Draft Comment #02 on the Proposed Criminal Jury Instructions

by Jon Roland, President, Constitution Society

For latest version see http://www.constitution.org/jury/pj/comment02crim.htm


005. There are some fundamental constitutional problems with the following instructions:


20. Cautionary Admonitions: Jury Conduct (After Jury is Selected)

7. Do not do any research on your own or as a group. Do not use a dictionary or other reference materials, investigate the facts or law, conduct any experiments, or visit the scene of any event involved in this case. If you happen to pass by the scene, do not stop or investigate.

[11. If, during the trial, you have a question that you believe should be asked of a witness, you may write out the question and send it to me through the bailiff. I will discuss the question with the attorneys and decide whether it may be asked.]

The court has a sua sponte duty to instruct the jurors on how they must conduct themselves during trial. (Pen. Code, § 1122.)


Let us examine Pen. Code, § 1122, which states:

1122. (a) After the jury has been sworn and before the people's opening address, the court shall instruct the jury generally concerning its basic functions, duties, and conduct. The instructions shall include, among other matters, admonitions that the jurors shall not converse among themselves, or with anyone else, on any subject connected with the trial; that they shall not read or listen to any accounts or discussions of the case reported by newspapers or other news media; that they shall not visit or view the premises or place where the offense or offenses charged were allegedly committed or any other premises or place involved in the case; that prior to, and within 90 days of, discharge, they shall not request, accept, agree to accept, or discuss with any person receiving or accepting, any payment or benefit in consideration for supplying any information concerning the trial; and that they shall promptly report to the court any incident within their knowledge involving an attempt by any person to improperly influence any member of the jury.
(b) The jury shall also, at each adjournment of the court before the submission of the cause to the jury, whether permitted to separate or kept in charge of officers, be admonished by the court that it is their duty not to converse among themselves, or with anyone else, on any subject connected with the trial, or to form or express any opinion thereon until the cause is finally submitted to them.

The instruction in paragraph 11 may be given at the court's discretion.

No Independent Research » People v. Karis (1988) 46 Cal.3d 612, 642; People v. Castro (1986) 184 Cal.App.3d 849, 853; People v. Sutter (1982) 134 Cal.App.3d 806, 820.

Nowhere in this section is there authority for the instructions "Do not do any research on your own ... . Do not use a dictionary or other reference materials, investigate the ... law". That is absurd. The juror could be a legal professional who is more knowledgeable about the law than anyone else in the court. Jurors can hardly function without a background in the law from their own experience, and there can be no constraint on their efforts to expand or improve that knowledge. To attempt to do otherwise is to overstep the bounds of the law.

Concerning instruction 11, the presiding officer should have no discretion. Discretion raises issues of whether the due process rights of the accused have been protected. The established standard for due process from the Founding Era is that juries have the right and duty to ask questions, call additional witnesses, and even conduct their own research and investigations. See below, opinion of Justice Horace Gray, with whom concurred Justice Shiras, dissenting, in Sparf & Hansen v. U. S., 156 U.S. 51 (1895).


100. Duties of Judge and Jury

5. You must follow the law as I explain it to you, even if you disagree with it. If you believe that the attorneys' comments conflict with my instructions, you must still follow my instructions.

Judge Determines Law » Pen. Code, §§ 1124, 1126.


Let us examine Pen. Code, §§ 1124, 1126, which state:

1124. The Court must decide all questions of law which arise in the course of a trial.

1126. In a trial for any offense, questions of law are to be decided by the court, and questions of fact by the jury. Although the jury has the power to find a general verdict, which includes questions of law as well as of fact, they are bound, nevertheless, to receive as law what is laid down as such by the court.

There is a obvious problem here. First, the "Court" includes the jury. In a criminal trial, the presiding officer might be called "judge", and might perform some of the functions of the judge, and all of the functions where there is no jury, but where there is a jury, the jury are the final judge, and part of the "Court", the presiding officer by himself is not the "Court", and the jury are not accountable to anyone but their conscience for how they arrive at their general verdict. The rulings and opinion of the presiding officer should be given due consideration, but if they could be relied upon to always be right we wouldn't have a jury system, which is predicated on the truth that judges, prosecutors, and witnesses cannot be trusted to be impartial, competent, or honest. If the presiding officer can't be trusted to decide the "facts" then how can he be trusted to decide the "law" by himself?

Indeed, the questions of "fact" and "law" cannot be separated. Any judgement concerning the "law" necessarily entails a judgement concerning the "facts". Indeed, under the constitutional jurisprudence of the United States, "law" itself is a kind of "fact" to be "discovered", not something that is given or created by the reasoning or knowledge of a presiding officer. A decision about jurisdiction, which if any laws or charges are applicable and authorized, or which evidence is proper or relevant, is predicated upon the facts in the case, and to attempt to remove the questions of law from the jury based on those facts is to restrict the facts they are to consider and infringe on the duty of the court to leave the judgement of the facts to the jury.

The argument that the jury typically does not have the background of knowledge to decide the law, and that therefore the law should be kept from them, doesn't work. How can a defendant be expected to obey a law if the jury can't agree on what it means? One of the main purposes of the jury system is to keep the law sufficiently simple and limited in extent so that ordinary people can comply with it. If learned legal scholars cannot agree on what the law requires or prohibits, then it is time to reform the law, and time to find a verdict for defendants under that law of "guilt not proven".

The proposed instructions are not authorized by the constitutions of the United States or the State of California, by due process as it existed at the time the United States was founded, or even by the statute, if properly read. It might follow established judicial practice, but it is a practice that is ultra vires, arguably fraudulent, and arguably an attempt at jury tampering.

Better instructions would be the following:

5. You have the power to find a general verdict, which includes questions of law as well as of fact, but you are bound to uphold the law, even if you disagree with it, and, as presiding officer of this Court, I ask that you give due consideration to my rulings and opinion on the law, of which you are the final judge, and follow them unless you have good reason to believe they are partial or wrong.

6. To reach your verdict, you are entitled to have all important issues of evidence and law argued in your presence, to have copies of all applicable constitutions, laws, and legal pleadings in this case, to have the use of an adequate law library, and to be able ask questions of witnesses, or call additional witnesses if you deem it necessary to reach a just verdict.


190. Pre-Deliberation Instructions

6. Your verdict [on each count and any special finding(s)] must be unanimous. This means that, to return a verdict, all twelve of you must agree to it.

Unanimous Verdict » Cal. Const., art. I, § 16; People v. Howard (1930) 211 Cal. 322, 325; People v. Kelso (1945) 25 Cal.2d 848, 853-54; People v. Collins (1976) 17 Cal.3d 687, 692.


The above instruction is seriously misleading. The jury must be unanimous to find a verdict of "guilt proven", not a verdict of "guilt not proven". The mistaken belief that they must unanimously agree on a verdict of "guilt not proven" is the cause of hung juries, which are supposed to be impossible in criminal jury trials. A better instruction would be as follows:

6. A verdict [on each count and any special finding(s)] of "guilt proven" must be unanimous. This means that, to return a verdict of "guilt proven", all twelve of you must agree to it. You do not need to agree on a verdict of "guilt not proven", and if you cannot agree on a verdict of "guilt proven", then you must report a verdict of "guilt not proven".

"Guilt proven" and "guilt not proven" are more precise and better terms than the traditional "guilty" or "not guilty", the latter suggesting that the judgement is factual innocence, when it is merely the failure of the prosecution to prove guilt beyond a reasonable doubt.

But an additional instruction is needed to avoid hung juries in cases where the offense has degrees or lesser included offenses:

7. There are degrees of guilt for this offense [or lesser included offenses]. Your vote for "guilt proven" for a degree [or included offense] is a vote for all lesser degrees [or included offenses]. The verdict of the jury must be the highest degree [or included offense] on which all of you agree, unless at least one of you votes "guilt not proven" on all degrees [or included offenses], in which case "guilt not proven" is the verdict of the jury.


Jury Can Still Consider Evidence That Someone Else Was the Perpetrator

"The instruction does not tell the jury it cannot consider evidence that someone else was the perpetrator. It merely says the jury is not to speculate on whether someone else might or might not be prosecuted." (People v. Farmer (1989) 47 Cal.3d 888, 918-19.)


The above distinction between "consideration", which is permissible, and "speculation", which is not, is more confusing than enlightening. Better to just provide an instruction:

If evidence that someone else was the perpetrator creates reasonable doubt in your mind that the accused was the perpetrator, then you must find a verdict of "guilt not proven".


To justify these positions, I can hardly improve on the opinion of Justice Horace Gray, with whom concurred Justice Shiras, dissenting, in Sparf & Hansen v. U. S., 156 U.S. 51 (1895), the latter part of which is quoted below:


It is our deep and settled conviction, confirmed by a re-examination of the authorities under the responsibility of taking part in the consideration and decision of the capital case now before the court, that the jury, upon the general issue of guilty or not guilty in a criminal case, have the right, as well as the power, to decide, according to their own judgment and consciences, all questions, whether of law or of fact, involved in that issue.

The question of the right of the jury to decide the law in criminal cases has been the subject of earnest and repeated controversy in England and America, and eminent jurists have differed in their conclusions upon the question. In this country, the opposing views have been fully and strongly set forth by Chancellor Kent in favor of the right of the jury, and by Chief Justice Lewis against it, in People v. Croswell, 3 Johns. Cas. 337; by Judge Hall in favor of the right, and by Judge Bennett against it, in State v. Croteau, 23 Vt. 14; and by Chief Justice Shaw against the right, and by Mr. Justice Thomas in its favor, in Com. v. Anthes, 5 Gray, 185.

The question of the right of the jury under the constitution of the United States cannot be usefully or satisfactorily discussed without examining and stating the authorities which bear upon the scope and effect of the provisions of the constitution regarding this subject. In pursuing this inquiry, it will be convenient to consider, first, the English authorities; secondly, the authorities in the several colonies and states of America; and lastly, the authorities under the national government of the United States.

By Magna Charta, no person could be taken or imprisoned or deprived of his freehold or of his liberties or free customs, unless by the lawful judgment of his peers, or the law of the land, — 'nisi per legale judicium parium suorum, vel per legem terrae.' Accordingly, by the law of England, at the time of the discovery and settlement of this country by Englishmen, every subject (not a member of the house of lords) indicted for treason, murder, or other felony had the right to plead the general issue of not guilty, and thereupon to be tried by a jury; and, if they acquitted him the verdict of acquittal was conclusive, in his favor, of both the law and the fact involved in the issue. The jury, in any case, criminal or civil, might indeed, by finding a special verdict reciting the facts, refer a pure question of law to the court; but they were not bound and could not be compelled to do so, even in a civil action.

By the statute of 2 Westm. (13 Edw. I.) c. 30, 'it is ordained that the justices assigned to take assizes shall not compel the jurors to say precisely whether it be disseisin or not, so that they do shew the truth of the fact, and require aid of the justices; but, if they of their own head will say that it is or is not disseisin, their verdict shall be admitted at their own peril.' 1 St. Realm, 86. That statute, as Lord Coke tells us, was declaratory of the common law; and before its enactment some justices directed juries to return general verdicts, thus subjecting them to the peril of an attaint if they mistook the law. 2 Inst. 422, 425.

Littleton, speaking of civil actions in which the jury, upon the general issue pleaded, might return a special verdict, says that, 'if they will take upon them the knowledge of the law upon the matter, they may give their verdict generally, as is put in their charge.' Co. Litt. 368. And accordingly Lord Coke says: 'Although the jury, 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 do; for, if they do mistake the law, they run into the danger of an attaint; therefore to find the special verdict is the safest, where the case is doubtful.' Co. Litt. 227b.

Lord Coke elsewhere says that 'the jury ought, if they will not find the special matter, to find 'at their peril' according to law.' Rawlyns' Case, 4 Coke, 52a, 53b. And Lord Chief Justice Hobart says: 'Legally it will be hard to quit a jury that finds against the law, either common law or several statute law, whereof all men were to take knowledge, and whereupon verdict is to be given, whether any evidence be given to them or not,' and 'though no man informed them what the law was in that case.' Needler v. Bishop of Winchester, Hob. 220, 227.

The peril or danger, above spoken of, into which the jury ran by taking upon themselves the knowledge of the law, and undertaking to decide by a general verdict the law involved in the issue of fact submitted to them, was the peril of an attaint, upon which their verdict might be set aside and themselves punished. Upon the attaint, however, the trial was not by the court, but by a jury of twenty-four; it was only by a verdict of the second jury, and not by judgment of the court only, that the first verdict could be set aside; and, if not so set aside, the second verdict was final and conclusive. Co. Litt. 293a, 294b; Vin. Abr. 'Attaint,' A. (6); Com. Dig. 'Attaint,' B. Moreover, no attaint lay in a criminal case. Bushell's Case, Vaughan, 135, 146; King v. Shipley, 4 Doug. 73, 115.

Lord Bacon, in his History of Henry VII. (originally written and published in English, and afterwards translated into Latin by himself or under his supervision), speaking of the parliament held in the eleventh year of his reign, says: 'This parliament also made that good law which gave the attaint upon a false verdict between party and party, which before was a kind of evangile, irremediable, — in the Latin, judicia juratorum, quae veredicta vocantur, quae ante illud tempus evangelii cujusdam instar erant, atque plane irrevocabilia. It extends not to causes capital; as well because they are for the most part at the king's suit, as because in them, if they be followed in course of indictment, there passeth a double jury, the indictors and the triers, and so not twelve men, but four and twenty. But it seemeth that was not the only reason; for this reason holdeth not in the appeal, — ubi causa capitalis a parte gravata peragitur. [That is, the appeal of murder, brought by the heir of the deceased. See Railroad v. Clarke, 152 U.S. 230, 239, 14 S. Sup. Ct. 579.] But the great reason was, lest it should tend to the discouragement of jurors in cases of life and death, — ne forte juratores in causis capitalibus timidius se gererent, — if they should be subject to suit and penalty, where the favour of life maketh against them.' 6 Bac. Works (Ed. 1858) 5, 7, 160, 161; 5 Bac. Works (Ed. 1803) 117; 9 Bac. Works, 483.

Lord Bacon was mistaken in assuming that the attaint was introduced by the statute of 11 Hen. VII. c. 24; for it existed at common law in writs of assize, and had been regulated and extended to other civil actions by many earlier statutes. 2 Inst. 130, 237, 427; Finch, Law, lib. 4, c. 47.

But the mistake does not diminish the force of Lord Bacon's statements that, wherever an attaint did not lie, the 'judgment of the jury, commonly called 'verdict,' was considered as a kind of gospel'; and that the reasons why an attaint did not lie in a capital case were not only that two juries, the indictors and the triers, had passed upon the case, but chiefly that juries, in cases of life and death, should not be discouraged, or act timidly, by being subjected to suit and penalty if they decided in favor of life.

John Milton, in his Defence of the People of England, after speaking of the king's power in his courts and through his judges, adds: 'Nay, all the ordinary power is rather the people's, who determine all controversies themselves by juries of twelve men. And hence it is that when a malefactor is asked at his arraignment, 'How will you be tried?' he answers always, according to law and custom, 'By God and my country'; not by God and the king, or the king's deputy.' 8 Milton, Works (Pickering's Ed.) 198, 199, The idea is as old as Bracton. Bract. 119.

