Sparf & Hansen v. U S, 156 U.S. 51 (1895)



Mr. Justice GRAY, with whom concurred Mr. Justice SHIRAS, dissenting.



Mr. Justice SHIRAS and myself concur in so much of the opinion of the 

majority of the court as awards a new trial to one of the defendants by 

reason of the admission in evidence against him of confessions made in his 

absence by the other.



But from the greater part of that opinion, and from the affirmance of the 

conviction of the other defendant, we are compelled to dissent, because, in 

our judgment, the case, involving the question of life or death to the 

prisoners, was not submitted to the decision of the jury as required by the 

constitution and laws of the United States.



The two defendants, Herman Sparf and Hans Hansen, together with Thomas St. 

Clair, seamen on board the brig Hesper, an American vessel, were indicted 

for the murder of Maurice Fitzgerald, the second mate, on the high seas, on 

January 13, 1893, by striking him with a weapon, and by throwing him 

overboard and drowning him.



St. Clair was separately tried, convicted, and sentenced, and his conviction 

was affirmed by this court at the last term. 154 U.S. 134, 14 Sup. Ct. 1002. 

At the trial of Sparf and Hansen, there was no direct testimony of any 

eyewitness to the killing, or to any assault or affray. There was evidence 

that at 10 o'clock in the evening of the day in question the second mate was 

at the wheel, in charge of the starboard watch, consisting of St. Clair, 

Sparf, Hansen, and another seaman; and that, when the watch was changed at 

midnight, the second mate could not be found, and there was much blood on 

the deck, as well as a bloody broomstick and a wooden bludgeon. The rest of 

the evidence consisted of testimony of other seamen to acts and statements 

of each defendant and of St. Clair, before and after the disappearance of 

the second mate, tending to prove a conspiracy to kill him; and to 

subsequent confessions of Hansen, tending to show that the killing was 

premeditated.



The judge, in his charge to the jury, gave the following instructions: 'The 

indictment is based upon section 5339 of the Revised Statutes, which 

provides, among other things, that 'every person who commits murder' 'upon 

the high seas, or in any arm of the sea, or in any river, haven, creek, 

basin or bay, within the admiralty and maritime jurisdiction of the United 

States, and out of the jurisdiction of any particular state, or who upon any 

of such waters maliciously strikes, stabs, wounds, poisons or shoots at any 

other person, of which striking, stabbing, wounding, poisoning or shooting 

such other person dies, either on land or at sea, within or without the 

United States, shall suffer death."



     'Murder is the unlawful killing of a human being in the peace of

     the state, with malice aforethought, express or implied.' 'Express

     malice' was defined as 'deliberate premeditation and design,

     formed in advance, to kill or to do bodily harm, the

     premeditation and design being implied from external

     circumstances capable of proof, such as lying in wait, antecedent

     threats, and concerted schemes against a victim'; and 'implied

     malice' as 'an inference of the law from any deliberate and cruel

     act committed by one person against another,' 'that is, malice is

     inferred when one kills another without provocation, or when the

     provocation is not great.' 'Manslaughter is the unlawful killing of

     a human being without malice, either express or implied. I do not

     consider it necessary, gentlemen, to explain it further; for, if a

     felonious homicide has been committed, -- of which you are to

     be the judges from the proof, -- there is nothing in this case to

     reduce it below the grade of murder.' 'Every person present at a

     murder, willingly aiding or abetting its perpetration, is guilty of

     murder, and may be indicted and convicted as principal in the

     first degree.' 'It is not my purpose, nor is it my function, to

     assume any fact to be proven, nor to suggest to you that any fact

     has been proven. You are the exclusive judges of the facts.' 



The defendants requested the judge to instruct the jury that 'under the 

indictment in this case the defendants may be convicted of murder or 

manslaughter or of an attempt to commit murder or manslaughter; and if, 

after a full and careful consideration of all the evidence before you, you 

believe beyond a reasonable doubt that the defendants are guilty either of 

manslaughter, or of an assault with intent to commit murder or manslaughter, 

you should so find your verdict.' The judge refused to give this 

instruction, and the defendants excepted to the refusal.



The jury, after deliberating on the case for some time, returned into court, 

and, being asked whether they had agreed upon a verdict, the foreman said 

that one of the jurors wished to be instructed upon certain points under the 

laws of the United States as to murder upon the high seas. One of the jurors 

then said that he 'would like to know, in regard to the interpretation of 

the laws of the United States in regard to manslaughter, as to whether the 

defendants can be found guilty of manslaughter, or that the defendants must 

be found guilty,' evidently meaning 'of murder,' the whole offense charged 

in the indictment. The judge then read again section 5339 of the Revised 

Statutes. The juror asked. 'Are the two words 'aiding' or 'abetting' 

defined?' The judge replied: 'The words 'aiding or abetting' are not 

defined. But I have instructed you as to the legal effect of aiding and 

abetting, and this you should accept as law. If I have made an error, there 

is a higher tribunal to correct it.' The juror said: 'I am the spokesman for 

two of us. We desire to clearly understand the matter. It is a barrier in 

our mind to our determining the matter. The question arising amongst us is 

as to aiding and abetting. Furthermore, as I understand, it must be one 

thing or the other. It must be either guilty or not guilty.' The judge 

replied: 'Yes, under the instructions I have given you.' The judge, then, 

after repeating the general definitions, as before given, of murder and of 

manslaughter, said: 'If a felonious homicide has been committed by either of 

the defendants, -- of which you are to be the judges from the proof, -- 

there is nothing in this case to reduce it below the grade of murder;' and 

in answer to further questions of the juror repeated this again and again, 

and said: 'In a proper case, it may be murder, or it may be manslaughter, 

but in this case it cannot properly be manslaughter.' The defendants 

excepted to these instructions. And finally, in answer to the juror's direct 

question, 'Then there is no other verdict we can bring in, except guilty or 

not guilty?' the judge said: 'In a proper case, a verdict for manslaughter 

may be rendered, as the district attorney has stated; and even in this case 

you have the physical power to do so; but, as one of the tribunals of the 

country, a jury is expected to be governed by law, and the law it should 

receive from the court.' The juror then said: 'There has been a 

misunderstanding amongst us. Now, it is clearly interpreted to us, and no 

doubt we can now agree on certain facts.' Thereupon a verdict of guilty of 

murder was returned against both defendants, and they were sentenced to 

death, and sued out this writ of error.



The judge, by instructing the jury that they were bound to accept the law as 

given to them by the court, denied their right to decide the law. And by 

instructing them that, if a felonious homicide by the defendants was proved, 

there was nothing in the case to reduce it below the grade of murder, and 

they could not properly find it to be manslaughter, and by declining to 

submit to them the question whether the defendants were guilty of 

manslaughter only, he denied their right to decide the fact. The colloquy 

between the judge and the jurors, when they came in for further 

instructions, clearly shows that the jury, after deliberating upon the case, 

were in doubt whether the crime which the defendants had committed was 

murder or manslaughter; and that it was solely by reason of these 

instructions of the judge that they returned a verdict of the higher crime.



It is our deep and settled conviction, confirmed by a re-examination of the 

authorities under the responsibility of taking part in the consideration and 

decision of the capital case now before the court, that the jury, upon the 

general issue of guilty or not guilty in a criminal case, have the right, as 

well as the power, to decide, according to their own judgment and 

consciences, all questions, whether of law or of fact, involved in that 

issue.



The question of the right of the jury to decide the law in criminal cases 

has been the subject of earnest and repeated controversy in England and 

America, and eminent jurists have differed in their conclusions upon the 

question. In this country, the opposing views have been fully and strongly 

set forth by Chancellor Kent in favor of the right of the jury, and by Chief 

Justice Lewis against it, in People v. Croswell, 3 Johns. Cas. 337; by Judge 

Hall in favor of the right, and by Judge Bennett against it, in State v. 

Croteau, 23 Vt. 14; and by Chief Justice Shaw against the right, and by Mr. 

Justice Thomas in its favor, in Com. v. Anthes, 5 Gray, 185.



The question of the right of the jury under the constitution of the United 

States cannot be usefully or satisfactorily discussed without examining and 

stating the authorities which bear upon the scope and effect of the 

provisions of the constitution regarding this subject. In pursuing this 

inquiry, it will be convenient to consider, first, the English authorities; 

secondly, the authorities in the several colonies and states of America; and 

lastly, the authorities under the national government of the United States.



By Magna Charta, no person could be taken or imprisoned or deprived of his 

freehold or of his liberties or free customs, unless by the lawful judgment 

of his peers, or the law of the land, -- 'nisi per legale judicium parium 

suorum, vel per legem terrae.' Accordingly, by the law of England, at the 

time of the discovery and settlement of this country by Englishmen, every 

subject (not a member of the house of lords) indicted for treason, murder, 

or other felony had the right to plead the general issue of not guilty, and 

thereupon to be tried by a jury; and, if they acquitted him the verdict of 

acquittal was conclusive, in his favor, of both the law and the fact 

involved in the issue. The jury, in any case, criminal or civil, might 

indeed, by finding a special verdict reciting the facts, refer a pure 

question of law to the court; but they were not bound and could not be 

compelled to do so, even in a civil action.



By the statute of 2 Westm. (13 Edw. I.) c. 30, 'it is ordained that the 

justices assigned to take assizes shall not compel the jurors to say 

precisely whether it be disseisin or not, so that they do shew the truth of 

the fact, and require aid of the justices; but, if they of their own head 

will say that it is or is not disseisin, their verdict shall be admitted at 

their own peril.' 1 St. Realm, 86. That statute, as Lord Coke tells us, was 

declaratory of the common law; and before its enactment some justices 

directed juries to return general verdicts, thus subjecting them to the 

peril of an attaint if they mistook the law. 2 Inst. 422, 425.



Littleton, speaking of civil actions in which the jury, upon the general 

issue pleaded, might return a special verdict, says that, 'if they will take 

upon them the knowledge of the law upon the matter, they may give their 

verdict generally, as is put in their charge.' Co. Litt. 368. And 

accordingly Lord Coke says: 'Although the jury, if they will take upon them 

(as Littleton here saith) the knowledge of the law, may give a general 

verdict, yet it is dangerous for them so to do; for, if they do mistake the 

law, they run into the danger of an attaint; therefore to find the special 

verdict is the safest, where the case is doubtful.' Co. Litt. 227b.



