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Image 1 of Kentucky gazette (Lexington, Ky. : 1789), January 16, 1799

Part of Kentucky gazette (Lexington, Ky. : 1789)

4T" THE KENTUCKY GAZ"ETTE. WEDNESDAY, January No. 645. LhtlhGroN- - pbinted Jury, hl LiBit on THIS celebrated judge aster having by a long ca un of eiloning, the correctness of which mail i.ot at pre. ientexamme , (taud the aolotti'e ne-- , telhty of pum rung m a molt exempla ry maiinei agiinlt the olhteis of government, as ell as thole agai'ilt p jitepeii n , ami attei having laid Sown as law kveral poll ions, the pi o piiet) of wl.ich i by no means admit, alrho' shall not now niveftigate them, beca ife it is not neceflaiy toi my ourpote, to do lo : 'peaks 1,1 the 1 I , 1 pre-le- iolloH), luarevi! ico i pr jf"-u- i i ti ijels, as In t " As gr in ly on lu i .11 m ill ti "tn ems i irleslhe joiv oili-- j Ji c--t for ics tlie li- - detei-min- e the iw ai the tatts under the direction of thr court, (ti at is, ij j r 'iitoii , i pot : of lirj,rcj; a itii'rai Jicr,) the gra id jury m .irallj fpe "king, cannot afcei tain wIkciic the libellous mattei be ti tie o not, bat it the nnk'ng or pubhlhin the li el, be ptoved, they ' u ' , and on the trnl betoie v tlijina the traverk jurj , the a irt will direst W1 th'r ' u of th. truth be adv 'Jp- Iwi the t i or utt'r br t . d ritl.on tlous ir jt , .i'i! :nd e the cou t l traj.rfe my wt'i d 'lIVI jnd td ' rv. t nin'- - the poM ions Bei.u will p ri of hischat titnt;d j be of le i e i ei q in e i id the oi of the initiation of the 'ii ll ca its importance 10 the ti la! by ferure e ij lenr of onr tpt Is vali I 1 cmifor-rniift- aiiitt ,. l 11 , It-- b ai con-'fu- s g-- ,it t in, le i u ri jr4j , .ml pnnleges : aiui the to t l.irh the pow.'is of a j lry miilt be car, iul t inike that trial J real fecuut , 1 id not a nominal one n in 'oi jg rb s, a wrll as in thelubfcq iint parts ul ithefe observations, 1 i al tj ,ote fieely from ttic vi itlngs ot otners , betau'e I am conscious that ilicy have exprelll'd the prper ideas upon this fubjecl, in a much mote forcible In inner than 1 ciltild do; dnd because 1 wi'h my readers U be satisfied, that I am not attempting tp ii.ipofe upon them Jiew or docifines. Sir William iilackltone,, says, " the.trial by jury Jies been ufeil tune out of iiiind-i- n tliis Jiation and seems to have been coeval vith the fir.ff civil goernment thereof. Its cltabhihmeut however and. of what date foevei ttfein this it be, thou Ji for a time greatly ami ihaken, by the intioducti-o- n of the Ntjr.-tatualE) bi'tlu, was always f i hi fhly eftcemed ai d valued hy the jie iple that no concj lefl, no Change of j' ivernment, coula ever pre Tail to ab lifh i'. In chana it rs rnoi e than o re infilled on, as the ex-te.- 1 din-erou- i'l-in- n ptiucipal it. rtirtl as theie is, however, a period at wluchthe prudence ot man this culogium may seem, it is no nlore in nit Hop, at winch the faictyofthe than this admit able conliitution, wb.u individual mult be given up, and the traced to its prttutptet, will be sound in Jaws to resign him over to the judgfobtr lea'on to delei ve. I he impar- ment ot a tew peilbnst that is, lo speak plainly, to a decision in some tial adminiltration al'jtfflicevbich le (enie aibitr.iry, it is neceflaiy that cures both otii perfoi1 and our pi this law should narrow as far as pos is the c;reat en-- of civil Jbcie-tUut it th . be entirelj intnfjretl to rfible, this fpheie of peril, and