State v. Croteau

The opinion of the court was delivered by

Hall, J.

This is an indictment for dealing in the selling of distilled spirituous liquors without license, on which the respondent was found guilty in the county court, and the case is brought here by bill of exceptions.

The first objection made to the ruling of the court has been disposed of in favor of the verdict by our decision in the case of the State v. Smith, 22 Vt. 74, and I have nothing to say in regard to it. The other question is of much importance, and deserves serious and careful consideration.

The court, upon the request of the respondent’s counsel to charge upon the point, charged the jury, in substance, that, in determining the case submitted to them, they were not the judges of the law, but of the facts only; and that they were bound to consider the law as laid down by the court to be the law of the case, and were bound to be governed by it in rendering their verdict. We are now to inquire into the propriety of the charge. It is not denied by those who would sustain the charge of the court, but that the jury, in all criminal trials, have the power to disregard the law, as laid down to them by the court, and to render a verdict of not guilty contrary to it. Nor is it pretended, that there is any power in the court, or any other tribunal, to set aside the verdict for any difference of opinion between the court and the jury in regard to the law, or in any manner to call the jury to account for rendering it. It is, however, insisted, that the jury are nevertheless legally bound to take the law of the case from the court, and that by departing from it they would both violate a principle of law, and be guilty of a moral wrong.

On the other hand, it is claimed that the power, which a jury may in such cases exercise, in rendering a general verdict, of determining the law and the facts of the case submitted to them, is a legitimate and legal power; a power which a jury, acting under their oath and governed by a sense of duty, may rightfully and properly exercise, although it be in contradiction to the law stated to them by the court.

It must, I think, be conceded, that the opinion of the legal profession in this state, from the first organization of the government— certainly until a very recent period — has been almost if not quite uniform in favor of the now controverted right of the jury. From the earliest date, the supreme court, while they held jury trials in bank, were, as I have always understood, in the habit in criminal cases of charging juries, that they were rightfully the judges of the law as well as the facts; and I think the same has since been the general practice by the judges of the supreme court at nisi prius. The question in regard to the right of the jury was also incidentally before the supreme court in 1820, upon a charge of one of the judges at nisi prius,' which it was contended, on the part of the respondent, was to be construed as having denied such right. It was conceded in the argument, that if the charge were liable to such construction, it could not be supported. The charge was held unobjectionable in that respect; but Prentiss, X, in delivering the opinion of the court, remarks upon the question as follows: — “There is no doubt, the jury are judges of the law as well as the fact. This is the true principle of the common law, and it is peculiarly applicable to a free government, where it is unquestionably both wise and fit, that the people should retain in their own hands as much of the administration of justice as is consistent with the regular and orderly dispensation of it, and the security of persons and property. This power the people exercise in criminal cases, in the persons of jurors, selected from among themselves from time to time as occasion may require; and while the power thus retained by them furnishes the most effectual security against the possible exercise of arbitrary power by the judges, it affords the best protection to innocence." State v. Wilkinson, 2 Vt. 480. This opinion of a former chief justice of this state, of acknowledged legal ability and integrity, must be justly entitled to high consideration by this court.

The right as well as the power of juries in criminal trials to resolve both the law and the facts by their general verdict was also a favorite doctrine of the early jurists and statesmen throughout the United States, and continued such (as will be shown hereafter) until the contrary doctrine was broached by Mr. Justice Story in 1835, in the case of the United States v. Battiste, 2 Sumn. 240. Since which time the lead of Judge Story has been followed by the supreme court of Massachusetts in the case of the Commonwealth v. Porter, 10 Met. 263, and perhaps by judges and elementary writers in some of the other states.

It is, however, worthy of remark, that in both the opinions of Judge Story and of the supreme court of Massachusetts, the principal reason for the establishment and maintenance of this right of juries, — the preservation of the liberty of the citizen, and the protection of innocence against the consequences of the partiality and undue bias of judges in favor of the prosecution, — is wholly overlooked. Even in the labored opinion of Chief Justice Shaw, in Porter' s Case, covering some twelve pages, it is not once even alluded to. The whole question is treated as resting on the comparative knowledge of judges and jurors in regard to the law, and in the supposed violation of the harmony of the legal system, which an admission of the right of jurors would occasion.

These matters are doubtless worthy of consideration: but that which has been disregarded appears to me to be of no less importance. Judge Blackstone, in his Commentaries, (vol. iv, p. 349,) thus speaks of the trial by jury : — “ The antiquity and excellence of this trial for the settling of civil property has before been explained at large. And it will hold much stronger in criminal cases ; since in times of difficulty and danger more is to be apprehended from the violence and partiality of judges, appointed by the crown, in suits between the king and subjects, than in disputes between one individual and another to settle the metes and boundaries of private property. Our law has therefore wisely placed this strong and twofold barrier, of a presentment and trial by jury, between the liberties of the people and the prerogative of the crown.” Judge Story, in his Commentaries on the Constitution, section 1773, says, the trial by jury “ was from very early times insisted on by our ancestors in the parent country, as the great bulwark of their civil and religious liberties, and watched with an unceasing jealousy and solicitude.” And the history of English criminal jurisprudence furnishes abundant evidence, not only of the necessity of such watchfulness, but also that the power of juries to determine the law as well as the facts in criminal trials was essential to the protection of innocence and the preservation of liberty. In trials for state offences, especially, the bias of the judges was always strongly in favor of the crown ; and in most cases their partiality was such, that there was no security against the conviction of any person the government might accuse, but the independence and integrity of jurors. The question of the guilt or innocence of the accused being compounded of law and fact, it was in the power of the court to shape the law to meet the proof; and if the jury would but submit to the direction of the judges in regard to the law, there was little or no chance for the escape of the prisoner, however weak the evidence might be. Of this numerous examples might be given; but they are too well known to the readers of English history to make it necessary to specify them.

It is this supposed independence of jurors in criminal cases, that has commended the English system of jury trial to the favor and eulogium of enlightened foreigners, and has procured its introduction into some of the more liberal governments on the Continent. The celebrated De Lolme, in his work on the Constitution of England, which he appears to have thoroughly studied, published in 1784, holds the following language: — “ As the main object of the institution of the trial by jury is to guard the accused persons against all decisions whatsoever by men invested with any permanent official authority, it is not only a settled principle, that the opinion which the judge delivers has no weight, but such as the jury choose to give it, but their verdict must, besides, comprehend the whole matter in trial, and decide as well upon the fact, as upon the point of law that may arise out of it; in other words, they must pronounce both on the commission of a certain fact, and on the reason which makes such fact to be contrary to law." P. 175. It is obvious, that the English system of jury trial would, in the estimation of this enlightened commentator, be shorn of its chief value, if the right of deciding upon the criminality of the faGt proved were wrested from the jurors and transferred to the judges.

