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These principles were applied by Judge Shipman in U. S. v. Riley, 5 Blatchf. 204, Fed. Cas. No. 16.164, and by Judge Cranch, upon an extended review of the authorities, in Stettinius v. U. S., 5 Cranch, C. C. 573, Fed. Cas. No. 13,387. They were also applied by Judge Jackson, in the district of West Vir ginia, in U. S. v. Keller, 19 Fed. 633, in which case it was said that although an acquittal in a criminal case was final, even if the jury arbitrarily disregarded the instructions of the court on the law of the case, a jury, in order to discharge its whole duty, must take the law from the court and apply it to the facts of the case.

England, near the close of the last century, the evidence, and determine all contested when the law of libel was under discussion in questions of fact. The responsibility of dethe courts and in parliament, it cannot be ciding correctly as to the law rests solely doubted that, if any decision, having the least with the court, and the responsibility of findweight, could have been produced in supporting correctly the facts rests solely with the of the general proposition that juries are judg- | jury." es of the law in criminal cases, it would then have been brought forward. I am not aware that any such was produced. And the decision of the king's bench in Rex v. Dean of St. Asaph, 3 Term R. 428, note, and the answers of the twelve judges to the questions propounded by the house of lords, assume, as a necessary postulate, what Lord Mansfield so clearly declares in terms, that, by the law of England, juries cannot rightfully decide a question of law. Passing over what was said by ardent partisans and eloquent counsel, it will be found that the great contest concerning what is known as 'Mr. Fox's Libel Bill' was carried on upon quite a different ground by its leading friends,-a ground which, while it admits that the jury are not to decide the law, denies that the libelous intent is matter of law, and asserts that it is so mixed with the fact that, under the general issue, it is for the jury to find it as a fact. 34 Ann. Reg. 170; 29 Parl. Deb. Such I understand to be the effect of that famous declaratory law. 32 Geo. III. c. 60. I conclude, then, that, when the constitution of the United States was founded, it was a settled rule of the common law that, in criminal as well as in civil cases, the court decided the law, and the jury the facts; and it cannot be doubted that this must have an important effect in determining what is meant by the constitution when it adopts a trial by jury."

That eminent jurist, whose retirement from judicial station has never ceased to be a matter of deep regret to the bench and bar of this country, closed his great opinion with an expression of a firm conviction that, under the constitution of the United States, Juries in criminal cases have not the right to decide any question of law, and that, in rendering a general verdict, their duty and their oath require them to apply to the facts, as they find them, the law given to them by the court. And in so declaring he substantially repeated what Chief Justice Marshall had said in Burr's Case.

Turning, now, to cases in the state courts, we find that in Com. v. Porter, 10 Metc. 263, 276, the supreme judicial court of Massachusetts, speaking by Chief Justice Shaw, delivering the unanimous judgment of the court composed of himself and Justices Wilde, Dewey, and Hubbard, held that it was a well-settled principle, lying at the foundation of jury trials, admitted and recognized ever since jury trial had been adopted as an established and settled mode of proceeding in courts of justice, that it was the proper province and duty of judges to consider and decide all questions of law, and the proper province and duty of the jury to decide all questions of fact. In the same case, the court, observing that the safety, efficiency, and purity of jury trial depend upon the steady maintenance and practical application of this principle, and adverting to the fact that a jury, in rendering a general verdict, must necessarily pass upon the whole issue, compounded of the law and of the fact, and thus incidentally pass on questions of law, said: "It is the duty of the court to instruct the jury on all questions of law which appear to arise in the cause, and also upon all questions, pertinent to the issue, upon which either party may request the direction of the court upon matters of law. And it is the duty of the jury to receive the law from the court, and to conform their judgment and decision to such instructions, as far as they understand them, In applying the law to the facts to be found by them; and it is not within the legitimate province of the jury to revise, reconsider, or decide contrary to such opinion or direction of the court in matter of law." Page 286.

