(concurring in the judgment). The defendant relied upon satisfying the jury that even if every fact alleged in the complaint were found true, nevertheless the law applicable to those facts demanded his acquittal. The propositions of law upon which he mainly relied, are : (1) The provisions of the Constitution relative to trial by jury, compensation for property taken for public use, due process of law and excessive fines, render void the Act under which the prosecution is brought. (2) By the true construction of the Act itself the commissioner is authorized to condemn and to destroy peach trees, of his own motion, without any process of law and without any liability for damage ; and by the true construction of the Act this admittedly lawless proceeding is made the basis of the prosecution. (3) The language of the Act used in creating the offense is so vague and indefinite that it conveys no meaning, and therefore no crime is defined. He asked the court to instruct the jury that they “ are the judges of the law bearing upon the case, as well as the facts; ” and that they not only have the power, but that it is their duty, to consider the *142legal questions, even those regarding the constitutionality of the Act, and to decide these questions in accordance with their conscientious belief ; and especially asked the court to submit to the jury to decide on their conscientious belief the legal question whether the language of the Act was sufficiently clear and certain to define any crime.
No other construction can in common fairness be given to the defendant’s requests. He was trying his case in reliance on his power to' influence the decision of the jury as judges of the law; and demanded his right to have the jury told that if they decided on their own belief—although the court might express a contrary opinion—that any part of the law bearing on the case was as claimed by the defendant, it was their duty to apply that law to the facts. The court did not comply with these requests. If the defendant had the right to have the jury so instructed, there is error in the judgment. •
To hold only that the jury cannot decide a question of constitutional law, does not meet the issue. It may be true that if the jury are judges of the law as claimed by the defendant, yet they are not judges of the limitations placed on the powers of the legislature by the Constitution ; but this can be so oidy because the constitutionality of an Act, either as a question of law or fact, is a matter wholly outside the province of a juiy. The validity of an Act under a written constitution is a judicial question, but in its very nature is one that must be determined by the court, and is one which, as fact or law, has never been within the issue submitted to a jury since trial by jury was first known. The limitation of governmental power by a law supreme over every department of government, was unknown until the close of the last century. It has developed a branch of jurisprudence absolutely new, and incapable of administration except by the court. Questions arising under this law are utterly foreign to “ trial by jury; ” it is impossible that the term “right of trial by jury ” could ever have included such questions, and their submission to a jury involves a vital change in jury trial and would be subversive of the founda*143tion on which a strictly constitutional government must rest. But if the jury are judges of the law as to every question within the issue submitted to them, they are judges of the law bearing upon the true meaning of the language of a statute, and the extent and meaning of “ judicial notice ; ” these questions are within the issue tried to a jury, assuming them to be judges of the law. In the trial below the defendant was denied the right he claimed, to have the jury told that as to the questions of law within the issue referred to them by the pleadings, they are the judges to decide in accordance with their opinion what the law is. The denial as to the questions within the issue cannot be justified because some of the questions as to which the right was claimed in the defendant’s requests were without the issue; especially when neither counsel in framing, nor court in answering the requests, contemplated any such distinction. It is impossible, therefore, to hold that there is no error in the judgment, without passing upon the right claimed by the defendant, and denied by the court in language that was erroneous only because it partially conceded the defendant’s claim.
I think the court did not err in refusing to charge in accordance with the defendant’s request, because it is not true that the jury in the trial of a criminal prosecution are judges of the law in the sense that it is their duty to review the decisions of the court upon questions of law arising in the case, and to decide the law in accordance with their own judgment.
Trial by jury is a process peculiar to the English common law, slowly developed from diverse experiences, and finally adopted as the best attainable in certain kinds of litigation, for ascertaining facts from evidence and applying to them settled principles of law; it seeks to unite the benefits to be derived from the common sense of average citizens in getting at substantial truth from conflicting testimony, and from the learning and skill of the judge in accurately determining the appropriate law. Its main, essential feature, which marks its practical value, is that throughout the whole judicial process from the institution of a case to the final judgment, the judge *144determines the law and the jury determines the facts referred to them by the pleadings. These powers of judge and jury are distinct. As Lord Hardwicke said in 1784: “If ever they come to be confounded, it will prove the confusion and destruction of the law of England.” Lee’s Oases, Temp. Hardw. *23, *28. Whenever a question of law is presented, whether it concern the sufficiency of the complaint, the impanelling of the jury, the admission of testimony, or the conclusion of law from the facts admitted or proved,—the court alone answers; whenever the pleadings terminate in an issue of pure fact, the jury alone answers. It happens, however, in some cases, and usually in criminal cases, .that under existing rules of procedure the issue of fact presented by the pleadings and referred to the jury, is one where the law and the facts are complicate, i. e., the pure question of fact cannot be fairly determined except in relation to the law, and the pure question of law cannot be determined until the facts are found. In such case the jury may, at their option, pass separately upon the facts by the return of a special verdict ; or, applying the law as stated by the court, to the facts as found by them, determine the whole question presented by the pleadings by means of a general verdict; and the respective powers of court and jury are preserved by the judge stating his determination of the law hypothetically— if the facts be so and so, this is the law—leaving the jury to find the facts in view of the law so determined by the judge. Here the court and jury exercise their respective powers, jointly, as it were; and the general verdict should express the law as determined by the judge and the facts as found by the jury. It is evident that, as a general verdict involves an application of the law as declared by the court to the facts as found from the evidence, the jury must consider the law in connection with the evidence in reaching their ultimate conclusion, and in this limited sense they majq with doubtful accuracy, be called judges of the law; but as the law determined by the court is the law they must consider, it is clear that in no sense which involves any independent determination of what the law of the State is, are they the judges of the law. It is within the physical power of the *145jury to disregard the law as well as the evidence; and it was to induce the abuse of this power that the phrase “judges of the law ” was first perverted from the limited sense in which only it can be used, and became a favorite euphuism in appeals to juries for a violation of duty. These essential features of jury trial, i. e., the power of the court to direct the jury in matters of law, and the power of the jury to apply the law received from the court to the facts found from the evidence, and so determine by a general verdict issues of fact presented by the pleadings where the law and the fact may be complicate, are involved in the right of trial by jury, which our Constitution declares shall remain inviolate.
Section 1630 of the General Statutes, in connection with § 1101, is in accordance with and does not alter such trial by jury. The cases of State v. Buckley, 40 Conn. 246, and State v. Thomas, 47 id. 546, in so far as they assume that the statute has made the jury judges of the law in any other than the limited sense above stated, do not rest upon sound reason and are contrary to what must now be considered well settled authority. State v. Carrier, 5 Day, 131; State v. Smith, ibid. 175; State v. Ellis, 3 Conn. 185; State v. Tuller, 34 id. 280, 287; State v. Fetterer, 65 id. 287, 293; Rex v. Dean of St. Asaph, 3 T. R. 428, 429; U. S. v. Battiste, 2 Sumner, 240, 243; Pierce v. State, 13 N. H. 536, 554; Com. v. Porter, 10 Metc. (Mass.) 263, 285; Com. v. Anthes, 5 Gray, 185; Com. v. Rock, 10 id., 4; U. S. v. Morris, 1 Curtis, 23, 63; State v. Smith, 6 R. I. 33, 34; Duffy v. The People, 26 N. Y. 588, 591; Hamilton v. The People, 29 Mich. 173; State v. Burpee, 65 Vt. 1, 34; Sparf v. U. S., 156 U. S. 51.
I think there is no error in the judgment of the Superior Court which calls for a new trial on any of the grounds stated in the appeal.