Newcomer, Michael Newcomer, Kilgour, Ege,
Shower, and Cockey—33.
Negative—Messrs. Chapman, Pres't, Blakis-
tone, Dent, Lee, Chambers of Kent, Mitchell,
Donaldson, Dorsey, Wells, Kent, Weems, Dal-
rymple, Bond, Sellers, Brent of Charles, Mer-
rick, Jenifer, Colston, John Dennis, Williams,
Goldsborough, Eccleston, Phelps, McLane,
Bowie, Sprigg, McCubbin, Thomas, Gaither,
Hardcastle, Presstman, Ware, Fiery, Davis,
Weber, Hollyday, Slicer, and Fitzpatrick—38.
So the amendment to the amendment was re-
jected.
Mr. BRENT, of Baltimore city, moved to amend
the amendment, by adding at the end thereof,
the following:
"And in all criminal trials, the jury shall de-
cide the law, as well as the facts in evidence, and
the truth shall always be admissible in evi-
dence. "
Some conversation followed, after which the
amendment was again read.
Mr. SPENCER moved to amend said amend-
ment, by adding the following:
"And to have all questions of law, arising in
the course of his trial, explained by the court be-
fore his defence shall be stated by his counsel."
Mr. BRENT, of Baltimore city, accepted this
amendment as a modification of his own.
Mr. BRENT rose to say, in justification of his
amendment, that there was a difference of opin-
ion on the Bench in reference to this matter.
Some of the judges now carry out the spirit of this
proposition; but there are others, who doubt the
right of the jury to be judges of the law. Such
was the rule in the Courts of the District of Col-
umbia. It wag not ill the old bill of lights; and
many gentleman thought it would be a great im-
provement. He had, therefore, submitted the
amendment.
Mr. CHAMBERS was not acquainted with the
practice elsewhere. But, if the amendment were
adopted, he thought it would operate against the
accused in his district. If the counsel for a
criminal thinks it desirable, he may send the law
to the jury, on an instruction from the court. He
thought also, that the amendment might produce
some difficulty in practice. The prisoner's
counsel could now ask instructions as to the law
for the government of the jury; or the court, as
he himself had done, might gratuitously inter-
pose his opinion that the law is against the prose-
cutor, and dismiss the case.
Mr. PRESSTMAN could not give his assent to
the amendment, especially was he opposed to
some parts of it. He thought that the doctrine
that the jury should decide as to the law, as well
as the facts—if it had not been long settled in
Maryland, ought not to prevail. Such a practice
would never have found its way here, but for
the transcendent abilities of that distinguished
man, Wm. Pinckney. But as the rule has been
so long in operation, he did not desire to disturb
it. What are the facts which ought to go before
the jury, as proper evidence, is for the court to
determine. He objected to the words "facts in
evidence," in the amendment of his colleague, as
25

liable to the objection of uncertainty as to their
true meaning. He thought it of great impor-
tance in times of excitement, that the power
should be vested in the Judge to expound the
law, because his calm and deliberate judgment
would be a shield to the innocent. He did not
disturb the rule as it now prevails, but if twelve
men ignorant of the law were on a jury, they
ought to he instructed, so that the verdict might
be according to the law and the evidence.
Mr. SPENCER expressed his intention to vote
for the amendment, because, in some parts of the
State, it was doubted whether the juries are to
be judges of the law as well as the fact. He
would go still further, and he intended to submit
an amendment providing that the prisoner shall
be entitled to have the law expounded to him
before his counsel closes his defence. At pre-
sent, the exposition of the law is not made by
the court until the counsel for the defence has
closed. It was not so, when he acted as a depu-
ty of the Attorney General. The court then ex-
pounded the law, and the counsel for the defence
closed afterwards. Now a different practice had
grown up. The court gave the instructions after
the counsel for the accused had closed his de-
fence.
Mr. DORSEY said, that such was not the prac-
tice in his district.
Mr. SPENCER said, it was the practice in his
district, and he wished to have the principle
fixed.
Mr. BRENT accepted the proposition of the
gentleman from Queen Anne's, as a modification
of his amendment He intended that the coun-
sel for the prisoner should have a right to ask:
the advice of the court. He wished to see the
largest liberty given to persons brought up for
trial, and that the jury should decide both the
law and the fact. His colleague had referred to
Mr. Pinckney, as the originator of the jury.
The practice began on the other side of the wa-
ter. Previous to the days of Erskine, it was
otherwise, but through his efforts aided by others,
the present practice was established, it began
to be fully discussed, he believed, with the case
of Buchnel. There could be no difficulty inin-
serting a declaratory article on the subject in the
bill of rights. His proposition was simple and
plain. He referred to the trial of the Rev. Mr.
Breckenridge, on a charge of libel. One of the
Judges insisted that the truth should not be ad-
mitted in evidence, but he was overruled by the
other two judges associated with him—this
therefore, showed that there was judicial doubt,
whether the truth could be admitted in cases of li-
bel, and therefore be proposed to settle this
doubt.
Mr. PRESSTMAN offered the following amend-
ment which he asked his colleague, (Mr. Brent.)
to accept as a modification of his amendment.
Insert between the amendment offered by Mr.
BRENT of Baltimore city, and the amendment
offered by Mr. SPENCER, and accepted by Mr.
BRENT, the following:
"And that the court may determine what is
evidence proper to go before the jury."
Mr. BRENT accepted the modifications.