concurring:
I concur in affirming this judgment and in the reasons given, *86but upon one point I would go further, and put an end once for all to a doctrine that I regard as unsound in every point of view, historical, logical, or technical. The prisoner at the trial requested the judge to charge the jury that they were “ judges of the law as well as of the fact.” The learned judge, feeling himself bound by the language of Kane v. Commonwealth, 89 Pa. 522, answered that the jury had been sworn to decide the case on the law and the evidence; that the statement of the law by the court was the best evidence of the law within the jury’s reach, and that therefore, in view of that evidence and viewing it as evidence only, .the jury was to be guided by what the court had said with reference to the law. The point should in my opinion, have been answered with an unqualified negative. The jury are not judges of the law in any case, civil or criminal. Neither at common law, nor under the constitution of Pennsylvania, is the determination of the law any part of their duty or their right. The notion is of modern growth, and arises undoubtedly from a perversion of the history and results of the celebrated contest over the right to return a general verdict, especially in cases of libel, which ended in Fox’s Bill, 32 Geo. III., c. 60.
In the early days of jury trials, issues that went to the country were usually simple, and were probably submitted to the jury without much separation of law and fact by the judge, and in that sense juries decided the law. But the distinction between questions of law and fact, and the tribunals for their decision respectively, lies at the foundation of our juridical system, and there was no time when it did not exist. The rule, ad questionem facti non respondent judiees, ad questionem juris non. respondent juratores, was an ancient maxim in the days of Coke: Coke Litt., 155 a; 8 Rep. 155 a; 9 Rep. 13 a; and Mr. Bigelow, treating of the class of cases raising questions of law, or some question of fact properly belonging to the court to decide, quotes the case of the Archbishop of Canterbury v. Abbot of Battel Abbey, 1 Rotul. 143, tempore Stephen, which “ turned upon a question of law, and was decided (without appointment of a trial term) just as a modern case of the kind would be decided, by a submission of the point of law in the question to the determination of the court, and not to some test imposed by the parties: ” Hist, of Procedure *87in England during the Norman Period, by M. M. Bigelow, р. 286. Nor was there any distinction in respect to the merely incidental way in which juries passed upon matters of law, between civil and criminal cases. They might return a general or a special verdict in either, but they early sought to escape the obligation of giving a general verdict, because it subjected them to the risk of an attaint; and Coke says, “ Some justices did rule over the recognitors to give a precise or direct verdict without finding the special matter: ” 2 Coke Inst., 422. To relieve juries from this burden, the statute of Westminster 2d, с. 30, enacted: “ Quod Justieiarii ad assisas capiend’ assignati, non compellant juratores dicere prsecise si sit disseisina vel non, d-ummodo dicere voluorint veritatem facti, et petere aux-ilium Justic.; ” and, commenting upon this section, Coke says, “ In the end it hath been resolved that in all actions, real, personal and mixed, and upon all issues joined, general or special, the jury might find the matter of fact pertinent,.....and thereupon pray the discretion of the court for the law; and this the jurors might do at the common law, not only in cases between party and party, whereof this Act putteth an example of the Assise, but also in pleas of the crown: ” 2 Coke Inst., 425.
It is a striking illustration of the uniformity of human motives at-all periods, that, while the attaint remained as a remedy for perversity or favoritism, the struggle of juries was to escape the obligation of general verdicts and to maintain the right of special findings of fact; but when the decline and final disuse of the attaint rendered them practically irresponsible, the struggle was reversed, and juries asserted stoutly the right to give general verdicts, while the tendency of lawyers and judges was to confine them to special findings of fact and to have the court pronounce the result as a matter of law. The period of transition was long and changes slow. It was clearly and justly felt that juries, as judges of the law in any but an incidental way, were an anomaly in the system, and perhaps those who endeavored to do away with it claimed too much. Safety was thought to reside in the retention by jirries of the right to give general verdicts. In view of the constant and notorious failure of justice in certain classes of cases, by the occasional perversity and the frequent cowardice of juries, *88it may be doubted whether it would not have produced better results to have enlarged the power of judges to compel special verdicts. But, however this may be, the right of juries to give general verdicts, especially in criminal cases, has been maintained, and the last contest made on it was in regard to libel.