Lord Coke elsewhere says that 'the jury ought, if they will not find the 

special matter, to find 'at their peril' according to law.' Rawlyns' Case, 4 

Coke, 52a, 53b. And Lord Chief Justice Hobart says: 'Legally it will be hard 

to quit a jury that finds against the law, either common law or several 

statute law, whereof all men were to take knowledge, and whereupon verdict 

is to be given, whether any evidence be given to them or not,' and 'though 

no man informed them what the law was in that case.' Needler v. Bishop of 

Winchester, Hob. 220, 227.



The peril or danger, above spoken of, into which the jury ran by taking upon 

themselves the knowledge of the law, and undertaking to decide by a general 

verdict the law involved in the issue of fact submitted to them, was the 

peril of an attaint, upon which their verdict might be set aside and 

themselves punished. Upon the attaint, however, the trial was not by the 

court, but by a jury of twenty-four; it was only by a verdict of the second 

jury, and not by judgment of the court only, that the first verdict could be 

set aside; and, if not so set aside, the second verdict was final and 

conclusive. Co. Litt. 293a, 294b; Vin. Abr. 'Attaint,' A. (6); Com. Dig. 

'Attaint,' B. Moreover, no attaint lay in a criminal case. Bushell's Case, 

Vaughan, 135, 146; King v. Shipley, 4 Doug. 73, 115.



Lord Bacon, in his History of Henry VII. (originally written and published 

in English, and afterwards translated into Latin by himself or under his 

supervision), speaking of the parliament held in the eleventh year of his 

reign, says: 'This parliament also made that good law which gave the attaint 

upon a false verdict between party and party, which before was a kind of 

evangile, irremediable, -- in the Latin, judicia juratorum, quae veredicta 

vocantur, quae ante illud tempus evangelii cujusdam instar erant, atque 

plane irrevocabilia. It extends not to causes capital; as well because they 

are for the most part at the king's suit, as because in them, if they be 

followed in course of indictment, there passeth a double jury, the indictors 

and the triers, and so not twelve men, but four and twenty. But it seemeth 

that was not the only reason; for this reason holdeth not in the appeal, -- 

ubi causa capitalis a parte gravata peragitur. [That is, the appeal of 

murder, brought by the heir of the deceased. See Railroad v. Clarke, 152 

U.S. 230, 239, 14 S. Sup. Ct. 579.] But the great reason was, lest it should 

tend to the discouragement of jurors in cases of life and death, -- ne forte 

juratores in causis capitalibus timidius se gererent, -- if they should be 

subject to suit and penalty, where the favour of life maketh against them.' 

6 Bac. Works (Ed. 1858) 5, 7, 160, 161; 5 Bac. Works (Ed. 1803) 117; 9 Bac. 

Works, 483.



Lord Bacon was mistaken in assuming that the attaint was introduced by the 

statute of 11 Hen. VII. c. 24; for it existed at common law in writs of 

assize, and had been regulated and extended to other civil actions by many 

earlier statutes. 2 Inst. 130, 237, 427; Finch, Law, lib. 4, c. 47.



But the mistake does not diminish the force of Lord Bacon's statements that, 

wherever an attaint did not lie, the 'judgment of the jury, commonly called 

'verdict,' was considered as a kind of gospel'; and that the reasons why an 

attaint did not lie in a capital case were not only that two juries, the 

indictors and the triers, had passed upon the case, but chiefly that juries, 

in cases of life and death, should not be discouraged, or act timidly, by 

being subjected to suit and penalty if they decided in favor of life.



John Milton, in his Defence of the People of England, after speaking of the 

king's power in his courts and through his judges, adds: 'Nay, all the 

ordinary power is rather the people's, who determine all controversies 

themselves by juries of twelve men. And hence it is that when a malefactor 

is asked at his arraignment, 'How will you be tried?' he answers always, 

according to law and custom, 'By God and my country'; not by God and the 

king, or the king's deputy.' 8 Milton, Works (Pickering's Ed.) 198, 199, The 

idea is as old as Bracton. Bract. 119.



In the reign of Charles II. some judges undertook to instruct juries that 

they must take the law from the court, and to punish them if they returned a 

verdict in favor of the accused against the judge's instructions. But, as 

often as application was made to higher judicial authority, the punishments 

were set aside, and the rights of juries vindicated.



In 1665, upon the trial of an indictment against three Quakers for an 

unlawful conventicle. Wagstaffe and other jurors were fined by Chief Justice 

Kelyng for acquitting 'against full evidence, and against the direction of 

the court in matter of law, in said court openly given and declared,' -- 

'contra plenam evidentiam, et contra directionem curiae in materia legis, in 

dicta curia ibidem aperte datam et declaratam.' His reasons for this (as 

stated in his own manuscript note of the case, not included in the first 

edition of his Reports, published by Lord Holt in 1708) were 'that they and 

others may know that a willful jury cannot make an act of parliament or the 

law of England of no effect, but they are accountable and punishable for 

it'; and 'that in criminal cases the court may fine a jury who will give a 

verdict contrary to their evidence; and the reason (as I take it) is that 

otherwise a headstrong jury might overthrow all the course of justice, for 

no attaint lieth in criminal causes, and also one verdict is peremptory, and 

a new trial cannot be granted in criminal causes, and therefore the judges 

have always punished such willful juries by fine and imprisonment and 

binding them to their good behaviour.' But at the end of his report is this 

memorandum: 'Note. The whole Case of the Quakers, as to fining jury, now not 

law.' J. Kelyng (3d Ed.) 69-75. And Lord Hale, then chief baron, tells us 

that the jurors 'were thereupon committed, and brought their habeas corpus 

in the court of common bench, and all the judges of England were assembled 

to consider of the legality of this fine, and the imprisonment thereupon'; 

and the jurors were discharged of their imprisonment, for the following 

reasons:



     'It was agreed by all the judges of England (one only dissenting)

     that this fine was not legally set upon the jury, for they are the

     judges of matters of fact; and although it was inserted in the fine,

     that it was contra directionem curiae in materia legis, this

     mended not the matter, for it was impossible any matter of law

     could come in question till the matter of fact were settled and

     stated and agreed by the jury, and of such matter of fact they

     were the only competent judges. And although the witnesses

     might perchance swear the fact to the satisfaction of the court,

     yet the jury are judges, as well of the credibility of the witnesses

     as of the truth of the fact; for possibly they might know

     somewhat of their own knowledge that what was sworn was

     untrue, and possibly they might know the witnesses to be such

     as they could not believe, and it is the conscience of the jury that

     must pronounce the prisoner guilty or not guilty. And to say the

     truth, it were the most unhappy case that could be to the judge,

     if he at his peril must take upon him the guilt or innocence of the

     prisoner; and if the judge's opinion must rule the matter of fact,

     the trial by jury would be useless.' 2 Hale, P. C. 312, 313. 



Lord Hale's apparent meaning is that, at a trial upon the plea of not 

guilty, the jury are the judges of the issue of fact thereby presented, and 

it is the conscience of the jury that must pronounce the prisoner guilty or 

not guilty; that, as no matter of law can come in question unless the facts 

are first found by the jury in a special verdict, it were idle to say that a 

general verdict was against the judge's direction or opinion in matter of 

law; and that, if the judge's opinion in matter of law must rule the issue 

of fact submitted to the jury, the trial by jury would be useless.



The reasons are more fully brought out in Bushell's Case, in 1670, not 

mentioned in the text of Lord Hale's treatise, and doubtless decided after 

that was written. William Penn and William Mead having been indicted and 

tried for a similar offense, and acquitted against the instructions of the 

court, Bushell and the other jurors who tried them were fined by Sir John 

Howell, recorder of London, and Bushell was committed to prison, in like 

terms, for not paying his fine, and sued out a writ of habeas corpus. Penn 

and Mead's Case, 6 How. State Tr. 951; Bushell's Case, Vaughan, 135, 6 How. 

State Tr. 999; 1 Freem. 1; T. Jones, 13.



At the hearing thereon, Scroggs, the king's serjeant, argued: 'It is granted 

that, in matters of fact only, the jury are to be judges; but, when the 

matter of fact is mixed with matter of law, the law is to guide the fact, 

and they are to be guided by the court. The jury are at no inconvenience, 

for if they please they may find the special matter; but if they will take 

upon them to know the law, and do mistake, they are punishable.' 1 Freem. 3.



But Bushell was discharged from imprisonment, for reasons stated in the 

judgment delivered by Sir John Vaughan, chief justice of the common pleas, 

after a conference of all the judges of England, including Lord Hale, and 

with the concurrence of all except Chief Justice Kelyng. Vaughan, 144, 145; 

1 Freem. 5; Lord Holt in Groenvelt v. Burwell, 1 Ld. Raym. 454, 470.



In that great judgment, as reported by himself, Chief Justice Vaughan 

discussed separately the two parts of the return: First, that the acquittal 

was 'against full and manifest evidence'; and, second, that it was 'against 

the direction of the court in matter of law.'



It was in discussing the first part that he observed 'that the verdict of a 

jury and evidence of a witness are very different things, in the truth and 

falsehood of them. A witness swears but to what he hath heard or seen; 

generally or more largely, to what hath fallen under his senses. But a 

juryman swears to what he can infer and conclude from the testimony of such 

witnesses, by the act and force of his understanding, to be the fact 

inquired after, which differs nothing in the reason, though much in the 

punishment, from what a judge, out of various cases by him, infers to be the 

law in the question before him.' Vaughan, 142.



After disposing of that part of the return, he proceeds as follows: 'We come 

now to the next part of the return, viz.: That the jury acquitted those 

indicted against the direction of the court in matter of law, openly given 

and declared to them in court.



     'The words, 'that the jury did acquit, against the direction of the

     court in matter of law,' literally taken, and de plano, are

     insignificant, and not intelligible; for on issue can be joined of

     matter of law, no jury can be charged with the trial of matter in

     law barely, no evidence ever was or can be given to a jury of

     what is law or not, nor no such oath can be given to or taken by

     a jury to try matter in law, nor no attaint can lie for such a false

     oath. 'Therefore we must take off this vail and color of words,

     which make a show of being something, and in truth are nothing. 



