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However, my report is predicated on a
committee amendment that will come in
later which will meet the objections to the
right of removal that have been raised
during our prior discussion of the right.
The right to removal in criminal cases
will be provided, as it is in present Con-
stitution under, I believe, Article 5, section
8. In any event, it is in the judiciary article
in the present Constitution. It was the in-
tent of the Committee to maintain this as
an absolute right in capital cases or the
language we used is life imprisonment, or
cases punishable by death, in the anticipa-
tion, I suppose, that we expect the legis-
lature to abolish capital punishment within
the near future.
In any event, we wished that to be an
absolute right. We feel it is something this
body must decide. It is an important right.
It is a check on judiciary, or I should say,
is a check on the prejudice that one might
find in a serious case in a community as a
result of pre-trial publicity, but it would
be exactly the same way as it is now, and
it is not meant to change the present state
of the law at all.
The committee amendment which we will
propose as far as civil trials are concerned
will provide that the right of removal in
civil trials will not be absolute. There will
be a right of removal, but it will be subject
to the regulation by rule of the Court of
Appeals, to avoid the objections of those
people who thought the right had been
abused.
The question might be raised why this
should be in the constitution. It was in the
constitution, I believe as of 1805 by way
of constitutional amendment. In any event,
it has a long constitutional history. It has
been changed at various times. In the Con-
vention of 1851 it did apply to all criminal
cases and that was found to be abused, and
I think the constitutional amendment in
1875 allowed it only to be used in capital
cases.
I might point out that the interpretations
of the right of removal by the Court of
Appeals has been extremely restrictive. It
has prohibited the legislature from provid-
ing the right in criminal cases when they
did, in fact, provide such a right. The
Court of Appeals said the provision essen-
tially preempted the field and could only
be handled by way of constitutional amend-
ment, and all our right of removal is his-
torically based on constitutional amendment.
The concept that we are changing in the
right of removal for civil cases, is that it
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will be subject to reasonable regulation. It
does not preempt the field, as the present
constitution and the legislature would have
concurrent powers and could make what
changes they wanted in that particular
section, if they wanted to liberalize the
right. They could not make it more re-
strictive or restrict the right.
As to juries being the judge of the law
as well as of fact, that is a very interest-
ing provision. I frankly came down here
opposed to what has been called the con-
stitutional thorn in the side of Maryland,
or something to that effect, until I began
to do some reading on the question, and it
has a very fascinating history.
The right originally ended, I believe,
around 1690 in England, although this con-
tinued into Maryland. They had this taint
of juries. In other words, if a jury came
in against a judge's instructions, the jury
could be imprisoned for finding against the
instruction of the judge. This was appar-
ently felt to be harsh and was abolished.
Then, the question became: since you
could only be found guilty by the jury, in
other words, the judge could not find you
guilty if you chose a jury trial, or could
not direct a verdict of guilty if, in fact,
the jurors had the right to disregard the
judge's instructions, did they not have, in
fact, the right; and a debate arose about
this.
There is a memorandum that has been
found pointing out that there was some
confusion about this in the Colonies, or I
should say, in the Americas, after we
wrote our original 1776 Constitution, but
the practice generally in the United States
was that the jurors, in fact, did find the
law and that the judge was primarily a
referee. He did not have very much to do
with the trial at all.
I must say, I was not too well prepared
to discuss this today as I thought we would
get to the right to know first, but I would
like to read you a quote from the Harvard
Law RcvieiOy No. 52, page 582: "No com-
mon law institution has more persistently
served to dramatize the relationship of law
and democracy than has trial by jury." It
is therefore not surprising that the Ameri-
can courts during most of the whole of
our history should have been confronted
with the task of making the English jury
effectively responsive to the demand of
American democracy. The theory in fact,
made the task unavoidable.
Theory as usual received expression by
Jefferson when he wrote, "Were I called
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