The exact line between law and fact, not always easy to draw, presented in the case of libel some special difficulties, technical and other. The alleged libel being in writing, its terms were not in dispute and naturally fell to the court to pass upon, as other writings did; and the intent, libellous or otherwise, being claimed as a legal inference, there was nothing left in dispute but the fact of publication and the truth of the innuendo. Accordingly, the juries in the Dean of St. Asaph’s Case, and the King v. Withers, 3 Term R. 428, were confined to these two points; and it was to counteract these rulings of Buller and Mansfield and Kenyon, (though it cannot be disputed that they were in accordance with long settled practice,) and to secure, in libel as in other cases, the right of the jury to find a general verdict upon the whole matter in issue, that the act of 32 Geo. III., c. 60, was passed. The text of that famous statute is worth quoting to show how little foundation it affords for the superstructure that is sought to be built upon it. It is entitled “An Act to remove Doubts respecting the Functions of Juries in Cases of Libel,” and its language is:
“ Whereas doubts have arisen whether on the trial of an indictment .....for the making or publishing any Libel, where an issue is joined.....on the plea of not guilty pleaded, it be competent to the jury empaneled to try the same to give their verdict upon the whole matter in issue: Be it therefore declared.....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.
“ Provided always, that, on every such trial, the court or judge before whom such indictment or information shall be *89tried, shall, according to their or his discretion, give their or his opinion and directions to the jury on the matter in issue between the King and the defendant or defendants, in like manner as in other criminal cases.
“ Provided also, that nothing herein contained shall extend, or be construed to extend, to prevent the jury from finding a special verdict, in their discretion, as in other criminal cases.
“ Provided also, that in case the jury shall find the defendant or defendants guilty, it shall and may be lawful for the said defendant or defendants to move in arrest of judgment, on such ground and in such manner as by law he or they might have done before the passing of this act; anything herein contained to the contrary notwithstanding.”
Nothing could be clearer than the care with which this act was directed to the exact point in controversy, the right to render a general verdict of guilty or not guilty upon the whole issue, in cases of libel, and the equal care with which the right of the court to pass finally upon the questions of law, was preserved by the provisos that the judge should give the jury his “ opinion and directions,” and that a verdict should still not be conclusive of the law against a defendant, but he should have his right to an arrest of judgment as theretofore enjoyed. The claim that juries were to be judges of the law was thus intentionally and carefully excluded.
The constitution of Pennsylvania was made in 1790, two years before Fox’s Libel Act. The controversy was then at its height, and the subject commanded popular attention. In fact, Pennsylvania had borne rather a distinguished part in the discussion, and the speech of Andrew Hamilton, in the trial of John Peter Zenger, was regarded as the vindication of popular rights, and not only quoted as such by Erskine but referred to among other authorities by Hargrave: Coke Litt., 155 b. “No lawyer,” says Mr. Binney, “ can read that argument without perceiving that, while it was a spirited and vigorous, though rather overbearing harangue, which carried the jury away from the instruction of the court, and from the established law of both the colony and the mother country, he argued elaborately what was not law anywhere, with the same confidence as he did the better points of his case. It is, however, worth remembering, and to his honor, that he was half a century before *90Mr. Erskine, and the declaratory act of Mr. Fox, in asserting the right of the jury to give a general verdict in libel as much as in murder: ” Leaders of the Old Bar of Philadelphia, p. 15.