In the reign of Charles II. some judges undertook to instruct juries that they must take the law from the court, and to punish them if they returned a verdict in favor of the accused against the judge's instructions. But, as often as application was made to higher judicial authority, the punishments were set aside, and the rights of juries vindicated.

In 1665, upon the trial of an indictment against three Quakers for an unlawful conventicle. Wagstaffe and other jurors were fined by Chief Justice Kelyng for acquitting 'against full evidence, and against the direction of the court in matter of law, in said court openly given and declared,' — 'contra plenam evidentiam, et contra directionem curiae in materia legis, in dicta curia ibidem aperte datam et declaratam.' His reasons for this (as stated in his own manuscript note of the case, not included in the first edition of his Reports, published by Lord Holt in 1708) were 'that they and others may know that a willful jury cannot make an act of parliament or the law of England of no effect, but they are accountable and punishable for it'; and 'that in criminal cases the court may fine a jury who will give a verdict contrary to their evidence; and the reason (as I take it) is that otherwise a headstrong jury might overthrow all the course of justice, for no attaint lieth in criminal causes, and also one verdict is peremptory, and a new trial cannot be granted in criminal causes, and therefore the judges have always punished such willful juries by fine and imprisonment and binding them to their good behaviour.' But at the end of his report is this memorandum: 'Note. The whole Case of the Quakers, as to fining jury, now not law.' J. Kelyng (3d Ed.) 69-75. And Lord Hale, then chief baron, tells us that the jurors 'were thereupon committed, and brought their habeas corpus in the court of common bench, and all the judges of England were assembled to consider of the legality of this fine, and the imprisonment thereupon'; and the jurors were discharged of their imprisonment, for the following reasons:

Lord Hale's apparent meaning is that, at a trial upon the plea of not guilty, the jury are the judges of the issue of fact thereby presented, and it is the conscience of the jury that must pronounce the prisoner guilty or not guilty; that, as no matter of law can come in question unless the facts are first found by the jury in a special verdict, it were idle to say that a general verdict was against the judge's direction or opinion in matter of law; and that, if the judge's opinion in matter of law must rule the issue of fact submitted to the jury, the trial by jury would be useless.

The reasons are more fully brought out in Bushell's Case, in 1670, not mentioned in the text of Lord Hale's treatise, and doubtless decided after that was written. William Penn and William Mead having been indicted and tried for a similar offense, and acquitted against the instructions of the court, Bushell and the other jurors who tried them were fined by Sir John Howell, recorder of London, and Bushell was committed to prison, in like terms, for not paying his fine, and sued out a writ of habeas corpus. Penn and Mead's Case, 6 How. State Tr. 951; Bushell's Case, Vaughan, 135, 6 How. State Tr. 999; 1 Freem. 1; T. Jones, 13.

At the hearing thereon, Scroggs, the king's serjeant, argued: 'It is granted that, in matters of fact only, the jury are to be judges; but, when the matter of fact is mixed with matter of law, the law is to guide the fact, and they are to be guided by the court. The jury are at no inconvenience, for if they please they may find the special matter; but if they will take upon them to know the law, and do mistake, they are punishable.' 1 Freem. 3.

But Bushell was discharged from imprisonment, for reasons stated in the judgment delivered by Sir John Vaughan, chief justice of the common pleas, after a conference of all the judges of England, including Lord Hale, and with the concurrence of all except Chief Justice Kelyng. Vaughan, 144, 145; 1 Freem. 5; Lord Holt in Groenvelt v. Burwell, 1 Ld. Raym. 454, 470.

In that great judgment, as reported by himself, Chief Justice Vaughan discussed separately the two parts of the return: First, that the acquittal was 'against full and manifest evidence'; and, second, that it was 'against the direction of the court in matter of law.'

It was in discussing the first part that he observed 'that the verdict of a jury and evidence of a witness are very different things, in the truth and falsehood of them. A witness swears but to what he hath heard or seen; generally or more largely, to what hath fallen under his senses. But a juryman swears to what he can infer and conclude from the testimony of such witnesses, by the act and force of his understanding, to be the fact inquired after, which differs nothing in the reason, though much in the punishment, from what a judge, out of various cases by him, infers to be the law in the question before him.' Vaughan, 142.

After disposing of that part of the return, he proceeds as follows: 'We come now to the next part of the return, viz.: That the jury acquitted those indicted against the direction of the court in matter of law, openly given and declared to them in court.

He then observes: 'This is ordinary, when the jury find unexpectedly for the plaintiff or defendant, the judge will ask, how do you find such a fact in particular? and upon their answer he will say, then it is for the defendant, though they find for the plaintiff, or econtrario, contrario, and thereupon they rectify their verdict. And in these cases the jury, and not the judge, resolve and find what the fact is. Therefore always, in discreet and lawful assistance of the jury, the judge's direction is hypothetical, and upon supposition, and not positive and upon coercion, viz.: If you find the fact thus (leaving it to them what to find), then you are to find for the plaintiff; but if you find the fact thus, then it is for the defendant.' But he is careful to add that 'whatsover they have answered the judge upon an interlocutory question or discourse they may lawfully vary from it if they find cause, and are not thereby concluded.' Pages 144, 145.

It is difficult to exhibit the strength of Chief Justice Vaughan's reasoning by detached extracts from his opinion. But a few other passages are directly in point:

He then observes that 'to this purpose the Lord Hobart in Needler's Case against the Bishop of Winchester is very apposite,' citing the passage quoted near the beginning of this opinion; and concluded his main argument as follows:

That judgment thus clearly appears to have been rested, not merely on the comparatively technical ground that upon the general issue no matter of law could come in question until the facts had been found by the jury, nor yet upon the old theory, that the jurors might have personal knowledge of some facts not appearing in evidence, but mainly on the broad reasons that if the jury, especially in criminal trials, were obliged to follow the directions of the court in matter of law, no necessary or convenient use could be found of juries, or to continue trials by them at all; that though the verdict of the jury be right according to the law as laid down by the court, yet, if they are not assured by their own understanding that it is so, they are forsworn, at least in foro conscientiae; and that the 'decantatum' in our books, 'ad questionem facti non respondent judices, ad quaestionem legis non respondent juratores,' means that issues of law, as upon demurrers, special verdicts, or motions in arrest of judgment, are to be decided by the court; but that upon general issues of fact, involving matter of law, the jury resolve both law and fact complicately, and so determine the law.

Notwithstanding that authoritative declaration of the right of the jury, upon the general issue, to determine the law, Chief Justice Scroggs, upon the trial of Harris for a seditions libel in 1680 (7 How. State Tr. 925, 930), insisted that the jury must take the law from the court; and Chief Justice Jeffreys, presiding at the trial of Algernon Sidney in 1683, charged the jury as follows: 'It is our duty upon our oaths to declare the law to you, and you are bound to receive our declaration of the law, and upon this declaration to inquire whether there be a fact, sufficiently proved, to find the prisoner guilty of the high treason of which he stands indicted.' And Sidney was convicted, sentenced, and executed. 9 How. State Tr. 817, 889.

In the last year of the reign of James II., the Trial of the Seven Bishops, reported 12 How. State Tr. 183, took place upon an information for a seditious libel contained in their petition to the king, praying that he would be pleased not to insist on their distributing and reading in the churches his declaration dispensing with the penal statutes concerning the exercise of religion. The trial was at bar before all the justices of the king's bench, upon a general plea of not guilty. A principal ground of defense was that the king had no dispense was therefore the petition of the bishops to him was an innocent exercise of the right of petition, and was not a libel. In support of this defense, ancient acts of parliament were given in evidence; and, upon the offer of one in Norman French, the chief justice said, 'Read it in English, for the jury to understand it,' and it was so read by a sworn interpreter. Pages 374, 375. And, when the attorney general argued that these matters were not pertinent to the case, the chief justice, interrupting him, said: 'Yes, Mr. Attorney, I'll tell you what they offer, which it will lie upon you to give an answer to; they would have you show how this has disturbed the government, or diminished the king's authority.' Page 399.

At the close of the arguments, each of the four judges in turn charged the jury. Lord Chief Justice Wright said: 'The only question before me is, and so it is before you, gentlemen, it being a question of fact, whether here be a certain proof of a publication. And then the next question is a question of law, indeed, whether, if there be a publication proved, it be a libel.' 'Now, gentlemen, anything that shall disturb the government, or make mischief and a stir among the people, is certainly within the case of libellus famosis; and I must, in short, give you my opinion. I do take it to be a libel. Now, this being a point of law, if my brothers have anything to say to it, I suppose they will deliver their opinions.'

Mr. Justice Holloway said: 'If you are satisfied there was an ill intention of sedition, or the like, you ought to find them guilty; but if there be nothing in the case that you find, but only that they did deliver a petition to save themselves harmless and to free themselves from blame, by showing the reason of their disobedience to the king's command, which they apprehended to be a grievance to them, and which they could not in conscience give obedience to, I cannot think it is a libel. It is left to you, gentlemen, but that is my opinion.'

Mr. Justice Powell also expressed his opinion that the paper was not a libel, and said: 'Now, gentlemen, the matter of it is before you; you are to consider of it, and it is worth your consideration.' He then expressed his opinion that the king had no dispensing power, and concluded: 'If this be once allowed of, there will need no parliament; all the legislation will be in the king, which is a thing worth considering, and I leave the issue to God and your consciences.'

Mr. Justice Allybone, after saying, 'The single question that falls to may share is, to give my sense of this petition, whether it shall be in construction of law a libel in itself, or a thing of great innocence,' expressed his opinion that it was a libel.

The jury, on retiring, requested, and were allowed by the court, to take with them the statute book, the information, the petition of the bishops, and the declaration of the king; and they returned a verdict of not guilty, whereat there was great popular rejoicing in London and throughout England. 12 How. State Tr. 425-431; 1 Burnet's Own Time, 744.

It thus clearly appears that upon that trial, one of the most important in English history, deeply affecting the liberties of the people, the four judges of the king's bench, while differing among themselves upon the question whether the petition of the bishops was a libel, concurred in submitting that question, as a question of law, to the decision of the jury, not as umpires between those judges who thought the paper was a libel and those judges who thought it was not, but as the tribunal vested by the law of England with the power and the right of ultimately determining, as between the crown and the accused, all matters of law, as well as of fact, involved in the general issue of guilty or not guilty.

Upon the accession of William and Mary, parliament declared the king's power of dispensing with the laws to be unlawful; and reversed the conviction of Algernon Sidney, 'for a partial and unjust construction of the statute' of treasons in the instructions by which his conviction had been procured. St. 1 W. & M. Sess. 2, c. 2; 6 St. Realm, 143, 155; 9 How. State Tr. 996. And early in the new reign Holt was appointed lord chief justice, and Somers lord keeper.

Lord Somers, in the opening pages of his essay on 'The Security of Englishmen's Lives. or the Trust, Power, and Duty of the Grand Juries of England' (first published in 1681, and republished in 1714, towards the end of his life, after he had been lord chancellor), lays down in the clearest terms the right of the jury to decide the law, saying: 'It is made a fundamental in our government that (unless it be by parliament) no man's life shall be touched for any crime whatsoever, save by the judgment of at least twenty-four men, — that is, twelve or more, to find the bill of indictment, whether he be peer of the realm or commoner; and twelve peers or above, if a lord, if not, twelve commoners, to give the judgment upon the general issue of not guilty joined.' 'The office and power of these juries is judicial. They only are the judges from whose sentence the indicted are to expect life or death. Upon their integrity and understanding the lives of all that are brought into judgment do ultimately depend. From their verdict there lies no appeal. By finding guilty or not guilty they do complicately resolve both law and fact. As it hath been the law, so it hath always been the custom and practice, of these juries, upon all general issues, pleaded in cases, civil as well as criminal, to judge both of the law and fact.' 'Our ancestors were careful that all men of the like condition and quality, presumed to be sensible of each other's infirmity, should mutually be judges of each other's lives, and alternately taste of subjection and rule, every man being equally liable to be accused or indicted, and perhaps to be suddenly judged by the party, of whom he is at present judge, if he be found innocent.'

Lord Chief Justice Holt declared that 'in all cases and in all actions the jury may give a general or special verdict, as well in causes criminal as civil, and the court ought to receive it, if pertinent to the point in issue; for if the jury doubt they may refer themselves to the court, but are not bound so to do.' Anon. (1697) 3 Salk. 373. And upon the trial of an information for a seditious libel, while he expressed his opinion that the paper was upon its face a criminal libel, he submitted the question whether it was such to the jury, saying: 'Now you are to consider whether these words I have read to you do not tend to beget an ill opinion of the administration of the government.' Tutchin's Case (1704) 14 How. State Tr. 1095, 1128. Although he concluded his charge with the words, 'If you are satisfied that he is guilty of composing and publishing these papers at London, you are to find him guilty,' yet, as Mr. Starkie well observes, 'these words have immediate reference to the ground of defense upon which Mr. Tutchin's counsel meant to rely, namely, that the offense had not been proved to have been committed in London; and cannot be considered as used for the purpose of withdrawing the attention of the jury from the quality of the publication, upon which they had just before received instructions; and, indeed, to suppose it had so meant would prove too much, since, if so, the jury were directed not to find the truth of the innuendoes.' Starkie, Sland. & L. 56.

Some decisions, often cited as against the right of the jury by a general verdict to determine matter of law involved in the general issue of guilty or not guilty, were upon special verdicts presenting pure questions of law. Such were Townsend's Case (1554) 1 Plow. 111, and Rex v. Oneby (1726) 2 Ld. Raym. 1485; 2 Strange, 766; 1 Barnard, 17; 17 How. State Tr. 29.

After the accession of George II., Lord Chief Justice Raymond, on trials at nisi prius for seditious libels (ignoring the Cases of Tutchin and of the Seven Bishops), told juries that they were bound to take the law from the court, and that the question whether the paper which the defendant was accused of writing and publishing was a libel was a mere question of law, with which the jury had nothing to do. Clarke's Case (1729) 17 How. State Tr. 667, note, 1 Barnard, 304; Francklin's Case (1731) 17 How. State Tr. 625, 672.

In 1734, upon an information in the nature of a quo warranto against the defendant to show cause by what authority he acted as mayor of Liverpool, his motion for a new trial, because the jury had found a general verdict for the crown against the instructions of the judge, and notwithstanding he ordered them to return a special verdict, was granted by the court of king's bench, Lord Chief Justice Hardwicks saying: 'The general rule is that if the judge of nisi prius directs the jury on the point of law, and they think fit obstinately to find a verdict contrary to his direction, that is sufficient ground for granting a new trial; and when the judge upon a doubt of law directs the jury to bring in the matter specially, and they find a general verdict, that also is a sufficient foundation for a new trial.' 'The thing that governs greatly in this determination is that the point of law is not to be determined by juries; juries have a power by law to determine matters of fact only; and it is of the greatest consequence to the law of England and to the subject that these powers of the judge and jury are kept distinct; that the judge determines the law, and the jury the fact; and, if ever they come to be confounded, it will prove the confusion and destruction of the law of England.' Rex v. Poole, Cas. t. Hardw. 23, 26, 28, Cunn. 11, 14, 16.