     'If the meaning of these words, 'finding against the direction of

     the court in matter of law,' be that if the judge, having heard the

     evidence given in court (for he knows no other), shall tell the

     jury, upon this evidence, the law is for the plaintiff, or for the

     defendant, and you are under the pain of fine and imprisonment

     to find accordingly, then the jury ought of duty so to do. Every

     man sees that the jury is but a troublesome delay, great charge,

     and of no use in determining right and wrong, and therefore the

     trials by them may be better abolished than continued; which

     were a strange new-found conclusion, after a trial so celebrated

     for many hundreds of years. 



     'For if the judge, from the evidence, shall by his own judgment

     first resolve upon any trial what the fact is, and so knowing the

     fact shall then resolve what the law is, and order the jury penally

     to find accordingly, what either necessary or convenient use can

     be fancied of juries, or to continue trials by them at all? 



     'But if the jury be not obliged in all trials to follow such

     directions, if given, but only in some sort of trials (as, for

     instance, in trials for criminal matters upon indictments or

     appeals), why then the consequence will be, though not in all, yet

     in criminal trials, the jury (as of no material use) ought to be

     either omitted or abolished, which were the greater mischief to

     the people than to abolish them in civil trials. 



     'And how the jury should, in any other manner, according to the

     course of trials used, find against the direction of the court in

     matter of law, is really not conceptible.' Vaughan, 143, 144. 



He then observes: 'This is ordinary, when the jury find unexpectedly for the 

plaintiff or defendant, the judge will ask, how do you find such a fact in 

particular? and upon their answer he will say, then it is for the defendant, 

though they find for the plaintiff, or econtrario, contrario, and thereupon 

they rectify their verdict. And in these cases the jury, and not the judge, 

resolve and find what the fact is. Therefore always, in discreet and lawful 

assistance of the jury, the judge's direction is hypothetical, and upon 

supposition, and not positive and upon coercion, viz.: If you find the fact 

thus (leaving it to them what to find), then you are to find for the 

plaintiff; but if you find the fact thus, then it is for the defendant.' But 

he is careful to add that 'whatsover they have answered the judge upon an 

interlocutory question or discourse they may lawfully vary from it if they 

find cause, and are not thereby concluded.' Pages 144, 145.



It is difficult to exhibit the strength of Chief Justice Vaughan's reasoning 

by detached extracts from his opinion. But a few other passages are directly 

in point:



     'A man cannot see by another's eye, nor hear by another's ear;

     no more can a man conclude or infer the thing to be resolved by

     another's understanding or reasoning; and though the verdict be

     right the jury give, yet they, being not assured it is so from their

     own understanding, are forsworn, at least in foro conscientiae.'

     Page 148. 



     'That decantatum in our books, 'ad quaestionem facti non

     respondent judices, ad quaestionem legis non respondent

     juratores,' literally taken, is true; for if it be demanded, what is

     the fact? the judge cannot answer it; if it be asked, what is the

     law in the case? the jury cannot answer it.' He then explains this

     by showing that upon demurrers, special verdicts, or motions in

     arrest of judgment 'the jury inform the naked fact, and the court

     deliver the law.' 'But upon all general issues, as upon not

     culpable pleaded in trespass, nil debet in debt, nul tort, nul

     disseisin in assize, ne disturba pas in quare impedit, and the like,

     though it be matter of law whether the defendant be a

     trespasser, a debtor, disseisor, or disturber, in the particular

     cases in issue, yet the jury find not (as in a special verdict) the

     fact of every case by itself, leaving the law to the court, but find

     for the plaintiff or defendant upon the issue to be tried, wherein

     they resolve both law and fact complicately, and not the fact by

     itself; so as though they answer not singly to the question what is

     the law, yet they determine the law in all matters, where issue is

     joined and tried in the principal case, but [i. e. except] where the

     verdict is special.' Pages 149, 150. 



He then observes that 'to this purpose the Lord Hobart in Needler's Case 

against the Bishop of Winchester is very apposite,' citing the passage 

quoted near the beginning of this opinion; and concluded his main argument 

as follows: 



     'The legal verdict of the jury, to be recorded, is finding for the

     plaintiff or defendant; what they answer, if asked, to questions

     concerning some particular fact, is not of their verdict essentially,

     nor are they bound to agree in such particulars; if they all agree

     to find their issue for the plaintiff or defendant, they may differ in

     the motives wherefore [therefor], as well as judges, in giving

     judgment for the plaintiff or defendant, may differ in the reasons

     wherefore they give that judgment, which is very ordinary.' Page

     150. 



That judgment thus clearly appears to have been rested, not merely on the 

comparatively technical ground that upon the general issue no matter of law 

could come in question until the facts had been found by the jury, nor yet 

upon the old theory, that the jurors might have personal knowledge of some 

facts not appearing in evidence, but mainly on the broad reasons that if the 

jury, especially in criminal trials, were obliged to follow the directions 

of the court in matter of law, no necessary or convenient use could be found 

of juries, or to continue trials by them at all; that though the verdict of 

the jury be right according to the law as laid down by the court, yet, if 

they are not assured by their own understanding that it is so, they are 

forsworn, at least in foro conscientiae; and that the 'decantatum' in our 

books, 'ad questionem facti non respondent judices, ad quaestionem legis non 

respondent juratores,' means that issues of law, as upon demurrers, special 

verdicts, or motions in arrest of judgment, are to be decided by the court; 

but that upon general issues of fact, involving matter of law, the jury 

resolve both law and fact complicately, and so determine the law.



Notwithstanding that authoritative declaration of the right of the jury, 

upon the general issue, to determine the law, Chief Justice Scroggs, upon 

the trial of Harris for a seditions libel in 1680 (7 How. State Tr. 925, 

930), insisted that the jury must take the law from the court; and Chief 

Justice Jeffreys, presiding at the trial of Algernon Sidney in 1683, charged 

the jury as follows: 'It is our duty upon our oaths to declare the law to 

you, and you are bound to receive our declaration of the law, and upon this 

declaration to inquire whether there be a fact, sufficiently proved, to find 

the prisoner guilty of the high treason of which he stands indicted.' And 

Sidney was convicted, sentenced, and executed. 9 How. State Tr. 817, 889.



In the last year of the reign of James II., the Trial of the Seven Bishops, 

reported 12 How. State Tr. 183, took place upon an information for a 

seditious libel contained in their petition to the king, praying that he 

would be pleased not to insist on their distributing and reading in the 

churches his declaration dispensing with the penal statutes concerning the 

exercise of religion. The trial was at bar before all the justices of the 

king's bench, upon a general plea of not guilty. A principal ground of 

defense was that the king had no dispense was therefore the petition of the 

bishops to him was an innocent exercise of the right of petition, and was 

not a libel. In support of this defense, ancient acts of parliament were 

given in evidence; and, upon the offer of one in Norman French, the chief 

justice said, 'Read it in English, for the jury to understand it,' and it 

was so read by a sworn interpreter. Pages 374, 375. And, when the attorney 

general argued that these matters were not pertinent to the case, the chief 

justice, interrupting him, said: 'Yes, Mr. Attorney, I'll tell you what they 

offer, which it will lie upon you to give an answer to; they would have you 

show how this has disturbed the government, or diminished the king's 

authority.' Page 399.



At the close of the arguments, each of the four judges in turn charged the 

jury. Lord Chief Justice Wright said: 'The only question before me is, and 

so it is before you, gentlemen, it being a question of fact, whether here be 

a certain proof of a publication. And then the next question is a question 

of law, indeed, whether, if there be a publication proved, it be a libel.' 

'Now, gentlemen, anything that shall disturb the government, or make 

mischief and a stir among the people, is certainly within the case of 

libellus famosis; and I must, in short, give you my opinion. I do take it to 

be a libel. Now, this being a point of law, if my brothers have anything to 

say to it, I suppose they will deliver their opinions.'



Mr. Justice Holloway said: 'If you are satisfied there was an ill intention 

of sedition, or the like, you ought to find them guilty; but if there be 

nothing in the case that you find, but only that they did deliver a petition 

to save themselves harmless and to free themselves from blame, by showing 

the reason of their disobedience to the king's command, which they 

apprehended to be a grievance to them, and which they could not in 

conscience give obedience to, I cannot think it is a libel. It is left to 

you, gentlemen, but that is my opinion.'



Mr. Justice Powell also expressed his opinion that the paper was not a 

libel, and said: 'Now, gentlemen, the matter of it is before you; you are to 

consider of it, and it is worth your consideration.' He then expressed his 

opinion that the king had no dispensing power, and concluded: 'If this be 

once allowed of, there will need no parliament; all the legislation will be 

in the king, which is a thing worth considering, and I leave the issue to 

God and your consciences.'



Mr. Justice Allybone, after saying, 'The single question that falls to may 

share is, to give my sense of this petition, whether it shall be in 

construction of law a libel in itself, or a thing of great innocence,' 

expressed his opinion that it was a libel.



The jury, on retiring, requested, and were allowed by the court, to take 

with them the statute book, the information, the petition of the bishops, 

and the declaration of the king; and they returned a verdict of not guilty, 

whereat there was great popular rejoicing in London and throughout England. 

12 How. State Tr. 425-431; 1 Burnet's Own Time, 744.



It thus clearly appears that upon that trial, one of the most important in 

English history, deeply affecting the liberties of the people, the four 

judges of the king's bench, while differing among themselves upon the 

question whether the petition of the bishops was a libel, concurred in 

submitting that question, as a question of law, to the decision of the jury, 

not as umpires between those judges who thought the paper was a libel and 

those judges who thought it was not, but as the tribunal vested by the law 

of England with the power and the right of ultimately determining, as 

between the crown and the accused, all matters of law, as well as of fact, 

involved in the general issue of guilty or not guilty.



Upon the accession of William and Mary, parliament declared the king's power 

of dispensing with the laws to be unlawful; and reversed the conviction of 

Algernon Sidney, 'for a partial and unjust construction of the statute' of 

treasons in the instructions by which his conviction had been procured. St. 