In U. S. v. Greathouse, 4 Sawy. 457, 464, Fed. Cas. No. 15,254, which was an indictment for treason, Mr. Justice Field said: "There prevails a very general, but an erroneous, opinion that in all criminal cases the jury are the judges as well of the law as of the fact; that is, that they have the right to disregard the law as laid down by the court, and to follow their own notions on the subject. Such is not the right of the jury." "It is their duty to take the law from the court, and apply it to the facts of the case. It is the province of the court, and of the court alone, to determine all questions | Gray, 185, 193, 206, 208, 218, where Chief

of law arising in the progress of a trial; and it is the province of the jury to pass upon

Perhaps the fullest examination of the question upon principle, as well as upon authority, to be found in the decisions of any state court, was made in Com. v. Anthes, 5

Justice Shaw, speaking for a majority of the court, said that the true theory and funda

mental principle of the common law, both in its civil and criminal departments, was that the judges should adjudicate finally upon the whole question of law, and the jury upon the whole question of fact.

Considering, in the light of the authorities, the grounds upon which a verdict of guilty or not guilty, in a criminal case, was held, at common law, to be conclusive, he observed that though the jury had the power they had not the right to decide, that is, to adjudicate, on both law and evidence. He said: "The result of these several rules and principles is that, in practice, the verdict of a jury, both upon the law and the fact, is conclusive; because, from the nature of the proceeding, there is no judicial power by which the conclusion of law thus brought upon the record by that verdict can be reversed, set aside, or inquired into. A general verdict, either of conviction or acquittal, does embody and declare the result of both the law and the fact, and there is no mode of separating them on the record so as to ascertain whether the jury passed their judgment on the law, or only on the evidence. The law authorized them to adjudicate definitively on the evidence; the law presumes that they acted upon correct rules of law given them by the judge. The verdict, therefore, stands conclusive and unquestionable, in point both of law and fact. In a certain limited sense, therefore, it may be said that the jury have a power and a legal right to pass upon both the law and the fact. And this is sufficient to account for many and most of the dicta in which the proposition is stated. But it would be more accurate to state that it is the right of the jury to return a general verdict; this draws after it, as a necessary consequence, that they incidentally pass upon the law. But here, again, is the question, what is intended by 'passing upon the law'? I think it is by embracing it in their verdict, and thus bringing it upon the record, with their finding of the facts. But does it follow that they may rightfully and by authority of the common law, by which all are conscientiously bound to govern their conduct, proceed upon the same grounds and principles in the one case as the other? What the jury have a right to do, and what are the grounds and principles upon which they are in duty and conscience bound to act and govern themselves in the exercise of that right, are two very distinct questions. The latter is the one we have to deal with. Suppose they have a right to find a general verdict, and by that verdict to conclude the prosecutor in the matter of law, still it is an open and very different question whether, in making up that verdict and thereby embracing the law, they have the same right to exercise their own reason and judgment, against the statement of the law by the judge, to adjudicate on the law, as unquestionably they have on the fact. The affirmative of this

proposition is maintained by the defendant in this case, and by others in many of the cases before us. If I am right in the assumption that the judge is to adjudge the law, and the jury the fact, only, it furnishes the answer to this question to what extent the jury adjudicate the law; and it is that they receive authoritative directions from the court, and act in conformity with them, though by their verdict they thus embrace the law with the fact, which they may right. fully adjudicate."

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Alluding to the history of this question in England, and particularly, as did Mr. Justice Curtis, to the controversy in Rex v. Dean of St. Asaph, 3 Term R. 428, note, and which resulted in the passage by parliament, after the separation of this country from Great Britain, of the libel act (St. 32 Geo. III.), and observing that both parties to that controversy assumed the force and existence of the rule as the ancient rule of the common law, the court said: "The court and high prerogative party say judges answer to the law.c and jurors to the fact; the question of guilty or not, in the peculiar form of a criminal prosecution for libel, after the jury have found the fact of publication and truth of the innuendoes, is a question of law, and therefore must be declared exclusively by the court. The popular party, assuming the same major proposition, say the question of guilty or not is a question of fact, and can be found only by the jury. It appears to me, therefore, as I stated on the outset, that considering the course of the controversy, the earnestness and ability with which every point was contested, and the thorough examination of the ancient authorities, this concurrence of views on the point in question affords strong proof that, up to the period of our separation from England, the fundamental definition of trials by jury depended on the universal maxim, without an exception, 'Ad quaestionem facti respondent juratores, ad quaestionem juris respondent judices.'"