But such an information to try title to a civil office (though it had some of the forms of a criminal prosecution) was brought for the mere purpose of trying a civil right, and was considered as in the nature of a civil proceeding. 3 Bl. Comm. 263; Rex v. Francis, 2 Term R. 484; Ames v. Kansas, 111 U.S. 449, 460, 461 S., 4 Sup. Ct. 437. And, as appears by the first passage above cited from Lord Hardwicke's opinion, it was evidently so treated by the court, under the practice of granting new trials on motion of either party to a civil case, which had gradually grown up within the century preceding, as a substitute for attaints. Bell v. Wardell (1740) Willes, 204, 206; Witham v. Lewis (1744) 1 Wils. 48, 55; Bright v. Eynon (1757) 1 Burrows, 390, 394. In a criminal case, certainly, the court could not compel the jury to return a special verdict, Nothing, therefore, was adjudged in Poole's Case as to the right of the jury to decide the law in prosecutions for crime. And it is significant that, although both reports of that case were published in 1770, it was not cited by Lord Mansfield, in 1784, when collecting the authorities against the right of the jury in criminal cases. King v. Shipley, 4 Doug. 73, 168.

Lord Hardwicke's own opinion, indeed, may be presumed to have been against the right of the jury; for when attorney general he had so argued in Francklin's Case, 17 How. State Tr. 669; and he was, as justly observed by Mr. Hallam, 'a regularly bred crown lawyer, and in his whole life disposed to hold very high the authority of government.' 3 Hall. Hist. (9th Ed.) 287. His opinion, therefore, is of less weight upon a constitutional question affecting the liberty of the subject than upon other questions of law or of equity.

The later history of the law of England upon the right of the jury to decide the law in criminal cases is illustrated by a long conflict between the views of Mr. Murray, afterwards Lord Mansfield, against the right, and of Mr. Pratt, afterwards Lord Camden, in its favor, which, after the public sentiment had been aroused by the great argument of Mr. Erskine in Dean of St. Asaph's Case, was finally settled, in accordance with Lord Camden's view, by a declaratory act of parliament.

Upon the trial of Owen, in 1752, for publishing a libel Mr. Murray, as solicitor general, argued to the jury that if they determined the question of fact of publication, the judge determined the law. But Mr. Pratt, of counsel for the defendant, argued the whole matter to the jury; and, although the publication was fully proved, and Chief Justice Lee told the jury that, this being so, they could not avoid bringing in the defendant guilty, they returned and persisted in a general verdict of acquittal. 18 How. State Tr. 1203, 1223, 1227, 1228; 29 Parl. Hist. 1408

In the like Case of Nutt, in 1728, 1 Barnard, 306 (Starkie, Sland. & L. 615), conducted by Mr. Murray as attorney general, the like direction was given to the jury by Chief Justice Ryder. Lord Mansfield, in Rex v. Shipley, 4 Doug, 168.

In the similar Case of Shebbeare, in 1758 (Starkie, Sland. & L. 56, 616), Mr. Pratt, as attorney general, when moving before Lord Mansfield for leave to file the information, said: 'It is merely to put the matter in a way of trial; for I admit, and his lordship well knows, that the jury are judges of the law as well as the fact, and have an undoubted right to consider whether, upon the whole, the pamphlet in question be or be not published with a wicked, seditious intent, and be or not a false, malicious, and scandalous libel.' Second postscript to Letter to Mr. Almon on Libels (1770) p. 7; 4 Collection of Tracts (1763-1770) p. 162. And at the trial, as he afterwards said in the house of lords, he 'went into court predetermined to insist on the jury taking the whole of the libel into consideration,' and 'so little did he attend to the authority of the judges on that subject that he turned his back on them, and directed all he had to say to the jury.' 29 Parl. Hist. 1408. And see 20 How. State Tr. 709. But Lord Mansfield instructed the jury that the question whether the publication was a libel was to be determined by the court. 4 Doug. 169.

Lord Camden, when chief justice of the common pleas, presiding at criminal trials, instructed the jury that they were judges of the law as well as the fact. Pett. Jur. (1769) cited in 21 How. State Tr. 853; 29 Parl. Hist. 1404, 1408.

In the prosecutions, in the summer of 1770, of Miller and Woodfall for publishing the letter of Junius to the king, Lord Mansfield instructed the jury in the same way as in Shebbeare's Case. In Miller's Case the jury returned a verdict of not guilty. In Woodfall's Case the jury returned a verdict of 'guilty of printing and publishing only'; and the court therefore granted a motion for a new trial. But Lord Mansfield, on November 20, 1770, in delivering judgment upon that motion, took occasion to say that the court was of opinion 'that the direction is right and according to law.' Miller's Case, 20 How. State Tr. 869, 893, 895; Woodfall's Case, Id. 895, 901-903, 918, 920, 5 Burrows, 2661, 2666, 2668.

On December 5, 1770, in the house of lords, the judgment in Woodfall's Case was attacked by Lord Chatham, and defended by Lord Mansfield, in replying to whom Lord Chatham said: 'This, my lords. I never understood to be the law of England, but the contrary. I always understood that the jury were competent judges of the law as well as the fact; and, indeed, if they were not, I can see no essential benefit from their institution to the community.' And Lord Camden, after observing that it would be highly necessary to have an authentic statement of the direction to the jury in that case laid before the house, said: 'If we can obtain this direction, and obtain it fully stated, I shall very readily deliver may opinion upon the doctrines it inculcates, and, if they appear to me contrary to the known and the established principles of the constitution, I shall not scruple to tell the author of his mistake in the open face of this assembly.' 16 Parl. Hist. 1302-1307.

On the next day, a warm debate took place in the house of commons upon a motion by Serjeant Glynn for a committee 'to inquire into the administration of criminal justice, and the proceedings of the judges in Westminster Hall, particularly in cases relating to the liberty of the press and the constitutional power and duty of juries,' in the course of which Mr. Dunning, then the leader of the bar, and afterwards Lord Ashburton, emphatically denied that the doctrine of Lord Raymond and Lord Mansfield was the established law of the land. 16 Parl. Hist. 1212, 1276. See, also, 2 Cavendish's Debates, 141, 369. Pursuant to a wish expressed by Lord Mansfield on the day after, the house of lords met on December 10th, when he informed the house that he had left with its clerk a copy of the judgment of the court in Woodfall's Case. Lord Camden thereupon said that he considered the paper as a challenge directed personally to him, which he accepted, and said: 'In direct contradiction to him, I maintain that his doctrine is not the law of England. I am ready to enter into debate whenever the noble lord will fix a day for it.' And he proposed questions in writing to Lord Mansfield, framed with the view of ascertaining how far that judgment denied the right of the jury, by a general verdict in a criminal case, to determine the law as well as the fact. Lord Mansfield evaded answering the questions, and, while declaring himself ready to discuss them at some future day, declined to name one. And the matter dropped for the time. 16 Parl. Hist. 1312-1322.

In 1783, after the independence of the United States had been recognized by Great Britain, came the case of King v. Shipley, commonly known as Dean of St. Asaph's Case, fully reported in 4 Doug. 73, and in 21 How. State Tr. 847, and briefly stated in 3 Term R. 428, note, which was a criminal prosecution for a seditious libel contained in a pamphlet written by Sir William Jones. Mr. Justice Buller, at the trial, told the jury that the only questions for them were whether the defendant published the pamphlet, and whether the innuendoes in the indictment were true; and that the question of libel or no libel was a question of law for the court, and not for the jury, upon which he declined to express any opinion, but that it would be open for the consideration of the court upon a motion in arrest of judgment. The jury returned a verdict of 'guilty of publishing only,' but were persuaded by the judge to put it in this form: 'Guilty of publishing, but whether a libel or not the jury do not find.' 4 Doug. 81, 82, 85, 86; 21 How. State Tr. 946, 950-955. The effect of all this was that the defendant was found guilty of publishing a paper, which neither the judge nor the jury had held to be a libel; and judgment was ultimately arrested upon the ground that, as set out in the indictment, it was not libelous. Id. 1044.

But, before the motion in arrest of judgment was argued, Mr. Erskine obtained a rule to show cause why a new trial should not be granted, principally upon the ground that the judge told the jury that the question whether libel or not was not for their decision; whereas the jury, upon the general issue, had not only the power, but the right, to decide the law. It was upon this rule that Mr. Erskine made his famous argument in support of the rights of juries, and that Lord Mansfield delivered the judgment, in which Mr. Justice Ashurst concurred, which has since been the principal reliance of those who deny the right of the jury to decide the law involved in the general issue in a criminal case.

It should not be overlooked that, at the hearing of this motion, Mr. Bearcroft, the leading counsel for the crown, said he 'agreed with the counsel for the defendant that it is the right of the jury, if they please, on the plea of not guilty, to take upon themselves the decision of every question of law necessary to the acquittal of the defendant; and, Lord Mansfield observing that he should call it the 'power,' not the 'right,' he adhered to the latter expression; and added that he though it an important privilege, and which, on particular occasions, — as, for instance, if a proper censure of the measures of the servants of the crown were to be construed by a judge to be libelous, — it would be laudable and justifiable in them to exercise.' 4 Doug. 94, note. See, also, page 108.

Mr. Justice Willes, dissenting from the opinion of the court, said he was sure that these statements of Mr. Bearcroft expressed 'the sentiments of the greater part of Westminster Hall,' and declared: 'I conceive it to be the law of this country that the jury, upon a plea of not guilty, or upon the general issue, upon an indictment or an information for a libel, have a constitutional right, if they think fit, to examine the innocence or criminality of the paper, notwithstanding there is sufficient proof given of the publication.' 'I believe no man will venture to say they have not the power, but I mean expressly to say they have the right. Where a civil power of this sort has been exercised without control, it presumes — nay, by continual usage, it gives — the right. It was the right which juries exercised in those times of violence when the Seven Bishops were tried, and which even the partial judges who then presided did not dispute, but authorized them to exercise upon the subject-matter of the libel; and the jury, by their solemn verdict upon that occasion, became one of the happy instruments, under Providence, of the salvation of this country. This privilege has been assumed by the jury in a variety of ancient and modern instances, and particularly in the case of Rex v. Owen, without any correction or even reprimand of the court. It is a right, for the most cogent reasons, lodged in the jury, as without this restraint the subject in bad times would have no security for his life, liberty, or property.' And he concurred in refusing a new trial, solely because, in his opinion, neither the counsel for the prosecution, nor the judge presiding at the trial, had impugned these doctrines, and the verdict returned by the jury was in the nature of a special verdict, in effect submitting the law to the court. 4 Doug. 171-175.

In 1789, in Rex v. Withers, 3 Term R. 428, Lord Kenyon instructed a jury in the same way that Mr. Justice Buller had done in Dean of St. Asaph's Case.

In 1791, the declaratory statute, entitled 'An act to remove doubts respecting the functions of juries in cases of libel,' and known as 'Fox's Libel Act,' was introduced in parliament, and was passed in 1792. St. 32 Geo. III. c. 60.

By that act, 'the legislature,' as lately observed by Lord Blackburn in the house of lords, 'adopted almost the words and quite the substance' of that passage of the opinion of Mr. Justice Willes first above quoted. Bank v. Henty, L. R. 7 App. Cas. 741, 775.

The doubts which the act was passed to remove were, as recited at the beginning of the act, upon the question whether upon the trial of an indictment or information for libel, on the plea of not guilty, 'it be competent to the jury impaneled to try the same to give their verdict upon the whole matter put in issue'; and it was 'therefore declared and enacted [not merely enacted, but declared to be the law as already existing] that on every such trial the jury sworn to try the issue may give a general verdict of guilty or not guilty upon the whole matter put in issue upon such indictment or information; and shall not be required or directed, by the court or judge before whom such indictment or information shall be tried, to find the defendant or defendants guilty, merely on the proof of the publication by such defendant or defendants of the paper charged to be a libel, and of the sense ascribed to the same in such indictment or information.'

The act then provides — First, that the presiding judge may, at his discretion, give instructions to the jury; second, that the jury may, at their discretion, return a special verdict; and, third, that the defendant, if found guilty, may move in arrest of judgment. The first of these provisos, and the only one requiring particular notice, is that the judge shall, at his discretion, give 'his opinion and directions to the jury on the matter at issue,' 'in like manner as in other criminal cases.' His 'opinion and directions' clearly means by way of advice and instruction only, and not by way of order or command; and the explanation, 'in like manner as in other criminal cases,' shows that no particular rule was intended to be laid down in the case of libel. And that this was the understanding at the time is apparent from the debate on the proviso, which was adopted on the motion of Sir John Scott (then solicitor general, and afterwards Lord Eldon) just before the bill passed the house of commons in 1791. 29 Parl. Hist. 594-602.

The clear effect of the whole act is to declare that the jury (after receiving the instructions of the judge, if he sees fit to give any instructions) may decide, by a general verdict, 'the whole matter put in issue, ' which necessarily includes all questions of law, as well as of fact, involved in the general issue of guilty or not guilty, and to recognize the same rule as existing in all criminal cases.

Not only is this the clear meaning of the words of the act, but that such was its intent and effect is shown by the grounds taken by supporters and its opponents in parliament, as well as by subsequent judicial opinions in England. Mr. Fox, upon moving the introduction of the bill in the house of commons in 1791, after observing that he was not ignorant that 'power' and 'right' were not convertible terms, said that, 'if a power was vested in any person, it was surely meant to be exercised'; that 'there was a power vested in the jury to judge the law and fact, as often as they were united, and, if the jury were not to be understood to have a right to exercise that power, the constitution would never have intrusted them with it'; 'but they knew it was the province of the jury to judge of law and fact, and this was the case, not of murder only, but of felony, high and of every other criminal indictment'; and that 'it must be left in all cases to a jury to infer the guilt of men, and an English subject could not lose his life but by a judgment of his peers.' 29 Parl. Hist. 564, 565, 597. And Mr. Pitt, in supporting the bill, declared that his own opinion was against the practice of the judges, 'and that he saw no reason why, in the trial of a libel, the whole consideration of the case might not go precisely to the unfettered judgment of twelve men, sworn to give their verdict honestly and conscientiously, as it did in matters of felony and other crimes of a high nature.' 29 Parl. Hist. 588.

In the debate in the house of lords, on a motion of Lord Chancellor Thurlow to put off the reading of the bill, Lord Camden said: 'He would venture to affirm, and should not be afraid of being contradicted by any professional man, that, by the law of England as it now stood, the jury had a right, in deciding on a libel, to judge whether it was criminal or not; and juries not only possessed that right, but they had exercised it in various instances.' He added, as 'a matter which he conceived should be imprinted on every juror's mind, that if they found a verdict of the publishing, and left the criminality to the judge, they had to answer to God and their consciences for the punishment that might, by such judge, be inflicted on the defendant, whether it was fine, imprisonment, loss of ears, whipping, or any other disgrace, which was the sentence of the court.' After further enforcing his opinion, he said: 'I will affirm that they have that right, and that there is no power by the law of this country to prevent them from the exercise of that right, if they think fit to maintain it; and, when they are pleased to acquit any defendant, their acquittal will stand good until the law of England is changed.' 'My lords,' said he, 'give to the jury or to the judge the right of trial of the subjects of this country. You must give it to one of them, and I think you can have no difficulty which to prefer.' And he concluded by saying that 'he did not apprehend that the bill had a tendency to alter the law, but merely to remove doubts that ought never to have been entertained, and therefore the bill had his hearty concurrence; but, as he was assured that the proposed delay was not hostile to the principle of the bill, but only to take it into serious consideration, and to bring it again forward, he had no objection to the motion of the lord chancellor.' 29 Parl. Hist. 729, 730, 732.