1 W. & M. Sess. 2, c. 2; 6 St. Realm, 143, 155; 9 How. State Tr. 996. And 

early in the new reign Holt was appointed lord chief justice, and Somers 

lord keeper.



Lord Somers, in the opening pages of his essay on 'The Security of 

Englishmen's Lives. or the Trust, Power, and Duty of the Grand Juries of 

England' (first published in 1681, and republished in 1714, towards the end 

of his life, after he had been lord chancellor), lays down in the clearest 

terms the right of the jury to decide the law, saying: 'It is made a 

fundamental in our government that (unless it be by parliament) no man's 

life shall be touched for any crime whatsoever, save by the judgment of at 

least twenty-four men, -- that is, twelve or more, to find the bill of 

indictment, whether he be peer of the realm or commoner; and twelve peers or 

above, if a lord, if not, twelve commoners, to give the judgment upon the 

general issue of not guilty joined.' 'The office and power of these juries 

is judicial. They only are the judges 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. By finding guilty or not guilty they do 

complicately resolve both law and fact. As it hath been the law, so it hath 

always been the custom and practice, of these juries, upon all general 

issues, pleaded in cases, civil as well as criminal, to judge both of the 

law and fact.' 'Our ancestors were careful that all men of the like 

condition and quality, presumed to be sensible of each other's infirmity, 

should mutually be judges of each other's lives, and alternately taste of 

subjection and rule, every man being equally liable to be accused or 

indicted, and perhaps to be suddenly judged by the party, of whom he is at 

present judge, if he be found innocent.'



Lord Chief Justice Holt declared that 'in all cases and in all actions the 

jury may give a general or special verdict, as well in causes criminal as 

civil, and the court ought to receive it, if pertinent to the point in 

issue; for if the jury doubt they may refer themselves to the court, but are 

not bound so to do.' Anon. (1697) 3 Salk. 373. And upon the trial of an 

information for a seditious libel, while he expressed his opinion that the 

paper was upon its face a criminal libel, he submitted the question whether 

it was such to the jury, saying: 'Now you are to consider whether these 

words I have read to you do not tend to beget an ill opinion of the 

administration of the government.' Tutchin's Case (1704) 14 How. State Tr. 

1095, 1128. Although he concluded his charge with the words, 'If you are 

satisfied that he is guilty of composing and publishing these papers at 

London, you are to find him guilty,' yet, as Mr. Starkie well observes, 

'these words have immediate reference to the ground of defense upon which 

Mr. Tutchin's counsel meant to rely, namely, that the offense had not been 

proved to have been committed in London; and cannot be considered as used 

for the purpose of withdrawing the attention of the jury from the quality of 

the publication, upon which they had just before received instructions; and, 

indeed, to suppose it had so meant would prove too much, since, if so, the 

jury were directed not to find the truth of the innuendoes.' Starkie, Sland. 

& L. 56.



Some decisions, often cited as against the right of the jury by a general 

verdict to determine matter of law involved in the general issue of guilty 

or not guilty, were upon special verdicts presenting pure questions of law. 

Such were Townsend's Case (1554) 1 Plow. 111, and Rex v. Oneby (1726) 2 Ld. 

Raym. 1485; 2 Strange, 766; 1 Barnard, 17; 17 How. State Tr. 29.



After the accession of George II., Lord Chief Justice Raymond, on trials at 

nisi prius for seditious libels (ignoring the Cases of Tutchin and of the 

Seven Bishops), told juries that they were bound to take the law from the 

court, and that the question whether the paper which the defendant was 

accused of writing and publishing was a libel was a mere question of law, 

with which the jury had nothing to do. Clarke's Case (1729) 17 How. State 

Tr. 667, note, 1 Barnard, 304; Francklin's Case (1731) 17 How. State Tr. 

625, 672.



In 1734, upon an information in the nature of a quo warranto against the 

defendant to show cause by what authority he acted as mayor of Liverpool, 

his motion for a new trial, because the jury had found a general verdict for 

the crown against the instructions of the judge, and notwithstanding he 

ordered them to return a special verdict, was granted by the court of king's 

bench, Lord Chief Justice Hardwicks saying: 'The general rule is that if the 

judge of nisi prius directs the jury on the point of law, and they think fit 

obstinately to find a verdict contrary to his direction, that is sufficient 

ground for granting a new trial; and when the judge upon a doubt of law 

directs the jury to bring in the matter specially, and they find a general 

verdict, that also is a sufficient foundation for a new trial.' 'The thing 

that governs greatly in this determination is that the point of law is not 

to be determined by juries; juries have a power by law to determine matters 

of fact only; and it is of the greatest consequence to the law of England 

and to the subject that these powers of the judge and jury are kept 

distinct; that the judge determines the law, and the jury the fact; and, if 

ever they come to be confounded, it will prove the confusion and destruction 

of the law of England.' Rex v. Poole, Cas. t. Hardw. 23, 26, 28, Cunn. 11, 

14, 16.



But such an information to try title to a civil office (though it had some 

of the forms of a criminal prosecution) was brought for the mere purpose of 

trying a civil right, and was considered as in the nature of a civil 

proceeding. 3 Bl. Comm. 263; Rex v. Francis, 2 Term R. 484; Ames v. Kansas, 

111 U.S. 449, 460, 461 S., 4 Sup. Ct. 437. And, as appears by the first 

passage above cited from Lord Hardwicke's opinion, it was evidently so 

treated by the court, under the practice of granting new trials on motion of 

either party to a civil case, which had gradually grown up within the 

century preceding, as a substitute for attaints. Bell v. Wardell (1740) 

Willes, 204, 206; Witham v. Lewis (1744) 1 Wils. 48, 55; Bright v. Eynon 

(1757) 1 Burrows, 390, 394. In a criminal case, certainly, the court could 

not compel the jury to return a special verdict, Nothing, therefore, was 

adjudged in Poole's Case as to the right of the jury to decide the law in 

prosecutions for crime. And it is significant that, although both reports of 

that case were published in 1770, it was not cited by Lord Mansfield, in 

1784, when collecting the authorities against the right of the jury in 

criminal cases. King v. Shipley, 4 Doug. 73, 168.



Lord Hardwicke's own opinion, indeed, may be presumed to have been against 

the right of the jury; for when attorney general he had so argued in 

Francklin's Case, 17 How. State Tr. 669; and he was, as justly observed by 

Mr. Hallam, 'a regularly bred crown lawyer, and in his whole life disposed 

to hold very high the authority of government.' 3 Hall. Hist. (9th Ed.) 

287. His opinion, therefore, is of less weight upon a constitutional 

question affecting the liberty of the subject than upon other questions of 

law or of equity.



The later history of the law of England upon the right of the jury to decide 

the law in criminal cases is illustrated by a long conflict between the 

views of Mr. Murray, afterwards Lord Mansfield, against the right, and of 

Mr. Pratt, afterwards Lord Camden, in its favor, which, after the public 

sentiment had been aroused by the great argument of Mr. Erskine in Dean of 

St. Asaph's Case, was finally settled, in accordance with Lord Camden's 

view, by a declaratory act of parliament.



Upon the trial of Owen, in 1752, for publishing a libel Mr. Murray, as 

solicitor general, argued to the jury that if they determined the question 

of fact of publication, the judge determined the law. But Mr. Pratt, of 

counsel for the defendant, argued the whole matter to the jury; and, 

although the publication was fully proved, and Chief Justice Lee told the 

jury that, this being so, they could not avoid bringing in the defendant 

guilty, they returned and persisted in a general verdict of acquittal. 18 

How. State Tr. 1203, 1223, 1227, 1228; 29 Parl. Hist. 1408



In the like Case of Nutt, in 1728, 1 Barnard, 306 (Starkie, Sland. & L. 

615), conducted by Mr. Murray as attorney general, the like direction was 

given to the jury by Chief Justice Ryder. Lord Mansfield, in Rex v. Shipley, 

4 Doug, 168.



In the similar Case of Shebbeare, in 1758 (Starkie, Sland. & L. 56, 616), 

Mr. Pratt, as attorney general, when moving before Lord Mansfield for leave 

to file the information, said: 'It is merely to put the matter in a way of 

trial; for I admit, and his lordship well knows, that the jury are judges of 

the law as well as the fact, and have an undoubted right to consider 

whether, upon the whole, the pamphlet in question be or be not published 

with a wicked, seditious intent, and be or not a false, malicious, and 

scandalous libel.' Second postscript to Letter to Mr. Almon on Libels (1770) 

p. 7; 4 Collection of Tracts (1763-1770) p. 162. And at the trial, as he 

afterwards said in the house of lords, he 'went into court predetermined to 

insist on the jury taking the whole of the libel into consideration,' and 

'so little did he attend to the authority of the judges on that subject that 

he turned his back on them, and directed all he had to say to the jury.' 29 

Parl. Hist. 1408. And see 20 How. State Tr. 709. But Lord Mansfield 

instructed the jury that the question whether the publication was a libel 

was to be determined by the court. 4 Doug. 169. 



Lord Camden, when chief justice of the common pleas, presiding at criminal 

trials, instructed the jury that they were judges of the law as well as the 

fact. Pett. Jur. (1769) cited in 21 How. State Tr. 853; 29 Parl. Hist. 1404, 

1408.



In the prosecutions, in the summer of 1770, of Miller and Woodfall for 

publishing the letter of Junius to the king, Lord Mansfield instructed the 

jury in the same way as in Shebbeare's Case. In Miller's Case the jury 

returned a verdict of not guilty. In Woodfall's Case the jury returned a 

verdict of 'guilty of printing and publishing only'; and the court therefore 

granted a motion for a new trial. But Lord Mansfield, on November 20, 1770, 

in delivering judgment upon that motion, took occasion to say that the court 

was of opinion 'that the direction is right and according to law.' Miller's 

Case, 20 How. State Tr. 869, 893, 895; Woodfall's Case, Id. 895, 901-903, 

918, 920, 5 Burrows, 2661, 2666, 2668.