Without, at present, dwelling longer on the reasons why jurors ought to possess the right, in criminal trials, to resolve by their verdict both the law and the facts which are embraced by the issue, I proceed to inquire more directly into the actual state of the English and American law on the subject.

The origin and early history of juries is invdlved in some obscurity ; though I apprehend there is little doubt, that at their first institution, the whole matter in controversy between the litigant parties was heard and passed upon by their peers of the vicinity, without the observance of any practical distinction between the law and the facts of the case. But when, by the progress of civilization, courts assumed a more regular form, and controversies became complicated and difficult, questions of law, by the introduction of special pleading, were withdrawn from the jury, and placed upon the record for the determination of the court. If the pleadings ended in demurrer, an issue of law was formed for the decision of the judges; if they terminated in an issue to the country, it was to be resolved by the jury. So, also, any questions appearing upon the record on motion in arrest, or placed there by special verdict, or demurrer to evidence, or bill of exceptions under the statute of Westminster 2, c. xxxi., were to be adjudged by the court. The boundaries of the respective provinces of courts and juries, as well in civil as in criminal cases, were anciently marked and distinguished by the character of the questions, which were thus placed upon the record. Neither branch of the triers was allowed to invade the province of the other ; and the right of the jury to determine the whole issue committed to them is believed to have been as perfect, as that of the judges to decide the issues that were referred to the court. The maxim, “ad questionem facti non respondent Judices, ád questionem legis non respondent juratores,” had reference to the questions which appeared upon the record; and the ancient meaning of it was, that the questions of fact thus raised should not be answered by the judges, nor the questions of law by jurors. The doctrine, that questions of law, which might incidentally arise in the determination of an issue of fact, could be separated from the fact and left to the decision of the court, otherwise than by a demurrer to the evidence, or the finding of a special verdict, is of comparatively recent origin. It was unknown to the ancient common law, and has grown out of the modern practice of granting new trials for a difference of opinion between the court and jury upon questions of law arising on the trial, and is, doubtless, a legitimate consequence of the exercise of such power.

This power of granting new trials in civil actions, on the report of the judges of the proceedings at the trial, was first exercised by the court of Common Pleas about the middle of the seventeenth century ; previous to which time it appears to have been well understood, that the jury were alone responsible for any error of law in their general verdict, and, consequently, had the right to determine it in conformity to their own judgment. Upon this point the historical evidence appears to be full and complete.

The first authority, to which I would refer in support of this position, is the statute of Westminster 2, c. 30, passed in the reign of Edward I, A. D., 1285. The statute is as follows, viz.: “The justices assigned to take assizes shall not compel the jurors to say precisely whether it be disseisin or not, so that they do show the truth of the deed, and require aid of the justices; but if they, of their own head, are willing to say that it is disseisin or not, their verdict shall be admitted at their own peril.”*

The reason assigned by Lord Coke for the passage of this statute, as would naturally be inferred from its language, was, “ that some justices did rule over the recognitors to give a precise verdict without finding the special mattersby which they were compelled, whether they were willing or not, to take upon themselves the decision of the whole issue, and were thus made liable to an attaint for a false verdict upon any point of law involved in it, when they might desire to refer such point of law to the decision of the court. For their relief against this hardship, the statute provided, that they should not be compelled thus to decide the law against their will, but might, if they chose, find the facts by a special verdict., and thus place upon the record a question which should be answered by the judges. 2 Co. Inst. 422.

Lord Coke, in his commentary on this statute, says, that it was in affirmance of the common law, and “ that in all actions, real, personal, and mixed, and upon all issues joined, general or special, the jury might find the special matter of fact, pertinent and tending only to the issue joined, and thereupon pray the action 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 assize, but also in pleas of the crown at the king’s suit.” Ib. 425; — and to the same effect is Dowman's case, 9 Co. 12.

If it had been supposed, at the time of the passage of this act, that the directions of the judges, given on the trial, in regard to the law, were binding upon the jury, and that they would have been excused from the consequences of a false verdict by following such directions, there would have been no necessity for the enactment of the statute; for the jurors would have been entirely safe in their decisions, by taking care to comply with the directions of the court. But such compliance not being sufficient, it was necessary for the security of the jury to provide that they might, whenever they chose, put the question of law upon the record by a special verdict, to be afterwards answered by the court.

Littleton, who wrote two centuries after the statute of Westminster 2, recognizes the same right of jurors - to determine the law involved in the issue tried by them by their general verdict, if they chose to do so, and points out the same relief from such responsibility, whenever they desired to shun it. In his Tenures, after speaking of the giving of a special verdict in an assize, he says, section 368, “ In such case, where the inquest may give their verdict at large, if they will take upon themselves the knoioledge of the law, they may give their verdict generally, as is put in their charge ; as in the case aforesaid, they may well say, the lessor did not disseise the lessee, if they will.”

This right of the jury to withhold a special verdict, and to pass upon the whole matter in issue, is also fully declared by Lord Coke, a century and a half after Littleton’s time. In his commentary on the foregoing section of Littleton, Coke says, “ Although the jury, if they will take upon them (as Littleton here saith) the Imoioledgeof the law, may give a general verdict, yet it is dangerous for them to do so, for, if they do mistake the law, they run into the danger of an attaint; therefore, to find the special matter is the safest way, where the case is doubtful. Co. Lit. 228 5.

It seems evident from what has already been shown, that for a period of about 350 years, which preceded the publication of Lord Coke’s Institutes in 1628, it was well understood, that the province of the judges did not extend to the determination of legal questions, which arose incidentally out of an issue of fact, but that for their proper decision the jury were alone responsible.

The power of courts to grant new trials in civil cases, for the reason that, in their opinion, the verdict of the jury was contrary to law, not having been recognized until since the days of Lord Coke, there was not, previous to his time, any mode of relief against an erroneous verdict, except by the proceeding of attaint against the jury. Slade’s Case, Style 138. Wood v. Gunston, Style 466. By this process, brought by the party against whom the verdict was rendered, and to which the jurors were made parties, the case was, in effect, tried over again by a jury of twenty four, and if the verdict were found false, it was set aside and the jury punished. That this falsity might be found in the decision of the law as well as of the facts involved in their verdict is not only necessarily implied by the language of all the authorities before quoted, but is' directly affirmed by others. Thus, Chief Justice Hobart, in 1619, in Needler’ s case, (Hobart 227) says, “ It will be hard to acquit a jury that finds against the law, either common or general statute law, whereof all men are to take notice, and whereupon verdict is to be given, whether any evidence be given to them or not. As if a feoffment or devise were made to one in perpetuum, and the jury should find cross either an estate for life, or in fee simple, against the law, they should be subject to an attaint, though no man informed them what the law was in that case.” This is clearly to the point, that the jury were liable to an attaint for error in deciding the law involved in their general verdict. Nor were they protected from an attaint by following the instructions of the judges in regard to the law, if the instructions turned out to be erroneous. This is distinctly laid down by Chief Justice Vaughan in Bushell’s Case, as follows : — “ Finding against or following the direction of the court barely will not bar an attaint, but in some case the judge being demanded by and declaring to the jury what is the law, though he declare it erroneonsly and they find accordingly, this may excuse the jury from the forfeitures; for though their verdict be false, yet it is not corrupt; but the judgment is to be reversed, however, upon the attaint; for a man loseth not his rights by the judge’s mistake of the law.” Vaughan’s it. 145. So, also, if the jury disregarded the directions of the judge, they were not liable to an - attaint if they determined the matter of law correctly. Paramore’s Case, Dyer 301.

