but sparingly u.ed, Ia the
wisely and ju,tly used. Aud III The night oi ms
fnJ my bc leiIy sand that ~ the cases az "' con
si''','e treason, sedi"n, ana norY ~ Mh'cIl .no
=, departed from the Instructions OF the Judg-, the
erncple involved ip the dissent Of tue lry has finally
become the rule Of the court.
After some further discussion Of conditions and
limitations of the power OF the Jury, Judge
Thomas proceeds to discuss the constitutional
questions. starting with the following sensible
marks:
81 will not say thet statute may no be void be-
cause il in conct with hat may be said 10 be the
ger eral sprii scope and purpose ot the Con titn;l
must however, WITH grcs, d-ier-oce, say lha' this
ir an extremely dangerous and delicate ground on
which ,o set asje an Act of the Legi-sture III which
the judicial parment tnds hssIi vn The very verge
Of political d.cu.-on. The theories which lnen may
f,iD tie opinions tbry entertain, as to the general
spirit Of the Constitution the general purpose i
was intended 10 effect secarc, depend very mnch
upon The siancpot from which it Is viewed One may
believe that lis great purpose is to give st1bily ~
Tie Government: another that IL great purpose - 10
give secpn,y the freedom Of the subject by sys-
tenn d checks and ba'Ances which shall prevent one
department from sb-o biDg the powers Of tie othere
and then the rights of the ctzen. no VI NE
of eorstruing our Constitution can be more unsafe
than read IFS meaDns in the views or opinions os
any individual however eminent, who assIsted in
ffenrng II
Constitution which it contrasenes aud defeats. The
power expressly gwen by the Legislature 10 pass
all needtul laws not rePugDant t the Constitution
ANY repuguancy in this statute must he shown.
The Judge then examines each section Of the Dec
araton of Rights relied upon by Judge Shaw, and
comes to an opposite conclusion as to the repug-
nancy Of the statute to them. He then gives his
iorical sketch of the trial by jury, and an tx
animation Of its merits as system. There may
be defects in IT, but v hat recOncIles rejecting men
to them is 1.-The entire freedom, impartiality and
" independence OF tic tribunal"
"O1 the ouesiion of imyatiaity there can be no
preference for the Judge the Jury. To say moth
ing Of the nseDsibie effect, upon the best OF
mr6s, which the 6tmosphsre at criminal court viii
sometimes produce difficulty If giving fun force TO
toe presumption of law which holds man to be iouo-
cent iii be lie proved 10 be guilty, tis difference Can
lot fail TO be obseryedthe Judge can nehei be eI-
amiIed nor challenged
A little further OF Judge Thomas, in comment
ing upon the Both article of the Bill of Rights
which provides for distribution of the powers of
government and prohibits the interference of the
legislative with the Judicial department, and so
on intimates that there is some danger that the
judiciary may disturb this distribution, :" either
"by itself exercising the Legislative power, or by
restraining that exercise, even when within the
I" limits of the Constitution. And then Che adds)
"as surely as when the Legislature assume judi
"dical functions, the balance, the equilibrium Of
.pow ers is disturbed" A pregnant suggestion
for the majority and one which will be apt to have
some Influence in the Legislature, should any fur
ther discussion OF the question occur there.
We next have citations from John Adams, The
opbilus Parsons, Samuel Dexter, john Jay
Judges Chase, Wilson, Duvall Tamadge Of
the United States Courts, Richardson of New
Hampshire, Prcniiss of Vermont, and Kent of
NeW-York, all very plainly sustaining the night to
Judge of the law: and following these we have
very important and conclusive statement as tc how
the Jaw has been understood IN this Common
wealth. And fist the Judge cites the practices IN
the Courts and the following very conclusive fact,
which Go not remember 10 have seen cited be-
fore, comes FIRST. Says Judge Thomas:
Until quite n period, jury trials il import
ut criminal ceuses mad before the full bench OF
tLs court in tuose trials ii tot only the right but
5e practice OF the Jud to charge the nry scrf1ffn
I'D IT was pot an pnfreqnent occurrence that tue
judges enterteiDed diff, rent views OF the law, and
etsieo and enforced tnese views to- the jury IL Is
Obvious that in these cases the jury could not have
aien the law implicitly from the court, but that such
q practice c0nsste0t only with the right IN the
jury TO consider and decide the law.
Iie practice sof allO sing COUNSEL to argue the
Law 10 the Jury, preserved esen by the decision IN
Port.rs case, unG the different forms CT the oath
taken by the juror IN civil and criminal cases are
next alluded TO. Following this is historical
review, showing that for 200 years the law WAS
well settled The statute on 1907 wac almost
IDENTICAL in terms With that of lS:'5. When the
statutes were revised in 1886, this was dropped
out Judge Thomas charitably thinks because 1t
recognized familiar rule. and one which needed
no legislation to affirm it, 1t is tore probable that
this was tie first step Ia that car er OF eDcroach
mept by the Court upon the right Of the Jury and
the Legislature which was compl, ,ted in lc45, and
is persisted in in 1855.
The law held by the Supreme Co urt up 70 ISIS,
was all the same way. Judge 1hOmas quotes
Judge Parker in the trial of Hel Wy Philips IN
Isl7; Judges Parker Jackson and ! 'utnam, III the
'amous case of Bowen; Judge Park Y again In
libel case in lag: Judge Morton in tn"ther hbei
case the year; Judge Putnam in Libel case
in 1893 and in 1884, CbieiJusiice Pal rons, III the
case Of Coffin Vs. Coffin III loOS; Judg, Hide III
libel case in 1928 and finally, the law in the Knapp
case in 1880 Some of these decisions uld rulings
are officially reported and some not, bu they are
all ono way and after reading them on { Is aston
isbed that the Court should have had the 'sadaclfy
to reverse the ruling as they did in the OF Por-
ter in isi5. Judge Thomas says that the = is tAe
most full ard striking concurrence betty N'en tle
law of less aod the law laid down in KNAPP case.
The Court there said that the jury not Oh .s have
the po,rrr but it is their duy TO decide all r9lnN
of law involved in the general question OF al OF
innocence. -
TIE question what was the common law o I'm
gland at the time of the separation, Judge Tn onas
does not regard as of great practical moment he
law we as Commonwealth ADOPTED was the ein-
mon law of England, as modified by our own us xss
and practice But not to leave any part OF The
question untouched, Judge Thomas gees at len ,th
into tie English historical question: coming to he
conclusion that the right OF the jury 10 decide thss
whole issue of law and fact by a general verdict
was well settled in Englsnd AT the Revolution OF
I6se. "There was l,tlc to disturb it, unless we
-. give judicial force To such cases rs JhrscknIOr-
"ion's, SiIburnc's. Pam s. MeGd's and Atgernon
"Syduus--cases which are not only the reProach
"of jurisprudence, but of human nature itself.
"Yet these decisions, il is painful 10 reflect, the