In the house of lords in 1792, the bill having again passed the house of commons, Lord Loughborough, for many years chief justice of the common pleas, said that he 'had ever deemed it his duty, in cases of libel, to state the law as it bore on the facts, and to refer the combined consideration to the jury'; and that 'their decision was final. There was no control upon them in their verdict. The evident reason and good sense of this was that every man was held to be acquainted with the criminal law of the land. Ignorance was no plea for the commission of a crime, and no man was therefore supposed to be ignorant of judging upon the evidence adduced of the guilt or innocence of a defendant. It was the admitted maxim of law, 'Ad quaestionem juris respondent judices, ad quaestionem facti juratores;' but, when the law and the fact were blended, it was the undoubted right of the jury to decide. If the law was put to them fairly, there was undoubtedly not one case in a thousand on which they would not decide properly. If they were kept in the dark, they were sometimes led into wrong, through mere jealousy of their own right.' 29 Parl. Hist. 1296, 1297.

Pending the debate, the house of lords put questions to the judges, who returned an opinion, in which, after saying that 'the general criminal law of England is the law of libel,' they laid down, as a fundamental proposition, applicable to treason as well as to other crimes, 'that the criminality or innocence of any act done (which includes any paper written) is the result of the judgment which the law pronounces upon that act, and must therefore be in all cases, and under all circumstances, matter of law, and not matter of fact.' With such a basis, it is hardly to be wondered at that they 'conceived the law to be that the judge is to declare to the jury what the law is,' and 'that it is the duty of the jury, if they will find a general verdict upon the whole matter in issue, to compound that verdict of the fact as it appears in evidence before them, and of the law as it is declared to them by the judge.' The judges, however, 'took this occasion to observe' that they had 'offered no opinion which will have the effect of taking matter of law out of a general issue, or out of a general verdict,' and 'disclaimed the folly of undertaking to prove that a jury, who can find a general verdict, cannot take upon themselves to deal with matter of law arising in a general issue, and to hazard a verdict made up of the fact, and of the matter of law, according to their conception of that law, against all direction by the judge.' 29 Parl. Hist. 1361-1369.

On Lord Camden's motion, the bill was postponed, in order to enable the house to consider the opinion of the judges, and was then proceeded with, when Lord Camden 'exposed the fallacy of the pretended distinction between law and fact, in the question of guilty or not guilty of printing and publishing a libel. They were united as much as intent and action in the consideration of all other criminal proceedings. Without an implied malice, a man could not be found guilty, even of murder. The simply killing of a man was nothing, until it was proved that the act arose from malice. A man might kill another in his own defense, or under various circumstances which rendered the killing no murder. How were these things to be explained? By the circumstances of the case. What was the ruling principle? The intention of the party. Who were judges of the intention of the party, — the judge? No; the jury. So that the jury were allowed to judge of the intention upon an indictment for murder, and not to judge of the intention of the party upon libel.' And Lord Loughborough, as well as Lord Camden, distinctly affirmed, and Lord Thurlow as distinctly denied, that upon the general issue in criminal cases, after the judge had stated the law to the jury, the jury were to decide both the question of law and the question of fact. 29 Parl. Hist. 1370, 1405, 1406, 1426, 1429.

Towards the close of the debate, Lord Thurlow moved to amend the bill by inserting the words 'that the judge state to the jury the legal effect of the record.' Lord Camden successfully opposed the amendment 'as an attempt indirectly to convert the bill into the very opposite of what it was intended to be, and to give the judges a power ten times greater than they had ever yet exercised,' and said: 'He must contend that the jury had an undoubted right to form their verdict themselves according to their consciences, applying the law to the fact. If it were otherwise, the first principle of the law of England would be defeated and overthrown. If the twelve judges were to assert the contrary again and again, he would deny it utterly, because every Englishman was to be tried by his country; and who was his country but his twelve peers, sworn to condemn or acquit according to their consciences? If the opposite doctrine were to obtain, trial by jury would be a nominal trial, a mere form; for, in fact, the judge, and not the jury, would try the man. He would contend for the truth of this argument to the latest hour of his life, manibus pedibusque. With regard to the judge stating to the jury what the law was upon each particular case, it was his undoubted duty so to do; but, having done so, the jury were to take both law and fact into their consideration, and to exercise their discretion and discharge their consciences.' 29 Parl. Hist. 1535, 1536.

The first ground of the protest of Lord Thurlow, Lord Bathurst, Lord Kenyon, and three other lords against the passage of the act was 'because the rule laid down by the bill, contrary to the determination of the judges and the unvaried practice of ages, subverts a fundamental and important principle of English jurisprudence, which, leaving to the jury the trial of the fact, reserves to the court the decision of the law.' 29 Parl. Hist. 1537.

Lord Brougham, in his sketch of Lord Camden, declares that 'the manly firmness which he uniformly displayed in maintaining the free principles of the constitution, wholly unmixed with any leaning towards extravagant popular opinions, or any disposition to court vulgar favour, justly entitles him to the very highest place among the judges of England'; and, speaking of his conduct in carrying the libel bill through the house of lords, says that 'nothing can be more refreshing to the lovers of liberty, or more gratifying to those who venerate the judicial character, than to contemplate the glorious struggle for his longcherished principles with which Lord Camden's illustrious life closed'; and quotes some of his statements, above cited, as passages upon which 'the mind fondly and reverently dwells,' 'hopeful that future lawyers and future judges may emulate the glory and the virtue of this great man.' 3 Brougham's Statesmen of George III. (Ed. 1843) 156, 178, 179.

In the well-known case of Rex v. Burdett, 3 Barn. & Ald. 717, 4 Barn. & Ald. 95, and 1 State Tr. (N. S.) 1, for publishing a seditious libel, Mr. Justice Best (afterwards chief justice of the common pleas, and Lord Wynford) told the jury that, in his opinion, the publication was a libel; that they were to decide whether they would adopt his opinion; but that they were to take the law from him, unless they were satisfied that he was wrong. 4 Barn. & Ald. 131, 147, 183. The defendant having been convicted, the court of king's bench, upon a motion for a new trial, held, after advisement, that this instruction was correct.

Mr. Justice Best said: 'It must not be supposed that the statute of George III. made the question of libel a question of fact. If it had, instead of removing an anomaly, it would have created one. Libel is a question of law, and the judge is the judge of the law in libel as in all other cases, the jury having the power of acting agreeably to his statement of the law or not. All that the statute does is to prevent the question from being left to the jury in the narrow way in which it was left before that time. The jury were then only to find the fact of the publication, and the truth of the innuendoes; for the judges used to tell them that the intent was an inference of law, to be drawn from the paper, with which the jury had nothing to do. The legislature has said that that is not so, but that the whole case is to be left to the jury. But judges are in express terms directed to lay down the law as in other cases. In all cases the jury may find a general verdict. They do so in cases of murder and treason, but there the judge tells them what is the law, though they may find against him, unless they are satisfied with his opinion. And this is plain from the words of the statute.' 4 Barn. & Ald. 131, 132.

Justices Holroyd and Bayley and Chief Justice Abbott (afterwards Lord Tenterden) expressed the same view. 4 Barn. & Ald. 145-147, 183, 184. Mr. Justice Bayley said: 'The old rule of law is, 'Ad quaestionem juris respondent judices, ad quaestionem facti respondent juratores;' and I take it to be the bounden duty of the judge to lay down the law as it strikes him, and that of the jury to accede to it, unless they have superior knowledge on the subject: and the direction in this case did not take away from the jury the power of acting on their own judgment.' And the chief justice said: 'If the judge is to give his opinion to the jury, as in other criminal cases, it must be not only competent, but proper, for him to tell the jury, if the case will so warrant, that, in his opinion, the publication before them is of the character and tendency attributed to it by the indictment; and that, if it be so in their opinion, the publication is an offense against the law.' 'The statute was not intended to confine the matter in issue exclusively to the jury without hearing the opinion of the judge, but to declare that they should be at liberty to exercise their own judgment upon the whole matter in issue, after receiving thereupon the opinion and directions of the judge.'

The weight of this deliberate and unanimous declaration of the rightful power of the jury to decide the law in criminal cases is not impaired by the obiter dictum hastily uttered and promptly recalled by Chief Justice Best in the civil case (summarily decided upon a narrower point) of Levi v. Milne, and reported so differently in 4 Bing. 195, and in 12 Moore, 418, as to leave it doubtful what he really said. And according to later English authorities, even in civil actions, the question of libel or no libel may be submitted by the judge to the jury, without expressing his own opinion upon it. Parmiter v. Coupland, 6 Mees. & W. 105, 108; Baylis v. Lawrence, 11 Adol. & E. 920, 3 Perry & D. 526; Cox v. Lee, L. R. 4 Exch. 284.

It is to be remembered that, by the law of England, a person convicted of treason or felony could not appeal, or move for a new trial, or file a bill of exceptions, or in any other manner obtain a judicial review of rulings or instructions not appearing upon the record, unless the judge himself saw fit to reserve the question for the opinion of all the judges. In short, as observed by Dr. Lushington, in delivering judgment in the privy council, 'the prisoner has no 'legal right,' in the proper sense of the term, to demand a reconsideration, by a court of law, of the verdict, or of any legal objection raised at the trial.' Reg. v. Eduljee Byramjee, 5 Moore, P. C. 276, 287; Reg. v. Bertrand, L. R. 1 P. C. 520; 1 Chit. Cr. Law, 622, 654; 3 Russ. Crimes (9th Ed.) 212. Consequently, a prisoner tried before an arbitrary, corrupt, or ignorant judge had no protection but in the conscience and the firmness of the jury.

There is no occasion further to pursue the examination of modern English authorities, because in this country, from the time of its settlement until more than half a century after the Declaration of Independence, the law as to the rights of juries, as generally understood and put in practice, was more in accord with the views of Bacon, Hale, Vaughan, Somers, Holt, and Camden than with those of Kelying, Scroggs, Jeffreys, Raymond, Hardwicke, and Mansfield. Upon a constitutional question, affecting the liberty of the subject, there can be no doubt that the opinions of Somers and of Camden, especially, were of the very highest authority, and were so considered by the founders of the Republic.

In Massachusetts, the leading authorities upon the question, nearest the time of the Declaration of Independence and the adoption of the constitution of the United States, are John Adams and Theophilus Parsons, each of whom was appointed, with the general approval of the bar and the people, chief justice of the state; the one, appointed to that office by the revolutionary government in 1775, resigning it the next year, remaining in the continental congress to support the Declaration of Independence, and afterwards the first vice president and the second president of the United States; the other, a leading supporter of the constitution of the United States in the convention of 1788, by which Massachusetts ratified the constitution, appointed by President Adams, in 1801, attorney general of the United States, but declining that office, and becoming chief justice of Massachusetts in 1806.

John Adams, writing in 1771, said: 'Juries are taken, by lot or by suffrage, from the mass of the people, and no man can be condemned of life or limb or property or reputation without the concurrence of the voice of the people.' 'The British empire has been much alarmed, of late years, with doctrines concerning juries, their powers and duties, which have been said, in printed papers and pamphlets, to have been delivered from the highest tribunals of justice. Whether these accusations are just or not, it is certain that many persons are misguided and deluded by them to such a degree that we often hear in conversation doctrines advanced for law which, if true, would render juries a mere ostentation and pageantry, and the court absolute judges of law and fact.' 'Whenever a general verdict is found, it assuredly determines both the fact and the law. It was never yet disputed or doubted that a general verdict, given under the direction of the court in point of law, was a legal determination of the issue. Therefore, the jury have a power of deciding an issue upon a general verdict. And, if they have, is it not an absurdity to suppose that the law would oblige them to find a verdict according to the direction of the court, against their own opinion, judgment, and conscience?' 'The general rules of law and common regulations of society, under which ordinary transactions arrange themselves, are well enough known to ordinary jurors. The great principles of the constitution are intimately known. They are sensibly felt by every Briton. It is scarcely extravagant to say they are drawn in and imbibed with the nurse's milk and first air. Now, should the melancholy case arise that the judges should give their opinions to the jury against one of these fundamental principles, is a juror obliged to give his verdict generally, according to this direction, or even to find the fact specially, and submit the law to the court? Every man, of any feeling or conscience, will answer, 'No.' It is not only his right, but his duty, in that case, to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.' 'The English law obliges no man to decide a cause upon oath against his own judgment.' 2 John Adams' Works, 253-255.

Theophilus Parsons, in the Massachusetts convention of 1788, answering the objection that the constitution of the United States, as submitted to the people for adoption, contained no bill of rights, said: 'The people themselves have it in their power effectually to resist usurpation, without being driven to an appeal to arms. An act of usurpation is not obligatory; it is not law; and any man may be justified in his resistance. Let him be considered as a criminal by the general government; yet only his fellow-citizens can convict him. They are his jury, and, if they pronounce him innocent, not all the powers of congress can hurt him; and innocent they certainly will pronounce him if the supposed law he resisted was an act of usurpation.' 2 Elliot, Deb. 94; 2 Bancroft, Hist. Const. 267.

In 1808, Chief Justice Parsons, in delivering judgment in a civil action for slander, said: 'Both parties have submitted the trial of this issue to a jury. The issue involved both law and fact, and the jury must decide the law and the fact. To enable them to settle the fact, they were to weigh the testimony. That they might truly decide the law, they were entitled to the assistance of the judge. If the judge had declined his aid in a matter of law, yet the jury must have formed their conclusion of law as correctly as they were able.' And, as the reporter states: 'In this opinion of the chief justice the other judges, viz. Sedgwick, Sewall, Thatcher, and Parker, severally declared their full and entire concurrence.' Coffin v. Coffin, 4 Mass. 1, 25, 37.

In 1816, upon the trial of an indictment for murder, the supreme judicial court of Massachusetts, held by Chief Justice Parker and Justices Jackson and Putnam, instructed the jury as follows: 'In all capital cases the jury are the judges of the law and fact. The court are to direct them in matters of law, and, although it is safer for them to rely on the instructions derived from that source, still, gentlemen, they are to decide for themselves.' Bowen's Trial, 13 Mass. 356.

In 1826, Mr. Justice Wilde, speaking for the whole court, assumed, as unquestionable, that 'in criminal prosecutions the jury are the judges of both law and fact.' Com. v. Worcester, 3 Pick. 462, 475.