On December 5, 1770, in the house of lords, the judgment in Woodfall's Case 

was attacked by Lord Chatham, and defended by Lord Mansfield, in replying to 

whom Lord Chatham said: 'This, my lords. I never understood to be the law of 

England, but the contrary. I always understood that the jury were competent 

judges of the law as well as the fact; and, indeed, if they were not, I can 

see no essential benefit from their institution to the community.' And Lord 

Camden, after observing that it would be highly necessary to have an 

authentic statement of the direction to the jury in that case laid before 

the house, said: 'If we can obtain this direction, and obtain it fully 

stated, I shall very readily deliver may opinion upon the doctrines it 

inculcates, and, if they appear to me contrary to the known and the 

established principles of the constitution, I shall not scruple to tell the 

author of his mistake in the open face of this assembly.' 16 Parl. Hist. 

1302-1307.



On the next day, a warm debate took place in the house of commons upon a 

motion by Serjeant Glynn for a committee 'to inquire into the administration 

of criminal justice, and the proceedings of the judges in Westminster Hall, 

particularly in cases relating to the liberty of the press and the 

constitutional power and duty of juries,' in the course of which Mr. 

Dunning, then the leader of the bar, and afterwards Lord Ashburton, 

emphatically denied that the doctrine of Lord Raymond and Lord Mansfield was 

the established law of the land. 16 Parl. Hist. 1212, 1276. See, also, 2 

Cavendish's Debates, 141, 369. Pursuant to a wish expressed by Lord 

Mansfield on the day after, the house of lords met on December 10th, when he 

informed the house that he had left with its clerk a copy of the judgment of 

the court in Woodfall's Case. Lord Camden thereupon said that he considered 

the paper as a challenge directed personally to him, which he accepted, and 

said: 'In direct contradiction to him, I maintain that his doctrine is not 

the law of England. I am ready to enter into debate whenever the noble lord 

will fix a day for it.' And he proposed questions in writing to Lord 

Mansfield, framed with the view of ascertaining how far that judgment denied 

the right of the jury, by a general verdict in a criminal case, to determine 

the law as well as the fact. Lord Mansfield evaded answering the questions, 

and, while declaring himself ready to discuss them at some future day, 

declined to name one. And the matter dropped for the time. 16 Parl. Hist. 

1312-1322.



In 1783, after the independence of the United States had been recognized by 

Great Britain, came the case of King v. Shipley, commonly known as Dean of 

St. Asaph's Case, fully reported in 4 Doug. 73, and in 21 How. State Tr. 

847, and briefly stated in 3 Term R. 428, note, which was a criminal 

prosecution for a seditious libel contained in a pamphlet written by Sir 

William Jones. Mr. Justice Buller, at the trial, told the jury that the only 

questions for them were whether the defendant published the pamphlet, and 

whether the innuendoes in the indictment were true; and that the question of 

libel or no libel was a question of law for the court, and not for the jury, 

upon which he declined to express any opinion, but that it would be open for 

the consideration of the court upon a motion in arrest of judgment. The jury 

returned a verdict of 'guilty of publishing only,' but were persuaded by 

the judge to put it in this form: 'Guilty of publishing, but whether a libel 

or not the jury do not find.' 4 Doug. 81, 82, 85, 86; 21 How. State Tr. 946, 

950-955. The effect of all this was that the defendant was found guilty of 

publishing a paper, which neither the judge nor the jury had held to be a 

libel; and judgment was ultimately arrested upon the ground that, as set out 

in the indictment, it was not libelous. Id. 1044.



But, before the motion in arrest of judgment was argued, Mr. Erskine 

obtained a rule to show cause why a new trial should not be granted, 

principally upon the ground that the judge told the jury that the question 

whether libel or not was not for their decision; whereas the jury, upon the 

general issue, had not only the power, but the right, to decide the law. It 

was upon this rule that Mr. Erskine made his famous argument in support of 

the rights of juries, and that Lord Mansfield delivered the judgment, in 

which Mr. Justice Ashurst concurred, which has since been the principal 

reliance of those who deny the right of the jury to decide the law involved 

in the general issue in a criminal case.



It should not be overlooked that, at the hearing of this motion, Mr. 

Bearcroft, the leading counsel for the crown, said he 'agreed with the 

counsel for the defendant that it is the right of the jury, if they please, 

on the plea of not guilty, to take upon themselves the decision of every 

question of law necessary to the acquittal of the defendant; and, Lord 

Mansfield observing that he should call it the 'power,' not the 'right,' 

he adhered to the latter expression; and added that he though it an 

important privilege, and which, on particular occasions, -- as, for 

instance, if a proper censure of the measures of the servants of the crown 

were to be construed by a judge to be libelous, -- it would be laudable and 

justifiable in them to exercise.' 4 Doug. 94, note. See, also, page 108.



Mr. Justice Willes, dissenting from the opinion of the court, said he was 

sure that these statements of Mr. Bearcroft expressed 'the sentiments of the 

greater part of Westminster Hall,' and declared: 'I conceive it to be the 

law of this country that the jury, upon a plea of not guilty, or upon the 

general issue, upon an indictment or an information for a libel, have a 

constitutional right, if they think fit, to examine the innocence or 

criminality of the paper, notwithstanding there is sufficient proof given of 

the publication.' 'I believe no man will venture to say they have not the 

power, but I mean expressly to say they have the right. Where a civil power 

of this sort has been exercised without control, it presumes -- nay, by 

continual usage, it gives -- the right. It was the right which juries 

exercised in those times of violence when the Seven Bishops were tried, and 

which even the partial judges who then presided did not dispute, but 

authorized them to exercise upon the subject-matter of the libel; and the 

jury, by their solemn verdict upon that occasion, became one of the happy 

instruments, under Providence, of the salvation of this country. This 

privilege has been assumed by the jury in a variety of ancient and modern 

instances, and particularly in the case of Rex v. Owen, without any 

correction or even reprimand of the court. It is a right, for the most 

cogent reasons, lodged in the jury, as without this restraint the subject in 

bad times would have no security for his life, liberty, or property.' And he 

concurred in refusing a new trial, solely because, in his opinion, neither 

the counsel for the prosecution, nor the judge presiding at the trial, had 

impugned these doctrines, and the verdict returned by the jury was in the 

nature of a special verdict, in effect submitting the law to the court. 4 

Doug. 171-175.



In 1789, in Rex v. Withers, 3 Term R. 428, Lord Kenyon instructed a jury in 

the same way that Mr. Justice Buller had done in Dean of St. Asaph's Case.



In 1791, the declaratory statute, entitled 'An act to remove doubts 

respecting the functions of juries in cases of libel,' and known as 'Fox's 

Libel Act,' was introduced in parliament, and was passed in 1792. St. 32 

Geo. III. c. 60.



By that act, 'the legislature,' as lately observed by Lord Blackburn in the 

house of lords, 'adopted almost the words and quite the substance' of that 

passage of the opinion of Mr. Justice Willes first above quoted. Bank v. 

Henty, L. R. 7 App. Cas. 741, 775.



The doubts which the act was passed to remove were, as recited at the 

beginning of the act, upon the question whether upon the trial of an 

indictment or information for libel, on the plea of not guilty, 'it be 

competent to the jury impaneled to try the same to give their verdict upon 

the whole matter put in issue'; and it was 'therefore declared and enacted 

[not merely enacted, but declared to be the law as already existing] that on 

every such trial the jury sworn to try the issue may give a general verdict 

of guilty or not guilty upon the whole matter put in issue upon such 

indictment or information; and shall not be required or directed, by the 

court or judge before whom such indictment or information shall be tried, to 

find the defendant or defendants guilty, merely on the proof of the 

publication by such defendant or defendants of the paper charged to be a 

libel, and of the sense ascribed to the same in such indictment or 

information.'



The act then provides -- First, that the presiding judge may, at his 

discretion, give instructions to the jury; second, that the jury may, at 

their discretion, return a special verdict; and, third, that the defendant, 

if found guilty, may move in arrest of judgment. The first of these 

provisos, and the only one requiring particular notice, is that the judge 

shall, at his discretion, give 'his opinion and directions to the jury on 

the matter at issue,' 'in like manner as in other criminal cases.' His 

'opinion and directions' clearly means by way of advice and instruction 

only, and not by way of order or command; and the explanation, 'in like 

manner as in other criminal cases,' shows that no particular rule was 

intended to be laid down in the case of libel. And that this was the 

understanding at the time is apparent from the debate on the proviso, which 

was adopted on the motion of Sir John Scott (then solicitor general, and 

afterwards Lord Eldon) just before the bill passed the house of commons in 

1791. 29 Parl. Hist. 594-602.



The clear effect of the whole act is to declare that the jury (after 

receiving the instructions of the judge, if he sees fit to give any 

instructions) may decide, by a general verdict, 'the whole matter put in 

issue,' which necessarily includes all questions of law, as well as of fact, 

involved in the general issue of guilty or not guilty, and to recognize the 

same rule as existing in all criminal cases.



Not only is this the clear meaning of the words of the act, but that such 

was its intent and effect is shown by the grounds taken by supporters and 

its opponents in parliament, as well as by subsequent judicial opinions in 

England. Mr. Fox, upon moving the introduction of the bill in the house of 

commons in 1791, after observing that he was not ignorant that 'power' and 

'right' were not convertible terms, said that, 'if a power was vested in any 

person, it was surely meant to be exercised'; that 'there was a power vested 

in the jury to judge the law and fact, as often as they were united, and, if 

the jury were not to be understood to have a right to exercise that power, 

the constitution would never have intrusted them with it'; 'but they knew it 

was the province of the jury to judge of law and fact, and this was the 

case, not of murder only, but of felony, high and of every other criminal 

indictment'; and that 'it must be left in all cases to a jury to infer the 

guilt of men, and an English subject could not lose his life but by a 

judgment of his peers.' 29 Parl. Hist. 564, 565, 597. And Mr. Pitt, in 

supporting the bill, declared that his own opinion was against the practice 

of the judges, 'and that he saw no reason why, in the trial of a libel, the 

whole consideration of the case might not go precisely to the unfettered 

judgment of twelve men, sworn to give their verdict honestly and 

conscientiously, as it did in matters of felony and other crimes of a high 

nature.' 29 Parl. Hist. 588.