The Anthes Case, it may be observed, arose under a statute enacted in 1855, after the decision in the Porter Case. But the court held that that statute did not confer upon juries, in criminal trials, the power of determining questions of law against the instructions of the court. And the chief justice said-Justices Metcalf and Merrick concurring-that, if the statute could be so interpreted as to prescribe that the jury, consistently with their duty, may decide the law upon their judgment contrary to the decision and instruction of the court before whom the trial was had, such enactment would be beyond the scope of legitimate legislative power, repugnant to the constitution, and, of course, inoperative and void. See, also, Com. v. Rock, 10 Gray, 4, where the doctrines announced in Com. v. Anthes were reaffirmed, no one of the members of the court expressing a dissent.

This question was also fully considered in Montee v. Com., 3 J. J. Marsh. 132, 149, 151, in which case Chief Justice Robertson said: "The circuit judge would be a cipher, and a criminal trial before him a farce, if he had no right to decide all questions of law which might arise in the progress of the case. The jury are the exclusive judges of the facts. In this particular they cannot be controlled, and ought not to be instructed, by the court. They are also, ex necessitate, the ultimate judges, in one respect, of the law. If they acquit, the judge cannot grant a new trial, how much soever they have misconceived or disregarded the law." "If the court had no right to decide on the law, error, confusion, uncertainty, and licentiousness would characterize the criminal trials; and the safety of the accused might be as much endangered as the stability of public justice would certainly be." In Pierce v. State, 13 N. H. 536, 554, it was held to be inconsistent with the spirit of the constitution that questions of law, and, still less, questions of constitutional law, should be decided by the verdict of the jury, contrary to the instructions of the court.

In Duffy v. People, 26 N. Y. 588, 591, Judge Selden, speaking for the court of appeals of New York, said: "The unquestionable power of juries to find general verdicts, involving both law and fact, furnishes the foundation for the opinion that they are judges of the law as well as of the fact, and gives some plausibility to that opinion. They are not, however, compelled to decide legal questions; having the right to find special verdicts, giving the facts, and leaving the legal conclusions which result from such facts to the court. When they find general verdicts, I think it is their duty to be governed by the instructions of the court as to all legal questions involved in such verdicts. They have the power to do otherwise, but the exercise of such power cannot be regarded as rightful, although the law has provided no means, in criminal cases, of reviewing their decisions, whether of law or fact, or of ascertaining the grounds upon which their verdicts are based." See, also, People v. Finnegan, 1 Parker, Cr. R. 147, 152; Safford v. People, Id. 474, 480.

So, in Hamilton v. People, 29 Mich. 173, 192, Mr. Justice Campbell, as the organ of the court, said: "We understand the uniform practice and the decided weight of opinion to require that the judge give his views of the law to the jury as authority, and not as a matter to be submitted to their review." And in People v. Anderson, 44 Cal. 65, 70: "In this state it is so well settled as no longer to be open to debate that it is the duty of a jury, in a criminal case, to take the law from the court."