In 1830, in a celebrated trial for murder, before Justices Putnam, Wilde, and Morton, the right and duty of the jury to decide the law as well as the fact involved in the general issue were recognized and affirmed in the charge to the jury, and were distinguished from the right of deciding questions of evidence, as follows: 'As the jury have the right, and, if required by the prisoner, are bound, to return a general verdict of guilty or not guilty, they must necessarily, in the discharge of this duty, decide such questions of law, as well as of fact, as are involved in this general question; and there is no mode in which their opinions upon questions of law can be reviewed by this court or by any other tribunal. But this does not diminish the obligation resting upon the court to explain the law, or their responsibility for the correctness of the principles of law by them laid down. The instructions of the court in matters of law may safely guide the consciences of the jury, unless they known them to be wrong. And, when the jury undertake to decide the law (as they undoubtedly have the power to do) in opposition to the advice of the court, they assume a high responsibility, and should be very careful to see clearly that they are right. Although the jury have the power, and it is their duty, to decide all points of law which are involved in the general question of the guilt or innocence of the prisoner, yet when questions of law arise in the arraignment of the prisoner, or in the progress of the trial, in relation to the admissibility of evidence, they must be decided by the court, and may not afterwards be reviewed by the jury.' Com. v. Knapp, 10 Pick. 477, 496.

Many other Massachusetts authorities, from the earliest times to the date last mentioned, tending to maintain the right of the jury to decide the law involved in the general issue, are collected in the opinion of Mr. Justice Thomas in Com. v. Anthes, 5 Gray, 275-280, and in a note to Quincy, 558-560, 563-567.

To that date, or later, the right of the jury in criminal cases to decide both the law and the fact, even against the directions of the court, was certainly recognized and acted on throughout New England, unless in Rhode Island. State v. Snow (1841) 18 Me. 346; Doe, C. J., in State v. Hodge, 50 N. H. 510, 523; State v. Wilkinson (1829) 2 Vt. 480, 488; State v. Croteau (1849) 23 Vt. 14; Witter v. Brewster (1788) Kirb. 422; Bartholomew v. Clark (1816) 1 Conn. 472, 481; State v. Buckley (1873) 40 Conn. 246. See Laws 1647, in 1 R. I. Col. Rec. 157, 195, 203, 204.

In the province of New York, in 1702, on the trial of Col. Nicholas Bayard for high treason, it was argued by his counsel, and not denied by the court, that the jury, upon the general issue of not guilty, were judges as well of matter of law as of matter of fact. 14 How. State Tr. 471, 502, 503, 505.

In the same province, in 1735, upon the trial of John Peter Zenger for a seditious libel, his counsel, Andrew Hamilton, of Philadelphia, while admitting that the jury might, if they pleased, find the defendant guilty of printing and publishing, and leave it to the court to judge whether the words were libelous, said, without contradiction by the court: 'But I do likewise know they may do otherwise. I know they have the right, beyond all dispute, to determine both the law and the fact; and, where they do not doubt of the law, they ought to do so.' The court afterwards submitted to the jury, in the words of Lord Chief Justice Holt, in Tutchin's Case, 14 How. State Tr. 1128, above cited, the question whether the words set forth were libelous. And Zenger was acquitted by the jury. 17 How. State Tr. 675, 706, 716, 722.

Upon the trial in the supreme court of the state of New York, in 1803, of an indictment for a libel on the president of the United States, Chief Justice Lewis instructed the jury, among other things, that the question of libel or no libel was an inference of law from the fact, and that the law as laid down by Lord Mansfield in Dean of St. Asaph's Case was the law of this state. The defendant was convicted, and brought the question of the correctness of these instructions before the full court in 1804, upon a motion for a new trial. People v. Croswell, 3 Johns. Cas. 337, 341, 342.

Alexander Hamilton was of counsel for the defendant. Two reports of his argument upon that motion have come down to us, the one in 3 Johns. Cas. 352-362, the other in a contemporary pamphlet of the speeches in the case (pages 62-78), and reprinted in 7 Hamilton's Works (Ed. 1886) 336-373. But the most compact and trustworthy statement of his position upon the general question, unsurpassed for precision and force by anything on the subject to be found elsewhere, is in three propositions upon his brief (Id. 335, 336), read by him in recapitulating his argument (3 Johns. Cas. 361, 362), which were as follows:

The court was equally divided in opinion, Judge Kent (afterwards chief justice and chancellor) and Judge Thompson being in favor of a new trial, and Chief Justice Lewis and Judge Livingston against it. Judge Kent drew up a careful opinion, in which he reviewed the leading English authorities, and from which the following passages are taken:

In April, 1805, the legislature of New York passed a statute, very like Fox's libel act, declaring that upon an indictment or information for libel 'the jury, who shall try the same, shall have a right to determine the law and the fact, under the direction of the court in like manner as in other criminal cases.' And the reporter notes that 'in consequence of this declaratory statute the court, in August term, 1805 (no motion having been made for judgment on the verdict) unanimously awarded a new trial in the above cause.' 3 Johns. Cas. 412, 413.

In 1825, Judge Walworth (afterwards chancellor) presiding in a court of oyer and terminer, at trials of indictments for murder, instructed the jury 'that in criminal trials they had a right to decide both as to the law and the facts of the case; that the court was bound, by the oaths of office of its judges, honestly and impartially to decide the questions of law arising in the case, and state them to the jury; but the jury had a right to disregard the decision of the court upon questions of law, especially in favor of life, if they were fully satisfied that such decision was wrong.' People v. Thayer, 1 Parker, Cr. Cas. 595, 598; People v. Videto, Id. 603, 604. In New Jersey, by provincial laws of 1676 and 1681, it was not only enacted 'that the trial of all causes, civil and criminal, shall be heard and decided by the verdict of twelve honest men of the neighbourhood,' but also 'that there shall be, in every court, three justices or commissioners, who shall sit with the twelve men of the neighbourhood, with them to hear all causes, and to assist the said twelve men of the neighbourhood in case of law; and that they the said justices shall pronounce such judgment as they shall receive from, and be directed by the said twelve men, in whom only the judgment resides, and not otherwise; and, in case of their neglect and refusal, that then one of the twelve, by consent of the rest, pronounce their own judgment as the justices should have done.' Leaming & Spicer's Laws, pp. 396-398, 428, 429. How far, under the present constitution and laws of the state, juries, in criminal cases, have the right to decide the law for themselves, disregarding the instructions of the judge presiding at the trial, does not appear to be settled. State v. Jay (1871) 34 N. J. Law, 368; Drake v. State (1890) 53 N. J. Law, 23, 20 Atl. 747.

In Pennsylvania, Chief Justice Sharswood said: 'No one acquainted with the life of the founder of this commonwealth can entertain any doubt of his opinion, or that of his friends and followers'; referring to the Case of Penn and Mead before the recorder of London, and to that of Bushell, upon habeas corpus, cited in the earlier part of this opinion, as well as to the argument of Andrew Hamilton, of Philadelphia, 'certainly the foremost lawyer of the colonies,' in Zenger's Case, above cited. And the right of the jury in criminal cases to decide both law and fact, notwithstanding opinions to the contrary expressed near the end of the last century by a judge of a county court, in charging juries and grand juries (Buchanan v. Taylor, Add. 160; Pennsylvania v. McFall, Id. 257, and Charges, pp. 57-63), was long and generally recognized in that state. Kane v. Com., 89 Pa. St. 522, 526; Testimony of William Lewis and Edward Tilghman, Chase's Trial (Evans' Ed.) 20, 21, 27.

In Maryland, the provision of the constitution of 1851 (article 10, 5), repeated in the constitutions of 1864 (article 12, 4), and of 1867 (article 15, 5), that 'in the trial of all criminal cases the jury shall be the judges of law as well as fact,' has been held by the court of appeals to be merely declaratory of the pre-existing law, but not applicable to the question of the constitutionality of a statute. 1 Charters and Constitutions, 858, 885, 918; Franklin v. State (1858) 12 Md. 236, 249. As has been said by that court, speaking by Mr. Justice Alvey: 'The jury are made the judges of law as well as of fact, in the trial of criminal cases, under the constitution of this state; and any instruction given by the court as to the law of the crime is but advisory, and in no manner binding upon the jury, except in regard to questions as to what shall be considered as evidence.' Wheeler v. State (1875) 42 Md. 563, 570. See, also, Broll v. State (1876) 45 Md. 356; Bloomer v. State (1878) 48 Md. 521, 538, 539; World v. State (1878) 50 Md. 49, 55.

In Virginia, the doctrine that the jury, upon the general issue in a criminal case, had the right, as well as the power, to decide both law and fact, appears to have been generally admitted and practiced upon until 1829, when, to the surprise of the bar, it was treated by the court of appeals as doubtful. Dance's Case (1817) 5 Munf. 349, 363; Baker v. Preston (1821) Gilmer, 235, 303; Davenport v. Com. (1829) 1 Leigh, 588, 596; Com. v. Garth (1827) 3 Leigh, 761, 770; 3 Rob. Va. Prac. (1839) c. 23.

In Georgia, Alabama, and Louisiana, the right of the jury was formerly recognized. McGuffie v. State (1855) 17 Ga. 497, 513; McDaniel v. State (1860) 30 Ga. 853; State v. Jones (1843) 5 Ala. 666; Bostwick v. Gasquet (1836) 10 La. 80; State v. Scott (1856) 11 La. Ann. 429; State v. Jurche (1865) 17 La. Ann. 71.

The ordinance of the continental congress of 1787 for the government of the Northwest Territory provided that the inhabitants of the territory should always be entitled to the benefit of the trial by jury, and that no man should be deprived of his liberty or property, but by the judgment of his peers or the law of the land; and the constitutions of the state of Indiana in 1816, and of Illinois in 1818 and 1848, contained similar provisions. 1 Charters and Constitutions, 431, 446, 447, 466, 500, 501.

In Indiana, the supreme court, under the constitution of 1816, having alternately denied and affirmed the right of the jury in criminal cases to decide the law, the people, by the constitution which took effect in November, 1851, declared that 'in all criminal cases whatever the jury shall have the right to determine the law and the facts'; and this right has since been maintained by that court, even when the constitutionality of a statute was involved. Townsend v. State (1828) 2 Blackf. 151; Warren v. State (1836) 4 Blackf. 150; Carter v. State (May, 1851) 2 Ind. 617; 1 Charters and Constitutions, 513, 526; Lynch v. State (1857) 9 Ind. 541; McCarthy v. State (1877) 56 Ind. 203; Hudelson v. State (1883) 94 Ind. 426; Blaker v. State (1891) 130 Ind. 203, 29 N. E. 1077.

In Illinois, the Criminal Code having declared that 'juries in all cases shall be judges of the law and the fact,' the jury, at a trial for murder, after being out for some time, came into court, and, through their foreman, suggested that a juror maintained that he was competent to judge of the correctness of the instructions of the judge as the juror's opinion of the law might dictate. The judge instructed the jury that they must take the law as laid down to them by the court, and could not determine for themselves whether the law so given to them was or was not the law. Upon exception to the instructions, the supreme court of Illinois, speaking by Judge Breese, granted a new trial, and said: 'Being judges of the law and the fact, they are not bound by the law as given to them by the court, but can assume the responsibility of deciding, each juror for himself, what the law is. If they can say, upon their oaths, that they know the law better than the court, they have the power so to do. If they are prepared to say the law is different from what it is declared to be by the court, they have a perfect legal right to say so, and find the verdict according to their own notions of the law. It is a matter between their consciences and their God, with which no power can interfere.' Fisher v. People (1860) 23 Ill. 283, 294. See, also, Mullinix v. People (1875) 76 Ill. 211; Spies v. Illinois (1887) 122 Ill. 1, 252, 12 N. E. 865, and 17 N. E. 898.

In the declaration of rights unanimously adopted October 14, 1774, by the continental congress, of which John Adams, Samuel Adams, Roger Sherman, John Jay, Samuel Chase, George Washington, and Patrick Henry were members, it was resolved 'that the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law.' 1 Jour. Cong. 28.

The constitution of the United States, as framed in 1787, and adopted in 1788, ordained, in article 3, 2, that 'the trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crime shall have been committed'; and, in the fifth, sixth, and seventh amendments, adopted in 1791, 'nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb,' 'nor be deprived of life, liberty or property, without due process of law'; 'in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law'; and 'in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.'

Within six years after the constitution was established, the right of the jury, upon the general issue, to determine the law as well as the fact in controversy, was unhesitatingly and unqualifiedly affirmed by this court, in the first of the very few trials by jury ever had at its bar, under the original jurisdiction conferred upon it by the constitution.

That trial took place at February term, 1794, in State v. Brailsford, 3 Dall. 1, which was an action at law by the state of Georgia against Brailsford and others, British subjects. The pleadings, as appears by the files of this court, were as follows: The declaration was in assumpsit, for money had and received; the defendants pleaded non assumpsit, and 'put themselves upon the country'; and the replication was, 'and the said state of Georgia also putteth herself upon the country.' The action, as the report shows, was brought to recover moneys received by the defendants upon a bond of a citizen of Georgia to them, to which the state of Georgia claimed title under an act of confiscation passed by that state in 1782, during the Revolutionary War, under circumstances which were agreed to be as stated in the suit in equity between the same parties, reported in 2 Dall. 402, 415. After the case had been argued for four days to the court and jury, Chief Justice Jay, on February 7, 1794, as the report states, 'delivered the following charge':

The chief justice, after stating the opinion of the court in favor of the defendants upon the questions of law, proceeded as follows: 'It may not be amiss, here, gentlemen, to remind you of the good old rule, that on questions of fact it is the province of the jury, on questions of law it is the province of the court, to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this and on every other occasion, however, we have no doubt you will pay that respect which is due to the opinion of the court; for as, on the one hand, it is presumed that juries are the best judges of facts, it is, on the other hand, presumable that the court are the best judges of law. But still both objects are lawfully within your power of decision.'

Then, after telling the jury that they should not be influenced by a consideration of the comparative situations and means of the parties, he concluded the charge thus: 'Go, then, gentlemen, from the bar, without any impressions of favor or prejudice for the one party or the other. Weigh well the merits of the case, and do on this, as you ought to do on every, occasion, equal and impartial justice.' The jury, after coming into court, and requesting and receiving further explanations of the questions of law, returned a verdict for the defendants, without going again from the bar. 3 Dall. 3-5.

The report shows that, in a case in which there was no controversy about the facts, the court, while stating to the jury its unanimous opinion upon the law of the case, and reminding them of 'the good old rule that on questions of fact it is the province of the jury, on questions of law it is the province of the court, to decide,' expressly informed them that 'by the same law, which recognizes this reasonable distribution of jurisdiction,' the jury 'have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy.'

The court at that time consisted of Chief Justice Jay and Justices Cushing, Wilson, Blair, Iredell, and Paterson, all of whom, as appears by its records, except Justice Iredell, were present at the trial.

The doubts which have been sometimes expressed of the accuracy of Mr. Dallas' report are unfounded, as is apparent from several considerations. He was of counsel for the plaintiff. The court was then held at Philadelphia; and there is no reason to doubt that the practice mentioned in the preface to his first volume, containing reports of cases in the courts of Pennsylvania only, by which 'each case, before it was sent to the press, underwent the examination of the presiding judge of the court in which it was determined,' was continued in his succeeding volumes containing 'reports of cases ruled and adjudged in the several courts of the United States and of Pennsylvania, held at the seat of the federal government.' The charge contains internal evidence of being reported verbatim, and has quotation marks at the end, although they are omitted at the beginning And the charge, in the same words, with the prefix that it 'was delivered by Jay, Chief Justice, on the 7th of February, in the following lowing terms,' is printed in Dunlop & Claypole's American Daily Advertiser of February 17, 1794.