The members of our convention of 1790 were familiar with the subject, and the minutes show that much care was given to framing the clause in the declaration of rights which refers to it. Section seven of article IX., relating to" liberty of the press, was originally reported to the convention by the committee to draft a proposed constitution, on December 21, 1789, in the following form: “ That the printing presses shall be free to every person who undertakes to examine the proceedings of the legislature, or any branch of government, 'and no law shall ever be made restraining the right thereof. The free communication of thoughts and opinions is one of the most invaluable rights of man, and every citizen may freely speak, write and print, being responsible for the abuse of that liberty: ” Proceedings of the Convention, p. 162, Harrisburg, 1825. This was reported from committee of the whole, on February 5, 1790, in the same form (dropping only the word “most” before the word “invaluable”), but with the addition: “But upon indictments for the publication of papers investigating the conduct of individuals in their public capacity, or of those applying or canvassing for office, the truth of the facts may be given in evidence in justification upon the general issue: ” Idem, 174. On February 22d, this section being under consideration, Mr. Addison offered, as a substitute for the sentence last quoted, “ In prosecutions for libels, their truth or design may he given in evidence on the general issue, and their nature and tendency, whether proper for public information or only for private ridicule or malice, be determined by the jury.” To this an amendment, offered by Mr. McKean, to add “ under the directions of the court as in other cases ” was adopted almost unanimously, the vote being fifty-six to three, but the substitute itself received a bare majority, thirty-two to twenty-seven; the strong minority being in favor of restricting the truth as a justification, to cases of publications upon the conduct of persons in their public capacity, or of candidates for office: Idem, 220-222. The convention, having ordered the proposed constitution to be published for the consideration of the citizens, adjourned on February 26th to the following Au*91gust. On re-convening, the instrument was again taken up for discussion, section by section, and the minority made strenuous further efforts to restrict the justification to eases of public officers, at one time failing only by the close vote of thirty to thirty-two. During the progress of the debate, an amendment offered by Mr Lewis and seconded by Mr. McKean, that “ the jury shall have the same right to determine the law and the fact, under the direction of the court as in other cases,” was carried, and the clause finally adopted in the form, “ In prosecutions for the publication of papers, investigating the official conduct of officers, or men in a public capacity, or where the matter published is necessary or proper for public information, the truth thereof may be given in evidence; and, in all indictments for libels, the jury shall have a right to determine the law and the facts, under the direction of the court, as in other cases:” Idem, 274-279.
It is impossible to read these various steps in the formulation of our fundamental law, without seeing that there was never at any time the intention to make or to consider juries as in any sense judges of the law. No such possible construction seems to have been apprehended until suggested by McKean, and the practically unanimous vote on his motion to add “under the direction of the court as in other cases,” shows the feeling of the convention on this subject. McKean was at that time one of the foremost personages of the commonwealth, perhaps its best trained lawyer. He had studied in the Temple, and was familiar with the details of the legal controversy between Buller and Mansfield, on the one side, and Erskine, on the other, before Fox took it up as a matter of politics; and he knew, as Lewis and Wilson and Ross and Sitgreaves and Addison and Findley and other leaders of the convention knew, that the contest was not for any control by the jury as judges of the law, — even Junius hardly ventured to put his denunciations of Mansfield in that form, — but for the right of applying the law to the facts and pronouncing the result by a general verdict. And such was the understanding of the convention, as it was of parliament two years later, and such the natural meaning of the language on which they finally settled to express their purpose. It puts beyond question the right to return a general verdict, nothing more. To cut the sentence *92in two, and say the jury are “ to determine the law,” is not only to pervert the meaning, but to nullify the other command that they are to determine “ under the direction of the court.” What- they are to determine is, “ the law and the facts as in other cases,” that is, the law as given to them by the court, and the facts as shown by the evidence. They are bound to take the law from the court; but, so taking it, they have the right to apply it to the facts as they may find them to be proved, and to announce the result of the whole, by a general verdict of guilty or not guilty. Any other construction would be totally at variance with the fundamental principles of our system of jurisprudence and with our settled and uncontested practice. It has never been claimed that the jury are to determine what evidence is admissible, or what witnesses competent ; yet, if they are judges of the law, they should decide these often most important law points in a case. So as to the sufficiency of an indictment. Again; the jury have a right to return a special verdict even in a criminal case: Dowman’s Case, 9 Rep. 12 b.; 2 Coke Inst., 425; Hargrave’s note to Coke Litt., 155 b. It is admitted that they must decide the facts, and if they are judges of the law then it is their duty to decide it, and they cannot transfer that duty to the court. The prisoner might demand -his right that they should exercise their full functions; but all the authorities are to the contrary, and if the finding of facts can be separated from the conclusion of law, the latter will be decided by the judges by their own views. “When a jury find the matter committed to their charge at large, and further conclude against law, the verdict is good and the conclusion ill: ” Heydon’s Case, 4 Rep. 42 b. “ The office of twelve men is no other than to inquire of matters of fact, and not to adjudge what the law is, for that is the office of the court and not of the jury; and if they find the matter of fact at large and further say that thereupon the law is so, where in truth the law is not so, the judges shall adjudge according to the matter of fact, and not according to the conelusion of the jury: ” Townsend’s Case, Plowden, 114 b. And see 2 Hale, Pleas of the Crown, 302; 1 Chitty, Crim. Law, 645.