*The principle was accurately stated by Chief Justice Ames, speaking for the supreme court of Rhode Island, when he said: "The line between the duties of a court and jury in the trial of causes at law, both civil and

criminal, is perfectly well defined; and the rigid observance of it is of the last importance to the administration of systematic justice. Whilst, on the one hand, the jury are the sole, ultimate judges of the facts, they are, on the other, to receive the law applicable to the case before them solely from the publicly given instructions of the court. In this way, court and jury are made responsible, each in its appropriate department, for the part taken by each in the trial and decision of causes; and in this way alone can errors of fact and errors of law be traced, for the purpose of correction, to their proper sources. If the jury can receive the law of a case on trial in any other mode than from the instructions of the court, given in the presence of parties and counsel, how are their errors of law, with any certainty, to be detected, and how, with any certainty, therefore, to be corrected? It is a statute right of parties here-following, too, the ancient course of the common law-to have the law given by the court, in their presence, to the jury, to guide their decision, in order that every error in matter of law may be known and corrected." State v. Smith, 6 R. I. 33, 34.

In Pennsylvania, in the case of Com. v. Sherry (reported in the appendix to Wharton's treatise on Homicide), Judge Rogers, a jurist of high reputation, thus charged the jury in a capital case: "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, no matter how entirely your verdict may have been in opposition to the views expressed by the court. 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 pow er to do so, against the law laid down by the court. For your part, your duty is to receive the law, for the purposes of this trial, from the court. If an error injurious to the prisoner occurs, it will be rectified by the revision of the court in banc. But an error resulting from either a conviction or acquittal, against the law, can never be rectified. In the first case, an unnecessary stigma is affixed to the character of a man who was not guilty of the offense with which he is charged. In the second case, a serious injury is effected by the arbitrary and irremediable discharge of a guilty man. 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." About the same time, Judge Sergeant charged a jury: "The point, if you believe the evidence on both sides, is one of law, on which it is your duty to receive the instructions of the court.

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you believe the evidence in the whole case, you must find the defendant guilty." Com. v. Van Sickle, Brightly (Pa.) 73. To the same effect, substantially, was the language of Chief Justice Gibson, who, when closing a charge in a capital case, said, "If the evidence on these points fail the prisoner, the conclusion of his guilt will be irresistible, and it will be your duty to draw it." Com. v. Harman, 4 Pa. St. 269. In a more recent case (Kane v. Com., 89 Pa. St. 522), Sharswood, C. J., said that the power of the jury to judge of the law in a criminal case was one of the most valuable securities guarantied by the bill of rights of Pennsylvania. | But in a later case, Nicholson v. Com., 96 Pa. St. 505, it was said: "The court had an undoubted right to instruct the jury as to the law, and to warn them as they did against finding contrary to it. This is very different from telling them that they must find the defendant guilty, which is what is meant by a binding instruction in criminal cases." In Com. v. McManus, 143 Pa. St. 64, 85, 21 Atl. 1018, and 22 Atl. 761, it was adjudged that the statement by the court was the best evidence of the law within the reach of the jury, and that the jury should be guided by what the court said as to the law. And this view the court, speaking by Chief Justice Paxson, said was in harmony with Kane v. Com.

The question has recently been examined by the supreme court of Vermont, and after an elaborate review of the authorities, English and American, that court, by a unanimous judgment,-overruling State v. Croteau, 23 Vt. 14, and all the previous cases which had followed that case,-said: "We are thus led to the conclusion that the doctrine that jurors are the judges of the law in criminal cases is untenable; that it is contrary to the fundamental maxims of the common law from which it is claimed to take its origin; contrary to the uniform practice and decisions of the courts of Great Britain, where our jury system had its beginning, and where it matured; contrary to the great weight of authority in this country; contrary to the spirit and meaning of the constitution of the United States; repugnant to the constitution of this state; repugnant to our statute relative to the reservation of questions of law in criminal cases, and passing the same to the supreme court for final decision." State v. Burpee, 65 Vt. 1, 34, 25 Atl. 964.