That was not a criminal case, nor a suit to recover a penalty. Had it been, it could hardly have been brought within the original jurisdiction of this court. Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 294, 295 S., 8 Sup. Ct. 1370. But it was a suit by a state to assert a title acquired by an act of its legislature in the exercise of its sovereign powers in time of war against private individuals. As the charge of the court dealt only with the case before it, without any general discussion, it does not appear whether the opinion expressed as to the right of the jury to determine the law was based upon a supposed analogy between such a suit and a prosecution for crime, or upon the theory, countenanced by many American authorities of the period, that at the foundation of the republic, as in early times in England, the right of the jury extended to all cases, civil or criminal, tried upon the general issue.

However that may have been, it cannot be doubted that this court, at that early date, was of opinion that the jury had the right to decide for themselves all matters of law involved in the general issue in criminal cases; and it is certain that in the century that has since elapsed there has been no judgment or opinion of the court deciding or intimating, in any form, that the right does not appertain to the jury in such cases. And the opinions expressed by individual justices of the court upon the subject, near the time of the decision in State v. Brailsford, or within 40 years afterwards, of which any reports are known to exist, tend, more or less directly, to affirm this right of the jury. That there is not a greater accumulation of evidence to this effect is easily accounted for when it is remembered that comparatively few reports of trials were printed, and that the right of the jury was considered to be so well settled that it was seldom controverted in practice, or specially noticed in reporting trials.

Upon the trial of Gideon Henfield in the circuit court of the United States for the district of Pennsylvania in 1793, before Justices Wilson and Iredell and Judge Peters, for illegal privateering, Mr. Justice Wilson told the jury that, 'the questions of law coming into joint consideration with the facts, it is the duty of the court to explain the law to the jury and give it to them in direction'; and, after expressing the unanimous opinion of the court upon the questions of law involved in the case, 'concluded by remarking that the jury, in a general verdict, must decide both law and fact, but that this did not authorize them to decide it as they pleased. They were as much bound to decide by law as the judges. The responsibility was equal upon both.' Whart. St. Tr. 49, 84, 87, 88, Fed. Cas. No. 6, 360.

This statement that the jury, in a general verdict, must decide both law and fact, and were as much bound to decide by law as the judges, and under an equal responsibility, is quite inconsistent with the idea that the jury were bound to accept the explanation and direction of the court in matter of law as controlling their judgment. That neither Mr. Justice Wilson nor Mr. Justice Iredell entertained any such idea is conclusively disproved by authentic and definite statements of their views upon the question.

Mr. Justice Iredell, speaking for himself only, in a civil case before this court, at February term, 1795, said: 'It will not be sufficient that the court might charge the jury to find for the defendant, because, though the jury will generally respect the sentiments of the court on points of law, they are not bound to deliver a verdict conformably to them.' Bingham v. Cabbot, 3 Dall. 19, 33. [158-Continued]

In a charge to the grand jury of the circuit court of the United States for the district of Georgia, in 1792, Mr. Justice Iredell said: 'Where a killing is clearly proved, if the case be not very plain indeed, the grand jury should find the indictment for murder, and leave the consideration as to the species of homicide to the court and jury on the trial. I say the court and jury; for though it is held to be the province of the court to decide what species of homicide the offense belongs to, and that the province of the jury is merely to be confined to the facts, yet, in my opinion, this can mean nothing more, according to the true principles of law, than that, if a jury find a special verdict stating the facts, the court may pronounce the law upon it, and give judgment as effectually as they could have done on a general verdict. But as it is in the option of the jury to give a special verdict or not, and as they unquestionably may find a general verdict, I conceive they must find that verdict conscientiously, on the best of their judgment, after receiving all such assistance as the court may think proper to give them, which assistance, where points of law are complicated with facts, will often be found very useful, and in some instances absolutely necessary. But as they, in the case of a general verdict, are by the law judges in the last resort (so far, at least, as the giving of that verdict is concerned), they have, I think, clearly a right, as well as power, to determine as shall appear to them just; since it seems to me absurd to say that, where there is a lawful authority to determine, that determination must be made, not according to the judgment of those who have such authority, but according to the judgment of those who have it not. I know no trammels of precedent in this country to overrule a principle which appears to me so plain, and which is so well calculated to guard against indecent altercations between a court and jury, as well as, in my opinion, to prevent any of the rights or liberties of the citizens being overborne (as might otherwise sometimes be the case) by violent exertions of power.' 2 McRee, Life of Iredell, 350.

Mr. Justice Wilson, in his lectures on law at the Philadelphia College in 1790 and 1791, discussing the maxim that the judges determine the law and the jury determine the fact, made the following observations:

In closing his discussion of the subject, and reviewing the principles before stated, he said: 'With regard to the law in criminal cases, every citizen, in a government such as ours, should endeavor to acquire a reasonable knowledge of its principles and rules, for the direction of his conduct, when he is called to obey, when he is called to answer, and when he is called to judge. On questions of law, his deficiencies will be supplied by the professional directions of the judges, whose duty and whose business it is professionally to direct him; for, as we have seen, verdicts in criminal cases generally determine the question of law as well as the question of fact. Questions of fact, it is his exclusive province to determine. With the consideration of evidence unconnected with the question which he is to try, his attention will not be distracted, for everything of that nature, we presume, will be excluded by the court. The collected powers of his mind, therefore, will be fixed, steadily and without interruption, upon the issue which he is sworn to try. This issue is an issue of fact.' 2 Wilson, Works, 386, 387.

These passages, taken together, clearly evince the view of Mr. Justice Wilson to have been that, while an issue of law is to be tried and decided by the judge, an issue of fact, although it involve a question of law blended and interwoven with the fact, is to be tried and decided by the jury after receiving the instructions of the court, and, if a difference of opinion arise between them and the judge upon the question of law, it is their right and their duty to decide the law as well as the fact; that a reasonable knowledge of the principles and rules of law is important to the citizen, not only 'when he is called to obey,' as an individual, and 'when he is called to answer,' as a defendant, but also 'when he is called to judge,' as a juror; and that the general issue which the jury in a criminal case are sworn to try, and which it is their duty to decide, even if it involve questions of law, is 'an issue of fact.'

The provision of section 3 of the act of congress of July 14, 1798 (chapter 74), for punishing seditious libels, that 'the jury who shall try the cause shall have a right to determine the law and the fact, under the direction of the court, as in other cases' (1 Stat. 597), is a clear and express recognition of the right of the jury, in all criminal cases, to determine the law and the fact. The words, 'direction of the court,' as here used, like the words 'opinions and directions' in the English libel act, do not oblige the jury to adopt the opinion of the court, but are merely equivalent to 'instruction,' 'guide,' or 'aid,' and not to 'order,' 'command,' or 'control.' The provision is in affirmance of the general rule, and not by way of creating an exception, and the reason for inserting it probably was that the right of the jury had been more often denied by the English courts in prosecutions for seditious libels than in any other class of cases.

Upon the trial of John Fries for treason, in 1800, before Mr. Justice Chase and Judge Peters, in the circuit court of the United States for the district of Pennsylvania, the district attorney having quoted from English law books definitions of actual and constructive treason, Mr. Justice Chase said: 'They may, any of them, be read to the jury, and the decisions thereupon, not as authorities whereby we are bound, but as the opinions and decisions of men of great legal learning and ability. But even then the court would attend carefully to the time of the decision, and in no case must it be binding upon our juries.' Trials of Fries, 180. And he afterwards instructed the jury as follows: 'It is the duty of the court in this case, and in all criminal cases, to state to the jury their opinion of the law arising on the facts; but the jury are to decide on the present and in all criminal cases both the law and the facts, on their consideration of the whole case.' And he concluded his charge in these words: 'If, upon consideration of the whole matter (law as well as fact), you are not fully satisfied, without any doubt, that the prisoner is guilty of the treason charged in the indictment, you will find him not guilty; but if, upon the consideration of the whole matter (law as well as fact), you are convinced that the prisoner is guilty of the treason charged in the indictment, you will find him guilty.' These instructions, with words italicized as above, are in the exhibits annexed by Mr. Justice Chase to his answer upon the impeachment in 1805. Chase, Trial (Evans' Ed.) Append. 44, 45, 48. See, also, Trials of Fries, 196, 199, Whart. St. Tr. 634, 636, Fed. Cas. No. 5, 127.

In 1806, at the trial of William S. Smith, in the circuit court of the United States for the district of New York, upon an indictment for setting out a military expedition against a foreign country at peace with the United States, Judge Talmadge said to the jury: 'You have heard much said upon the right of a jury to judge of the law as well as the fact.' 'The law is now settled that this right appertains to a jury in all criminal cases. They unquestionably may determine upon all the circumstances, if they will take the responsibility and hazard of judging incorrectly upon questions of mere law. But the jury is not therefore above the law. In exercising this right, they attach to themselves the character of judges, and as such are as much bound by the rules of legal decision as those who preside upon the bench.' Trials of Smith and Ogden, 236, 237.

In prosecutions in the district court of the United States for the district of Massachusetts, under the act of congress of January 8, 1808 (chapter 8), laying an embargo (2 Stat. 453), Samuel Dexter argued the unconstitutionality of the act to the jury; and they acquitted the defendant, although the evidence of the violation of the act was clear, and the court held, and instructed the jury, that the act was constitutional. 3 Bradf. Hist. Mass. 108, note; 3 Webst. Works, 329, 330; U. S. v. The William, 2 Hall, Law J. 255; Sigma, Reminiscences of Dexter, 60, 61.

In 1812, at the trial of an action in the district court of the United States for the district of New York, upon a bond given under the embargo act, Judge Van Ness instructed the jury that 'this was in its nature and essence, though not in its form, a penal or criminal action, and they were therefore entitled to judge both of the law and the fact.' U. S. v. Poillon, 1 Car. Law Repos. 60, 66.

In 1815, at the trial of John Hodges, in the circuit court of the United States for the district of Maryland, for treason, William Pinkney, for the defendant, argued: 'The best security for the rights of individuals is to be found in the trial by jury. But the excellence of this institution consists in its exclusive power. The jury are here judges of law and fact, and are responsible only to God, to the prisoner, and to their own consciences.' And Mr. Justice Duvall, of this court, after expressing his opinion upon the law of the case, said, with the concurrence of Judge Houston: 'The jury are not bound to conform to this opinion, because they have a right, in all criminal cases, to decide on the law and the facts.' Hall, Law Tracts, III. 19, 28; 2 Wheeler, Cr. Cas. 477, 478, 485; Fed. Cas. No. 15, 374.

In 1830, George Wilson and James Porter were jointly indicted in the circuit court of the United States for the district of Pennsylvania for robbing the mail, and were tried separately. In Wilson's Case, Mr. Justice Baldwin (Judge Hopkinson concurring), after expressing to the jury an opinion upon the law, said to them: 'We have thus stated to you the law of this case, under the solemn duties and obligations imposed on us, under the clear conviction that in doing so we have presented to you the true test by which you will apply the evidence to the case; but you will distinctly understand that you are the judges both of the law and fact in a criminal case, and are not bound by the opinion of the court; you may judge for yourselves, and, if you should feel it your duty to differ from us, you must find your verdict accordingly. At the same time, it is our duty to say that it is in perfect accordance with the spirit of our legal institutions that courts should decide questions of law; and the juries, of facts. The nature of the tribunals naturally leads to this division of duties, and it is better, for the sake of public justice, that it should be so. When the law is settled by a court, there is more certainty than when done by a jury. It will be better known, and more respected in public opinion. But, if you are prepared to say that the law is different from what you have heard from us, you are in the exercise of a constitutional right to do so. We have only one other remark to make on this subject: By taking the law as given by the court, you incur no moral responsibility; in making a rule of your own, there may be some danger of a mistake.' Baldw. 78, 99, 100, Fed. Cas. No. 16, 730. And in Porter's Case, the court, after repeating and explaining these instructions, said to the jury: 'In a word, gentlemen, decide on the law and the facts as best comports with your sense of duty to the public and yourselves. Act on the same rule under which you would be guided, as a magistrate or judge, on the oath and responsibility of office. Then you will not err.' Baldw. 108, 109, Fed. Cas. No. 16, 730.

Some justices of this court, indeed, who, as already shown, admitted the general right of jurors in criminal cases to decide both law and fact, denied their right to pass upon the constitutionality of a statute, apparently upon the ground that the question of the existence or the validity of a statute was for the court alone. Paterson, J., in Lyon's Case (1798) Whart. St. Tr. 333, 336, Fed. Cas. No. 8, 646; Chase, J., in Callender's Case (1800) Whart. St. Tr. 688, 710-718, Fed. Cas. No. 14, 709; Baldwin, J., in U. S. v. Shive (1832) Baldw. 510, Fed. Cas No. 16, 278. It may well be doubted whether such a distinction can be maintained. Com. v. Anthes, 5 Gray, 185, 188-192, 262; Cooley, Const. Lim. (6th Ed.) 567. But the point does not arise in this case Upon the general question of the right of the jury in criminal cases to decide the law, Chief Justice Marshall's opinion is of so great weight that the evidence of that opinion, although, perhaps, not so satisfactory as might be wished, should not be disregarded.

At the trial of Aaron Burr in the circuit court of the United States for the district of Virginia, in 1808, for treason by levying war in Blennerhassett's Island, Chief Justice Marshall, in delivering an opinion upon the order of evidence, said: 'Levying of war is a fact, which must be decided by the jury. The court may give general instructions on this, as on every other question brought before them, but the jury must decide upon it as compounded of fact and law.' 1 Burr's Trial, 470.

In the charge, Drawn up by the chief justice in writing, and read by him to the jury, speaking of the question of the defendant's constructive presence, he said: 'Had he not arrived in the island, but had taken a position near enough to co-operate with those on the island, to assist them in any act of hostility, or to aid them if attacked, the question whether he was constructively present would be a question compounded of law and fact, which would be decided by the jury, with the aid of the court, so far as respected the law.' 2 Burr's Trial, 429.

The chief justice took occasion to demonstrate that questions of the admissibility of evidence must be decided by the court only, saying: 'No person will contend that in a civil or criminal case either party is at liberty to introduce what testimony he pleases, legal or illegal, and to consume the whole term in details of facts unconnected with the particular case. Some tribunal, then, must decide on the admissibility of testimony. The parties cannot constitute this tribunal, for they do not agree. The jury cannot constitute it, for the question is whether they shall hear the testimony or not. Who then but the court can constitute it? It is, of necessity, the peculiar province of the court to judge of the admissibility of testimony.' Page 443.

Referring to his previous opinion on the order of testimony, he remarked: 'It was said that levying war is an act compounded of law and fact, of which the jury, aided by the court, must judge. To that declaration the court still adheres.' Page 444. And he concluded his charge thus: 'The jury have now heard the opinion of the court on the law of the case. They will apply that law to the facts, and will find a verdict of guilty or not guilty as their own consciences may direct.' Page 445.

