Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1867-12-07

j was &IkEE&EL4E AENEAEEa AN + ALlAaAAElE
and the Law, IS laid down on that trial
was denied and r~eprObsted, and the VIC
lence Of the Judge and the severity Of tn
Jury held up 10 the reprOach and detes
tation of pOsterity. The case of the seveI
bishops is a precedent Ofa more ~cOns0lini
kind. 1t was an auspiciOus and memor
able instance Of the exercise Of the RICH
Of the jury TO determine both the law anC
the fact. l shall have occasion to MOTTO
this case hereafter, and shall only Observ,
for the present, that the counsel on thu
trial went at large into she consideration
Of the law, the intent, aud the fact aud
although the judges differed In opinion
as 10 what constituted libel, they all gave
their opinions in the style Of advice, no
I ofdirection, and expressly referred tbs
fsw and the fact to the Jury. Dir. J
| Holloway, in particular, Observed, thsl
whether libel OF not, depended upon the
W-intelt, and concluded by telling the
jury, it wGs left to them to determine
"The weight Of the decisions, thus far,
was clearly in favor Of the right Of the
Jury to decide generally upon the Law
and the fsct. But since the time oil
| Lord Holt the question before US hR:
| been an unsettled and litigiOus one in
Westminster Hail. Lord Mansfield was
OF opinion that the formal direction OF
every Judge since the revolution had
been Agreeable to that given in the case
1 Of The Dean Of St. Asaph but the
! earliest case he mentions is that OF
/ Franklin before Lord Raymond, in 1871
and that has been considered as the
/ formal introduction of the doctrine now
under review. The charge Of Sir John
! Holt in Tuchin's case appears TO me TO
be decidedly to tho contrary and in an
! other case before Holt the Attorney
| General admitted thst the jury were the
J Judges quo amino the libel was made.
irhe new doctrine, as laid down in the
present Gaze, may therefore be referred
I 10 the case OF Franklin; but the Oneby's
/ csse, who was tried a few years before
I for murder, Lord Raymond and the
I Court Of Kings Bench advanced a gen.
| era doctrine which may, perhaps, be
supposed to curtsil the powers Of q jury
as much as the decision Of the case before
Us. He said that all the judges agreed
in the proposition that the court were
the Judges OF the malice, and not the
inry; that upon the trial the judge d.
reefs the Jury as to the law arising upon
the facts, and the jury may, If they think
proper, give general verdict or II they
And 8 special verdict, the court Is 10 form
their Judgment from the facts formed,
ynsther there vas malice or not; be.
cause. 10 special verdiets, the jury never
find, IN express terms, the malice but Is
let 10 be drawn Uy the COURT
He then reviews q series Of cases down
to page 374:
The constant struggle Of counsel and
OF tbs Jury against the rule so emphsti-
oally lsid down by Lord Raymond, the
disagreement among the judges and the
dangerous tendency OF the doctrine, as
il affected two very conspicuous and
proud monuments OF English liberty
trial By Jury, and the freedom Of the
press-at length ATTRACTED and rOuse6tbe
attention OF the nation. The question
was brought before the Parliament, and
debated IN two successive sessions. There
was combined in the discussions Of this
dry Jaw question an sssemblage Of tai
ent, Of constitutional knowledge, Of prac-
teal wisdom, and Of professional eTUdi-
ton rarely, II ever, before surpassed. II
underwent = patient investigation and
severe scrutiny upon principle and pre-
cedent, and 3 bill d6otG--utOTy OF the
right of the jury TO give 8 general YER
diet upon the whole matter put IN Issue,
without being required or directed to
ind the defendant guilty merely on the
proof Of publication, and the truth Of
The fHuendOes wss at length agreed to,
and passed with uncommon uaaniMity.
1t is entitled An act TO remove doubts
respecting the functions Of jurors 10 cases
OF Ibel;' ard although 1 admit that 3
d~eelar6toTy statute Is not 70 be received
Is conclusive evidence Of the common
H - "a - 80 AAnaHHaaaA aa a 49,
respectable authority IL the case and
especially Is the circumstances attsn5ing
the pnssage Of this bill reflect the highest
honor on tbs moderation, the good sense,
and the free sGd Independent spirit Of
the British Parliament.
at was, no doubt, under siEHiisr i'm
presslOnE Of the subject that the act Of
Congress for furnishing certain libels
against the UniLsl States, enacted and
declared that the jury, WhO should try
the cause, should have 3 right to deter
mine the law and fact, under the direO-
ton Of the Court, Is in other cases.n
"And befOrethe passing Of that statute
the same doctrine was laid down Ia full
latitude, and in explicit terms, by the
Suprseas Court Of the United SJa.es.u
1.-THE result from this view is, to nv
mind, a firm eOHyietiOn that this COURTS
not bound by the decisions Of Lord Ray
mond and his5successOrs. by withdraw
ing from the jury the consideration Of
the essence Of the charge, they render
their function pugstory and contempt
ible.u
In b. n Noak's Case, 5 CITY Hal
Recorder Is, p, the Court said, As to
the general power Of jurors to decide
both the Law and the fact in q criminal
case, subject to the qualifications which
l shall endesvor briefly 70 state, I never
before heard it questioned IN the Courts
OF this State. In England, the
same doctrine is maintained, aud the
pswsr Of jurors in this respect has there
been freqssauF exercised ia favorof par
ties prosecuted on the part Of the Crown.
The right Of . jury to return 2 general
verdict, and tie privilege Of NOT being
questioned as to the grounds Of their YER
dict, are founded upon this doctrine. OF
this right and privilege there & be 40
Doubt, and e iS a necessary consequence
from the right Of rendering . general
verdict, aud the privilege Of not being
questioned as to their reasons for il, that
the jury must pass Of the whole matter
10 issue, aud decide both ths law and the
fact"
The Court did not complete or exhaust
the Argument. That would be a singular
system Of government, which should de-
liberately invest one Of its department.
With the poJUer to do, hsbltuslly and con-
stSntly, that which it has nok the right
to do. Whsrc the law gives the power,
it gives the right. Il gives the power,
because it deems it right and Bise to give
il, and not because it cannot heip &.
ANY power may be abused, and then its
exercise becomes q wrong. AJudge has
both the right and the power to decide
the Law. But, although hs has the pOzrsr
to decide w~rongfully and even corruptly,
he has not the right 70 10 It, Bat be has
always the right to exercise a lawful
power honestly and lawfully and the
iaror has the came right. Having the
power to decide the law, be has the right
70 do so bot not the right to decide i,
enormously or corrapay. You cannot
say that it is wrong to exercise ~0Onscien-
uously = power given by law.
When the English law guaranteed, not
only the right Of trial by Jury, but also
the right OF the jury to return a general
verdict, it meant to enable them to pro-
tect the subject against the Crown. and
against the unjust rulings Of the judges.
Il meant that they should have the right
70 decide the law, because it gave them
the power te do it, made their decision
final, and forbade their being questioned
anywhere IS TO their reasons.
The court whose language is quoted
above, wa BOt Of the highest authority,
and We cite the opinion only for the in
trinsis force Of the argument. It said,
Of this POKER TO decide the law; at is
s power established and maintained as
an additional security to the party ae-
cused. In England it is considered to
AFFORD 3 great protection against the IN
due influence Of the Crown. To US this
-- A. - Ill. E-s