The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1868-02-08

that AS said before it has been suppose
by eminent jurists that the common law
England gave juries power to judge OF tEe La
and fact but in the reign OF Henry VII. tbs
iniquitous body-the Star Chamber was estat
lshed in which the right of the jury was take
from the people and men we're tried by cou1
of state officers. and they instituted the doc
trine that in cases of libel the judge was to b
Judge OF the law, and the jury to be the judg
only Of the facts. This condition Of things ex
listed for long period Of time and the peopl
suffered oppression until at last In the thirty
second year Of the reign of George IlI. Charlie
James Fox introduced bill IN Parliament
(Which the gentleman from Charleston re.
Bowenl has described ss being incorporated il
the section before you), the provisions Of which
we're to the effect that the jury shall be th,
Judges of the law as we'll as OF the fact. Wha
has been the consequence Z. Why the Judges
1 of England who are always asplrants for power
have in the very face Of tuis bill of MIR. Fu1
continually endeavored to tread upon the
numerous cases, especially in cases of libel
they have declared to the jury,al you have to
do is to ascertain the fact OF publication /; then
wa will decide whether it was malicious, un.
truthful. or detrimental to the peace, and
whether tits libel or not. Such is still the
doctrine IN the English courts; but thanks be
to God it is NOT the doctrine of American
courts. [Applause.]
One of the most important cases, subsequent
to the one quoted by the delegate from Char
lesion, &C. G. Bowen occurred the City OF
| New York, in the year 1892, when John Peter
Zlngar, poor hunter, having published seve-
| ral articles, in which the unjust and iniquitous
conduct of the provincial governor. was de-
an "information another abomlnable tool
of tyranny-pl osecuted for libel. Party poll
| tics ran high the officers in power, the COVER
nor. the Judges, and all his offcials we're cor
rupt, and the people groaued underline despo-
tism. Some OF the lawyers OF New York under
took to defend NIr. ZinSar, and, it is IN evi-
dence Of tue baseness OF the court, that their
| names we're strickens from the rolls, and the
defendant was compelled to.send u Pnllade!-
phia for legal aid. lie secured She services OF
q MIR. Hamilton, who then made that argument
which caused Governor Morris to say that in
that trial. the germ Of the tree Of lib,rty was
planted, which sprouted and bore ltsrult IN
1776. It was on that occasion that he Judge
declared that the jury were only Judles OF the
fact and not OF the law.
(Mr. Mackey hero quoted from tb report of
the case the opinion of the Chief Justice
theIeon.1
Such, continued the speaker, is th' decision
to Which your judges will come, If ou strike
out this sec ion. And what did Mr. Hamilton
rcpy2 Il know the jury may do g, but do
they have right, beyond all dispute, to decide
both the law aud fact, and where hey do not
doubt the law they ought to do so" And he
persuaded tho jury to be OF his mind, and, IN
spite OF the attempts Of CORFU it Judge and
corrupt torncy-gcneral, the jurybrought IN
q verdict of mot guilty." which WIS received
with tno enthusiastic plaudits OF the people.
Some years after that, i'll IL o, another case
oCcllrrcd-the case OF the people VS.. CressWe.l,
g., Il
Jefferson President of the United States. In
that case the jury were directed that they we're
to fiud verdict according to tue facts, and to
take the law from the judge. They did 30, and
in consequence an appeal was taken. Two out
of four OF the Judges decided that the jury
were to be Judges OF the law; the remaining
two decided that they were not TO be Judges {
tho law. In consequence OF there belng
equal division, the appeal was not sustalnss
and Crcsswel was punished. This led ~
Legislature Of New York, ut its next sessloh hill
pass law which was almost copy OF 4 ,;nh IJ
Of Mr. Fox in Parliament, and the law S'ta "
The gentleman from Colleton now prog ,,I,sa "
strike out from the Bill OF Rights, ,aamSad
quently it was made feature OF the 4 now
constitution of tho State, and as s.
remains.
Iu that case the great Ao1andSaaaa Saamisonm tho two
mon MOI i WHO foag GgGaG a5ss ID eloquent
ly for this measure, bore the anne name,
though not related-in that CO, repeat
Alexander Hamilton made uhr GIT argument
which should sustain this nintlection. He
laid down this principle: -, !
I'm all cases OF prosecutionW libel, the
court may instruct and advise e jury, but
shall have no authority to reqe or direct i.
what verdict they shall give; thelole matter !
in issue. with all the circumst'es OF false
hood intent motive or desig lcing within
the right Of the jury to decide ul after hear :
Jug the evidence OF the court" :
1ientlemen of the convention have little '
more to say; but i do not wlsto SEQ this = =
amendment passed by small W am told J.
lt ia probable that the motion strike out . 5,
will not prevail; trust it Will ntor should !,
certainly be sorry to see the lVentlon OF =
Sonth Carolina, one half Of whoaembcrs are :. v
men who have lust been liberatfrom bond y
ace and from the heel Of the o2ssor, gong '
hack to tho old times OF tho Staramber, and U
declaring that the liberties OF tbeople shall p
deuend no longer upon the deon OF their .
pcers-tne jurie, OF the counirmpannelled =
under the tairest regulations OF -ana that G.
they are willing to throw thcmse, pody ana -
soul. into the power Of iudgeit may be
wielded with sway almost unl!nl. Tie his m
iory of the world shows that Oh occasions, -
when the government has been eesslve, the ="
judiciary have lcaned on the sDf the gov
ernment and gone against the pc. 70
MIR. Madison, profound sIMan, years NJ
ago observed tnat il th} libertie this coun- hi
try afo ever to be endangered 1ud not be II
from, tho cncrcachmon,s OF thkecutlvo or III
Legislative Departments, but Il the en- m
croachmens OF the Judiciary, "
A Judge, by tho very cnaractt MIS- ONCE, tli
and tho duties he has to pertor5 disposed to
to claim Tor himself powers arerogatives III
that ought not 10 belong to hilWnen such m
a Judge finds himself on the one support tn
ed by an oppressive aud tyrual govern dl
mont. and on tho other opposy people Gil
who demand that he shall not dse tue un- o
lust privileges which he caims,ls lndlgna- tn
tion at tho assumptions Of tho 10, and his io
Willingness to submit to the conons OF the ta
.spowers that be-, he becomeer wiling IL
tool: and in no better way can ipress than no
under the luw Of iuel, when 'rmatlons"
being lodged against individuor writing VI
political articles, they arc trledto be pun ~
| lshed, and he teaches his Nctnat ruth
10 NOT to be said when the hurts the as
lllng." no. NO
Now, suppose you strike thuse from on on
your Bill of Rights and ORA romantic alb
picture. WHAT'S the effect; boiemn de- INC
cision-the question beng DefoaTyou de- co
clare that juries are not tue luol law, Dut wo
simply OF tact. You establish accent ana Tho
rule f.r the government OF yonges Wnlcn,
ut some time in the not tar dlsl'ture, they cit
will Lo ready to employ for theose OF OPP sci
pressing you. Perhaps menu tnls con. tic
yention may be victims. Pcfnmc one OF alt
you now seated upon this noof1e purpose
OF framing 'nrS tb;s ono .me ing
- tt1t,In