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(2 Chase's
Trial, Appendix 1.)

In the answer of Judge Chase to articles of impeachment against
him, he says:

He well knows that it is the right of juries, in criminal
cases, to give a general verdict of acquittal, which can not
be set aside on account of its being contrary to law, and
that hence results the power of juries to decide on the law
as well as on the facts in all criminal cases. This power he
holds to be a sacred part of our legal privileges, which he
has never attempted, and never will attempt to abridge or
obstruct. (1 Chase's Trial, pp. 5, 34, 35.)

In Georgia _vs._ Brailsford, 3 Dallas, 4, in 1794, Chief-Justice
Jay charged the jury as follows:

It may not be amiss here, gentlemen, to remind you of the
good old rule, that on questions of fact it is the province
of the jury, on questions of law it is the province of the
court, to decide. But it must be observed that by the same
law which recognizes this reasonable distribution of
jurisdiction, you have, nevertheless, a right to take upon
yourselves to judge of both, and to determine the law as
well as the fact in controversy. On this, and on every other
occasion, however, we have no doubt you will pay that
respect which is due to the opinion of the court; for as, on
the one hand, it is presumed that juries are the best judges
of facts, it is, on the other hand, presumable that the
court are the best judges of law. But still both objects are
lawfully within your power of decision.

This charge was delivered in a jury trial, at the bar of the
Supreme Court, and expressed the unanimous opinion of the judges
of that court, and that, too, in a civil cause. The decision in
Georgia _vs._ Brailsford has never been expressly overruled by
that court; although the practice in civil causes is for the
court to direct a verdict where there is no conflict in regard to
the testimony. In Beavans _vs._ The United States, 13 Wall, 56,
which was an action _ex contractu_, on a receiver's bond, the
court says:

The objection that the jury was instructed to find for the
plaintiffs the amount claimed by the papers given in
evidence (viz, the official settlements), with interest
thereon, is entirely without merit. There was no evidence to
impeach the accounts stated, or to show set-off, release, or
payment. The instruction was, therefore, in accordance with
the legal effect of the evidence, and there were no disputed
facts upon which the jury could pass.

An act of Congress declares that the papers of official
settlement shall be _prima facie_ evidence of the condition of
the accounts. No testimony was offered in this case to impeach
that statement. There was, therefore, no fact in issue; and the
instruction of the court to find a verdict for the plaintiff was,
in substance, ruling upon matters of law only. And the Supreme
Court, in their opinion, recognize, and merely recognize, the
practice which now obtains universally in the trial of civil
causes. And, although it is inconsistent with Georgia _vs._
Brailsford, and substantially overrules it, it does not impair
the value of the decision in that case, as showing the
understanding of the profession and the courts about the time of
the adoption of the Constitution.

In United States _vs._ Wilson (1 Bald., 108), the jury were
instructed as follows:

We have thus 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 case, 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. At the same
time, it is our duty to say that it is in perfect accordance
with the spirit of our legal institutions that the courts
should decide questions of law, and the juries of facts. The
nature of the tribunals naturally leads to this division of
powers; and it is better, for the sake of public justice,
that it should be so. When the law is settled by a court
there is more certainty than when done by a jury. It will be
better known and more respected in public opinion. But if
you are prepared to say that the law is different from what
you have heard from us, you are in the exercise of a
constitutional right to do so.

In United States _vs._ Porter (1 Bald., 108), the doctrine was
stated more guardedly, as follows:

In repeating what was said on a former occasion to another
jury, that you have the power to decide on the law as well
as the facts of this case, and are not bound to find
according to our opinion of the law, we feel ourselves
constrained to make some explanations not then deemed
necessary, but now called for from the course of the
defense.

You may find a general verdict of guilty or not guilty as
you think proper, or may find the facts specially, and leave
the guilt or innocence of the prisoner to the judgment of
the court. If your verdict acquits the prisoner, we can not
grant a new trial, however much we may differ with you as to
the law which governs the case; and, in this respect, a jury
are the judges of law if they choose to become so.

In Farmer's trial before the Supreme Court of the State of New
Hampshire in 1821, the Chief-Justice, speaking for the whole
court, told the jury that they were the judges both of the law
and the fact; that

It was the duty of the court to give them proper
instructions and to aid them in forming a correct opinion as
to the law applicable to the case. But if, contrary to his
intentions, any expression should escape him which might
seem to indicate any opinion as to the facts, they must
disregard it; their verdict ought to be according to their
own opinion as to the prisoner's guilt or innocence. (See
Farmer's Trial, p. 68.)

In the trial of William S. Smith for misdemeanor, in the Circuit
Court of the United States for the State of New York, in July,
1806, the jury were instructed as follows:

You have heard much said upon the right of a jury to judge
of the law as well as the fact. Be assured that on this
occasion there is not the least desire to abridge those
rights. I am an advocate for the independence of the jury.
It is the basis of civil liberty; and in this country, I
trust, will ever be a sacred bulwark against oppression and
encroachment upon political freedom. The law is now settled
that this right appertains to a jury in all criminal cases.

On the trial of John Hodges for high treason, before the Circuit
Court of the United States for the District of Maryland, in 1815,
the Court charged the jury as follows:

The court said they were bound to declare the law whenever
they were called upon, in civil or criminal cases. In the
latter, however, it was also their duty to inform the jury
that they were not obliged to take their direction as to the
law. (Hodge's Trial, p. 20.)

The elementary writers declare the same principle. Blackstone, 4
Comm., 361, says:

And such public or open verdict may be either general
(guilty or not guilty) or special, setting forth all the
circumstances of the case, and praying the judgment of the
court, whether, for instance, on the facts stated, it be
murder, manslaughter, or no crime at all. This is where they
doubt the matter of the law, and therefore choose to leave
it to the determination of the court; though they have an
unquestionable right of determining upon all the
circumstances and finding a general verdict, if they think
proper so to hazard a breach of their oaths; and, if their
verdict be notoriously wrong, they may be punished and the
verdict set aside by attaint at the suit of the King, but
not at the suit of the prisoner. But the practice heretofore
in use of fining, imprisoning, or otherwise punishing
jurors, merely at the discretion of the court, for finding
their verdict contrary to the direction of the Judge, was
arbitrary, unconstitutional, and illegal, and is treated as
such by Sir Thomas Smith two hundred years ago, who
accounted "such doings to be very violent, tyrannical, and
contrary to the liberty and custom of the realm of England."
For, as Sir Matthew Hale well observes, it would be a most
unhappy case for the Judge himself if the prisoner's fate
depended upon his directions; unhappy also for the prisoner,
for, if the Judge's opinion must rule the verdict, the trial
by jury would be useless. Yet, in many instances where
contrary to evidence the jury have found the prisoner
guilty, their verdict hath been mercifully set aside and a
new trial granted by the court of King's Bench; for in such
case, as hath been said, it can not be set right by attaint.
But there hath been yet no instance of granting a new trial
where the prisoner was acquitted upon the first.

In Wilson's Lectures, Vol.



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