But that questions of law involved in an issue of fact were not anciently treated as questions to be answered by the judges is farther shown by the fact, that bills of exceptions would not lie for misdirection of the judges to the jury in point of law, while the process of attaint continued in use, and for the very reason, that the jury were responsible for the correct decision of such points of law upon that process. This fully appears from the case of Chichester v. Phillips, in Sir Thomas Raymond’s Reports, 404, decided in 1680. In that case, which was ejectment, the defendant having introduced a will duly proved, in the Ecclesiastical Court, and insisted that the probate was conclusive proof of its execution, the court declined so to direct the jury, but left it to them to find the fact upon that and other evidence. The jury having found against the will, and a bill of exceptions being allowed, a writ of error was brought in the King’s Bench, when the judgment below was affirmed, — not because the court had instructed the jury correctly, but, in the language of the reporter, “ because, though the evidence be conclusive, yet the jury may hazard an attaint, if they will.” See, also, 2 Jones 146, and Buller’s N. P. 316.

There would then seem to be no doubt, that it was anciently admitted to be the proper province of the jury in civil cases, to decide in conformity to their own judgment all questions, whether of law or fact, which were embraced in the issue committed to their charge. And this result of the authorities necessarily disposes of the argument against the right of juries, drawn from the maxim, ad questionem facti non respondent judices, ad questionem legis non respondent juratores, inasmuch as it shows, that the maxim must have been understood to have reference alone to the questions, either of law or fact, as they stood upon the record.

The jurors, being anciently under no legal responsibility to the judges for the correctness of their decisions, either of the law or the facts of the case, might properly exercise their own discretion in their determination. But since motions for new trials and bills of exceptions have been substituted for the process of attaint, and courts have come to set aside verdicts, because the jury disregard the opinion of the judge upon questions of law embraced by the issue, and for misdirection of the judge, juries have been placed in a new relation to the judges. The court, by the modern practice, having power to revise the decisions of juries, and to order new trials for their neglect to follow the directions of the judge upon matters of law, it has consequently become their legal duty to comply with such directions. And the court, and not the jury, may now be properly considered as the judges of the law involved in an issue of fact in civil cases, though it was formerly otherwise.

Having shown that it was the proper province of the jury, by the ancient common law, to determine, according to their own judgment, the whole issue committed to their charge in civil cases, it cannot well be contended, that their authority could be less extensive in criminal trials. Indeed, if the common law had originally limited the power of juries in civil suits to the decision of the facts, and had placed them under the direction of the court in regard to the law connected with the facts, it might still be claimed with entire confidence, that no such limitation had been imposed in prosecutions for crimes,

There are several important distinctions between civil actions and criminal prosecutions, which indicate very decisively, that whatever our English ancestors might have considered the power of judges over questions of law, embraced in the issue to the jury in the former, they must have contemplated their entire independence of the judges in the latter.

In the first place, there is a marked and important distinction between prosecutions for crimes and civil suits, in the authority by which they might be instituted. Any subject was at full liberty, at-his own pleasure, to commence his action against a party j who he conceived had injured him in his person or property, and might freely prosecute his suit to final judgment and execution. But the king with the aid of all the judges in the realm, could not put an individual on trial for a capital offence, without first obtaining the consent of the people of the county assembled to pass upon the case as a grand jury. And if, previous to their investigation of the case the supposed offender had been arrested or committed to jail, their refusal to countenance the prosecution would at once release him from imprisonment. After providing so fully for the consent of the peers of the subject to the very institution of a criminal prosecution against him, it cannot well be conceived, that the jealous framers of the common law would have immediately withdrawn its protection from him and transferred the power of determining his guilt or innocence to the servants to the crown. It may be here remarked, that this restriction on the very commencement of a criminal prosecution has been deemed so essential to the liberty of the citizen in this country, that a provision has been incorporated into the Constitution of the United States, and into the Constitutions of most of the individual states, “ that no person shall be held to answer for a capital or otherwise infamous crime, but upon the presentment of a grand jury.”

Again, the rules of pleading, which were anciently adopted, were designed to separate the law from the facts, wherever it was deemed practicable, for the purpose of submitting the former to the judgment of the court, and leaving the latter to the determination of the jury. In civil actions, if the defendant could not deny the facts on which the suit was founded, he was obliged to place his defence upon the record by special plea, which pleading usually ended in demurrer, forming an issue of law for the decision of the court. If the defendant in such case pleaded the general issue, the court would at once exclude his evidence, so that no power whatever was given to the jury to pass upon his defence. Under the ancient practice, in the old actions of debt, detinue, covenant, trespass and replevin, a large portion of the questions arising in litigated suits were thus withdrawn from the action of the jury and submitted to the determination of the judges. But in criminal prosecutions the accused was never compelled to take his defence from the jury and submit it to the court by special justification, but might always put himself on the country for his general deliverance.

It will be difficult, I think, to find a reason, why the rules of pleading, which were adopted in civil actions, were not extended to criminal prosecutions, unless it be in the design of the founders of the common law, that the right of passing upon the criminality of the fact, as well as upon the fact itself, involved in the general plea of not guilty, should, for the safety of the subject, be withheld from the judges, for the determination of the jury.

In the third place, the contrast between civil actions and prosecutions for crimes is most distinct and striking in the conclusive operation of the verdict in criminal cases. However the court may disapprove of a verdict of acquittal, they have no power, as in civil suits, to award a new trial. The security of the jury from all consequences in giving it is also full and complete. No earthly tribunal can revise their verdict, or call them to account for rendering it.

That, after a verdict of not guilty in a criminal proceeding, there exists no power to put the party again on trial for the same offence is a doctrine too well understood to require to be sustained by authorities. The jury are also exempt from all questions in regard to its propriety. The process of attaint, the remedy for a false verdict in civil cases, was never extended to verdicts in prosecutions for crimes. This, though there are some dicta to the contrary, was admitted to be the law by Lord Mansfield at the hearing of the Dean of St. Asaph’s case, and is, indeed, established by authority beyond doubt or question. Bushell’s Case, Vaughan’s R. 146; Trials per Pais, 274; 1 Chit. Cr. Law 529, and cases there cited.