In the debate in the house of lords, on a motion of Lord Chancellor Thurlow 

to put off the reading of the bill, Lord Camden said: 'He would venture to 

affirm, and should not be afraid of being contradicted by any professional 

man, that, by the law of England as it now stood, the jury had a right, in 

deciding on a libel, to judge whether it was criminal or not; and juries not 

only possessed that right, but they had exercised it in various instances.' 

He added, as 'a matter which he conceived should be imprinted on every 

juror's mind, that if they found a verdict of the publishing, and left the 

criminality to the judge, they had to answer to God and their consciences 

for the punishment that might, by such judge, be inflicted on the defendant, 

whether it was fine, imprisonment, loss of ears, whipping, or any other 

disgrace, which was the sentence of the court.' After further enforcing his 

opinion, he said: 'I will affirm that they have that right, and that there 

is no power by the law of this country to prevent them from the exercise of 

that right, if they think fit to maintain it; and, when they are pleased to 

acquit any defendant, their acquittal will stand good until the law of 

England is changed.' 'My lords,' said he, 'give to the jury or to the judge 

the right of trial of the subjects of this country. You must give it to one 

of them, and I think you can have no difficulty which to prefer.' And he 

concluded by saying that 'he did not apprehend that the bill had a tendency 

to alter the law, but merely to remove doubts that ought never to have been 

entertained, and therefore the bill had his hearty concurrence; but, as he 

was assured that the proposed delay was not hostile to the principle of the 

bill, but only to take it into serious consideration, and to bring it again 

forward, he had no objection to the motion of the lord chancellor.' 29 Parl. 

Hist. 729, 730, 732.



In the house of lords in 1792, the bill having again passed the house of 

commons, Lord Loughborough, for many years chief justice of the common 

pleas, said that he 'had ever deemed it his duty, in cases of libel, to 

state the law as it bore on the facts, and to refer the combined 

consideration to the jury'; and that 'their decision was final. There was no 

control upon them in their verdict. The evident reason and good sense of 

this was that every man was held to be acquainted with the criminal law of 

the land. Ignorance was no plea for the commission of a crime, and no man 

was therefore supposed to be ignorant of judging upon the evidence adduced 

of the guilt or innocence of a defendant. It was the admitted maxim of 

law, 'Ad quaestionem juris respondent judices, ad quaestionem facti 

juratores;' but, when the law and the fact were blended, it was the 

undoubted right of the jury to decide. If the law was put to them fairly, 

there was undoubtedly not one case in a thousand on which they would not 

decide properly. If they were kept in the dark, they were sometimes led into 

wrong, through mere jealousy of their own right.' 29 Parl. Hist. 1296, 1297.



Pending the debate, the house of lords put questions to the judges, who 

returned an opinion, in which, after saying that 'the general criminal law 

of England is the law of libel,' they laid down, as a fundamental 

proposition, applicable to treason as well as to other crimes, 'that the 

criminality or innocence of any act done (which includes any paper written) 

is the result of the judgment which the law pronounces upon that act, and 

must therefore be in all cases, and under all circumstances, matter of law, 

and not matter of fact.' With such a basis, it is hardly to be wondered at 

that they 'conceived the law to be that the judge is to declare to the jury 

what the law is,' and 'that it is the duty of the jury, if they will find a 

general verdict upon the whole matter in issue, to compound that verdict of 

the fact as it appears in evidence before them, and of the law as it is 

declared to them by the judge.' The judges, however, 'took this occasion to 

observe' that they had 'offered no opinion which will have the effect of 

taking matter of law out of a general issue, or out of a general verdict,' 

and 'disclaimed the folly of undertaking to prove that a jury, who can find 

a general verdict, cannot take upon themselves to deal with matter of law 

arising in a general issue, and to hazard a verdict made up of the fact, and 

of the matter of law, according to their conception of that law, against all 

direction by the judge.' 29 Parl. Hist. 1361-1369.



On Lord Camden's motion, the bill was postponed, in order to enable the 

house to consider the opinion of the judges, and was then proceeded with, 

when Lord Camden 'exposed the fallacy of the pretended distinction between 

law and fact, in the question of guilty or not guilty of printing and 

publishing a libel. They were united as much as intent and action in the 

consideration of all other criminal proceedings. Without an implied malice, 

a man could not be found guilty, even of murder. The simply killing of a man 

was nothing, until it was proved that the act arose from malice. A man might 

kill another in his own defense, or under various circumstances which 

rendered the killing no murder. How were these things to be explained? By 

the circumstances of the case. What was the ruling principle? The intention 

of the party. Who were judges of the intention of the party, -- the judge? 

No; the jury. So that the jury were allowed to judge of the intention upon 

an indictment for murder, and not to judge of the intention of the party 

upon libel.' And Lord Loughborough, as well as Lord Camden, distinctly 

affirmed, and Lord Thurlow as distinctly denied, that upon the general issue 

in criminal cases, after the judge had stated the law to the jury, the jury 

were to decide both the question of law and the question of fact. 29 Parl. 

Hist. 1370, 1405, 1406, 1426, 1429.



Towards the close of the debate, Lord Thurlow moved to amend the bill by 

inserting the words 'that the judge state to the jury the legal effect of 

the record.' Lord Camden successfully opposed the amendment 'as an attempt 

indirectly to convert the bill into the very opposite of what it was 

intended to be, and to give the judges a power ten times greater than they 

had ever yet exercised,' and said: 'He must contend that the jury had an 

undoubted right to form their verdict themselves according to their 

consciences, applying the law to the fact. If it were otherwise, the first 

principle of the law of England would be defeated and overthrown. If the 

twelve judges were to assert the contrary again and again, he would deny it 

utterly, because every Englishman was to be tried by his country; and who 

was his country but his twelve peers, sworn to condemn or acquit according 

to their consciences? If the opposite doctrine were to obtain, trial by jury 

would be a nominal trial, a mere form; for, in fact, the judge, and not the 

jury, would try the man. He would contend for the truth of this argument to 

the latest hour of his life, manibus pedibusque. With regard to the judge 

stating to the jury what the law was upon each particular case, it was his 

undoubted duty so to do; but, having done so, the jury were to take both law 

and fact into their consideration, and to exercise their discretion and 

discharge their consciences.' 29 Parl. Hist. 1535, 1536.



The first ground of the protest of Lord Thurlow, Lord Bathurst, Lord Kenyon, 

and three other lords against the passage of the act was 'because the rule 

laid down by the bill, contrary to the determination of the judges and the 

unvaried practice of ages, subverts a fundamental and important principle of 

English jurisprudence, which, leaving to the jury the trial of the fact, 

reserves to the court the decision of the law.' 29 Parl. Hist. 1537.



Lord Brougham, in his sketch of Lord Camden, declares that 'the manly 

firmness which he uniformly displayed in maintaining the free principles of 

the constitution, wholly unmixed with any leaning towards extravagant 

popular opinions, or any disposition to court vulgar favour, justly entitles 

him to the very highest place among the judges of England'; and, speaking of 

his conduct in carrying the libel bill through the house of lords, says that 

'nothing can be more refreshing to the lovers of liberty, or more gratifying 

to those who venerate the judicial character, than to contemplate the 

glorious struggle for his longcherished principles with which Lord Camden's 

illustrious life closed'; and quotes some of his statements, above cited, as 

passages upon which 'the mind fondly and reverently dwells,' 'hopeful that 

future lawyers and future judges may emulate the glory and the virtue of 

this great man.' 3 Brougham's Statesmen of George III. (Ed. 1843) 156, 178, 

179.



In the well-known case of Rex v. Burdett, 3 Barn. & Ald. 717, 4 Barn. & Ald. 

95, and 1 State Tr. (N. S.) 1, for publishing a seditious libel, Mr. Justice 

Best (afterwards chief justice of the common pleas, and Lord Wynford) told 

the jury that, in his opinion, the publication was a libel; that they were 

to decide whether they would adopt his opinion; but that they were to take 

the law from him, unless they were satisfied that he was wrong. 4 Barn. & 

Ald. 131, 147, 183. The defendant having been convicted, the court of king's 

bench, upon a motion for a new trial, held, after advisement, that this 

instruction was correct.



Mr. Justice Best said: 'It must not be supposed that the statute of George 

III. made the question of libel a question of fact. If it had, instead of 

removing an anomaly, it would have created one. Libel is a question of law, 

and the judge is the judge of the law in libel as in all other cases, the 

jury having the power of acting agreeably to his statement of the law or 

not. All that the statute does is to prevent the question from being left to 

the jury in the narrow way in which it was left before that time. The jury 

were then only to find the fact of the publication, and the truth of the 

innuendoes; for the judges used to tell them that the intent was an 

inference of law, to be drawn from the paper, with which the jury had 

nothing to do. The legislature has said that that is not so, but that the 

whole case is to be left to the jury. But judges are in express terms 

directed to lay down the law as in other cases. In all cases the jury may 

find a general verdict. They do so in cases of murder and treason, but there 

the judge tells them what is the law, though they may find against him, 

unless they are satisfied with his opinion. And this is plain from the words 

of the statute.' 4 Barn. & Ald. 131, 132.



Justices Holroyd and Bayley and Chief Justice Abbott (afterwards Lord 

Tenterden) expressed the same view. 4 Barn. & Ald. 145-147, 183, 184. Mr. 

Justice Bayley said: 'The old rule of law is, 'Ad quaestionem juris 

respondent judices, ad quaestionem facti respondent juratores;' and I take 

it to be the bounden duty of the judge to lay down the law as it strikes 

him, and that of the jury to accede to it, unless they have superior 

knowledge on the subject: and the direction in this case did not take away 

from the jury the power of acting on their own judgment.' And the chief 

justice said: 'If the judge is to give his opinion to the jury, as in other 

criminal cases, it must be not only competent, but proper, for him to tell 

the jury, if the case will so warrant, that, in his opinion, the publication 

before them is of the character and tendency attributed to it by the 

indictment; and that, if it be so in their opinion, the publication is an 

offense against the law.' 'The statute was not intended to confine the 

matter in issue exclusively to the jury without hearing the opinion of the 

judge, but to declare that they should be at liberty to exercise their own 

judgment upon the whole matter in issue, after receiving thereupon the 

opinion and directions of the judge.'



