Section 176 of the revised and private laws of Illinois of 1827, pages 162, 163, is in the following language: "All trials for criminal offenses, shall be conducted according to the course of the common law, except where this act points out a different mode; and the rules of evidence of the common law shall also, unless changed by this act, be binding upon all courts and juries in criminal cases. Juries shall in all cases be judges of the law and the fact." The last provision of said section that juries shall in all cases be judges of the law and the fact has been several times reenacted and declared by the legislature of Illinois, as recognized by the decision of the court in this case, and it has been the recognized law of Illinois for more than one hundred and three years. There is no other decision by this court in which it has been held that the legislature of this State did not have the right and power to enact that provision. Wherever that right and power have been referred to or discussed in the previous decisions of this court it has never been held or intimated that the legislature was without right or power to enact that provision. There has never been a constitutional provision in this State that denied or challenged the right and power of the legislature to enact said provision of the statute of 1827. Section 6 of article 8 of the constitution of 1818 simply provided "that the right of the trial by jury shall remain inviolate." Section 6 of article 13 of the constitution of 1848 provided "that the right of trial by jury shall remain inviolate, and shall extend to all cases at law, without regard to the amount in controversy." Section 8 of article 8 of the constitution of 1818 and of article 13 of the constitution of 1848 provide "that no freeman shall be imprisoned or disseized of his freehold, liberties or privileges, or outlawed or exiled, or in any manner deprived of his life, liberty or property, but by the judgment of his peers or the law of the land." Section 11 of article 8 of the constitution of 1818 and of *Page 164 article 13 of the constitution of 1848 provide: "No person shall, for the same offense, be twice put in jeopardy of his life or limb." Section 5 of article 2 of the constitution of 1870 provides: "The right of trial by jury as heretofore enjoyed, shall remain inviolate; but the trial of civil cases before justices of the peace by a jury of less than twelve men may be authorized by law." Section 10 of article 2 of that constitution provides: "No person shall be compelled in any criminal case to give evidence against himself, or be twice put in jeopardy for the same offense."
In the case of Ross v. Irving, 14 Ill. 171, decided in December, 1852, this court held that the statute of this State commonly called the Occupying Claimants' law was constitutional, and that the mode of assessing the value of improvements under that law by seven commissioners, as provided by that statute, did not infringe upon that clause of the constitution which guaranteed the right of trial by jury. It was further held in that case that the guaranty in the constitutions of 1818 and 1848 that the "right of trial by jury shall remain inviolate" was to be construed as preserving the right of that mode of trial as it was understood to exist at the time of the adoption of those constitutions; that trial by jury is only required on issues of fact in civil and criminal cases in courts of justice, and cannot be extended so as to embrace the case of a mere assessment of damages or the valuation of property made out of court, though done under an order of court directing the assessment of valuation. The court in arriving at its decision referred to the fact that at the time of the adoption of the constitution of 1848 said act, which it held valid, was of near forty years' standing, had been "repeatedly re-enacted by different legislatures, and had been recognized as valid by the Supreme Court in directing proceedings under it," and that the constitution of 1848 did not in any provision thereof declare the act invalid. It seems to me that the above case is one of the strongest of all of our Illinois *Page 165 cases on the proposition that this court has no right to say that the provision of the statute that juries in criminal cases shall be judges of the law and fact is invalid, as being in violation of section 5 of the bill of rights in the constitution of 1870. It is cited by the judges who delivered the opinions of this court in the following cases, in all of which it was held that the right of trial by jury as guaranteed by the constitution of 1870 is the right as it existed at the time of the adoption of that instrument, to-wit: By Judge Scholfield in Commercial Ins. Co. v. Scammon, 123 Ill. 601; by Judge Cartwright in Borg v. Chicago, Rock Island and PacificRailway Co. 162 Ill. 348; by Judge Cartwright in City of SpringValley v. Spring Valley Coal Co. 173 Ill. 497, in which case he said: "The right of trial by jury which is preserved by the constitution is the right as it had been enjoyed before the adoption of that instrument. * * * The question whether a statute infringes the constitutional provision that the right to trial by jury as theretofore enjoyed shall remain inviolate raises a purely historical question, and nothing else. It is not to be determined by a consideration of what the legislature ought to do in providing for the submission of issues to a jury but such arguments are to be addressed to the legislature." InBrewster v. People, 183 Ill. 143, Judge Magruder passed on the right of a defendant in a criminal case to waive trial by jury, and in that case held that the right of trial by jury as guaranteed by the constitution of 1970 is the right as it existed at the time of the adoption of that instrument, and cited Ross v. Irving, supra. In Paulsen v. People, 195 Ill. 507, Judge Boggs cited Brewster v. People, supra, and held that