That attempts were made from time to time, and at various periods, by English judges, to encroach upon the rights of jurors to determine, in criminal proceedings, the whole issue committed to their charge, is undoubtedly true. The attempts were, however, resisted, and the contest, carried on by the judges on the one side and the people on the other, constitutes a part, and not an unimportant one, of the great struggle between the prerogative of the crown and the freedom of the subject, which was protracted for so long a period in England, and which eventually terminated in the practical triumph of the latter.

•Some notice of the most prominent efforts of English judges to coerce and control the verdicts of jurors in criminal trials, and of the manner in which they were resisted, will, perhaps, serve to throw some light on the question involved in the present case.

The first attempts to compel jurors to give verdicts in conformity to the wishes of the judges were by fining and imprisoning them.

In 1554, Sir Nicholas Throckmorton was tried for high treason before a Court of High Commission, Bromley, chief justice of England, presiding, and found not guilty against the charge of the court. Before the jury separated, they were sent by the chief justice to prison, where they remained several months, when they were released upon the payment of enormous fines, by which most of them were ruined. State Trials, 901. In the despotic reign of Philip and Mary, there could be no redress for this arbitrary act of oppression.

In the time of Elizabeth, A. D. 1602, there appears to have been another instance of a jury being fined and imprisoned for giving a verdict of not guilty, on an indictment of murder against the charge of the court, and, so far as any thing is known, the injury remained without redress. Yelverton’s R. 23.

During the succeeding reigns of the first James and Charles, the Court of Star Chamber, which consisted of privy councillors with two common law judges, was in active operation, and drew within its jurisdiction complaints for libels, and sedition, and all offences against the government which were not punishable capitally. By the imposition of enormous fines and the infliction of barbarous and ignominious punishments, through the instrumentality of this court, the crown was generally enabled to disgrace and ruin whoever it chose to assail, without calling upon jurors in the common law courts to aid by their verdicts in bringing them to the block or the gallows. But when that arbitrary and odious tribunal was, in 1641, abolished by the Long Parliament, it became necessary for the government to resort again to the ordinary tribunals for the punishment of crimes, either real or pretended.

The rights of jurors had by this time come to be pretty well understood, though they were not yet fully acknowledged by the ruling authority, whether it might be king or commonwealth.

In 1649, a few months after the execution of King Charles, Lieut. Colonel Lilburne was indicted for high treason against “ the government by Parliament, without King or House of Lordsand on his trial he argued to the jury, and read from Lord Coke’s Institutes, to show that they were the judges of the law as well as the fact, and the jury acquitted him, against the charge of all the judges, who were clear for a conviction. The Parliament, having failed to convict, passed a special act, banishing him by name, and declaring that his return to England should be deemed felony, for which he should, on conviction, suffer death. He did return, and in 1653 was tried at the Old Bailey for felony, against the act by which he had been banished. A copy of the act of Parliament, duly certified, was produced, and Lilburne, who was in court, was fully proved to be the person named in it. The jury, however, against the charge of the court, held the act, under which he was prosecuted, to be illegal, and found him not guilty. They were afterwards severally called before the council of state and questioned in regard to their verdict, and their answers indicate a decided and manly determination to maintain their independence as jurors and freemen. The answer of one of them, as entered on the minutes of the council, will serve as a specimen of the whole. It is as follows : — “ Michael Rayner being asked, whether Mr. Scobel, clerk of the house, did not give evidence that Lieut. Colonel John Lilburne, at the bar, was the very Lilburne against whom the act was made 1 He said, he did give that evidence, and that he did believe he said true, and that the copy of the act of Parliament produced was a true copy.” But saith, “ that he and the rest of the jury took themselves to be judges of matter of law as well as of matter of fact; although he confessed that the bench did say they were only judges of the fact.” 2 Hargrave’s State Trials 79, 80.

In the reign of Charles the Second, Iielynge, Chief Justice of the King’s Bench, a pliant instrument of the crown, fined Sir Henry Wyndham and eleven others of a grand jury, because they would not find a bill of indictment for murder, telling them that the man having died at the hand of the party, it was their duty to find the bill, it being matter of law for the court whether it was murder or in self defence. He also fined a petit jury, who refused to convict a party on an indictment under the conventicle act, and the next year imposed a fine upon another jury, who declined to follow his directions upon a matter of law. His own account of the latter case, as given in his reports, page 50, is as follows :—

“ Hood was indicted for the murder of Newman, and upon the evidence it appeared that he killed him without any provocation, and thereupon I [Kelynge] directed the jury that it was murder, for the law in that case intended malice, and I told them they were the judges of the matter of fact, namely, whether Newman died by the hand of Hood; but whether it was murder or manslaughter, that was matter of law, in which they were to observe the directions of the court. But notwithstanding they would find it only manslaughter ; whereupon I took the verdict and fined the jury, of which John Goldwier was foreman, £5 apiece.”

These illegal acts of the chief justice having (in December, 1667) been brought to the notice of Parliament, witnesses were examined, and he was heard in his defence, and the grand committee of justice reported to the House of Commons, that the proceedings of the Lord Chief Justice in these cases were “innovations in the trial of men for their lives and liberties, and that he had used an arbitrary and illegal power, which was of dangerous consequence to the lives and liberties of the people of England.” The committee also recommended that “ the Lord Chief Justice be brought to trial, in order to condign punishment, in such manner as the house should judge most fit and requisite.” But he having petitioned to be heard at the bar of the house, and there making an abject submission, the matter, by the intercession of his friends, was suffered to drop without being farther prosecuted. 6 State Trials 992, 1019.

Only one other attempt to control the decisions of jurors by punishing them for unsatisfactory verdicts, will be mentioned. In 1670, the famous William Penn, together with William Mead, were tried at the Old Bailey before a court of oyer and terminer, the Recorder of London presiding, for a breach of the peace, in being concerned in a tumultuous and unlawful assembly. The proof was, that some two or three hundred persons. had peaceably and quietly met in Grace street, London, and listened to the preaching of Penn. Penn contended, that there had been no breach of the peace; that the assembly was lawful; and he read from Lord Coke to the jury in support of his position. The court charged strongly and bitterly against the prisoners; but the jury disregarded the charge and returned a verdict of not guilty. There were no disputed facts, and there can be no doubt the jury decided the law correctly. The court, however, were in great fury with the jury, and immediately fined them forty marks each, and committed them to Newgate. Edward Bushell, one of the jurors, with a similar resolution to that of John Hampden in regard to the ship money, refused to obtain his release by paying his fine, and brought his writ of habeas corpus to the Court of Common Pleas. It being returned upon the writ, that, being one of the jury, Bushell had acquitted Penn and Mead against evidence, and also “ contrary to the direction of the court in matter of law," the question of the power of the court to control their verdict upon the matter of law was distinctly raised. The case was argued before eleven of the twelve judges, and their judgment was delivered by Chief Justice Vaughan, denying any such power of control in’ the court, and vindicating the right of the jury to determine both the law and the fact by their general verdict; and Bushell was thereupon discharged. Vaughan’s R. 135-158.

