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This is a
proposition so well settled by judicial determination that I
shall spend no time upon it beyond citing the following
authorities: Norval _vs._ Rice, 2 Wis., 22; May _vs._ R. R. Co.,
3 Wis., 219; Byers & Davis _vs._ Com., 42 Penn. St., 89; United
States _vs._ Lorenzo Dow, Taney Decis., 35; Lamb _et al._ _vs._
Lane, 4 Ohio Stat., 167.

Therefore, if it can be shown that, at the time the Constitution
was adopted, it was well settled that the jury in a criminal
cause might find a general verdict, including both law and fact,
then this right is secured to juries in the Federal courts by the
Constitution itself; and not even an act of Congress could take
it away. What the law was at that time, is mere matter of
historical inquiry, wholly different from another question, which
is so often mistaken for it, whether juries ought to possess the
right.

What, then, was the law upon this subject when the Constitution
was adopted? Mr. Hargrave, in one of his annotations upon Lord
Coke's first Institute, declares that, inasmuch as the jury may,
as often as they think fit, find a general verdict, it was
unquestionable that they might so far decide upon the law as well
as fact, such a verdict necessarily involving both.

In this opinion, says Mr. Hargrave, I have the authority of
Littleton himself, who writes, "that if the inquest will
take upon them the knowledge of the law upon the matter,
they may give their verdict generally."

In People _vs._ Croswell, 3 Johnson's Cases, 336, Chief-Justice
Kent reviewed all the preceding authorities with great care, and
discussed the philosophy of the doctrine under consideration,
with the ability which characterizes his most celebrated
opinions; and his decision in this case stands to this day as one
of the landmarks upon this subject. After reciting the
authorities, he says:

To meet and resist directly this stream of authority is
impossible. But while the power of the jury is admitted, it
is denied that they can rightfully or lawfully exercise it
without compromitting their consciences, and that they are
bound implicitly in all cases to receive the law from the
court. The law must, however, have intended, in granting
this power to a jury, to grant them a lawful and rightful
power, or it would have provided a remedy against the undue
exercise of it. The true criterion of a legal power is its
capacity to produce a definitive effect, liable to neither
censure nor review. And the verdict of not guilty in a
criminal case is, in every respect, absolute and final. The
jury are not liable to punishment, nor the verdict to
control. No attaint lies, nor can a new trial be awarded.
The exercise of this power in the jury has been sanctioned
and upheld in constant activity from the earliest ages. It
was made a question by Bracton (fol. 119, a. b.), who was to
sit in judgment and decide upon points of law on appeals in
capital cases. It could not be the king, he says, for then
he would be both prosecutor and judge; nor his justices, for
they represented him. He thinks, therefore, the _curia_ and
_pares_ were to be judges in all cases of life and limb, or
disherison of heir, where the crown was the prosecutor. And,
indeed, it is probable that in the earliest stages of the
English juridical history the jury, instead of deciding
causes under the direction of the judge, decided all causes
without the assistance of the judge. (Barrington on the
Statutes, 18, 26, 311.)

He then proceeds to review the trial of Lilburn for high treason
in 1549; Bushell's case, Vaughan, 135, and Sir T. Jones, 113;
Algernon Sidney's case, 3 State Trials, 817; Tuchin's case, 5
State Trials, 542, and other cases. Again, he says:

To deny to the jury the right of judging of the intent and
tendency of the act, is to take away the substance, and with
it the value and security of this mode of trial. It is to
transfer the exclusive cognizance of crimes from the jury to
the court, and to give the judge the absolute control of the
press. There is nothing peculiar in the law of libels to
withdraw it from the jurisdiction of the jury. The twelve
judges in their opinion in the House of Lords (April, 1792),
admitted that the general criminal law of England was the
law of libel. And by the general criminal law of England,
the office of the jury is judicial. "They only are the
judges," as Lord Somers observes (Essay on the Power and
Duty of Grand Juries, p. 7), "from whose sentence the
indicted are to expect life or death. Upon their integrity
and understanding the lives of all that are brought into
judgment do ultimately depend. From their verdict there lies
no appeal. They resolve both law and fact, and this has
always been their practice."

And, after referring to the case of Franklin, and other cases
holding a contrary doctrine, he denounces them as innovations,
and adding that the subject underwent a patient investigation and
severe scrutiny upon principle and precedent in Parliament, says:

And a bill declaratory of the right of the jury to give a
general verdict upon the whole matter put in issue, without
being required or directed to find the defendant guilty
merely on the proof of publication and the truth of the
innuendoes, was at length agreed to, and passed with
uncommon unanimity. It is entitled "An act to remove doubts
respecting the functions of juries in cases of libel"; and,
although I admit that a declaratory statute is not to be
received as conclusive evidence of the common law, yet it
must be considered as a very respectable authority in the
case, and especially as the circumstances attending the
passage of this bill reflect the highest honor on the
moderation, the good sense, and the free and independent
spirit of the British Parliament.

And again he says: The result, from this view, is, to my
mind, a firm conviction that this court is not bound by the
decisions of Lord Raymond and his successors. By withdrawing
from the jury the consideration of the essence of the
charge, they render their function nugatory and
contemptible. Those opinions are repugnant to the more
ancient authorities which had given to the jury the power,
and with it the right, to judge of the law and the fact,
when they were blended by the issue, and which rendered
their decisions, in criminal cases, final and conclusive.
The English bar steadily resisted those decisions as
usurpations on the rights of the jury. Some of the judges
treated the doctrine as erroneous, and the Parliament at
last declared it an innovation by restoring the trial by
jury, in cases of libel, to that ancient vigor and
independence by which it had grown so precious to the nation
as the guardian of liberty and life, against the power of
the court, the vindictive persecution of the prosecutor, and
the oppression of the government.

This celebrated opinion may safely be relied upon as a correct
statement of the law as it stood when it was delivered in 1804.
But still more conclusive authority remains to be considered. The
sedition act of 1798, after defining what should be a criminal
libel, and declaring that the defendant might give the truth of
the matter in evidence, provides as follows:

And the jury who shall try the cause shall have a right to
determine the law and the fact, under the direction of the
court, as in other cases. (1 Stat. at L., 507.)

The language of this act, "as in other cases," recognizes the
right here contended for. In the celebrated Callender trial, in
1800, which was a prosecution under this statute, Mr. Justice
Chase, whose general bearing was so unfriendly to the defendant
as to secure his impeachment by the House of Representatives,
admitted this right of the jury. He said:

We all know that juries have the right to decide the law as
well as the fact. (Wharton's State Trials, 710.) And again
he says:

I admit that the jury are to compare the statute with the
facts proved, and then to decide whether the acts done are
prohibited by the law, and whether they amount to the
offense described in the indictment. (_Ib._, p. 713.)

Though, with seeming want of logic, he held that the jury could
not decide whether the statute was constitutional or not. But the
full admission that the jury were judges of the law as well as
the fact, shows the general understanding upon this subject,
though the judge may have erred in applying the principle in the
case before him. In Fries's case, who was tried for treason,
1799-1800, the jury were instructed by Judge Peters as follows:

It is the duty of the court to declare the law; though both
facts and law, which, I fear, are too plain to admit a
reasonable doubt, are subject to your consideration.
(Wharton's State Trials, 587.)

And, in the second trial of Fries, Judge Chase instructed the
jury as follows:

It is the duty of the court in this case, and in all
criminal cases, to state to the jury their opinion of the
law arising on the facts; but the jury are to decide in the
present, and in all criminal cases, both the law and the
facts, on their consideration of the whole case.



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