the right of trial by jury as guaranteed by the constitution is the right as it existed at the time of the adoption of that instrument. In Mirich v. Forschner Contracting Co. 312 Ill. 343, a decision by Judge Farmer; in Sinopoli v. ChicagoRailways Co. 316 Ill. 609, a decision by Judge Dunn; and inLiska v. Chicago Railways Co. *Page 166 318 Ill. 570, a decision by Judge DeYoung, it was said in all three of those cases that the right of trial by jury guaranteed by the constitution is the right as it existed at common law and as it was enjoyed at the time of the adoption of the constitution. In the Sinopoli case there is quite a lengthy discussion of the subject, and it was there said: "The Ordinance of 1787 provided by article 2 of section 14 that the inhabitants of the Northwest Territory should always be entitled to the benefits of the trial by jury. The act of Congress of May 7, 1800, which divided that Territory and constituted of its western portion the Indiana Territory, provided that the inhabitants of the latter Territory should be entitled to and enjoy all and singular the rights, privileges and advantages granted and secured to the people by the Ordinance of 1787. The act of Congress of February 3, 1809, dividing the Indiana Territory and constituting Illinois of its western portion, provided that the inhabitants of Illinois should be entitled to and enjoy all the rights, privileges and advantages granted to the people by the Ordinance of 1787. When the constitution of 1818 was adopted the right of jury trial was recognized as existing and it was declared that it should remain inviolate. This referred to the right of trial by jury as it existed at the time that constitution was adopted in the Territory of Illinois and had previously existed in the State of Virginia and as it was guaranteed by the Ordinance of 1787 and the acts of Congress constituting the Territories of Indiana and Illinois. This right was inviolate under the constitution of 1818, and the right to which the constitution of 1848 refers is the same right and was equally inviolate under that constitution. At the time of the adoption of the constitution of 1870 the right as it had been theretofore enjoyed was the same as existed at the adoption of the constitution of 1848 and of the first constitution, in 1818."
When the adoption of section 5 of article 2 of the constitution of 1870 was the question before the constitutional *Page 167 convention it was moved by one of the members, Mr. Ross, to strike out the words "as heretofore enjoyed," on the ground that "it might become a question of importance if the legislature should desire to make any change in the law with reference to trial by jury whether the constitution would not enforce the exact course of procedure now provided for by law in our State." The motion was opposed by Mr. Allen, of Alexander county, who said: "The right of trial by jury as heretofore enjoyed is a right well understood. It is a constitutional right that we provide shall remain inviolate * * *. We know how this right has been enjoyed and we need have no fear of the future." The motion to amend was not adopted. (Debates and Proceedings of Constitutional Convention of 1870, p. 1568.) This discussion shows that the convention, if it did not by section 5 of article 2 intend to engraft upon the constitution the statutory provisions relating to trial by jury, did have in mind at the time it adopted that section the statutory law on the subject of jury trial and that it did not intend by adopting section 5 to make a provision that would operate to destroy the statute then in force upon that subject. The statutory provision that the jury in a criminal case should be the judges of the law and the fact had been in force and recognized as valid in this State for over forty-two years at the time the constitution of 1870 was drafted and adopted. The members of the constitutional convention knew of that law, and it cannot, it seems to me, be said with any reason that they intended that the adoption of section 5 of article 2 should operate to destroy that statute, as substantially held by this court in its decision of this case.
The provision of the constitutions of 1818 and 1848 that no person should for the same offense be twice put in jeopardy was adopted as part of the constitution of 1870 by section 10 of article 2 of that instrument. This provision of the three constitutions shows that it has always been the constitutional law of this State that the jury in a criminal *Page 168 case by returning a verdict of not guilty settles the law as well as the fact in favor of the accused so far as the particular case in which such verdict is returned is concerned. Such verdict does not, of course, settle or establish the law to be applied to any other case. It has never been held by any court of this country that upon a verdict of guilty in a criminal case the trial judge did not have the right and power to grant a new trial if there were errors of law committed in the trial or if the evidence did not support the verdict. The decisions of this court have been uniformly to the effect that the law in this State is that the trial judge should instruct the jury as to the law and that the jury should accept the law as given to them by the judge in his instructions unless they could say upon their oaths that the judge was wrong in his exposition of the law, and that a verdict of guilty could be set aside and a new trial granted by either the trial judge or the Supreme Court where errors prejudicial to the accused were committed on the trial or where the verdict is not supported by the evidence. Any argument that the provision of the statute that juries shall in criminal cases be the judges of the law and the fact operates to deprive an innocent person accused of crime of any of the safeguards that ought to surround him is utterly without any foundation and manifestly unsound.