I am not aware, that the independence of juries, thus sanctioned by the judgment in Bushell’s Case, has ever since been practically invaded, except in prosecutions for libel. Even in that class of prosecutions, the whole question of the guilt or innocence of the accused appears to have been submitted to the jury for a period of over fifty years after that decision. Among the instances in which this was done, was the trial* of Thompson, in 1682; of the seven Bishops, in 1688, and of Tutchin, before Chief Justice Holt, in 1704. But, during the reign of George the Second, it began to be argued by some of the judges at nisi prius, that whenever the law could by any means be separated from the facts, in criminal trials, it should be determined by the court; that it could be thus separated in prosecutions fcjr libels, because the libel was set forth in the information ; and whether the matter charged to have been published was really libellous or not, was matter of law for the determination of the court. It was accordingly held, that the only questions to be submitted to the jury, were the fact of publication, and the truth of the inuendoes set forth in the information. Upon proof of these, the jury were required to render a verdict of guilty; leaving the question whether the publication was a crime or not for the subsequent decision of the court. 2 Starkie on Slander, chap. xvi.

This doctrine, which withdrew from the jury the whole question of the criminality of the publication, if it could have been firmly established, would have placed in the hands of the judges substantially the same power over political discussions, that had been so odiously exercised by the long suppressed Court of Star Chamber. It was adopted by Lord Mansfield soon after he took his seat on the King’s Bench, and was followed by him in the trials of Woodfall and others ; by Mr. Justice Buller in the Dean of St. Asaph’s case; and on a motion for a new trial in the latter case, it was, in 1785, declared to be the law, by the unanimous decision of the King’s Bench. Rex v. Dean of St. Asaph, 3 Term R. 429.

This doctrine of the King’s Bench did not, however, meet the approbation of all the judges in Westminster Hall, and it was earnestly and vehemently opposed by most of the leading members of the profession, who, when employed for defendants, appealed from the judge to the jury in regard to their constitutional rights, and, in many instances, were successful in cases where, if the whole matter had been left to the jury, verdicts of guilty would probably have been obtained. This struggle against the alleged judicial invasion of the independence of juries continued from the time of Woodfall’s trial, in 1770, till 1792, when the nation being thoroughly roused, the subject was taken up in Parliament, and Mr. Fox’s famous libel act passed, by which trials for libels were placed upon a like footing with other criminal prosecutions. Parliament refused to recognize the decision of the King’s Bench as ever having been the law of the land, the preamble of the act declaring, that “ whereas doubts have arisen” as to the competency of jurors in prosecutions for libels “ to give their verdict upon the whole matter in issue,” therefore, it was enacted that the jury might give such verdict, &c.

This controversy in regard to the rights of jurors was the occasion of the well-known attack of Junius upon Lord Mansfield, which, so far as it imputed corrupt motives to that distinguished and venerated magistrate, was unquestionably unfounded and unjust. Lord Mansfield was, doubtless, sincere in the belief, that sueh a doctrine, which had been acted upon by other judges previous to his time, was essential to the preservation of order and good government "against sedition and licentiousness. It is difficult, however, to free him from the suspicion of partiality of feeling in this matter. He appears to have been a member of the cabinet when the prosecutions for libels against Wilkes, and also that against Woodfall, whieh he after-wards tried, were resolved upon, though it cannot well be supposed he would have participated in the deliberations in regard to them. After he ceased to be a member of the cabinet council, he long exerted great influence with the ministry, and was relied upon by them to defend their measures in the House of Lords, which he often did with consummate skill and ability. Unless he is to be considered as exalted entirely above the common frailties of human nature, it is scarcely conceivable, that he could have been entirely impartial in prosecutions, instituted and maintained by an administration with whieh he was so intimately connected. He would seem, indeed, to have been one of that very class of judges, against the effects of whose bias in favor of the government the independence of jurors in matters of law, as well as of fact, was originally designed to guard.

It may be added, that, though the opinion of Lord Mansfield, in the Dean of St. Asaph’s case, is ingenious and able, as is every thing that emanated from his powerful mind, yet it is nevertheless unsatisfactory. The intention with which the act is done must be an ingredient of every crime, and is, necessarily, a question of fact. By the rule adopted by the King’s Bench, it is manifest, that the question of intent was withdrawn from the jury, and transferred to the court. To this extent, at least, the decision cannot be sustained by argument.*

The libel act eventually passed the House of Commons without a division, and met with but a feeble opposition in the House of Lords. It was advocated in both houses on the ground that juries, in criminal trials, had the constitutional right to pass upon the whole issue, the law as well .as the facts, and that this right, having been improperly invaded, ought to be restored to its former footing. 29 Par. Hist. 577, 743, 1404. Mr. Worthington, in his treatise on the power of juries, although he endeavors to maintain the general authority of judges to direct them in matters of law, admits that in cases of libel, “ The extraordinary right to decide the law has been, by the legislature, expressly committed to juries;” p. 196. Now, the language in which this right has thus been, as Mr. W. says, expressly committed to juries, is found in the first section of the act, and is simply, “ That the jury sworn to try the issue may give a general verdict of guilty or not guilty upon the whole matter put in issue.” It is, undoubtedly, true, that this does admit the right in the jury to decide the law as well as the fact involved in the issue; but it is precisely the same authority, that has always belonged to jurors in all other criminal trials, and has been exercised without question or objection ever since the judgment in Bushell’s Case. How the permission given to the jury in the libel act to pass upon the whole matter in issue can confer the power to judge of the law embraced in it, and the same permission which has always been given by the common law can be construed to withhold it, is to me incomprehensible. I apprehend, the same authority to decide upon all matters in the issue exists in both cases.

In this country the decisions of judges and the opinions of jurists and statesmen have been, until a very recent period, quite uniform in favor of the independence of juries in criminal trials.

On the trial of Henfield, for illegal privateering, before Judges Wilson and Iredell, of the United States Supreme Court at Philadelphia, in 1793, Judge Wilson charged the jury, that they, in their general verdict, must decide both the law and the facts. Wharton’s State Trials 88. Judge Wilson had, previously, in a course of law lectures, delivered in the College of Philadelphia, maintained by argument and authority this right of juries in all criminal trials. 2 Wilson’s Works 366-375.

The Sedition Act of 1798 furnishes the very strongest evidence of the sense of the profession, as well as of the people of this country at that time, upon this question. That act prescribed a punishment for libels on the government of the United States and its officers, and after providing, that the accused might give the truth of the libel in evidence, declared, that “ the jury who should try the cause should have a right to determine the law and the fact, as in other cases; ” the words, “ as in other cases,” being a direct reference to a right, the existence of which was understood to be sufficiently well known to form a general rule of action.