so oi the niajiifliacy, a jeiect iodyof men, der matters, that when the lubject ard thole generall fele.iitedi.jijy the liiall happcri" to be lummoned to the decil'on ot his sate by the fallibk offices pi line, oi luch us enjoy tne t e It their delt. lions in fpliiht of conlcience oFu sew ol his fellow ciea- tin cs, he tna always find it) them ad- their own natural ititegnty, wjTHnvi frequently an hivjuu t u y bias rowrtins. v.c t j, and never advc fanes " 'I he " ,and as the 'mam thole of then oviin i'. n digi itj : same author om liuinanjl oblli of the influution of the trial bv u is i, .it to be ext riii'd oe always pn,y is so gnurd accused periling U rarure, mat tuci-- j at'i. itivrf to tfte int. icts .nd good oi galnlt all decifiOnt whatsoever by men offictal t'le nuin '" The lau.e a 'hor says, i.j sled VJith any foi laws aie intended, not to " It is therefoie n, n the wnole a luJ tv hitii evei y nuii o es 10 his cot n t uft t v. ha men tu;do, but tj guard try, Insfi ieud-- , his poiteiuj and mi agiinlt iMut ihej may dp, it is not 0 iiy a leit'ci. Multiple, tiat the opt. feW to mit.ituiit ti li itthoj, of his pov. nton whl li tne judge delivers, has no cr this valnjb.s c j it ition in ail its t but i itii a the jury ehoofeto r ts , toiejloiet t , its ai t.nt dignity , verdict mull besides jiive it, but ihi-iis at aii unpaired try th' dijferent villi of p- petty or otht. u se d j'at.d ft um its toinj rcliciu! mi whole natter in tiial, aim Vi de as well upon the faCt, as jiii injl Italian , to an n I It, vihciii t is dtfifttve , inlbooe aU, to vuuri i,)C the pmni of law that may arile with th moji is in cumpsttton, a utotit. 111 oilier words, they mull j ' ft ti e intro in.1 sit 'f n 'J and at bi pionounce b th on the comiujlhon oi t ny n ih'ds of t i ii hicumler a ja icei at ait, and on the tea soil which ui.ikrs li thy r to becontraiy tir fw b s tiiaj in ti t pt tit) f J unlets the) ip to give a special i plaby t'nJi.1 ni'n. Is" t'ejf p is is, even so ellemial .1 I i at, e of E ns h Itbeii, " i he vert'nit. lame lutliur. fa) tne n iq nit "i ;r n , i?t .1 b H'of indictment mull excellence of thism-- I lor the leuliug sxiirtli. ) be ro inded upon thole Xwo Itt'ts. ot chil propein, hasbfioie been tt hi. 0 .ndLtment lor uea-- , tiiat the alledjgea pla,nvd at laie. ;nd it will h 1) Jon mljftclni;. ted with a trtufonnhJi sails wr t in cnmi lal cases oiucn di on he tMinciple that a juiy I; a t (; tfn'S of diji'irity an ' dang'r viol is i dctidf hoili n ihcjafl, and ihccr b' apprJhtiid'd ftom th' zionic 1, so w sell underllood.l tality (f p tti .ityofju'g J jpponUdby th: i ji in its b twecit t i in and the J i j tt that it a strdnt were lo framed, as onlv to nive ior its objet't the Ifare th ill in d. fumes b twen ore m ivi e ciltence i h fact laid to the charge dual ai d nithd. to Utile metes an no puuifhment could the p n L'Hiiiri.ii its of pi Ira f pi open y Our u s 1ias t'le'el'cir.' viU l; placed this be awaided by the judge in cpnfe-i..nce ot ir juries are even so itM.Djr auo twofold t a ner, ot a pre onl itie in Uieir verdiCt, fu ap 'en mem and ti l tl b urj betwee the Beeii,' p henl!ve ero libeitie ot the people ttiTd th precdinioi s to refrain them in the ttive ot the trow n It was aectU exncife ct tbt r tnuc'tion, however itrv f or prelervinj; the admliableLa lance of our conltuution to vest the ipecio is in the beginning, migit in executive power ot the laws in the the Ine be converted to the veiy of the end