19 Ga. 398 | Ga. | 1856
delivering the opinion.
The judgment of this Court in this case was, that the case' 11 be reversed upon all the grounds of reversal contained in the case of Lane vs. Robinson, decided at this term.
[1.] “ As to so much of the bill of exceptions as relates to the conflict between Counsel and the Court, this Court holds that it is the right of Counsel to argue both the law and facts of his case to the Jury, subject, of course, to the charge of' the Court upon the law, and his right to grant a new trial, should the verdict be contrary thereto.”
As to the first part of this judgment, I merely refer to what is said by the Court, and by me in dissent, in Lane vs. Robinson, the case mentioned in that part of the judgment.
In support of the latter part of the judgment, I will refer to some provisions of the several Constitutions of the' State, and then to a Common law authority or two.
The provisions in the Constitution of 1777, which I refer to, are the following:
“ XLI. The Jury shall be judges of law as well as of fact, and shall not be allowed to bring in a special verdict; but if all or any of the Jury have any doubts concerning any points of law, they shall apply to the Bench, who shall, each of them, in rotation, give their opinion.”
“ XLII. The Jury shall be sworn to bring in a verdict according to law, and the opinion they entertain of the evidence : provided, it be not repugnant to the rules and regulations contained in this Constitution.”
“XLIII. The Special Jury shall be sworn to bring in a verdict according to law, and the opinion they entertain of' the evidence: provided, it be not repugnant to justice, equity and conscience, and the rules and regulations contained in this-Constitution, of which they shall judge.”
There is nothing in this Constitution, which gives the Court the power to grant new trials. ( Watk. Dig. 14.)
The provision in the Constitution of 1789, to which I refer,
In this Constitution was a section, saying that the General Assembly should point out the mode of correcting errors and appeals, to extend as far as to empower the Judges to direct a new trial. (Id. 29, 28.)
The provision to which I refer in the Constitution of 1798, is the following: “Freedom of the press and trial by Jury, as heretofore used in this State, shall remain inviolate.”
In this Constitution, power was given to the Court “ to-order new trials on proper and legal grounds.”
The Common Law authorities to -which I refer, are these r “ Also, in such case, where the inquest may give their verdict at large, if they will take upon them the knowledge of the law upon the mailer, they may give their verdict generally, as is put in their charge,” e. This says Littleton. Coke, commenting on it, says: “Although the Jurie, if they will take upon them (as Littleton here saith,) the knowledge of the law, may give a general verdict, yet, it is dangerous for them so to doe, for if they doe mistake the law, they runneinto the danger of an attaint; therefore, to find the speciall matter, is the safest way, vThere there is any doubt.” (Coke Litt. section 368, p 228, a. And see Id. 155, b, note 5.)
JBlaekstone says: “But in both* these instances,” (instances-of a special verdict and a special case,) the Jury may, if they think proper, take upon themselves to determine, at their own hazard, the complicated question of fact and law; and, without either special verdict or special case, may find a verdict absolutely for either the plaintiff or defendant.” (3 Black. Com. 378.)
These constitutional provisions and Common Law authorities, taken together, seem to be quite sufficient to support the latter part of the judgment of this Court.
Speaking for myself, I must say that I think they are quite sufficient to support the proposition, that the Jury are the-Judges of the law as -well as of the fact, in all cases; and
If so, what is the law, ought as well to be discussed before-' the Jury, as what is the fact; that is the right of the Jury, not less than the right of the parties.
