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ARE JURIES THE JUDGES OF THE LAW IN ANY CASE? By Percy Edwards.

THERE are some of my brethren, no doubt, at home and abroad, who will wonder why such a question should be raised. Jurors, having no technical knowledge of legal science and principles, could not pos sibly apply the law to a given set of facts. "It is absurd," you say. " What the law is must be determined by a legal interpreter, a master of the science." Very true. No one doubts this to be the theory upon which is based modern jury practice. That, to a mind skilled in the technical science, we should look for a cor rect interpretation of those principles upon which such science depends, is perfectly na tural, leaving facts which are the subjects of ordinary observation to be determined by the process of ordinary reasoning, or that reasoning which requires no knowledge of technical sciences. Perhaps, generally, this theory of exclusive function in the court of legal interpreter is followed in the civil practice, if not in the criminal practice of our times. But there is just enough doubt and ex pressed opposition to this theory, in certain quarters, to render a short essay on this subject of some little interest to the profes sion, and therefore the writer has undertaken, briefly, to discuss the subject. It might be well to add that when the terms jury and jurors are used, they refer to such persons serving in courts of record, or the common law jury of twelve. If we look to the early English common law and practice, we shall find that there was much reason at times for the contention that the jury should exercise this function in crim inal cases. Up to the time of the prosecu tions for seditious utterances the right was admitted to exist, and although seldom ex ercised before the corrupt condition of court

affairs under the odious Judge Jeffreys caused a vigorous assertion of the right, and in con sequence thereof this important function ex ercised by the jury was looked upon with considerable favor. There was a time in the very early history of the common law, before the crystallization of ideas into a science, when jurors were regarded as judges of almost everything pertaining to the trial. As we have seen, there were times when the judges arrogated to themselves all functions of the court and practice. There was a good deal of divergence of opinion upon this province of the jury. The great Erskine contended strongly for the jury as the judges of the law and the facts in the case of Rex v. Dean of St. Asaph1 Since the jury were to give a general verdict according to the dictates of their consciences they must necessarily be allowed this latitude. If bound absolutely by the charge of the court in regard to the law appertaining to the case, and given no room for the play of conscience, what were they to do if the law said convict and their consciences directed them to acquit? But, notwithstanding the brilliant argument of this foremost of English advocates at this time, Lord Mansfield passed against the proposition; and since that time the prac tice seems to have been more definitely de fined, judging from the numerous English decisions upon this question. The difficulty with this question seems to have crossed the ocean much as a common plague does, and has affected the constitu tions of some states much as the disease affects the human constitution. Illinois, Maryland, Louisiana, Indiana, and Georgia have expressed constitutional provisions by which jurors' are declared to be judges of the law in criminal cases. The State of 1 3 Term Rpts. 428.