there had recently been a decision that the jury
were bound by the opinion of the judge, in mat-
ter of law. He was in favor of the amendment,
and wished this provision to accompany it.
Mr. BRENT of Baltimore city, said that he had
offered just such an amendment, and it had been
voted down. There had been such a decision
within the last twelve days, as had been stated
by the gentleman from Queen Anne's, [Mr.
Spencer,] and it was a matter of doubt in many
districts. In a civil case there could be a bill of
exceptions, but in a criminal case there was
only a writ of error. It seemed better that the
principle should be adopted in Maryland, which
had been brought about in England by the elo-
quence of Erskine and other eminent jurists,
that the jury should be judges in the last resort,
both of law and fact.
Mr. CONSTABLE said that he was in favor of
the proposition proposed as an amendment. If
the counsel of the accused asked the opinion of
the court, he was bound to give it; but if the
State asked for it, then it was but the advice of
a lawyer and not binding The power was to
set aside averdict. They could not set aside an
acquittal. Formerly in England they punished
the jury heavily; but latterly there had been no
power, whatever, over a verdict of acquittal in
a criminal case. He would move to amend the
amendment by adding these words, "and on such
trial there shall be a bill of exceptions, and ap-
peal to the ruling of the court as to the admissi-
bility of evidence the same as in civil cases."
Mr. CHAMBERS said that if the verdict of the
jury was against law, the court could reverse it
in a hundred cases in succession. But if this
passed and if the jury, in the prejudices arising
from local causes should fly in the face of the
plainest principles of law, and convict an inno-
cent man, he must be hung although the judge
Anew that the law was perverted by the jury.
He wished gentlemen to understand the effect
if they made jury men judges, and judges cyphers.
The bill of exceptions was nothing more than
the certificate of the fact that the case had been
decided so and so. This was taken to the court
of appeals, and if the decision was wrong, there
would be a new trial. But if the jury were to
be judges of law, they ought to decide upon the
bill of exceptions The jury knew nothing
about law, and would ask the opinion of the
judge. He was bound to give it. The moment
he was through, the lawyer would rise before
his face and argue that it was nonsense. The
jury would pay no attention to the judge, and
decide contrary to the law. The practice now
was for the judge to grant a new trial. He did
not think there was any harmony in the propo-
sition for the jury to decide the law, and for the
judge to sign the bill of exceptions.
As to the right of jury trial, the third, article
of the bill of rights had been considered to conclusive
and imperative that it had even been
doubted whether even by consent of parties, a
trial of facts could be submilted to the court. |
He had never heard the constitutional right to
trial byjury questioned until to-day.
Mr. CONSTABLE read the third article of the
declaration of rights, which is as follows:
"That the inhabitants of Maryland are entitled
to the common law of England, and the trial by-
jury, according to the course of that law, and to
the benefit of such of the English statutes as ex-
isted at the time of their first emigration; and
which by experience have been found applicable
to their local and other circumstances, and of
such others as have been since made in England
and Great Britain, and have been introduced, used
and practised by the courts of law or equity;
and also to all acts of assembly in power on the
first of June, 1774, except such as may have
since expired, or have been, or may be altered
by act of Convention, or this declaration of
rights—subject nevertheless to the revision of,
and amendment or repeal by the Legislature of
this State; and the inhabitants of Maryland are
also entitled to all property derived to them
from or under the charter granted by his ma-
jesty, Charles I, to Caecilius Calvert, baron of
Baltimore."
Mr. CONSTABLE added that the Legislature
had the express right to repeal the whole of this
article, and they had constantly exercised the
power to modify it. He had little fear of any
inroad upon the trial by jury; but he should pre-
fer to have it in the Constitution rather than to
have it left to the Legislature.
Mr. CHAMBERS inquired if the gentleman meant
to be understood that the expression in relation to
repeal by the Legislature was applicable to the
trial by jury?
Mr. CONSTABLE replied in the affirmative. It
applied to the whole article; and the Legislature
had exercised the power upon every point but this
one. They had changed the common law in a
hundred respects. If this were a doubtful point,
it should be placed beyond all controversy; for
it was the great safeguard and bulwark of secu-
rity for property and persons. He would suggest
to the gentleman from Queen Anne's (Mr. Spen-
cer,) to withdraw the amendment and propose it
as a separate section.
Mr SPENCER wished the jury to be judges of
the law. The court always decided as to the ad-
misibility of evidence; and sometimes great in-
justice was done. This would be remedied by
the bill of exceptions. He understood the prac-
tice to have been for the jury to decide the law.
He understood the court to give their opinion
but that the jury were instructed that it was
merely an opinion and not instruction. He
would accept the amendment moved by Mr.
CONSTABLE as a modification of his own amend-
ment; which he would withdraw and offer as a
separate section,
The question was then taken on the amend-
ment as offered by Mr. CONSTABLE, as an addi-
tional section; and
Determined in the affirmative.
Mr. SPENCER then offered as an additional
section to the report of the committee, the following:
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