It thus appears that Chief Justice Marshall, while affirming that a question of the admissibility of evidence must be decided by the court, because that question was whether the jury should hear the evidence or not, yet told the jury (in many forms, but of the same meaning) that upon a question compounded of fact and law, involved in the issue submitted to the jury, the court might give general instructions, but the jury must decide it; that such a question, compounded of law and fact, would be decided by the jury, with the aid of the court, so far as respects the law; that of such a question the jury, aided by the court, must judge; and that, having 'heard the opinion of the court on the law of the case, they will apply,' not 'that opinion,' but 'that law,' namely, the law as to which the court had expressed its opinion, 'to the facts, and will find a verdict of guilty or not guilty as their own consciences may direct.' The manifest intent and effect of all this were that the jury, after receiving the aid of the instructions of the court on matter of law, must judge of and determine, as their own consciences might direct, every question compounded of law and fact involved in the general issue of guilty or not guilty.

The meaning of the charge in this respect, as carefully prepared by the chief justice, is too clear to be controlled by the words attributed to him by the reporter, on page 448, in the course of a desultory conversation with counsel in regard to other defendants, after the jury had found Burr not guilty.

In 1817, before Chief Justice Marshall, in the same court, there was tried an indictment for piracy, by robbing on the high seas, under Act Cong. April 30, 1790, c. 9, 8 (1 Stat. 113; Rev. St. 5372), enacting that any person committing upon the high seas 'murder or robbery, or any other offense which, if committed within the body of a county, would by the laws of the United States be punishable with death,' should be deemed a pirate. Mr. Upshur, for the defendant, argued 'that it was necessary that robbery should first be made punishable with death by the laws of the United States, when committed on land, before it could amount to piracy, when committed on the sea, which was not now the case; that Judge Johnson had so decided in South Carolina, although a contrary decision had been subsequently pronounced by Judge Washington; that the conflict between these two learned judges proved that the law was at least doubtful; that the jury, in a capital case, were judges as well of the law as the fact, and were bound to acquit, where either was doubtful.' Chief Justice Marshall (far from denying this right of the jury), 'being appealed to for the interpretation of the law, decided that it was not necessary that robbery should be punishable by death when committed on land, in order to amount to piracy if committed on the ocean; but as two judges (for both of whom the court entertained the highest respect) had pronounced opposite decisions upon it, the court could not undertake to say that it was not at least doubtful.' And, the case being submitted to the jury, they returned a verdict of not guilty. U. S. v. Hutchings, 2 Wheel. Cr. Cas. 543, 547, 548, Fed. Cas. No. 15, 429.[1]

It may be added that Mr. Conway Robinson, well known to many members of this court and this bar as a most careful and accurate as well as learned lawyer, informed Mr. Justice Blatchford and myself that he well remembered hearing Chief Justice Marshall, presiding at the trial of a criminal case in the circuit court of the United States at Richmond, after expressing, at the request of the counsel on both sides, his own opinion upon the construction of the statute on which the indictment was founded, conclude his charge to the jury by telling them that, as it was a criminal case, they were not bound to accept his opinion, but had the right to decide both the law and the fact.

Until nearly 40 years after the adoption of the constitution of the United States, not a single decision of the highest court of any state, or of any judge of a court of the United States, has been found, denying the right of the jury upon the general issue in a criminal case to decide, according to their own judgment and consciences, the law involved in that issue, except the two or three cases, above mentioned, concerning the constitutionality of a statute. And it cannot have escaped attention that many of the utterances above quoted, maintaining the right of the jury, were by some of the most eminent and steadfast supporters of the constitution of the United States, and of the authority of the national judiciary.

It must frankly be admitted that in more recent times, beginning with the judgment of the court of appeals of Kentucky in 1830 in Montee v. Com., 3 J. J. Marsh. 132, and with Mr. Justice Story's charge to a jury in 1835 in U. S. v. Battiste, 2 Sumn. 240, Fed. Cas. No. 14, 545, the general tendency of decision in this country (as appears by the cases cited in the opinion of the majority of the court) has been against the right of the jury, as well in the courts of the several states, including many states where the right was once established, as in the circuit courts of the United States. The current has been so strong that in Massachusetts, where counsel are admitted to have the right to argue the law to the jury, it has yet been held that the jury have no right to decide it, and it has also been held, by a majority of the court, that the legislature could not constitutionally confer upon the jury the right to determine, against the instructions of the court, questions of law involved in the general issue in criminal cases; and in Georgia and in Louisiana a general provision in the constitution of the state declaring that 'in criminal cases the jury shall be judges of the law and fact' has been held not to authorize them to decide the law against the instructions of the court. Com. v. Porter, 10 Metc. (Mass.) 263; Com. v. Anthes, 5 Gray, 185; Ridenhour v. State, 75 Ga. 382; State v. Tisdale, 41 La. Ann. 338, 6 South. 579.

But, upon the question of the true meaning and effect of the constitution of the United States in this respect, opinions expressed more than a generation after the adoption of the constitution have far less weight than the almost unanimous voice of earlier and nearly contemporaneous judicial declarations and practical usage. Stuart v. Laird, 1 Cranch, 299. And, upon this constitutional question, neither decisions of state courts, nor rulings of lower courts of the United States, can relieve this court from the duty of exercising its own judgment. Liverpool & G. W. Steam Co. v. Phenix Ins. Co., 129 U.S. 397, 443, 9 S. Sup. Ct. 469; Andrews v. Hovey, 124 U.S. 694, 717, 8 S. Sup. Ct. 676; The J. E. Rumbell, 148 U.S. 1, 17, 13 S. Sup. Ct. 498.

The principal grounds which have been assigned for denying the right of a jury, upon the general issue in a criminal case, to determine the law against the instructions of the court, have been that the old maxim, 'Ad quaestionem juris respondent judices, ad quaestionem facti respondent juratores,' is of universal application; that judges are more competent than juries to determine questions of law; and that decisions upon such questions in one case become precedents to guide the decision of subsequent cases.

But the question, what are the rights, in this respect, of persons accused of crime, and of juries summoned and impaneled to try them, under the constitution of the United States, is not a question to be decided according to what the court may think would be the wisest and best system to be established by the people or by the legislature; but what, in the light of previous law, and of contemporaneous or early construction of the constitution, the people did affirm and establish by that instrument.

This question, like all questions of constitutional construction, is largely an historical question; and it is for that reason that it has seemed necessary, at the risk of tediousness, to review and to state at some length the principal authorities upon the subject in England and America. The reasons to be derived from these authorities for maintaining the contested right of the jury in this regard may be summed up as follows:

By the Great Charter of England, and by the American constitutions, it is not by a decision of the ablest or most learned judges that the citizen can be deprived of his life or liberty, but it is only by 'the judgment of his peers, ' or, in the ancient phrase, 'by his country,' — a jury taken from the body of the people.

The ancient forms, used before and since the adoption of the constitution, and hardly altered at the present day, in which the general issue is pleaded by the accused, and submitted to the jury, are significant. When the defendant, being arraigned upon the indictment, pleads not guilty, he is asked by the clerk of the court, 'How will you be tried?' and answers, 'By God and my country.' The oath administered to each juror as he is called and accepted is: 'You shall well and truly try and true deliverance make between our sovereign lord the king [or the state or people, or the United States, as the case may be] and the prisoner at the bar, whom you shall have in charge, according to your evidence. So help you God.' And, after the jury have been impaneled, the clerk reads the indictment to the jury, and then says to them: 'To this indictment the prisoner at the bar has pleaded not guilty, and for trial has put himself upon the country, which country you are. You are now sworn to try the issue. If he is guilty, you will say so; if not guilty, you will say so; and no more.'

In the maxim, 'Ad quaestionem juris respondent judices, ad quaestionem facti respondent juratores,' the word 'quaestio' denotes an issue joined by the pleadings of the parties, or otherwise stated on the record, for decision by the appropriate tribunal. Issues of law, so joined or stated, are to be decided by the judge; issues of fact, by the jury. If the accused demurs to the indictment, an issue of law only is presented, which must be decided and judgment rendered thereon by the court, and by the court alone. But, if the accused pleads generally not guilty, the only issue joined is an issue of fact, to be decided by the jury, and by the jury only, unless the jury choose to return a special verdict, so that the record may present an issue of mere law, to be decided by the court. After a verdict of guilty, again, any defense in matter of law, apparent on the record, is to be considered and decided by the court on motion in arrest of judgment.

The maxim has no application to rulings, in the course of the trial, upon the admission of evidence. The object of rules as to the competency of evidence is to prevent trials from being unduly prolonged, and the consideration and decision of the merits of the real issue on trial obscured, embarrassed, or prejudiced by the introduction of irrelevant matter. The question whether particular evidence shall be admitted or not is one to be decided before the evidence can be submitted to the jury at all, and must be, as it always is, decided by the court; and this is so, whether the admissibility of the evidence depends, as it usually does, upon a question of law only, or depends largely or wholly upon a question of fact, as whether dying declarations were made under immediate apprehension of death, or whether a confession of the defendant was voluntary, or whether sufficient foundation has been laid for the introduction of secondary evidence, or for permitting a witness to testify as an expert. To infer, because the court must decide questions of law upon which the admissibility of evidence depends, that the jury have no right to determine the matter of law involved in the general issue, would be as unwarrantable as to infer, because the court must decide questions of fact upon which the admissibility of evidence depends, that the jury have no right to decide the matter of fact involved in that issue.

The jury to whom the case is submitted, upon the general issue of guilty or not guilty, are intrusted with the decision of both the law and the facts involved in that issue. To assist them in the decision of the facts, they hear the testimony of witnesses; but they are not bound to believe the testimony. To assist them in the decision of the law, they receive the instructions of the judge; but they are not obliged to follow his instructions.

Upon the facts, although the judge may state his view of them, the duty of decision remains with the jury, and cannot be thrown by them upon the judge. Upon the law involved in the issue of fact, the jury, if they are satisfied to do so, may let it be decided by the judge, either by returning a general verdict in accordance with his opinion as expressed to them, or by returning a special verdict reciting the facts as found by them, and, by thus separating the law from the facts, put the question of law in a shape to be decided by the court in a more formal manner. But the whole issue, complicated of law and fact, being submitted to their determination, the law does not require them to separate the law from the fact, but authorizes them to decide both at once by a general verdict.

The duty of the jury, indeed, like any other duty imposed upon any officer or private person by the law of his country, must be governed by the law, and not by willfulness or caprice. The jury must ascertain the law as well as they can. Usually they will, and safely may, take it from the instructions of the court. But, if they are satisfied on their consciences that the law is other than as laid down to them by the court, it is their right and their duty to decide by the law as they know or believe it to be.

In the forcible words of Chief Justice Vaughan in Bushell's Case, Vaughan, 135, 148, already quoted: 'A man cannot see by another's eye, nor hear by another's ear; no more can a man conclude or infer the thing to be resolved by another's understanding or reasoning; and, though the verdict be right the jury give, yet they, being not assured it is so from their own understanding, are forsworn, at least in foro conscientiae.' Or, as more briefly stated in another report of the same case: 'The jury are perjured if the verdict be against their own judgment, although by directions of the court, for their oath binds them to their own judgment.' T. Jones, 13, 17.

It is universally conceded that a verdict of acquittal, although rendered against the instructions of the judge, is final, and cannot be set aside; and, consequently, that the jury have the legal power to decide for themselves the law involved in the general issue of guilty or not guilty. It has sometimes, however, been asserted that, although they have the power, they have no right to do this, and that it is their legal, or at least their moral, duty, in every criminal case, to obey and follow the judge's instructions in matter of law. The suggestion is not that the jury ought not to exercise the power wrongfully, but that they ought not to exercise it at all; that, whether the instructions of the court be right or wrong, just or arbitrary, according to the law as known of all men, or directly contrary to it, the jury must be controlled by and follow them.

But a legal duty which cannot in any way, directly or indirectly, be enforced, and a legal power of which there can never, under any circumstances, be a rightful and lawful exercise, are anomalies; 'the test of every legal power [as said by Alexander Hamilton, and affirmed by Chancellor Kent, in People v. Croswell, 3 Johns. Cas. 362, 368, above cited] being its capacity to produce a definitive effect, liable neither to punishment nor control,' 'to censure nor review.'

It has been said that, if not their legal duty, it is their moral duty, to follow the instructions of the court in matter of law. But moral duties, as distinguished from legal duties, are governed, not by human, but by divine, laws; and the oath which the jurors in a capital case severally take to the Almighty Judge is to well and truly try and true deliverance make between the government and the prisoner at the bar, according to their evidence, not according to the instructions of the court, and to decide whether, in their own judgment and conscience, the accused is guilty or not guilty.

The rules and principles of the criminal law are, for the most part, elementary and simple, and easily understood by jurors taken from the body of the people. As every citizen or subject is conclusively presumed to know the law, and cannot set up his ignorance of it to excuse him from criminal responsibility for offending against it, a jury of his peers must be presumed to have equal knowledge, and, especially after being aided by the explanation and exposition of the law by counsel and court, to be capable of applying it to the facts as proved by the evidence before them. On the other hand, it is a matter of common observation that judges and lawyers, even the most upright, able, and learned, are sometimes too much influenced by technical rules; and that those judges who are wholly or chiefly occupied in the administration of criminal justice are apt, not only to grow severe in their sentences, but to decide questions of law too unfavorably to the accused.

The jury having the undoubted and uncontrollable power to determine for themselves the law as well as the fact by a general verdict of acquittal, a denial by the court of their right to exercise this power will be apt to excite in them a spirit of jealousy and contradiction, and to prevent them from giving due consideration and weight to the instructions due consideration and weight to the instructions

In civil cases, doubtless, since the power to grant new trials has become established, the court, having the right to grant one to either party as often as the verdict appears to be contrary to the law, or to the evidence, may, in order to avoid unnecessary delay, whenever, in its opinion, the evidence will warrant a verdict for one party only, order a verdict accordingly. Pleasants v. Fant, 22 Wall. 116; Hendrick v. Lindsay, 93 U.S. 143; Schofield v. Railway Co., 114 U.S. 615, 5 Sup. Ct. 1125.

But a person accused of crime has a twofold protection — in the court and the jury — against being unlawfully convicted. If the evidence appears to the court to be insufficient in law to warrant a conviction, the court may direct an acquittal. Smith v. U. S., 151 U.S. 50, 14 Sup. Ct. 234. But the court can never order the jury to convict, for no one can be found guilty but by the judgment of his peers.

Decisions of courts, and especially of courts of last resort, upon issues of law, such as are presented by a demurrer or by a special verdict, become precedents to govern judicial decisions in like cases in the future. But the verdict of a jury, upon the general issue of guilty or not guilty, settles nothing but the guilt or innocence of the accused in the particular case; and the issue decided is so complicated of law and fact, blended together, that no distinct decision of any question of law is recorded or made. The purpose of establishing trial by jury was not to obtain general rules of law for future use, but to secure impartial justice between the government and the accused in each case as it arose.