of that mfliuui-on- , pri and vet tins power mi nit be that it is a repeated principle', 'hat dangeioua d detti uitive to that d li lering his optr.ton, 'is to juror conlktutieli, it exerted wii limit oth but his opinion itself , check or controul by jt tlites of oyc h i' e and terminer occahonally named by t' at is to iv , ji'o other rule than the the crown ; jsho mtglt then, as in belies wl b tlults to his tniiul tiom fiance or Torkej , nnprifon, diiatch 'he tai'ts ile lp;ed on both sides, fiom eir pi ib ibi'itj , from the ci edibil tj or exile any man thit was obn.OMons s and even fioin all fucb ofthewi to the governuu;nf , by an inflant i'e claiation tlpif ijich is their will ami tircuuiifrncc is he may have a pftv ite oil,' erf" The lame auihor fa)s, plcafiire BtH fje sounders of the n ' !nawoul,tlie conliitution of fng liili iiws have with torecalf betnsr f, ee constitution, (Ionian contrived that'jio man l.iould be called io anler to the I.1114 for any capital ded tiom ill" tn funjllance alone (as should aliea Ij have foo often icpea-ted- , cume nnlefs upon the prepaiatoxj ac it so fundaiuental 'a. truth could dilation of twelve ot hist ell ow fubjetts be too often uiged,) exti aordinar) the grand juiy : anJ tat the truth is e vrj accuation, whether pi eferred . 111 precai"'(ns to gliard againYt ihe'dan-gerwhich unavoidably attetjd the the fliape of indictment, infoiniaii.n power of tut Icting puiiifhriient, and ci appeal, (hould attei v arHs be confirmed by the iinanunoiis fnfti age, oj it is particularly whn ronfidered in tbis light, tb it the trial bj jury pioves tivehc of his equals and neighbors tndtffer-ettlan admuablfidnltiuition. By means chqferi) andfupertor t? all fujputoi of it, the judicial authorit) is not onSo that the Ube'ties of England kannot but ly placed out M" the hands ot the man fubfijlfo long as tbs Palad,um remains fi who is vel'ed with the executive an cred a id inviola e, not only from all of en thouty it is even out of the hands attacks (rvbich none will be so hardy as of he judge htmJf. Not only tfle machinato make) but alfojrtm all secret pei sun who is milted with ihe public tions ixibuh may sap and undermine it, power cannot exert it, till he- has, as by intioducing new and aibitrary meit were, received the permifhon to thods of trial, by jull ices of the peace, that purpose, of thole who aie set a commilhoners of the revenue and pai t to admtniilei the laws , but these courts of confeienee." Towets, "on latter are alio telltained in a mannei the rights and duty of juries," says, exatlly alike, and cannot make the "the right of trial bv j y , is of infi- law fpeak,"ln)t vMicn, in their tuin, nite importance to the libeitj of the they have HLewife received permifhfubjecT. It cannot be guaided witn on." This author concludes his too much vigilence, noTdetended w ith on this subject thus ' il too much ardor. No part of the power these ciicuniftances h ive combined to f jiirtts fbiuld be given up to the Claims introduce fucb a nuldiiefs into the ex 'or ujurpitions of any body of nun nhatev:r. ercife of criminal jullice, that the triThe rtglifs afjiiryiKcn fbould tri all cases le al by jury ii that point of their libei-trefolutety ajftrfd, whether tlieybe attackto whrch ihe people of are ed by open violence, or whether the arts of molt tlfoiouihly and univerl 'Ily wed ded : and the only complaint I have legal chtcane be adopted, in order to tendei them'jiplefs and nugatory But juries