These principles are supported by a very large number of adjudications, as will be seen by an examination of the cases cited in margin.2

2 People v. Wright, 93 Cal. 564, 29 Pac. 240; Brown v. Com., 87 Va. 215, 12 S. E. 472; People v. Barry, 90 Cal. 41, 27 Pac. 62; People v. Madden, 76 Cal. 521, 18 Pac. 402; State v. Jeandell, 5 Har. (Del.) 475; State v. Wright, 53 Me. 328; Com. v. Van Tuyl, 1 Metc. (Ky.) 1; Montgomery v. State, 11 Ohio, 427; Adams v. State, 29 Ohio St. 412; Robbins v. State, 8

To the same purport are the text writers. "In theory, therefore," says Judge Cooley, "the rule of law would seem to be that it is the duty of the jury to receive and follow the law as delivered to them by the court; and such is the clear weight of authority." Const. Lim. 323, 324. Greenleaf, in his treattise on the Law of Evidence, says: "In trials by jury, it is the province of the presiding judge to determine all questions on the admissibility of evidence to the jury, as well as to instruct them in the rules of law by which it is to be weighed. Whether there be any evidence or not is a question for the judge; whether it is sufficient evidence is a question for the jury." "Where the ques tion is mixed, consisting of law and fact, so intimately blended as not to be easily susceptible of separate decision, it is submitted to the jury, who are first instructed by the judge in the principles and rules of law by which they are to be governed in finding a verdict, and these instructions they are bound to follow." Volume 1, § 49. kie, in his treatise on Evidence, observes, "Where the jury find a general verdict they are bound to apply the law as delivered by the court, in criminal as well as civil cases." Page 816. So, in Phillips on Evidence: "They [the jury] are not in general, either in civil or criminal cases, judges of the law. They are bound to find the law as it is propounded to them by the court. They may, indeed, find a general verdict, including both law and fact; but if, in such verdict, they find the law contrary to the instructions of the court, they thereby violate their oath." 4 Cowen & Hill's Notes (3d Ed.) p. 2. See, also, 1 Tayl. Ev. §§ 21-24; 1 Best, Ev. (Morgan's Ed.) § 82.

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In 1 Cr. Law Mag. 51, will be found a valuable note to the case of Kane v. Com., prepared by Mr. Wharton, in which the authorities are fully examined, and in which he says: "It would be absurd to say that the determination of the law belongs to the jury, not court, if the court has power to set aside that which the jury determines. We must hold, to enable us to avoid the inconsistency, that, subject to the qualification that all acquittals are final, the law in criminal cases is to be determined by the court. In this way we have our liberties and rights determined, not by an irresponsible, but by a responsible, tribunal; not by a tribunal ig

Ohio St. 131, 167; Williams v. State, 32 Miss. 389, 396; Pleasant v. State, 13 Ark. 360, 372; Robinson v. State, 66 Ga. 517; Brown v. State, 40 Ga. 689, 695; Hunt v. State (Ga.) 7 S. E. 142; State v. Drawdy, 14 Rich. Law, 87; Nels v. Republic, 2 Tex. 280; Myers v. State, 33 Tex. 525; State v. Jones, 64 Mo. 391; Hardy v. State, 7 Mo. 607; State v. Elwood, 73 N. C. 189; State v. McLain, 104 N. C. 894, 10 S. E. 518; People v. Neumann, 85 Mich. 98, 48 N. W. 290; State v. Johnson, 30 La. Ann. pt. 1, p. 904; State v. Ford, 37 La. Ann. 443, 465; Fisher v. Railway Co., 131 Pa. St. 292, 297, 18 Atl. 1016; Railway Co. v. Hutchinson, 40 Kan. 51, 19 Pac. 312.

norant of the law, but by a tribunal trained to and disciplined by the law; not by an irreversible tribunal, but by a reversible tribunal; not by a tribunal which makes its own law, but by a tribunal that obeys the law as made. In this way we maintain two fundamental maxims. The first is that, while to facts answer juries, to the law answers the court. The second, which is still more important, is 'Nullum crimen, nulla poena, sine lege.' Unless there be a viola tion of law preannounced, and this by a constant and responsible tribunal, there is no crime, and can be no punishment." 1 Cr. Law Mag. 56. The same author, in his treatise on Pleading and Practice, concludes his examination of the question in these words: "The conclusion we must therefore accept is that the jury are no more judges of law in criminal than in civil cases, with the qualification that, owing to the peculiar doctrine of autrefois acquit, a criminal acquitted cannot be overhauled by the court. In the federal courts such is now the established rule." Sections 809, 810.