Judge Chase, of the United States Supreme Court, on the trial of Fries for treason, in May, 1800, charged the jury, that “ it was the duty of the court, in that and all criminal cases, to state to the jury their opinion of the law arising on the facts; but that the jury were to decide in that, and in all criminal cases, both the law and the facts, on their consideration of the whole case.” Chase’s Trial, by Evans, Appx. 12, 45. This opinion of Judge Chase is entitled to the more weight, from his well known bias in favor of the government in state prosecutions, for the undue manifestation of which bias, on this very trial, he was afterwards impeached before the Senate.

On the trial of the impeachment, which took place in 1804, Mr. Tilghman, an eminent attorney of Pennsylvania, testified, on being inquired of, “ that the usual practice in the courts in which he had been, was for the court to permit the counsel on both sides to argue the law to the jury at length,” and after they finished, for the court to charge, and that “ they generally informed them what, in the opinion of the court, was the law, but that the jury were the judges of the law and the fact.” Chase’s Trial 27. And this right of the jury, though the question in regard to it did not directly arise on the trial of the impeachment, appears to have been generally understood by the managers and counsel to be the settled law. Ib. 101, 109, 182, 242, 247.

On the trial of William S. Smith, before the District Court of the United States, at New York, in 1806, for being concerned in a military enterprise against the Spanish American provinces, Judge Talmadge charged the jury, that it was a well settled rule of law, that the right appertained to them to decide the law as well as the facts, in criminal prosecutions, “but that the jury were not, therefore, above the law; and that, in executing the right, they attached to themselves the character of judges, and as such, were as much bound by the rules of legal decision as those who presided over the bench.” Trial of Smith and Ogden 236.

On the trial of Wilson and Porter, in 1830, for robbing the mail, Judge Baldwin, of the Supreme Court of the United States, after stating to the jury what he conceived the law applicable to the case to be, addressed them as follows: — “ We have 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 the fact in a criminal ease, 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.” Baldwin’s R. 99.

In the state of New York, in 1804, in the case of The People v. Crosswell, for a libel on President Jefferson, the Supreme Court was equally divided upon the question, whether the intent of the respondent in making the publication ought to have been submitted to the jury; Judges Lewis and Livingston holding to the doctrine of Lord Mansfield, in the Dean of St. Asaph’s case, and Judges Kent and Thompson being of opinion, that the whole issue was for the jury. The attention of the legislature of the state being thus called to the subject, an act was passed in 1805, which, after reciting that doubts had arisen whether, in prosecutions for libel, the jury had a right to give their verdict on the whole matter in issue, declares, that — “ in any such indictment or information, 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; ” thus, equally as in the case of the Sedition Act, furnishing most conclusive evidence, that the general right of juries to judge of both law and facts was understood to be settled and established.

So important was the independence of juries in trials for libels deemed to be, that the provisions of the act of 1805 were substantially incorporated into the amended Constitution of the state in 1821; and similar provisions, implying the existence of the right of the jury to determine the law and the facts, in all criminal trials, will be found in the constitutions of many, probably of a majority, of the states of the Union. Indeed, the opposition to this generally approved doctrine seems to have been so isolated and inconsiderable in this country, as scarcely to have attracted attention, until it was brought into notice by Judge Story, in 1835, in the case of Battiste, before mentioned. The following state authorities are also in favor of the now controverted rights of juries : — State v. Snow, 6 Shep. 436; 2 Swift’s Dig. 174; 1 Wheeler’s Crim. Rec. 108, 269; Ross v. Commonwealth, 1 Grattan 557; State v. Allen, 1 McCord 525; Holden v. State, 5 Georgia R. 441; 5 Ala. R. 666; State v. Armstrong, 4 Blackf. 247, overruling State v. Townshend, 2 Blackf. 151, and 2 English R. 59.

In Massachusetts, as well as in the other states, the early doctrine appears to have been favorable to the independence of juries in all criminal trials; and so late as 1830, in the trial of Knapp for murder, the Supreme Court of that state, sitting in bank, acknowledged and declared the right of the jury to determine the law as well as the facts by their general verdict; and in 1837, in the case of the Commonwealth v. Kneeland, the same doctrine seems to be admitted. 10 Pick. 497; 20 Pick. 222. But in the case of Commonwealth v. Porter, decided by the Supreme Court in 1845, (10 Mete. 263,) the previous cases on that subject were disregarded, and the right of the jury to differ from the court, in relation to the law, in making up their verdict, is denied. The court, however, seem to shrink from the consequences of their decision ; for it is a singular feature of the case, that although the court held, that the jury must be absolutely governed by the law as laid down by the court, yet the verdict was, nevertheless, set aside, because the judge who tried the case refused to allow the counsel for the accused to argue the law to the jury. It would, therefore, now seem to be the law of Massachusetts, that it is an acknowledged right of the respondent’s counsel to read his authorities, and argue the law fully to the jury; yet that, if the jury"pay the slightest regard to the authorities or argument, they violate a settled principle of law, and are perhaps guilty of official perjury. I cannot but think that upon one or the other of these points, the Supreme Court of Massachusetts must be in error.

The right of juries is also either qualified or denied in Montgomery v. State, 11 Ohio R. 427; Pierce v. State, 13 N. H. 536; Montee v. Commonwealth, 3 J. J. Marsh. 149; and State v. Townshend, 2 Black. 151, since overruled as before stated.

I will now proceed to notice some objections that have been made to the doctrine maintained in this opinioih

The opinion of Chief Justice Best, in Levi v. Milne, 4 Bing. 195, was relied upon by the counsel for the state, to show that even in England the libel act has not been considered as conferring authority on the jury to determine the law involved in the issue of not guilty. Such appears to have been the language of that judge, not only in that case, but in the previous case of Rix v. Burdett, 4 B. & Ald. 95. [6 E. C. L. 358.] But in Rix v. Burdett, Chief Justice Abbott differed with him, and declared as his opinion, “ that the jury were at liberty to exercise their own judgments upon the whole matter in issue, after receiving the opinion and declaration of the judge.” Since the case of Levi v. Milne, the subject has undergone considerable discussion in England; and it appears now to be settled, against the opinion of Chief Justice Best, that the whole matter of the issue is for the jury. It is now held, that the judge is not bound to give his opinion to the jury, whether the publication be a libel or not, and that the whole question of libel or no libel is for their determination. Fairman v. Ives, 5 B. & Ald. 642; [7. E. C. L. 223.] Baylis v. Lawrence, 11 Ad. & El. 920; [39 E. C. L. 270.]

Mr. Worthington, in his work on the power of juries, refers to a few ancient authorities in support of the idea of there having formerly been a controlling power in the judges over the points of law embraced in the issue to the jury; none of which will, however, on examination, be found to sustain that position. Thus, he says, “ it is most unequivocally declared by Glanville, that the assize could not decide upon the law connected with disseisin.” And hence he would have it understood, that the statute of Westminster 2 did not mean, as its language imports, that the jury might decide upon the question of disseisin by their general verdict. But the case put in Glanville, lib. 2, c. 6, by Mr. Worthington’s own showing, was one in which the pleadings, which were then ore terms, ended in an issue of law, and because it had thus become an issue of law on the record, the trial was withdrawn from the assize and transferred to the court. Worthington 118.

