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upon to decide whether the people had
best be omitted in the legislative or ju-
diciary department, I would say it is
better to leave the matter in the legisla-
tive. The execution of the laws is more
important than the making of them."
If the theory of democracy thus de-
manded that the people through the juries
should take an active part in the adminis-
tration of law, American jurors were not
slow to put the theory into practice. It was
well nigh impossible for the courts to dis-
regard the people's part in the execution
of the laws when the foreman of the jury,
toughened by the frontier scepticism, re-
turned and announced to the judge that
the jury wants to know whether what you
told us when we first went out was really
law or whether it was only just your
notion.
That, in fact, is sort of a history of the
background, that the jurors actually did
decide such things as admissibility of evi-
dence, or constitutionality of statutes. As a
matter of fact, John Adams, in quoting
and approving this rule, made a statement
that the general rules of law and the com-
mon regulations of society under which
ordinary transactions arrange themselves
are well enough known by their jurors. The
great principles of the Constitution are in-
timately known. They are sensibly felt by
everyone. It is scarcely extravagant to say
they are drawn in or imbibed with the
nurse's milk and fresh air.
However, the Supreme Court at one time
approved the rule, and development of this
rule was very interesting because it is a
fight between the people's interest in their
awe and the power of the judge's desire for
orderly administration of the courts. Some
of the cases are fascinating.
For instance, one court was calling this
the most fundamental right of all Ameri-
can citizens, and twenty years later it was
calling it an archaic, ridiculous, outmoded
kind of justice.
It has been a fight between the people
and the courts, but apparently Maryland
is the only state with the exception of
Indiana which has also restricted the
right, and we did fairly recently restrict
the right. The major objections to this
right have been eliminated where the
judges in criminal cases are now allowed
to determine the sufficiency of evidence.
Prior to that time the judges were un-
able to establish a real criminal law in
Maryland because a case could go to the
jury without any evidence at all. It was up
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to the juries alone to determine what the
law was so the practice now really boils
down to this: a judge cannot direct a ver-
dict even though the evidence is uncontra-
dicted, overwhelming, but that jurors in
this State may find a verdict of guilty or
innocent. Therefore, they do, in fact, have
the power to disregard the judge's in-
structions.
The question then becomes, do they have
the right. When this point was debated
in 1851 or 1867, I do not remember which
one, the reason it was put in was to bring
a uniform practice throughout the State
because in some parts of the State the
jurors actually ruled on questions of
evidence.
Therefore, what they wanted to do was
to make a uniform practice throughout the
State so they debated whether to follow
the English common law or the Libel Act.
When the United States Congress was de-
bating the same issue it decided that this
provision is really irrelevant because the
practice in Maryland is clearer today be-
cause it is in our Constitution.
Now, as a practical matter, there are
two cases, one case involving a murder
where the defendant committed arson and
in the course of the arson, he burned a
woman in a house. It is Green v. United
States. It is a very interesting case. In
that case, under the District of Columbia
law, they have the felony-murder rule. We
have the same rule in this State. That is,
if in the course of a felony — a felony
being arson, rape, robbery, burglary, those
crimes of common law which we call fel-
onies — somebody dies, even though he
had little connection with it, it is first
degree murder. In this Green case, the
defendant, an old man, I believe about
sixty years old, was found guilty of first
degree or second degree murder. He ap-
pealed. He said he could only be found
guilty of first degree murder because of
the felony murder rule. The Court of Ap-
peals agreed. When he went back for re-
trial, he raised double jeopardy claiming he
had been acquitted in the prior trial of first
degree murder and, therefore, could not
be tried again, and he walked out of the
courtroom.
Under present practices in Maryland,
this cannot occur because juries quite often
bring in inconsistent verdicts. In Prince
George's County, in a very famous recent
trial, the Hargus case, a woman killed
four of her children. The only defense was
insanity. The facts were clearly first de-
gree murder under definition of the court.
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