The weight of this deliberate and unanimous declaration of the rightful 

power of the jury to decide the law in criminal cases is not impaired by the 

obiter dictum hastily uttered and promptly recalled by Chief Justice Best in 

the civil case (summarily decided upon a narrower point) of Levi v. Milne, 

and reported so differently in 4 Bing. 195, and in 12 Moore, 418, as to 

leave it doubtful what he really said. And according to later English 

authorities, even in civil actions, the question of libel or no libel may be 

submitted by the judge to the jury, without expressing his own opinion upon 

it. Parmiter v. Coupland, 6 Mees. & W. 105, 108; Baylis v. Lawrence, 11 

Adol. & E. 920, 3 Perry & D. 526; Cox v. Lee, L. R. 4 Exch. 284.



It is to be remembered that, by the law of England, a person convicted of 

treason or felony could not appeal, or move for a new trial, or file a bill 

of exceptions, or in any other manner obtain a judicial review of rulings or 

instructions not appearing upon the record, unless the judge himself saw fit 

to reserve the question for the opinion of all the judges. In short, as 

observed by Dr. Lushington, in delivering judgment in the privy council, 'the 

prisoner has no 'legal right,' in the proper sense of the term, to demand a 

reconsideration, by a court of law, of the verdict, or of any legal 

objection raised at the trial.' Reg. v. Eduljee Byramjee, 5 Moore, P. C. 

276, 287; Reg. v. Bertrand, L. R. 1 P. C. 520; 1 Chit. Cr. Law, 622, 654; 3 

Russ. Crimes (9th Ed.) 212. Consequently, a prisoner tried before an 

arbitrary, corrupt, or ignorant judge had no protection but in the 

conscience and the firmness of the jury.



There is no occasion further to pursue the examination of modern English 

authorities, because in this country, from the time of its settlement until 

more than half a century after the Declaration of Independence, the law as 

to the rights of juries, as generally understood and put in practice, was 

more in accord with the views of Bacon, Hale, Vaughan, Somers, Holt, and 

Camden than with those of Kelying, Scroggs, Jeffreys, Raymond, Hardwicke, 

and Mansfield. Upon a constitutional question, affecting the liberty of the 

subject, there can be no doubt that the opinions of Somers and of Camden, 

especially, were of the very highest authority, and were so considered by 

the founders of the Republic. 



In Massachusetts, the leading authorities upon the question, nearest the 

time of the Declaration of Independence and the adoption of the constitution 

of the United States, are John Adams and Theophilus Parsons, each of whom 

was appointed, with the general approval of the bar and the people, chief 

justice of the state; the one, appointed to that office by the revolutionary 

government in 1775, resigning it the next year, remaining in the continental 

congress to support the Declaration of Independence, and afterwards the 

first vice president and the second president of the United States; the 

other, a leading supporter of the constitution of the United States in the 

convention of 1788, by which Massachusetts ratified the constitution, 

appointed by President Adams, in 1801, attorney general of the United 

States, but declining that office, and becoming chief justice of 

Massachusetts in 1806.



John Adams, writing in 1771, said: 'Juries are taken, by lot or by suffrage, 

from the mass of the people, and no man can be condemned of life or limb or 

property or reputation without the concurrence of the voice of the people.' 

'The British empire has been much alarmed, of late years, with doctrines 

concerning juries, their powers and duties, which have been said, in printed 

papers and pamphlets, to have been delivered from the highest tribunals of 

justice. Whether these accusations are just or not, it is certain that many 

persons are misguided and deluded by them to such a degree that we often 

hear in conversation doctrines advanced for law which, if true, would render 

juries a mere ostentation and pageantry, and the court absolute judges of 

law and fact.' 'Whenever a general verdict is found, it assuredly determines 

both the fact and the law. It was never yet disputed or doubted that a 

general verdict, given under the direction of the court in point of law, was 

a legal determination of the issue. Therefore, the jury have a power of 

deciding an issue upon a general verdict. And, if they have, is it not an 

absurdity to suppose that the law would oblige them to find a verdict 

according to the direction of the court, against their own opinion, 

judgment, and conscience?' 'The general rules of law and common regulations 

of society, under which ordinary transactions arrange themselves, are well 

enough known to ordinary jurors. The great principles of the constitution 

are intimately known. They are sensibly felt by every Briton. It is scarcely 

extravagant to say they are drawn in and imbibed with the nurse's milk and 

first air. Now, should the melancholy case arise that the judges should give 

their opinions to the jury against one of these fundamental principles, is a 

juror obliged to give his verdict generally, according to this direction, or 

even to find the fact specially, and submit the law to the court? Every man, 

of any feeling or conscience, will answer, 'No.' It is not only his right, 

but his duty, in that case, to find the verdict according to his own best 

understanding, judgment, and conscience, though in direct opposition to the 

direction of the court.' 'The English law obliges no man to decide a cause 

upon oath against his own judgment.' 2 John Adams' Works, 253-255.



Theophilus Parsons, in the Massachusetts convention of 1788, answering the 

objection that the constitution of the United States, as submitted to the 

people for adoption, contained no bill of rights, said: 'The people 

themselves have it in their power effectually to resist usurpation, without 

being driven to an appeal to arms. An act of usurpation is not obligatory; 

it is not law; and any man may be justified in his resistance. Let him be 

considered as a criminal by the general government; yet only his 

fellow-citizens can convict him. They are his jury, and, if they pronounce 

him innocent, not all the powers of congress can hurt him; and innocent they 

certainly will pronounce him if the supposed law he resisted was an act of 

usurpation.' 2 Elliot, Deb. 94; 2 Bancroft, Hist. Const. 267.



In 1808, Chief Justice Parsons, in delivering judgment in a civil action for 

slander, said: 'Both parties have submitted the trial of this issue to a 

jury. The issue involved both law and fact, and the jury must decide the law 

and the fact. To enable them to settle the fact, they were to weigh the 

testimony. That they might truly decide the law, they were entitled to the 

assistance of the judge. If the judge had declined his aid in a matter of 

law, yet the jury must have formed their conclusion of law as correctly as 

they were able.' And, as the reporter states: 'In this opinion of the chief 

justice the other judges, viz. Sedgwick, Sewall, Thatcher, and Parker, 

severally declared their full and entire concurrence.' Coffin v. Coffin, 4 

Mass. 1, 25, 37.



In 1816, upon the trial of an indictment for murder, the supreme judicial 

court of Massachusetts, held by Chief Justice Parker and Justices Jackson 

and Putnam, instructed the jury as follows: 'In all capital cases the jury 

are the judges of the law and fact. The court are to direct them in matters 

of law, and, although it is safer for them to rely on the instructions 

derived from that source, still, gentlemen, they are to decide for 

themselves.' Bowen's Trial, 13 Mass. 356.



In 1826, Mr. Justice Wilde, speaking for the whole court, assumed, as 

unquestionable, that 'in criminal prosecutions the jury are the judges of 

both law and fact.' Com. v. Worcester, 3 Pick. 462, 475.



In 1830, in a celebrated trial for murder, before Justices Putnam, Wilde, 

and Morton, the right and duty of the jury to decide the law as well as the 

fact involved in the general issue were recognized and affirmed in the 

charge to the jury, and were distinguished from the right of deciding 

questions of evidence, as follows: 'As the jury have the right, and, if 

required by the prisoner, are bound, to return a general verdict of guilty 

or not guilty, they must necessarily, in the discharge of this duty, decide 

such questions of law, as well as of fact, as are involved in this general 

question; and there is no mode in which their opinions upon questions of law 

can be reviewed by this court or by any other tribunal. But this does not 

diminish the obligation resting upon the court to explain the law, or their 

responsibility for the correctness of the principles of law by them laid 

down. The instructions of the court in matters of law may safely guide the 

consciences of the jury, unless they known them to be wrong. And, when the 

jury undertake to decide the law (as they undoubtedly have the power to do) 

in opposition to the advice of the court, they assume a high responsibility, 

and should be very careful to see clearly that they are right. Although the 

jury have the power, and it is their duty, to decide all points of law which 

are involved in the general question of the guilt or innocence of the 

prisoner, yet when questions of law arise in the arraignment of the 

prisoner, or in the progress of the trial, in relation to the admissibility 

of evidence, they must be decided by the court, and may not afterwards be 

reviewed by the jury.' Com. v. Knapp, 10 Pick. 477, 496.



Many other Massachusetts authorities, from the earliest times to the date 

last mentioned, tending to maintain the right of the jury to decide the law 

involved in the general issue, are collected in the opinion of Mr. Justice 

Thomas in Com. v. Anthes, 5 Gray, 275-280, and in a note to Quincy, 558-560, 

563-567.



To that date, or later, the right of the jury in criminal cases to decide 

both the law and the fact, even against the directions of the court, was 

certainly recognized and acted on throughout New England, unless in Rhode 

Island. State v. Snow (1841) 18 Me. 346; Doe, C. J., in State v. Hodge, 50 

N. H. 510, 523; State v. Wilkinson (1829) 2 Vt. 480, 488; State v. Croteau 

(1849) 23 Vt. 14; Witter v. Brewster (1788) Kirb. 422; Bartholomew v. Clark 

(1816) 1 Conn. 472, 481; State v. Buckley (1873) 40 Conn. 246. See Laws 

1647, in 1 R. I. Col. Rec. 157, 195, 203, 204.



In the province of New York, in 1702, on the trial of Col. Nicholas Bayard 

for high treason, it was argued by his counsel, and not denied by the court, 

that the jury, upon the general issue of not guilty, were judges as well of 

matter of law as of matter of fact. 14 How. State Tr. 471, 502, 503, 505.