As said by Alexander Hamilton in Croswell's Case, above cited, the power of deciding both law and fact upon the general issue in a criminal case is intrusted to the jury, 'for reasons of a political and peculiar nature, for the security of life and liberty.' 7 Hamilton's Works, 335; 3 Johns. Cas. 362. The people, by a jury drawn from among themselves, take part in every conviction of a person accused of crime by the government; and the general knowledge that no man can be otherwise convicted increases public confidence in the justice of convictions, and is a strong bulwark of the administration of the criminal law.

By the law of England, as has been seen, a person accused of murder or other felony, and convicted before a single judge, could not move for a new trial, and had no means of reviewing his instructions to the jury upon any question of law, unless the judge himself saw fit to reserve the question for decision by higher judicial authority.

Although Mr. Justice Story, in U. S. v. Gibert (1834) 2 Sumn. 19, Fed. Cas. No. 15, 204, thought that a new trial could not be granted to a man convicted of murder by a jury, because to do so would be to put him twice in jeopardy of his life, yet the circuit courts of the United States may doubtless grant new trials after conviction, though not after acquittal, in criminal cases tried before them. U. S. v. Fries (1799) 3 Dall. 515, Fed. Cas. No. 5, 126; U. S. v. Wilson & Porter (1830) Baldw. 78, 108, Fed. Cas. No. 16, 730; U. S. v. Harding (1846) 1 Wall. Jr. 127, Fed Cas. No. 15, 301; U. S. v. Keen (1839) 1 McLean, 429, Fed. Cas. No. 15, 510; U. S. v. Macomb (1851) 5 McLean, 286, Fed. Cas. No. 15, 702; U. S. v. Smith (1855) 3 Blatchf. 255, Fed. Cas. No. 16, 320; U. S. v. Williams (1858) 1 Cliff. 5, Fed. Cas. No. 16, 707. But the granting or refusal of a new trial rests wholly in the discretion of the court in which the trial was had, and cannot be reviewed on error. Blitz v. U. S., 153 U.S. 308, 14 Sup. Ct. 924.

By the constitution of the United States, this court has appellate jurisdiction in such cases, and under such regulations only, as congress may prescribe; and, under the legislation of congress before 1889, no rulings or instructions of a circuit court of the United States in a criminal case could be brought to this court, unless upon a certificate of division of opinion between two judges presiding at the trial. A person accused of murder or other crime might be tried, and, if convicted by the jury, sentenced before a single judge, perhaps only a district judge; and, if so convicted and sentenced, there was no way in which the judge's rulings could be reviewed by this court. Act April 29, 1802, c. 31, 6 (2 Stat. 159); Rev. St. 651, 697; U. S. v. More, 3 Cranch, 159, 172; Ex parte Kearney, 7 Wheat. 38, 42; Ex parte Gordon, 1 Black, 503; Ex parte Yarbrough, 110 U.S. 651, 4 Sup. Ct. 152; U. S. v. Perrin, 131 U.S. 55, 9 Sup. Ct. 681.

By the acts of February 6, 1889 (chapter 113, 6), and March 3, 1891 (chapter 517), indeed, a person convicted of murder or other infamous crime in a circuit court of the United States may bring the case to this court by writ of error, although the United States cannot do so. 25 Stat. 656; 26 Stat. 827; U. S. v. Sanges, 144 U.S. 310, 12 Sup. Ct. 609. But the right of review, so given to this court, cannot supersede or impair the rightful power of the jury under the constitution, in deciding the issue submitted to them at the trial.

There may be less danger of prejudice or oppression from judges appointed by the president elected by the people than from judges appointed by an hereditary monarch. But, as the experience of history shows, it cannot be assumed that judges will always be just and impartial, and free from the inclination, to which even the most upright and learned magistrates have been known to yield, — from the most patriotic motives, and with the most honest intent to promote symmetry and accuracy in the law, — of amplifying their own jurisdiction and powers at the expense of those intrusted by the constitution to other bodies. And there is surely no reason why the chief security of the liberty of the citizen — the judgment of his peers — should be held less sacred in a republic than in a monarchy.

Upon these considerations, we are of opinion that the learned judge erred in instructing the jury that they were bound to accept the law as stated in his instructions, and that this error requires the verdict to be set aside as to both defendants.

But we are also of opinion that the judge committed an equally grave error in declining to submit to the jury matter of fact involved in the issue on trial.

It clearly appears that the jury were not only instructed that, while they had the physical power to return a verdict of manslaughter, yet they must take the law from the court; but that they were also instructed that, if they found these defendants guilty of any crime, it could not properly be manslaughter. There can be no doubt upon the record before us — and it is admitted in the opinion of the majority of the court — that the judge denied the right of the jury to find as a fact that the defendants had been guilty of manslaughter only. Nor can there be any doubt that the jury were thereby led to agree upon a verdict of guilty of murder, to the great prejudice of the defendants.

In a case in which the jury, as appeared by their inquiries of the court, were in doubt whether the homicide committed by the defendants was murder or manslaughter, to instruct them that they could not acquit the defendants of murder and convict them of manslaughter only, but must find them guilty of murder or of no crime at all, does not appear to us to differ, in principle, from instructing them, in a case in which there was no question of manslaughter, that there was no evidence upon which they could acquit the defendant, or do anything but convict him of murder.

This is not a case in which the judge simply declined to give any instructions upon a question of law which he thought did not arise upon the evidence. But, after giving sufficient definitions both of murder and of manslaughter, he peremptorily told them that they could not convict the defendants of manslaughter only, and thereby denied the right of the jury to pass upon a matter of fact necessarily included in the issue presented by the general plea of not guilty.

This appears to us to be inconsistent with settled principles of law and with well-considered authorities. As said by this court, speaking by Mr. Justice Clifford: 'In criminal cases the true rule is that the burden of proof never shifts; that in all cases, before a conviction can be had, the jury must be satisfied from the evidence, beyond a reasonable doubt, of the affirmative of the issue presented in the accusation that the defendant is guilty in the manner and form as charged in the indictment.' Lilienthal's Tobacco v. U. S., 97 U.S. 237, 266. See, also, Potter v. U. S., 155 U.S. 438, 15 Sup. Ct. 144; Com. v. McKie, 1 Gray, 61; People v. Downs, 123 N. Y. 558, 25 N. E. 988.

Upon the trial of an indictment under a statute of the territory of Utah, establishing two degrees of murder, with different punishments, the jury were instructed 'that an atrocious and dastardly murder has been committed by some person is apparent, but in your deliberations you should be careful not to be influenced by any feeling'; and the defendant was found guilty of murder in the first degree, and sentenced to death. This court, upon writ of error to the supreme court of the territory, reversed the judgment, because that instruction must have been regarded by the jury as 'an instruction that the offense, by whomsoever committed, was murder in the first degree; whereas it was for the jury, having been informed as to what was murder by the laws of Utah, to say whether the facts made a case of murder in the first degree or murder in the second degree'; and 'the prisoner had the right to the judgment of the jury upon the facts, uninfluenced by any direction from the court as to the weight of the evidence.' Hopt v. People, 110 U.S. 574, 582, 583 S., 4 Sup. Ct. 202.

As stated by the chief justice, speaking for this court, in a case of murder, decided at the last term: 'It is true that in the federal courts the rule that obtains is similar to that in the English courts, and the presiding judge may, if in his discretion he think proper, sum up the facts to the jury; and if no rule of law is incorrectly stated, and the matters of fact are ultimately submitted to the determination of the jury, it has been held that an expression of opinion upon the facts is not reviewable on error. Rucker v. Wheeler, 127 U.S. 85, 93, 8 Sup. Ct. 1142; Lovejoy v. U. S., 128 U.S. 171, 173, 9 S. Sup. Ct. 57. But he should take care to separate the law from the facts, and to leave the latter in unequivocal terms to the judgment of the jury as their true and peculiar province. M'Lanahan v. Insurance Co., 1 Pet. 170, 182. As the jurors are the triers of facts, expressions of opinion by the court should be so guarded as to leave the jury free in the exercise of their own judgments.' Starr v. U. S., 153 U.S. 614, 624, 625 S., 14 Sup. Ct. 919.

The supreme court of Michigan, speaking by Chief Justice Cooley, in setting aside a verdict of murder, in a case in which the homicide was admitted, and the only question was whether it was murder or manslaughter, said: 'The trial of criminal cases is by a jury of the country, and not by the court. The jurors, and they alone, are to judge of the facts, and weigh the evidence. The law has established this tribunal, because it is believed that, from its numbers, the mode of their selection, and the fact that the jurors come from all classes of society, they are better calculated to judge of motives, weigh probabilities, and take what may be called a 'common-sense view' of a set of circumstances, involving both act and intent, than any single man, however pure, wise, and eminent he may be. This is the theory of the law, and, as applied to criminal accusations, it is eminently wise, and favorable alike to liberty and to justice. But, to give it full effect, the jury must be left to weigh the evidence, and to examine the alleged motives by their own tests. They cannot properly be furnished for this purpose with balances which leave them no discretion, but which, under certain circumstances, will compel them to find a malicious intent when they cannot conscientiously say they believe such an intent to exist.' People v. Garbutt, 17 Mich. 9, 27.

In Rex v. Burdett, cited in the earlier part of this opinion, Mr. Justice Best said: 'If there was any evidence, it was my duty to leave it to the jury, who alone could judge of its weight. The rule that governs a judge as to evidence applies equally to the case offered on the part of the defendant, and that in support of the prosecution. It will hardly be contended that, if there was evidence offered on the part of the defendant, a judge would have a right to take on himself to decide on the effect of the evidence, and to withdraw it from the jury. Were a judge so to act, he might, with great justice, be charged with usurping the privileges of the jury, and making a criminal trial, not what it is by our law, a trial by jury, but a trial by the judge.' And Lord Tenterden, in words peculiarly applicable to the present case, said: 'In cases of murder, it rarely happens that the eye of any witness sees the fatal blow struck, or the poisonous ingredients poured into the cup. In drawing an inference or conclusion from facts proved, regard must always be had to the nature of the particular case, and the facility that appears to be afforded, either of explanation or contradiction.' 'The premises may lead more or less strongly to the conclusion, and care must be taken not to draw the conclusion hastily; but in matters that regard the conduct of men, the certainty of mathematical demonstration cannot be required or expected; and it is one of the peculiar advantages of our jurisprudence that the conclusion is to be drawn by the unanimous judgment and conscience of twelve men, conversant with the affairs and business of life, and who know that, where reasonable doubt is entertained, it is their duty to acquit; and not of one or more lawyers, whose habits might be suspected of leading them to the indulgence of too much subtilty and refinement.' 4 Barn. & Ald. 95, 121, 161, 162.

The care with which courts of the highest authority have guarded the exclusive right of the jury to decide the facts in a criminal case is exemplified in a very recent case before the judicial committee of the privy council, in which, under section 423 of the criminal law amendment act of 1883 (46 Vict. c. 17), authorizing the judge presiding at a criminal trial to reserve questions of law for review, with a proviso that no judgment should be reversed 'unless for some substantial wrong or other miscarriage of justice,' the questions reserved were whether certain evidence had been improperly admitted, and whether, if the court came to the conclusion that it was not legally admissible, the court could nevertheless affirm the judgment if it was of opinion that, independently of that evidence, there was sufficient evidence to support the conviction, and that the accused was guilty of the offense with which he was charged. It was argued that if, without the inadmissible evidence, there was evidence sufficient to sustain the verdict, and to show that the accused was guilty, there had been no substantial wrong or miscarriage of justice in affirming a judgment upon the conviction by the jury. But Lord Chancellor Herschell, speaking for six other law lords as well as for himself, held otherwise, and said: 'It is obvious that the construction contended for transfers from the jury to the court the determination of the question whether the evidence — that is to say, what the law regards as evidence — establishes the guilt of the accused. The result is that, in a case where the accused has the right to have his guilt or innocence tried by a jury, the judgment passed upon him is made to depend, not on the finding of the jury, but on the decision of the court. The judges are in truth substituted for the jury. The verdict becomes theirs, and theirs alone, and is arrived at upon a perusal of the evidence, with out any opportunity of seeing the demeanor of the witnesses and weighing the evidence with the assistance which this affords. It is impossible to deny that such a change of the law would be a very serious one, and that the construction which their lordships are invited to put upon the enactment would gravely affect the much-cherished right of trial by jury in criminal cases.' Makin v. Attorney General App. Cas. 57, 69, 70.

By section 1035 of the Revised Statutes, 'in all criminal causes, the defendant may be found guilty of any offence the commission of which is necessarily included in that with which he is charged in the indictment, or may be found guilty of an attempt to commit the offence so charged: provided, that such attempt be itself a separate offence.' The defendants, therefore, under this indictment, might have been convicted of murder, or of manslaughter, or of an assault only. Having pleaded not guilty, they could only be convicted by the verdict of a jury. If a homicide was committed with malice, it was murder; if committed without malice, but without any lawful excuse, it was manslaughter only. The burden of proof at every step was upon the government. In order to obtain a conviction of murder, it must prove beyond a reasonable doubt that the homicide was committed with malice. The question whether, taking into consideration all the circumstances in evidence, as well as the credibility of the several witnesses, there was a criminal homicide, and, if so, whether it was murder or only manslaughter, could be finally decided against the defendants by the jury alone. According to the settled practice of the courts of the United States, indeed, the court, even in a criminal case, may express its opinion to the jury upon any question of fact, provided that it submits that question to the jury for decision. But the court in this case went beyond this, and distinctly told the jury that, if they found that a felonious homicide had been committed by the defendants, they could not properly convict them of manslaughter, which was equivalent to saying that, if any crime was proved, it was murder. This instruction had the direct tendency and the actual effect of inducing the jury to return a verdict of guilty of the higher crime. The jury may have been satisfied that the defendants killed the mate without lawful excuse, and may yet have had doubts whether, upon so much of the testimony as they believed to be true, the killing was malicious, and therefore murder. That doubts had occurred to the jurors upon this point is shown by the questions addressed by one of them to the presiding judge. The judge dispelled those doubts, not by further defining the distinction as matter of law between murder and manslaughter, but by telling the jury that, as matter of fact, they could not convict the defendants of manslaughter only. He thus substituted his own decision upon this question of fact for the decision of the jury, to which the defendants were entitled under the constitution and laws of the United States. If all the justices of this court should concur in the opinion of the judge below upon this question of fact, still the defendants have not had the question decided by the only tribunal competent to do so under the constitution and laws.

For the twofold reason that the defendants, by the instructions given by the court to the jury, have been deprived both of their right to have the jury decide the law involved in the general issue, and also of their right to have the jury decide every matter of fact involved in that issue, we are of opinion that the judgment should be reversed, and the case remanded, with directions to order a new trial as to both defendants.

Footnotes

1. The decision of Mr. Justice Johnson, there referred to, does not appear to have been reported. But the decision of Mr. Justice Washington is reported as U. S. v. Jones (1813) 3 Wash. C. C. 209, Fed. Cas. No. 15, 494; and the point was decided the same way by this court (Mr. Justice Johnson dissenting) in U. S. v. Palmer (1818) 3 Wheat. 610.


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