905 Page – American State Trials 1918 Volume X Leo Frank Document

Here is the translated text as follows:

JAMES THOMPSON CALLENDER

According to the dictates of conscience and the laws of the country, controlling them would endanger the right of this most invaluable mode of trial.

I have understood that some reliance would be placed on two decisions of the courts of this State, in which they determined two acts of our legislature to be unconstitutional. However, when we analyze these decisions, they do not authorize the belief that the jury lacks the right I contend for. They only prove that the judiciary can declare legislative acts to be unconstitutional; they do not prove that a jury may not have a similar power.

In the case of Kamper v. Hawkins, the courts refused to carry into effect a law that gave the district courts the right to grant injunctions in certain cases because they thought it unconstitutional and believed that the courts had no power to act under the law. That case did not turn on a relative view of the power and connection of a court and jury; it was a question of whether the courts would exercise a particular jurisdiction and carry into effect that act as practiced by the judges in chancery. However, they never decided that a jury did not have the right to determine the constitutionality of a law, nor could a question about this right have arisen in those two cases. The court stated that the judiciary was not bound to carry into effect an unconstitutional law.

I do not deny the right of the court to determine the law, but I deny the right of the court to control the jury. Although I have not bestowed very particular attention on this subject, I am perfectly convinced that the jury has the right I contend for, and, consequently, that counsel has a right to address them on that subject.

The act of Congress to which I have alluded appears to have given the jury the power of deciding on the law and the fact. I trust that when this whole question comes into consideration, the court will allow the counsel for the traverser to speak to the jury, subject to the direction of the court.

Mr. Hay observed that he was prepared to address the court on the extent of the powers of the jury in the case at hand.