He also relies upon three cases in Plowden’s Reports, viz., Townshend’s Case, p. 111; Willion v. Berkley, p. 223; and Grendon v. Bishop of Lincoln, p. 493. In the first case the jury found a special verdict, stating the facts at large, and then added their own conclusion in regard to the law. The very object of a special verdict being to submit the question of law to the court, it was very properly held, that the jury had exceeded their authority, and the court adopted their own conclusion upon the facts found. In the next case, one of the parties, in order to get his case to a jury, undertook to traverse a matter of law; but the court, in the language of Plowden, held, “ that if the parties are agreed upon the matter of fact, they shall not traverse the law thereupon, as to say, the law upon this matter is with me, without that, that it is with you; but the judges shall adjudge upon it without traverse of the party.” And the third case is to the same effect, that a party could not traverse matter of law, because that was to be decided by the court. Worthington 119-124. In these several cases, the province of the court to determine questions of law is very properly insisted on; but in none of them is there any intimation, that the court could determine any question of law, which arose out of the issue on a jury trial. Indeed, the most thorough research in favor of the restricted right of juries has not brought to light a single ancient authority, which countenances the existence of such a power in the court, even in civil cases, while the remedy for a false verdict by attaint was in use; nor a single authority which contravenes in the slightest degree the doctrine laid down by the plain language of the statute of Westminster 2, of Littleton, and of Coke, that the jury, by a general verdict, decide upon the law as well as the fact included in the issue. While, on the other hand, the doctrine of the statute, sanctioned by those venerated expounders of the ancient law, has been shown to be in accordance with cotemporaneous decisions and practice. It may not be wholly out of-place to add, that this view of the right of jurors is sustained by the learned Mr. Hargrave, in his commentary upon the maxim ad questionern in Coke’s Institutes, and also by Mr. Chitty in ,his approved treatise on criminal law. Co. Litt. 155, note 276; 1 Chitty’s Cr. L. 637.

It has been claimed, that the allowance of bills of exceptions in criminal cases is inconsistent with a right of the jury to pass upon the whole matter in the issue tried by them. It is, doubtless, true, that the doctrine of bills of exceptions proceeds upon the presumption, that the directions of the judge in matters of law are followed by the jury to the extent to which such directions are made subject to the revision of the court ,• and to that extent the law involved in such issue may be conceded to be under the control of the court. But the limited extent, to which the remedy m.ay be applied, furnishes an argument in favor of, rather than against, the controverted right of juries.

Bills of exceptions were unknown to the common law, and in England were authorized by the statute of Westminster 2, c. 31, which has been uniformly held to apply only to civil suits. Neither in England, nor in the federal courts of the United States, was there ever any remedy by bill of exceptions in criminal cases. 1 Chit. Cr. Law 622; United States v. Gilbert, 2 Sumn. 104. The remedy, wherever it exists, is founded on the local statutes of the several states. In this state, the accused party, in case a verdict of guilty is returned against him, may file ' exceptions to any decision or ruling of the judge upon the trial, and carry the matter of law to the Supreme Court. But no provision is made for exceptions in behalf of the state, and a verdict of acquittal is beyond their reach.

It is most obvious, that this remedy does not deprive the accused of any privileges, which he had before enjoyed, but was designed to furnish him with a new and additional security against the danger of an illegal conviction. To the protection which the common law had provided, that before the accused should be subjected to punishment for a crime, there shouldSbe a verdict of his equals, that in fact and in law he had been guilty of it, the statute superadded the farther security, that the decision of the jury against him should not have been induced by such action or advice of the court, as, in the opinion of the superior tribunal, was contrary to law. The effect of the remedy is, not to deprive the jury of the right, in favor of the prisoner, of determining the law, but to render a concurrence in opinion of both the court and the jury, in regard to the law, necessary to his conviction and punishment.

The modern practice in England of granting new trials in cases of misdemeanors, where, in the opinion of the judges, the verdict is against law, produces the same effect as our bills 'of exceptions. A new trial is never granted on application of the crown, but only on that of the prisoner, after a verdict of guilty. It furnishes the accused with an additional shield for his defence, but takes from him no previous right. Both bills of exceptions and new trials are similar in their operation to-a motion in arrest of judgment. They are all applied after a verdict of guilty by the jury, and all operate as additional securities against his illegal and improper punishment.

When the legislature of a state shall become bold enough to provide by law, that exceptions may be filed in behalf of the prosecution and a verdict of acquittal set aside and a second trial awarded, for the reason that the jury disregarded the instructions of the judge upon the matter of law, then, and not till then, can an argument be raised from the law of exceptions against the right of juries in favor of the prisoner to determine both the law and the fact involved in the issue.

The alleged unfitness of jurors to decide questions of law has been urged as an argument against their legal right to make such decisions ; and though the argument must necessarily be inconclusive, it may, nevertheless, be proper to notice it. It is undoubtedly true, that judges are presumed to be possessed of legal learning greatly superior to that of jurors, and in that respect to be much more competent to decide legal questions. It is to be noticed, however, that the question involved in an issue of not guilty of a crime are seldom, if ever, of a complicated or difficult character. They relate to the sufficiency of the evidence to constitute the crime charged in the indictment; — as whether the proof is sufficient to show that the party accused has comiilitted the crime of murder, of manslaughter, of theft, of perjury, of arson, &c.; which questions, with the aid of the arguments of opposing counsel, a jury, even without the advice of the court, would ordinarily have little difficulty in determining rightly. But experience proves, that juries habitually show a respectful deference to the advice of judges upon points of law arising on a trial, and that the examples of their resisting such advice are not of common occurrence. And when such instances happen, they are not always from the fault of the jury. Indeed, if a judge conducts a trial in a fair and impartial manner, and, paying a just regard to the rights of the jury, advises them intelligibly and correctly upon the matter of law, he will seldom find occasion to complain of their disregarding his counsel.

But freedom from partiality and undue bias is essential to the just decision of legal questions, as well as law learning; and though jurors might, from want of legal information, sometimes improperly acquit a guilty party, yet such acquittal would be a much less evil than the conviction by a-partial judge of one who was innocent. The decisions of successive juries are not likely to be wrong, except in occasional instances; while one decision of a court, forming a precedent for another, would, if erroneous, produce a continuance in error. In this respect, the danger in criminal prosecutions would be greater from trusting too much to the judge than to the jury. The objection to the fitness of jurors to decide questions of law was as forcibly stated by Lord Mansfield in the Dean of St. Asaph’s case, as it has been since, or perhaps ever can be. His argument, however, failed to convince the nation of the correctness of his decisión, excluding the law of libel from the consideration of the jury. ■ The nation, by their representatives, gave full evidence, that they preferred the security furnished to the liberty of the subject by the right of the jury to judge of the law in each individual case — imperfect as their judgment might be — to the dangerous uniformity and harmony of successive convictions, registered by order of the judges.