Much misunderstanding has in my judgment been caused in this state by the case of Kane v. Commonwealth, 89 Pa. 522. *93In that case, the point was put to the court below that “ the jury are the judges of the law and the fact,” and all that this court decided was that the point should have been affirmed. The language of Chief Justice Shabswood was, however, less guarded than was usual with that eminent jurist; and, following State v. Croteau, 23 Vt. 14, he dismisses the perfectly clear and substantial distinction between power and right with a brevity that is scarcely consistent with the weight of the subject. “ The distinction between power and right,” he says, “ whatever may be its value in ethics, in law is very shadowy and unsubstantial. He who has legal power to do anything has the legal right. No court should give a binding instruction to a jury which they are powerless to enforce by granting a new trial if it should be disregarded.” It is somewhat remarkable that the Chief Justice should assume, as is so commonly done by counsel, that the jury will construe the law more favorably for the prisoner than the court would. It is only such a construction, too favorable to the prisoner, that the court is powerless to remedy by a new trial; and that lack of power arises, not because the jury’s legal power is the same as a legal right, but because, for reasons of general policy, one verdict of acquittal is a final and irreversible termination of the case. If legal power means legal right, then a jury has a right to acquit any prisoner without regard to either law or evidence; for their power to do so is beyond question, and they cannot be held to any accountability though they follow the maxim of Lynch law, that the murdered man deserved to die anyhow, and therefore his murderer should not be punished, even though he no longer seeks refuge behind the thin veil of transitory insanity that began when the shot was fired and ended when it had killed its man. Whether the distinction between power and right be shadowy and unsubstantial in practice, or not, it is clear and vital, and I must repudiate such a confusion of logical as well as moral ideas. A jury may disregard the evidence, but no judge has ever said it had the legal right to do so; and if the disregard is of the weight of the evidence favorable to the prisoner, the court sets aside the verdict without hesitation; and even this court, though it does not pass upon the weight of evidence, does examine its sufficiency and may on that ground reverse without a new venire. Commonwealth v. *94Fleming, 130 Pa. 163; Commonwealth v. Knarr, 135 Pa. 47; Commonwealth v. Railroad Co., 135 Pa. 256; Commonwealth v. Brown, 138 Pa. 452; Commonwealth v. Ruddle, 142 Pa. 144, are a few recent instances of the exercise of this power.
So, the jury may disregard the law favorable to the prisoner. As was suggested by the learned judge at the trial of the case in hand, the jury had the legal power to find murder of the first degree without regard to the element of premeditation, but no judge would contend that they had the legal right to do so; and, if the evidence of premeditation was below the legal standard, determined by the court as matter of law, not only would the trial court set aside the verdict, but this court would be bound to review the evidence and determine if the legal elements of murder of the first degree existed in the case. Such powers and such duties in the courts are absolutely inconsistent with the right of the jury to be in any sense judges of the law.
