, 1874-12-07

the jury in criminal trials. The discussion |
Of It nny hopefully lend to reform. The
instruction was OH the part Of tie defeasc,
a,,tl rs follows:
Frst-rno Cont inatructb The Jury that they are tns
Judges Of tD law nl tho facts In this casct a,l that
they aro not bound by tho ofon Of tho Court as to
what tho law B, and they cnn assmo tho responsibility
Of deciding. cach Juror for himself, what tho law IT,
This is tic most literal construction Of a
stntuto passed rs long ago MS 1916, which
reads as follows; "Juries III all criminal cases
shal1 bo Judges of tho Inv aud the fact."
Judge McA1lister, in a recent public letter OIL
tho accumulation Of cases in tho Supreme
Court, referred incidentally to this statutory
provision rs n relic Of the formative period
of our existence rs State, rs MI experiment
which might have been adaptea to tho bnck-
woods, Democratic tendencies OF t!lat time,
but which has boen found to work to, tho dis
advantage Of more popnlous, advanced, and
organized condition. This il just what it il,
and the wonder is TINT it Inns been allowed to
remain SO long OH tile statuto.boois. It is a
rule which enforcos every Circuit Court
in tho Stato to work by contraries
1t leaves tho "Court just what Judge
John N. Wilson designated him under
this law,-in tho position of " Moderator
Of town meeting" As in the Gago case, llo
may exercise his judicial functions through
ont the trial up to the time Of giving tho caso
to tho jury, aud then all his judicial learning
and experience are found to count for moth
ing. He may r1,lo out evidence, interpret
the application of the law to the case in hand,
lay down tho principles and recall tile stat
utos, nnd at the very Inst, lie is forced into
the inconsistent and ridiculous position Of
telling the jury tllat they need pay no atten-
ton to Lis interpretations and rules, but must
judge, each man for himself, of tho law and
its application. This is logical contradic-
ton, and its practical operation is q serious
impedi1pent to Justice in mors ways than one.
The common-]aw rule, and the practice
in majority Of tho States. is that the Court
shall bo the Judge Of the law and tho Jury
tho Judge Of tho facts. This principle is
founded III common senso, aud has been JUS
titled in the practice OF England, Canada, and
tho greater number Of the United States
whore it has obtained. 1t is the natural and
proper division of julicinl responsibility. The
Judges nre elected mainly with reference to
their legal learning and experience. Person.
III integrity is not Of itself sufficient quail
hcation for Il judicial position, though it is m
essential. A mnn is needed to preside over
trials, not merely for tho purpose Of keeping
order in court, which could be dono by
bailiG, but to keep counsel down
to tho Inv and prevent them from
4t,o t,t.,r II jnosto
adverse legal positions taken by the
opposing attorneys; to protect the intorests
Of the people Us well as the interest Of the
| accused in criminal causes; and, above all, at
the end Of the case, to sum up in M intelli-
gent aud impartial manner the application Of
the low rs it is to the fncts rs the jury may
find them. The responsibility put upon the
jury Of determining the facts from the eyi-
dence before them is just rs reasonable as
TINT part of tho responsibility which the
Court should bear. The jury consists Of
twelve men instead Of one. The danger Of
| personal prejudice is lessened i'll the ratio OF
Il to i. 10 judge Of facts from ovitlonce
TINT the Court has hold to be competent is q
task that may be safely intrusted to ig-
norant men, il it go happen. 1t re-
| quires simply the exercise Of common
sense aud fair dealing, aud it is
not necessary TINT there should be any famil.
iarity with law. As q matter OF fact the
great minority Of ju,y1nen know nothing OF
law never saw statute.book, and never
heard even of Coke or Blackstone, Chitty OF
Green1eaf. 1t is sheer folly and absolute dan.
gor to invest such men with the right of pass
ing upon tho ia,o, Of which thoy know
nothing, aud applying its principles, which
they are likely to distort, to facts that may
thus bc made to lose their force md bearing
As rulo, the best work n Legislature cnn d
for Stnte il to arpea2 ta,es, and the Legisla
ture which conyones this winter should repea
tho statute of 1916, and substitute ono jtts
as brief, which shall read ".rle Court in nj
casos shall be tho judge Of tho law aud th
jury tho judge OF the faots."
At tho same time the Legislature docs this
it should also repeal stntuto of 1871 which
in its application, permits tho attonoys o.
the other Rilo to dictate tho instructions t
the Jury. If there is any sphere in which
Judge can mako himself useful, it is by moan
of clear olucidation and fair summiu
ur Of tho evidence. An accomplished nn
honest Judge can do moro toward Rtrnighten
ing out the complications of case than
hundred ono-Bitlol arguments by counao
Tho operation OF the prosont system iB
promote laziness mud Indifference on the PM
Of the Judges, who aro now content to nllo'
tho attorneys to suggest tho instructions o
oitlAor side, which arc presented to the jur
in contradictory anil confusing shape. I'LL
! rule was adopted originally, perhaps, as til
} President originally began to cAll upon Coz
gressl1len to recommend official appointment
: in tlloir distriets But as in the Inter cak
0 tho Congressman have come to regard then
r selves as possessed of tho right of aproin
d ulont, so now the attorneys dictate tho II
: structions. The result in bath ceses IL pc
/ niclous, lin tho one to tho civil sofyice and
. the othor to Justice.
, Aside from tho positive injustice TINT nrls
u from tho operation Of those two old illogic
Q stHtnte;, t|le;r existence IL tho principal cau.
:, for the overlooking IT tho Snprsuo Con-
Il ! Al ,n,t o1 ..,