ev er heard uttei ed againll it has been jbould eerbe tame ana fenfelefs1 enough to by men, who, more fenlible of ibene gtve up the right of determining the law cefiity, of public order, than alive to the feelings of humanity, think thai as vell as the sad, in ttbel causes, the li too many ollendeisefcape with impu bcrty of the press is then wholly at tue dtf nity " ' cretion oft he judges." From the reasoning contained in says, ' Since all judicial De Lolinc these quotations we mult receive the powder is an evil, though a neceil'ary one, no care should be omitted to re- jinofl fatisfadtory evidence of the ex tuul duce, as far as pol&ble, the dangers ccllencc and iinpoitance of ftraitg't s ri tkk Grans of i he i'Rt.s. bulwark of our liberties tttat lo th by Jiff- - ot 7Wtr kreai ah y heji , - , la-$- ! int'i , i I ei' r - j-- ii 1 i 1 1 1 1 11; J ' V 1 jr , J 1 1 , f i 1 1 q un-ion- ti i i ls "; lt-l- ! 1 -e , ve-4- y 11 1 I -- nt-l- 1 exci-lien-t 1 I And it was ever elteemed in all countries a privilege of the lugbelt and niofl benefi-ia- l The f.une natuie." riuthor says, i kn iwledge of the Jaw yefpcifhiig juries U, "a species of mo't abTolntely neceflary, for every gem letiian inthe kingdom , as well !)?ca ife he may-b- e lieqirenr y called upjn to deteimine in this capacity ou the rights of others, his fubjcits , as becanfe his own liberty and his life, upalt mtititatntiig in its legal jorti, th: iQiiftitutujital trial by jury " I he lane author says, "tipon these accounts the trial byjury ever has been, and I trufl ever will be lopked upon a. the glory wftheEnghih law ; and is it ha"rfo great in advantageover others in regulating civil property, how much mull that advantage he heightened when it is fel-Jo- is applied to riiminal cases ; b'lt this we Sniulf defer to the enfuingbook of those , ommentaiies , only obferinafor the iprefent, that it is the nioft tianlcen- dent privilege which any subject can enjoy, or wifli for, that he rinnot be taffeoied either in his property, Ins li .beity, or his pei son, but by the cahfmt of twelve of his neighA constitution bours and eq'iils htt I may venture to afUrm has, providence secured the jull liberties of this nation, for a long fucceJli-aof ages. And therefore a celebra-eFiench writer who concludes that jecaufe Rore, Sparta, and Carthage lave lost their liberties, therefore hofeof England in time mull perish, honld have recollected, that Koine, ipaita, and Carthage, at the time una-jnimu- tin-H- n d XII. JOHN BIlADrCfllD, est itAiS 'TfEET; tK'CE fifteen shillings Jer Anncm. by when their lioerties were lott fl'JAS O B6 E K.V 4 On Ju33g Aja bji1, t rtimce Vol. 16, 1799; s y - 11 y 1 te ty Jury . and we mult feel with the tuljeit conviction, that every t.nng that can be Uid in savor of this mode ot tiial 111 nvil cases; will hold much Ihonget- in criminal cales : " since in times of diihculty and danger, more istfu be appiehended from the violence aivi partiality ot the judges appointed hythe cov eminent.