This is not new doctrine, but the long-established law of the state. Alexander Addison was one of the staunchest asserters of the rights of juries in the constitutional convention, and was one of the, minority of three who voted against McKean’s amendment to insert the words “under the direction of the court as in other cases; ” but when, three years later, he presided in the Oyer and Terminer of Washington county, he laid down the law in these precise and forcible terms : “ Whether the facts are so or so, it lies with you to determine, according as you believe the testimony. Supposing them so or so, whether they amount to murder or manslaughter, is a question of law for the court to determine. You may find, according as you believe or disbelieve the facts, and comparing the facts with the rules of law, that the prisoner is guilty or not guilty (of murder), or guilty of manslaughter; or, you may find the facts specially, without drawing any conclusion of guilt or innocence, leaving it to the court to pronounce the construction which the law puts on the facts found; but you cannot but at the peril of violation of duty, believing the facts, say that they are not what the law declares them to be; for this would be taking upon you to make the law, which is the province of the legislature, or to construe the law, which is the province of the court: ” Pennsylvania v. Bell, Add., 160. And in Commonwealth v. Sherry, an indictment for murder growing out of the *95riots of 1844, removed by certiorari from the Quarter Sessions of Philadelphia and tried in the Nisi Prius in April, 1845, Justice Rogers charged the jury as follows: “You are, it is true, judges in a criminal case in one sense of both law and fact; for your verdict as in civil cases, must pass on law and fact together. If you acquit, you interpose a final bar to a second prosecution.....The popular impression is that this power .... arises from a right on the jury’s part to decide the law as well as the facts, according to their own sense of right. But it arises from no such thing. It rests upon a fundamental principle of the common law that no man can twice be put in jeopardy for the same offence.....It is important for you to keep this distinction in mind, remembering that, while you have the physical power by an acquittal to discharge a defendant from further prosecution, you have no moral power to do so against the law laid down by the court. The sanctity of your conclusions, in case of an acquittal, arises, not from any inherent dominion on your part over the law, but from the principle that no man shall be twice put in jeopardy for the same offence, a principle that attaches equal sanctity to an acquittal produced by a blunder of the clerk, or an error of the attorney general.....You will see, from these considerations, the great importance of the preservation, in criminal as well as in civil cases, of the maxim that the law belongs to the court, and the facts to the jury. My duty is therefore to charge you, that while you will in this case form your own judgment of the facts, you will receive the law as it is given to you by the court:” Wharton on Homicide, App., 721. To the same effect, though less explicitly developed, are the rulings by Sergeant, J., of this court, in Commonwealth v. Van Sickle, Brightly, 73; and by Gibson, C. J., in Commonwealth v. Harman, 4 Pa. 269. And this also seems to have been the later and better considered opinion of Judge Baldwin whose charge in United States v. Wilson, Bald. 99, is commonly quoted as authority on the other side. See his charge in United States v. Shive, Bald. 512. I do not understand that the case of Kane v. Commonwealth was intended to overrule or conflict with these decisions; and, notwithstanding the latitude of the language of the opinion, the real point decided did not go beyond the affirmation of the right to an instruction that “ the jury are *96the judges of the law and the fact.” In the present case, it will be observed that the instruction asked was that the jury-are “ judges of the law as well as of the fact,” that is, of each, not merely of the joint result of both. For myself, I think even the formula that the jury are judges of the law and the fact, objectionable, as tending to convey to the jury a wrong idea. The language of the constitution is that the jury shall have the right to determine the law and the facts, under the direction of the court. This is the accurate formula, and it means only that they have the right to determine the joint result of the law and the facts by a general verdict. This is the form which ought to be used when instruction on the subject is asked, and it ought to be accompanied by explicit instruction that the jury are not judges of the law, in all cases where there is any apparent danger that the jury will arrogate to themselves such function.
My conclusions on the general subject, therefore, are: .
1. That the jury never were judges of the law in any case, civil or criminal, except incidentally as involved in the mixed determination of law and fact by a general verdict.
