The aegis & intelligencer. [volume] (Bel Air, Md.) 1864-1923, 1869-05-21


] emergencies resort Gun be had, and which
the law and its ministers will justify, though
not found in astatute.
The prosecution tells you that ifthe sane
tity of your homes may be invaded. your
wives polluted, your daughters deiiled, your
1 lives and their lives made blight and
curse, fyou strike down the destroyer by the
common law you are felon, by our statute
guilty of murder in the first degree
What, then, is this common law, which
makes such nice distinctions and pronoun-
ces doom so ruthless? Born in a rude and
savage period, in its youth it had some
terribly grim features expanded and en-
nobled by time and experience, 1t retained
in the grand development of it's nanhood
unmistakable traces of its early days.
Mr.. F. sketched history of the common
law in its primitive branch, from tbs times
when the punishment for taking che life of
a bishop was u bath in burning oil when
the refractory prisoner who refused to plead
was treated to the '.pei,og forte et du,e,"
stretched on the floor and weight after
weight piled on his breast, until the required
plea or life itself was crushed out of the
miserable sufferer; for if he died in silence
his goods were not forfeited to the king.
This eye to business helped to multiply
felonies, with their inevitable forfeiture
for thc benefit of the crown. From, the
times when monarch and magnates were
all in all, the people nothing, to the period
when these masses became recognized
power, and tue doctrine was announced that
in criminal cases the jury are the judges of
the law and the facts. So you see the COM
mon law is not 9 fixed and uualterable
thing, but progressive, adopting itself, if
slowly and grudgingly, to the changed con-
ditions of men and the necessities ofsociety.
But it chung to old forms, persisted in
using the old instruments with which in
deed it managed to effect its ends, but with
an expenditure Of cunning and skill that
would have invented means more simple
and effective. We all know the benefoent
results of the common law as system, and
the blessings it has bestowed but judges
and lawyers, trained for years in its mystic
les, are too apt to value its intricate ap-
pendages and antique yestments, as ifthey
were really an Inherent and ipseparable
part ofthe substance. ~
Justice was numbered and sometimes
really embarrassed by her technical robes,
and to avoid palpablc injustice, judges
were driven to strange devices and o nice
construction, to interpret the letter of the
law, and TO explain how it meant exactly
what it did not say.
Mr.. Farnandis illustrated his view by
the cases on the law of suicide-encoura-
ging the commission Of suiciae-and duel
ling.
Jurors are not driven to such refine
ments They are not to be caught and held
in technical meshes, but will boldly and
rightfully cut through them with the sword
ofjpstice WHICH is placed in their hands for
that very purpose-to effect the end ofcivil
government and civil law.
When this power was given to them in
words--"to judge the law"-it was in fact
withheld, Theiudges charged as to the
facts and instructed as to the law. Telling
the jury that they must take the law as
laid down by the bench, or be recreant to
their sworn duty. If in the exercise of
their declared right, Jurors thought and de-
cided the judge.la law to be bad law-work-
ing injustice and wrong they were CEN
sured as contumacious and denounced as
ured.
DO despotio were the judges-so deter
mined against this invasion Of their pecu-
| liar province-and so manifest were the
evils resulting, that in the days of the rev.
olution many wise statesmen urged the ne
cessity, under the new government, of
making the jury judges ofthe law and facts
not only in criminal, but in civil cases, also,
that the great purpose of civil governm ent
Justice might be more surely attained
Though this innovation was not adopted,
the exercise of the power in criminal cases
BECAME more real and practical-yet still
judges charged and instructed, and juries
had to defy technical Interpretation when
it wrought injustice.
In 1850 our Constitution established it as
fundamental principle of our State gov
ernment, that jurors shall be judges of the
law as well as of the facts in criminal cases.
1t is true, Judge LIE Grand says this is
m erely declaratory of the existing law.
Well, it is very emphatically declared,
and a notable change in the practice en-
sued. Before it, have seen counsel stop
ped in his argument before the jury, because
his law was not in accordance with thai
of the court l have seen him threatened
with the gaol, because he insisted that the
jury being the judges of the law, it was his
right and his duty to give his views to them,
but since 1850 we have had no instructions,
unless invoked by the prisoner.
This grant or declaration OF the powers
of the jury means something. l. ask the
Attorney General to tell me what it does
mean. After seventeen years. experience,
when we knew exactly how juries had de-
terpiined what the law was in such cases
at this, the same provision was inserted in
the Constitution of '67. Did we mean to
invite juries to perjury and disregard of
che law and their duty to the State
The prosecution tells you that you are
bound by the law as found in Wharton
and Russell s. Roscoe. How will you find
out what 1t is 2 You come from your fields,
your stores, your workshops, ignorant of
technical law-how will you learn it in
the jury boxa
There sit the judges trained for years to
know this law--elevated to the high
positions they fill, because by long Ia
Dor and untiring industry they have
some mastery of this complex science.
Ask them 60 guide you, and they will not
answer, because you are the judges of the
law. Take with you to your room those
volumes of authority, and your verdict
will be set aside, because you have resort
ed to forbidden sources of knowledge.
Win you take the law from the States At
tornies or from us9 Are you prepared to
measure our comparative professional &C.
quircmeDts or our personal honestya