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

-AN 1880 N-@I 80
judges Of the law. But that is not the
whole case Of q jury in a criminal prose-
( cution. In q civil suit, no matter for
which party the jury finds, the Courthas
the power to set the verdict aside and
grant q new trial, and the right to do so,
and It is its duty to do so, if the jury dis
regards its instructions as to the law. 1t
has q revisory and appellate power; and
thus having the power and right to de-
eide the law in the last resort, the jury
must respect its prerogatives, and from
it take the law. They can have no right
TO decide the Law against the opinion Of
the Court, when the Court says to them,
if you do 1 will reverse your decision and
grant q new trial. e.
But in q criminal case, il the jury ac-
quit, ~disregarding the instructions of the
Court as to the Law, their decision is final.
They are the judges 10 ths last resort.
The Court has no pOUer to set aside their
verdict because they disregard his in
structions and decide the law erroneous
ly. In q civil cause, the Court may well
say 70 S jury, ".You must hke the law
from mel it is your duty to do it for il
you do not, the law gives me the right
and power to set your verdict aside. I
am the Judge il the last resort, Of the
law Of the case" No Court can say that
in a criminal case. 1t is not merely be-
cause a jury giving a general verdict
necessarily decides the law as well as the
fact, that the jury are the Judges Of the
law; but because when they do so and
acquit, their decision can not be re-
versed, and is haaL. They " have the
physical power to disregard the law as
laid down by the Court" In a civil case
also, tits true but not to disregard it eff
~feotUally. There, there is a power above
them. The Judge may grant 8 new
trial, or a Court Of Errors reverse.
No one claims for a jury the right to
decide the law according to their notions
or pleasure. The Judge, as we'll as the
jury, has the pOler to do that but
neither has the right. To say that one
has no right to abuse a power, is not to
say that he has no right to exercise it.
That would be a singular machine, in
which you should put q wheel, with the
poJ0er to perform a certain function, sHd
which yet ought not to DO it at ali. We
claim for the jury precisely what is
claimed in civil suits for the Judge,-the
right to decide the law according to their
conscience and the convictions Of their
intellect and judgment,
AS to the Constitutional right Of the
Citizens to have the Judge decide the
law, times always come, IS well and as
often in Republics as under Kings, when
Judges become the instruments Of power
and tyranny, and the Constitutional
right to have them decide the Law, Is not
valuable. RUSSELL, and HANPDEN and
SYDNEY and Lady Isle had no reason
very highly to value the right Of having
JEFFRIEs and SGROds decide them
guilty, and instruct the jury to take the
lay from the Court.
Mr.. Justice STORY seems 10 have been
profoundly unconscious Of the purposes
and reason Of making juries judges Of
the law. 1t was done in England to pro-
tect men, and especially those ind cJed
for political offences, against the Judges
Uho prosecuted for The CrotVn, as FISHER
prosecuted SURBATT, and 81 UNDER
FOOD or CHASE will prosecute,
only a little more de0eutly than
SCEOGs, the Great Representative
Of the people OF the South.
He said, 81 1t is the duty of the Court to
instruct the Jury as to the Law anditis
the duty Of the Jury to follow the Law. as
it is laid down by the Court. This is the
right Of every oitiEen and it is his only
protection" Mr.. JUsTIgR STORY looked
At the matter through the wrong end Of
the telescope. Itisjqrias 10 which En-
glishmen have IN all ages looked for pros
lection. II UNDERWOOD should charge
the jury in the case Of Mr.. DAVIS, as
JEFFRIEs charged in the case of Lady
Isis, would il be the duty Of the jury to
follow the Law 6s laid down by him?
No; it would be their brightest and most
solemn dgty to disregard it, as an Eng
lish Jury dissegGrded and set absolutely
at nsught the instructions Of the Court,
in the seven Bishops case.
The argument Of Mr.. Justice STORY,
that II the jury we're st liberty to settle
the Law for themselYss, the lew itself
would be most uncertain, from the diff
fersnt views vhichdiherentjuries might
take OF It" amounts To very little, when
we know What . OontiBusl soDaict of
authority there Is between the decisions
I Of the Courts, and how some of the
Judges ever on the Supreme Bench con-
tinsally dissent. Englishmen did not
establish the trisl by Jury, in order that
these should mske the Law eeTtsin but
thst they should prevent the ineqrcsrs-
ton and mardsg Of men by prejGdiced
aud corrupt Judges. II uncertainty is
the result, and conflicting decisions, this
is 8 minor evil, which must be borne for
the sake Of tbs Infinitely greater good,
the security Of English rights.
But how would "the Law itself 10 most
uncertain, from the different views
which different jurors might take Of it"
The decision would govern only In the
single case, and could not be quoted as
authority in any other, In the sense ia
which Judicial decisions are authority.
The law becomes uncertain, when the
authorities conflict; and the erroneous
decisions Of juries do not bscome su-
thoEity, as those Of judges do. The
opinions Of the judges contained in their
charges To the jury, would be looked TO
As authority, whether the jury has the
right or only the power to disregard
them; and these become part Of the law
Of the land, which the opinions Of the
Jury do not. True, one jury may aequit
where another would, and ought to, con-
Wet; end Of two men, tried for the same
offence, upon The same state of facts, one
may be convicted BY one jury, and the
other acquitted by another. Tbia may
equally happen whether the jury has
the right or only the power to decide the
law. Bat this does not make the law
uncertain. Judges and Courts are con-
tinuslly disagreeing: bat that cannot
prove that they ought not to have the
right, but only the power, TO decide the
law.
Moreover, says Mr.. Justice sTosY, /!