2. Even if it could be conceded that they may have been so in primitive times, their right certainly ceased after the introduction of bills of exception and the granting of new trials, and admittedly has not existed in civil cases for centuries.
3. That there was not originally, nor is now, any distinction in this respect between civil and criminal cases, the true rule as to both being that “ the immediate and direct right of deciding upon questions of law is entrusted to the judges; in a jury, it is only incidental: ” Hargrave’s note to Coke Litt., 155 b. The idea of a difference in the rights and functions of juries in civil and criminal cases, as to the determination of the law, arose from a misconception of the controversy over the right to give a general verdict, and was an error for which there is no respectable English authority, and which the best American authorities have overwhelmingly disapproved.
4. That, even if the jury had originally had such right in criminal cases, it was an anomaly, belonging to the period when jurors were selected from the vicinage, because of their knowledge of the case, and, like its congener, has changed and disappeared, because totally inconsistent with the functions of courts *97and juries as now understood, with sound reason and with common sense. And such change, if change it be, has the sanction of the constitutional provision that the jury shall determine “under the direction of the court,” of the legislative provisions for bills of exception, the review of the evidence in cases of murder, etc., etc., and of the long-settled and incontestable power of courts to decide questions of evidence, to set aside verdicts and grant new trials, without limit except when controlled by the ancient maxim of the common law, embodied in our constitutional declaration of rights, that no man shall be twice vexed for the same offence.
This whole subject is discussed with exhaustive learning and ability in State v. Croteau, 23 Vt. 14. The opinion of the court by Hall, J., is the only serious attempt that I have been able to find, to support the dogma for which it is now mainly responsible, and with great respect for that eminent jurist it appears to me that his whole argument is based on the confusion of the right to determine the law with the right to render a general verdict. A careful examination of all the authorities cited by him, and they include everything which the most learned and diligent research could discover, shows that they only go so far as to sustain the right of the jury, not to be judges of or to determine the law, but only to apply it through a general verdict. The dissenting opinion of Bennett, J., in the same case, displays equal learning and sounder reasoning. It is a storehouse of information on the subject, and has anticipated everything that can be said upon it. A masterly analysis and review by Chief Justice Shaw will also be found in Commonwealth v. Anthes, 5 Gray 185. There are less elaborate but equally clear and forcible statements of the argument by Story, J., in United States v. Battiste, 2 Sumn. 240; by B. R. Curtis, J., in United States v. Morris, 1 Curt. C. C. 23, 49; by Gilchrist, J., in Pierce v. State, 13 N. H. 536; and by Shaw, C. J., in Commonwealth v. Porter, 10 Metc. (Mass.) 263. See, also, Montgomery v. State, 11 Ohio 427; Montee v. Commonwealth, 3 Marsh., J. J., 149; Townsend v. State, 2 Blackf. 151 (but see Armstrong v. State, 4 Blackf. 247); Pierson v. State, 12 Ala. 153; Hardy v. State, 7 Mo. 607; Nels v. State, 2 Tex. 280; Brown v. Commonwealth, 10 Southeast. R. 745 (Ct. of App. of Va., 1890); a very able *98and compendious statement of the controversy in England, While still raging before the passage of the libel act, by Mr. Hargrave in.his note to Coke Litt., 155 b; an article by C. J. Wade of Montana in 3 Crim. Law. Mag., 484; and one by the late Dr. Francis Wharton in 5 South. Law Rev., N. S., 352 (reprinted in 36 Leg. Int., 405, and 1 Crim. Law Mag., 47); 7 Dane’s Abr., 381-3; 2 Boston Law R., 187; 15 Idem, 1; and 13 Am. Law Reg., N. S., 355.
As already said, there is not a single respectable English authority for the doctrine in question; and against the foregoing solid phalanx of the best American judicial and professional opinion, I have not been able to find a single well-considered case except State v. Croteau, which as already seen was by a divided court. Under these circumstances, whether the doctrine be of much practical importance or not, I cannot help thinking it a matter of regret that any vestige of it should be left in Pennsylvania.'