Notwithstanding the extended consideration, which I have deemed it proper to give the question of the right of juries to determine the whole issue in criminal prosecutions, I think the right may be successfully maintained on much narrower grounds.

The jpower of juries to decide the law as well as the fact involved in the issue of not guilty, and without legal responsibility to any other tribunal for their decision, is universally conceded. In my opinion, such power is equivalent to right.

Lord Mansfield, perceiving the want of all power to control the decision of the jury, admits,' in the Dean of St. Asaph’s case, that the distinctive province of the court over the law involved in an issue to the country can only be preserved by the honesty of the jury; and Mr. Justice Ashurst compares the power of the jury to pass upon the law in such case to that of a man with a pistol at your head, who has the power to take away your life, though not the right. That there is a distinction in morals between power and right is undoubtedly true, and such distinction may not be inaptly illustrated in the case supposed. But this distinction has no application to questions of political power. Where the political power which rests in a state is distributed by the constitution or laws among the different officers or departments of the government, the very distribution or assignment of the power implies, that it may be lawfully and rightfully exercised. Indeed, the very object of conferring the power is, that it may be thus exercised.

The king, by the unwritten constitution of England, has the sole power of declaring war. This power, though not founded on any statute, has existed for ages ; and though sometimes complained of, has never been declared illegal. It will not be denied, that this power in the king is a legal right; and yet the only evidence, that it. is so, is to be found in the continued existence of the power, without authority in any other branch of the government to interfere with its exercise. The power of the jury is of the same character. Why should the right accompany the power in the one case and not in the other 1 The reason given, why the power of the jury cannot be considered as a right, is their unfitness for its proper exercise. This, however, is matter of opinion. The unfitness of the king for the exercise of the war power might appear equally strong to many minds, and might be urged with much force against the propriety of his being allowed to exert it. I apprehend Lord Mansfield would not have listened very patiently to such an argument against the constitutional right of the king to declare war; and yet, it is the very argument by which he would convert the exercise of a power of the jury, which has existed from time immemorial, into a wrong. In both cases, the argument, from unfitness, rests on assumptions, which, if they were true, might furnish good reasons for withdrawing the power altogether; but the fact, that the power has been suffered to continue for ages'without having been withdrawn, ought to be conclusive evidence, that it was allowed to remain for the purpose of being exercised.

If the power of determining the whole issue in a criminal prosecution, upon a plea of not guilty, had been expressly conferred on the jury by statute, and the court, by the same statute, had been prohibited from questioning in any manner the propriety of the verdict, it would scarcely be pretended, that the statute did not confer on them the right as well as the power. Such we have already seen is the admitted effect of the English libel act. And is not the power equally a right, which has to the same extent been exercised for centuries by the authority of the common law, and whichpower, though sometimes questioned, has always been vindicated and maintained I

This power of a jury is doubtless liable to abuse; and so is the power conferred on a court, or on any other human tribunal. But while a jury or court keep within their proper sphere of jurisdiction, they are in the exercise of the powers conferred on them, and are in the performance of a legal right; and this though they may, by the abuse of the power, be guilty of a moral wrong. The extent of the jurisdiction of a court or jury is measured by what they may or may not decide with legal effect, and not by the correctness or error of their decision. Thus the butcher Jeffreys, by virtue of his office as judge, had the political power, and consequently the legal right, to conduct the trial of Algernon Sidney, and to give his opinion upon the law of the case in his charge to the jury, though for his shameful abuse of the right he may have incured the deepest moral guilt. So the jury, in a criminal trial, have the legal right to decide the law as well as the fact involved in the issue; but this does not give them a right, by a wanton disregard of law, to decide arbitrarily. They are as much bound to exercise their best judgment and discretion in determining the law, as a court is; and they are held by an equally strong obligation to do so. The oath which is administered to them, “ that they will truly try and true deliverence make between the state and the prisoner at the bar, according to the evidence given them in court, and the laws of the state,” embraces the whole matter in issue, and binds them equally with the judges to perform their duty faithfully and conscientiously.

I conclude, then, that when political power is conferred on a tribunal without restriction or control, it may be'lawfully exerted ; that the power of a jury in criminal cases to determine the whole matter in issue committed to their charge, is such a power, and may therefore be lawfully and rightfully exercised ; in' short, that such a power is equivalent to, or rather is itself, a legal right.

I am aware, that the causes, which in England rendered the establishment of this right of juries indispensable to individual safety, if they now exist in this country, must be conceded to operate with comparatively slight force. It may be, that there is not in this state, at present, any undue bias in the court in favor of the government, in criminal prosecutions. But of this, it does not perhaps, become the judges to speak. It may be, that there is no just cause for the apprehension of such an evil in future. If, however, it be wise and expedient to declare, that there shall no longer be any check to the possible exercise of this undue bias by the judges, it should be done by legislative determination, not judicial decision. If the legislature desire, that juries should hereafter take the law in criminal trials from the court, they can readily say so, and prescribe a mode for carrying their will into effect. Until they do so, I shall be disposed to abide by the law as it has come down to us from our ancestors.

There being error in the charge of the county court to the jury, the verdict is set aside, and a new trial granted.

* The clause, as recited in 2 Co. Inst. 421, is in these words, — “Item ordinatum est, quod justiciarii ad assisas capiend’ assignati non compellant juratores dicere prsecise, si sit disseisina vel non, dammodo dicere voluerint veritatem facti, et petere auxilum justie’. Sed si sponte velint dicere, quod disseisina est, vel non, admittatur eorum voredictum sub suo perieulo.” And see Keb. St. 46.

* Note by Hall, J. One of the principal authorities relied upon by Lord Mansfield, in this case, was a ballad, stated to have been written by Mr. Pulteney, who was one of the supporters of the Craftsman, upon the occasion of the acquittal of the publisher of that paper by a jury, in a prosecution conducted by Sir Philip Yorlse, Attorney General, about the year 1732. The object of Lord Mansfield was to show, that even the opposition to the administration, at that time, of which Mr. Pulteney was the leader, concurred with the government, that the jury, in prosecutions for libel, had nothing to do with questions of law. The stanza from the ballad, as quoted by Lord Mansfield, was as follows :

“ Sir Philip well knows, that his inuendoes No longer will serve him in verse or in prose,

For twelve honest men have decided the cause,

Who are judges of facts, but not judges of laws.”

It turns out, however, that Lord Mansfield’s recollection of the ballad was erroneous, and that, as originally published, it was an authority on the other side of the question, the two last lines being :—

“ For twelve honest men have decided the cause,

Who are judges alike of the facts and the laws.”

29 Par. Hist. 582. 5 Camp. Ld. Chan. 50. 6 lb. 345.