The history of the right of trial by jury in criminal cases is discussed at length in the very learned dissenting opinion of Mr. Justice Gray, in which Mr. Justice Shiras concurred, in the case of Sparf v. United States, 156 U.S. 51 and 715,15 Sup. Ct. 273. It is there pointed out that by the provision of 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; that by the law of England at the time of the settlement of this country by Englishmen, every subject (not a member of the House of Lords) *Page 169 indicted for treason, murder or other felony had the right to plead the general issue of not guilty and thereupon be tried by a jury, and if the jury acquitted him the verdict of acquittal was conclusive in his favor of both the law and fact involved in the issue; that the jury in any case, criminal or civil, might, 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. That opinion also points out that it became the settled law of England, following The Trial of the Three Quakers, in 1665, by the decision of all the judges of England (one only dissenting) that there could be no attaint of jurors for their verdict rendered in a criminal case. It also points out that from about the date 1680 there was a lack of uniformity in the practice in the courts of England, in the trials of criminal libel, in the instruction of juries, some judges holding and instructing the juries that they were the judges of the law and the fact and other judges instructing the juries that they were bound by the judge's decision of the law; that in The Trial of the SevenBishops, 12 How. St. Tr. 183, in the last year of the reign of James II, the judges submitted to the jury for their decision the question of law as well as of the fact and the jury returned a verdict of not guilty; that Mr. Murray (afterwards Lord Mansfield) became the leading exponent of the theory that juries were the judges of the fact, only, and Mr. Pratt (afterward Lord Camden) of the theory that juries were the judges of the law as well as of the fact and could not be compelled to render a special verdict; that this controversy was finally settled in favor of the view of Lord Camden by an act of Parliament known as Fox's Libel act, which was passed in 1792; that after the passage of this act, in the well-known case of Rex v. Burdett, 3 Barn. Ald. 717, 4 id. 95, and 1 State Tr. (n. s.) 1, which was a trial for publishing a seditious libel, the jury were instructed that it was the opinion of the court that *Page 170 the publication was a libel and that they were to decide whether they would adopt his opinion, and that they should do so unless they were satisfied that he was wrong; that this instruction was held to be correct on a motion for a new trial, Mr. Justice Best saying: "The legislature has said * * * that the whole cause 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." The opinion also refers to the early decisions of the courts of this country, and points out that within six years after the adoption of the constitution of the United States the right of the jury, upon the general issue, to determine the law as well as the fact in controversy was affirmed in the first of the very few trials by jury had at the bar of the Supreme Court of the United States; (State v. Brailsford, 3 Dall. 1;) that in the trial of Aaron Burr for treason, in the circuit court of the United States for Virginia, Chief Justice Marshall in his charge to the jury recognized the right of the jury to decide questions of law as well as of fact. The opinion then states: "Until nearly forty 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."
As shown above by reference to the opinion of Mr. Justice Gray in the Sparf case, supra, it was not the settled law of England, nor was it the law in this country at the time the Ordinance of 1787 was enacted, that juries in criminal cases were judges of the fact, only. There seems *Page 171 to be more reason to say that according to the common law at that time the jury in a criminal case were the judges of both the law and the fact involved in a plea of the general issue. The cases that hold that a jury should not pass upon the validity or constitutionality of a statute in a criminal case are not opposed to this view of the law. It has never been held by this court in this State that juries had the right to pass upon the validity or constitutionality of the statute in criminal cases. The jury in such a case have never been conceded the right by this court to pass on the competency of witnesses or the admissibility of evidence in this State. The power of courts in this country to declare acts of the legislative department of government void as being in violation of the constitution is a power the courts of England never had and that did not exist under the common law of that country. It is significant to note that it was not until forty years after the adoption of the constitution of the United States and of the Ordinance of 1787 that there was any opinion of any court in this country that affirmed the doctrine that a jury in a criminal case were not the judges of the law and the fact involved in a plea of the general issue, and that it was in 1827, — that is, forty years after the adoption of the constitution of the United States, — that the legislature of Illinois enacted the statute that declared that the jury should be the judges of the law and the fact. In making that enactment the legislature did not take away nor detract from the right of trial by jury as it was understood to exist in this country at the time the Ordinance of 1787 was enacted and at the time the constitution of 1818 was adopted, but merely made an express provision of law on the subject which was in accord with the decisions of the courts of this country at that time. The right of trial by jury as guaranteed by the constitution of 1870 is the same right as was guaranteed under the constitutions of 1848 and 1818 and the Ordinance of 1787, and such has been the holding of this court in the cases above *Page 172 cited. The fact to which reference is made by this court in this case that a majority of the States in this country, and the Federal courts, have refused to follow the decisions of the courts of this country, State and Federal, decided prior to 1827, has no important bearing on the question of what the decision of the court should be in this case, and the citing by this court of so many decisions upon this question, State and Federal, holding contrary to the decisions of this State, as it seems to me, is lost energy.