Forsyth, in his History of Trial by Jury,a work of merit,-discusses the doctrine advanced by some that the jury were entitled in all cases, where no special pleas have been put on the record, to give a general verdict according to their own views of the law, in criminal as well as in civil cases. He says: "It is impossible to uphold the doctrine. It is founded on a confusion between the ideas of power and right." "Indeed, it is difficult to understand how any one acquainted with the principles and settled practice of the English law can assert that it sanctions the doctrine which is here combated." Again: "The distinction between the province of the judge and that of the jury is, in the English law, clearly defined, and observed with jealous accuracy. The jury must in all cases determine the value and effect of evidence which is submitted to them. They must decide what degree of credit is to be given to a witness, and hold the balance between conflicting probabilities. The law throws upon them the whole responsibility of ascertaining facts in dispute, and the judge does not attempt to interfere with the exercise of their unfettered discretion in this respect. But, on the other hand, the judge has his peculiar duty in the conduct of a trial. He must determine whether the kind of evidence offered is such as ought or ought not to be submitted to the jury, and what liabilities it imposes. When any questions of law arise, he alone determines them, and their consideration is absolutely withdrawn from the jury, who must in such cases follow the direction of the judge; or if they perversely refuse to do so, their verdict (in civil cases) will be set aside, and a new trial granted." Pages 235, 236 (Morgan's Ed.).

Worthington, in his Inquiry into the Power of Juries, an English work published in 1825, and often cited in the adjudged cases, says:

"Were they [the jury] permitted to decide the law, the principles of justice would be subverted; the law would become as variable as the prejudices, the inclinations, and the passions of men. If they could legally decide upon questions of law, their decision must, of necessity, be final and conclusive, which would involve an absurdity in all judicial proceedings, and would be contradictory to the fundamental principles of our jurisprudence." "The jury, when called upon to decide facts which are complicated with law, are therefore constitutionally, and must be, from the nature and intention of the institution, bound to seek and to obey the direction of the judge with respect to the law. It becomes their duty to apply to the law thus explained to them the facts (which it is their exclusive province to find), and thus they deliver a verdict compounded of law and fact, but they do not determine or decide upon the law in any case." Pages 193, 194.

Judge Thompson, in his work on Trials (sections 1016, 1017), thus states the principles: "The judge decides questions of law; the jury, questions of fact." So, in Proff. Jury, § 375: "The preponderance of judicial authority in this country is in favor of the doctrine that the jury should take the law from the court, and apply it to the evidence under its direction."

The language of some judges and statesmen in the early history of the country, implying that the jury were entitled to disregard the law as expounded by the court, is perhaps to be explained by the fact that "in many of the states the arbitrary temper of the colonial judges, holding office directly from the crown, had made the independence of the jury, in law as well as in fact, of much popular importance." Whart.*Cr. Pl. (8th Ed.) § 806;Williams v. State, 32 Miss. 389, 396.

Notwithstanding the declarations of eminent jurists and of numerous courts, as disclosed in the authorities cited, it is sometimes confidently asserted that they all erred when adjudging that the rule at common law was that the jury, in criminal cases, could not properly disregard the law as given by the court. We are of opinion that the law in England at the date of our separation from that country was as declared in the authorities we have cited. The contrary view rests, as we think, in large part, upon expressions of certain judges and writers, enforcing the principle that when the question is compounded of law and fact a general verdict, ex necessitate, disposes of the case in hand, both as to law and fact. That is what Lord Somers meant when he said in his essay on "The Security of Englishmen's Lives, or the Trust, Power, and Duty of the Grand Juries of England," that jurors only "are the judges from whose sentence the indicted are to expect life or death," and that, "by finding guilty or not guilty, they do complicately resolve both law and fact." In the speeches of many statesmen and in the utterances of many jurists

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