-I on pi olecutior a cai i led on in the name ot tne public againlt a citizen, than dilpuces between one citizen and anothei rescuing property. Arid he fetnrity leally given to the citizen by this mode of tiial is, that he shall not be put to anftver for any crime, but upon the "preparatory twelvei odinorei of bis felldw citizehSi the giaiid jury j and. that he shall not be adjudged to be. guilty of the cume of winch be is bj judgC3 liable to be influen-te- d b) partiality savor of those who adiiiiniler the government, (by whole 01 dei s the prolecution ir earned on ) but only by the unanimous fu(fiare of tw tlve of his equals and liciglibo! . lndifferentl) cijolen, and free from alt lufpicion, flic pes mitring the judges to have any (hare in decidin-- on. the guilt of the accused, would alio deprive him of the benefit of thecom-palho- n and meicy ot otir law. by which unanimity in the jui) is re. quired, hor the law is so far fiou vti.lnng the convicTtion of the innocent, ihat it has decided, that is his offence is not piqved beyond all us doubt in the nrolbltrnpulnus jLior,iIiattliej irv llionlleri ontneinfe Jfjdel an4 a hngje vpjo be fitihcunt to pie,veiit lum f)oi beint' sound iiuiltv. rfut as lar deciding on his guile lslelt to die judge, a jintU vctce may decide agaaf Inm, nod twelve j who arempt liable to ihc fulpiti-onto vjuch ijiat ji dgt is iubjttt, nitift coiwur in find. up hjm guilty, even again!, their couftieiiros. .t? tiieretofc,, vthe power-o- f deciding rn tjie innocence or the guilt ot the pir-io- n accused, is yelled byjjy il tie jury, ttilFciad of giving it to thejudc, for thepiotectlon of inocence ai d libel ty, as the onl) elfeCtual U'curi-t,- y againlt corruption . i.d p,n ti ,luy in trials upon ti iiui11.1l acctiiattons , to gue real effec't to the de.(ign of tins' inilittition, juries iiiufl be confi rieil as having full jonei given to tnrni by law, to judge whether the act fed has bjen leally guilty of the oj-; wuh which he is th.uged , and tie y attji ptjWjiich is made by jmlgrs to lake to ijliernfelves any .bate m dtci. of the perfou accu- ding on led is illegal, nnd iuico iutional. Having i .id so much as toihctria by j iry 11 ciumual ta-- i les, to make the dtCtiine applicable to t,h.e, case undir confideiation, it need only be alkrted, because ic cannot be denied, that a pio(ecti11011 for a lioel is a criminal case, nd it is well known to all who aie cnnveifant with the hiltory of ciimit nil prosecution thai here is no criminal prolei uvion, uh.thi3 genei illy cauied on with asintnh Black-ltun- e, - " 111 111 r polli-biltt- j. as-th- y-tr- ep s, 1 m tl,e;f -- , - Ipe-uts- and ot ta.icn, by ihoic o guve nment , and one 111 which judges have dilcoe.-e- d aj much partiality ia savor of pioiccu-toi- s, as in pi ofecutions for hbtls. The sir fl a'e itimula'et' by pude ambition, hatied and a tbirll ot stveuue, to exert eve.y effort to proem e tlie pi nilhtnent ct thole w hoexpo'e to 1 tbc-worl- theii follies, vucs, ntj;let's i duty, illegal aliumptiorw of pn ei and liqniious views, the list find no in which teeir lervices V ill le cot.fidered as equally meritorii us, or in which they will be as gratefully received, by those in pow ei , as hi tl ofe profecu ions, where eve. rv caflion which ca 1 inline the nun1 ofmai' It a t thtm to endeavor to a Ve 'he pr ru'ion fiicceU-tu- l It is the eftie iLele that tl e ji i "ofttnefl ay to tint bi s w hu h Hlaikft tie l.ivol n ris they illr ov arjarily feel io to pn.n ce 'aoi those in 4 er he vie. s of the t tae expenip of the manj. . and f th. reason a's il e es 1 1 jI 111 111 1 ue vs -- 1 . I has been ciicumfpei.1- mi cot sin. sij. mi U ingthe iowei of the judges, in thele piofei-t-i ions as i am ot'ier criminal proffcutions v lntfo'ei In that part ot the judge's charpe whith ' hive already q mve he iiitiOg upon flic ioHoNYing positions as being i, 1 1 '. - s'

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