The conclusion that the legislature had, or has, no power to say by law that juries in criminal cases shall be the judges of the law and the fact because of the provision of article 3 of the constitution of 1870, which declares that the powers of government shall be divided into three distinct departments, the legislative, executive and judicial, seems to me not tenable. The provisions of article 3 of the constitution of 1870 were contained in substantially the same language in the constitution of 1818 and the constitution of 1848. If the statute declared by the court to be unconstitutional is in violation of article 3 of the constitution of 1870 it was also unconstitutional under the provisions of the constitutions of 1818 and 1848 declaring that the powers of government should be divided into three distinct departments. It has always been recognized that the legislature in this State has the power to pass laws concerning the mode of practice and procedure in the courts. The practice in the trial of common law cases is regulated by the Practice act, the practice in chancery cases is regulated by the Chancery act, and the mode of practice and procedure in criminal cases is regulated by the Criminal Code. Section 29 of article 6 of the constitution of 1870 provides: "All laws relating to courts shall be general, and of uniform operation; and the organization, jurisdiction, powers, proceedings and practice of all courts, of the same class or grade, so far as regulated by law, and the force and effect of the process, judgments and decrees of such courts, severally, shall be *Page 173 uniform." It seems to me that this is a clear recognition of the power of the General Assembly to pass laws relating to the practice and procedure of courts. This court has held that the legislature has the constitutional power to prescribe rules of evidence (Burbank v. People, 90 Ill. 554,) and to prescribe that a fact shall be prima facie evidence of a certain other fact if it has a tendency to prove such other fact. (Morrison v. Flowers, 308 Ill. 189; People v. Beck, 305 id. 593.) InMichaelson v. United States, 266 U.S. 42, 45 Sup. Ct. 18, the Supreme Court of the United States stated that while the legislative department of government has no power to pass an act that would abrogate or render practically inoperative the attributes that inhere in the judicial power vested in the courts it does have the power to regulate the exercise of the judicial function within limits not precisely defined, and it was decided in that case that an act of Congress providing that there should be a jury trial in certain specified cases of contempt of court was not invalid as being in conflict with the provision of the constitution of the United States providing for the separation of the powers of government into three distinct departments.
If it be admitted to be the fact (I deny that it is the fact) that the statute of 1827 which provided that the jury in a criminal case should be the judges of the law and the fact did make a change in the law as it had theretofore existed, it does not follow that the statute is unconstitutional. It should be noted that the jury, when sitting as a part of the court in the trial of a criminal case, are as much a part of the court as is the presiding judge, and the fact that the jury are vested with the power to decide the question of law as well as of fact involved in the plea of the general issue in a criminal case does not vest judicial power in a non-judicial body.
Where an act of the legislature has been recognized, sanctioned and acquiesced in by the different departments *Page 174 of the government and the people for many years, such practical construction ought to have great weight with the court in determining the constitutionality of the act and raises a strong presumption that it is correct. (People v. Olson,245 Ill. 288; Cook County v. Healy, 222 id. 310; Nye v. Foreman, 215 id. 285; People v. Knopf, 171 id. 191; People v. Morgan, 90 id. 558.) The instruction quoted in the opinion of the court in this case which was requested by the plaintiff in error and refused by the court states the law in accordance with the decisions of this court on the subject from the time of the organization of the State. The last two sentences of the instruction given by the court at the request of the People state that "the court is the sole judge of the law in the case, and it becomes the duty of the jury to follow the law as it is given to it by the court in his instructions," and that "you have no right to disregard it, or disregard any portion thereof, but you are bound to take the whole of it as it is given to you by the court and apply it to this case." I hold that it was error in the court to refuse to give the instruction offered by the plaintiff in error. I also hold that it was error in the court to instruct the jury as it did in the last two sentences of the instruction given by the court on the part of the People; that it overrules all the decisions of this court on that subject since its organization; that the legislature of this State had the right and power to pass the statute in question and it also has the right and power to repeal it, and that said rights and powers of the legislature are recognized by all three of the constitutions of our State. I further hold that the declaring of that statute void by this court is an usurpation of the right and power of the legislature.
For the foregoing reasons I respectfully dissent from the opinion of the court in this case. *Page 175