In the same province, in 1735, upon the trial of John Peter Zenger for a 

seditious libel, his counsel, Andrew Hamilton, of Philadelphia, while 

admitting that the jury might, if they pleased, find the defendant guilty of 

printing and publishing, and leave it to the court to judge whether the 

words were libelous, said, without contradiction by the court: 'But I do 

likewise know they may do otherwise. I know they have the right, beyond all 

dispute, to determine both the law and the fact; and, where they do not 

doubt of the law, they ought to do so.' The court afterwards submitted to 

the jury, in the words of Lord Chief Justice Holt, in Tutchin's Case, 14 

How. State Tr. 1128, above cited, the question whether the words set forth 

were libelous. And Zenger was acquitted by the jury. 17 How. State Tr. 675, 

706, 716, 722.



Upon the trial in the supreme court of the state of New York, in 1803, of an 

indictment for a libel on the president of the United States, Chief Justice 

Lewis instructed the jury, among other things, that the question of libel or 

no libel was an inference of law from the fact, and that the law as laid 

down by Lord Mansfield in Dean of St. Asaph's Case was the law of this 

state. The defendant was convicted, and brought the question of the 

correctness of these instructions before the full court in 1804, upon a 

motion for a new trial. People v. Croswell, 3 Johns. Cas. 337, 341, 342.



Alexander Hamilton was of counsel for the defendant. Two reports of his 

argument upon that motion have come down to us, the one in 3 Johns. Cas. 

352-362, the other in a contemporary pamphlet of the speeches in the case 

(pages 62-78), and reprinted in 7 Hamilton's Works (Ed. 1886) 336-373. But 

the most compact and trustworthy statement of his position upon the general 

question, unsurpassed for precision and force by anything on the subject to 

be found elsewhere, is in three propositions upon his brief (Id. 335, 336), 

read by him in recapitulating his argument (3 Johns. Cas. 361, 362), which 

were as follows:



     'That, in the general distribution of powers in our system of

     jurisprudence, the cognizance of law belongs to the court, of fact

     to the jury. That, as often as they are not blended, the power of

     the court is absolute and exclusive. That in civil cases it is always

     so, and may rightfully be so exerted. That in criminal cases, the

     law and fact being always blended, the jury, for reasons of a

     political and peculiar nature, for the security of life and liberty, is

     intrusted with the power of deciding both law and fact. 



     'That this distinction results: (1) From the ancient forms of

     pleading in civil cases, none but special pleas being allowed in

     matter of law; in criminal, none but the general issue. (2) From

     the liability of the jury to attaint in civil cases, and the general

     power of the court as its substitute in granting new trials, and

     from the exemption of the jury from attaint in criminal cases, and

     the defect of power to control their verdicts by new trials; the

     test of every legal power being its capacity to produce a

     definitive effect, liable neither to punishment nor control. 



     'That in criminal cases, nevertheless, the court are the

     constitutional advisers of the jury in matter of law, who may

     compromit their conscience by lightly or rashly disregarding that

     advice, but may still more compromit their consciences by

     following it, if, exercising their judgments with discretion and

     honesty, they have a clear conviction that the charge of the court

     is wrong.' 



The court was equally divided in opinion, Judge Kent (afterwards chief 

justice and chancellor) and Judge Thompson being in favor of a new trial, 

and Chief Justice Lewis and Judge Livingston against it. Judge Kent drew up 

a careful opinion, in which he reviewed the leading English authorities, and 

from which the following passages are taken:



     'In every criminal case, upon the plea of not guilty, the jury may,

     and indeed they must, unless they choose to find a special

     verdict, take upon themselves the decision of the law, as well as

     the fact, and bring in a verdict as comprehensive as the issue,

     because in every such case they are charged with the

     deliverance of the defendant from the crime of which he is

     accused.' 'The law and fact are so involved that the jury are

     under an indispensable necessity to decide both, unless they

     separate them by a special verdict. This right in the jury to

     determine the law as well as the fact has received the sanction of

     some of the highest authorities in the law.' 



     '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 neither to censure

     nor review. And the verdict of not guilty, in a criminal case, is, in

     every respect, absolutely 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.' People v. Croswell, 3 Johns. Cas. 366-368. 



     '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 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. 



     'I am aware of the objection to the fitness and competency of a

     jury to decide upon questions of law, and, especially, with a

     power to overrule the directions of the judge. In the first place,

     however, it is not likely often to happen that the jury will resist

     the opinion of the court on the matter of law. That opinion will

     generally receive its due weight and effect; an in civil cases it can

     and always ought to be ultimately enforced by the power of

     setting aside the verdict. But in human institutions the question is

     not whether every evil contingency can be avoided, but what

     arrangement will be productive of the least inconvenience. And it

     appears to be most consistent with the permanent security of the

     subject that in criminal cases the jury should, after receiving the

     advice and assistance of the judge as to the law, take into their

     consideration all the circumstances of the case, and the intention

     with which the act was done, and to determine, upon the whole,

     whether the act done be, or be not, within the meaning of the

     law. This distribution of power, by which the court and jury

     mutually assist and mutually check each other, seems to be the

     safest, and consequently the wisest, arrangement in respect to

     the trial of crimes. The constructions of judges, on the intention

     of the party, may often be (with the most upright motives) too

     speculative and refined, and not altogether just in their

     application to every case. Their rules may have too technical a

     cast, and become, in their operation, severe and oppressive. To

     judge accurately of motives and intentions does not require a

     master's skill in the science of the law. It depends more on a

     knowledge of the passions, and of the springs of human action,

     and may be the lot of ordinary experience and sagacity.' 3

     Johns. Cas. 375, 376. 



In April, 1805, the legislature of New York passed a statute, very like 

Fox's libel act, declaring that upon an indictment or information for libel 

'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.' And the reporter notes that 'in consequence of this 

declaratory statute the court, in August term, 1805 (no motion having been 

made for judgment on the verdict) unanimously awarded a new trial in the 

above cause.' 3 Johns. Cas. 412, 413.



In 1825, Judge Walworth (afterwards chancellor) presiding in a court of oyer 

and terminer, at trials of indictments for murder, instructed the jury 'that 

in criminal trials they had a right to decide both as to the law and the 

facts of the case; that the court was bound, by the oaths of office of its 

judges, honestly and impartially to decide the questions of law arising in 

the case, and state them to the jury; but the jury had a right to disregard 

the decision of the court upon questions of law, especially in favor of 

life, if they were fully satisfied that such decision was wrong.' People v. 

Thayer, 1 Parker, Cr. Cas. 595, 598; People v. Videto, Id. 603, 604. In New 

Jersey, by provincial laws of 1676 and 1681, it was not only enacted 'that 

the trial of all causes, civil and criminal, shall be heard and decided by 

the verdict of twelve honest men of the neighbourhood,' but also 'that there 

shall be, in every court, three justices or commissioners, who shall sit 

with the twelve men of the neighbourhood, with them to hear all causes, and 

to assist the said twelve men of the neighbourhood in case of law; and that 

they the said justices shall pronounce such judgment as they shall receive 

from, and be directed by the said twelve men, in whom only the judgment 

resides, and not otherwise; and, in case of their neglect and refusal, that 

then one of the twelve, by consent of the rest, pronounce their own judgment 

as the justices should have done.' Leaming & Spicer's Laws, pp. 396-398, 

428, 429. How far, under the present constitution and laws of the state, 

juries, in criminal cases, have the right to decide the law for themselves, 

disregarding the instructions of the judge presiding at the trial, does not 

appear to be settled. State v. Jay (1871) 34 N. J. Law, 368; Drake v. State 

(1890) 53 N. J. Law, 23, 20 Atl. 747.



In Pennsylvania, Chief Justice Sharswood said: 'No one acquainted with the 

life of the founder of this commonwealth can entertain any doubt of his 

opinion, or that of his friends and followers'; referring to the Case of 

Penn and Mead before the recorder of London, and to that of Bushell, upon 

habeas corpus, cited in the earlier part of this opinion, as well as to the 

argument of Andrew Hamilton, of Philadelphia, 'certainly the foremost lawyer 

of the colonies,' in Zenger's Case, above cited. And the right of the jury 

in criminal cases to decide both law and fact, notwithstanding opinions to 

the contrary expressed near the end of the last century by a judge of a 

county court, in charging juries and grand juries (Buchanan v. Taylor, Add. 

160; Pennsylvania v. McFall, Id. 257, and Charges, pp. 57-63), was long and 

generally recognized in that state. Kane v. Com., 89 Pa. St. 522, 526; 

Testimony of William Lewis and Edward Tilghman, Chase's Trial (Evans' Ed.) 

20, 21, 27.



In Maryland, the provision of the constitution of 1851 (article 10, 5), 

repeated in the constitutions of 1864 (article 12, 4), and of 1867 (article 

15, 5), that 'in the trial of all criminal cases the jury shall be the 

judges of law as well as fact,' has been held by the court of appeals to be 

merely declaratory of the pre-existing law, but not applicable to the 

question of the constitutionality of a statute. 1 Charters and 

Constitutions, 858, 885, 918; Franklin v. State (1858) 12 Md. 236, 249. As 

has been said by that court, speaking by Mr. Justice Alvey: 'The jury are 

made the judges of law as well as of fact, in the trial of criminal cases, 

under the constitution of this state; and any instruction given by the court 

as to the law of the crime is but advisory, and in no manner binding upon 

the jury, except in regard to questions as to what shall be considered as 

evidence.' Wheeler v. State (1875) 42 Md. 563, 570. See, also, Broll v. 

State (1876) 45 Md. 356; Bloomer v. State (1878) 48 Md. 521, 538, 539; World 

v. State (1878) 50 Md. 49, 55.



In Virginia, the doctrine that the jury, upon the general issue in a 

criminal case, had the right, as well as the power, to decide both law and 

fact, appears to have been generally admitted and practiced upon until 1829, 

when, to the surprise of the bar, it was treated by the court of appeals as 

doubtful. Dance's Case (1817) 5 Munf. 349, 363; Baker v. Preston (1821) 

Gilmer, 235, 303; Davenport v. Com. (1829) 1 Leigh, 588, 596; Com. v. Garth 

(1827) 3 Leigh, 761, 770; 3 Rob. Va. Prac. (1839) c. 23.



In Georgia, Alabama, and Louisiana, the right of the jury was formerly 

recognized. McGuffie v. State (1855) 17 Ga. 497, 513; McDaniel v. State 

(1860) 30 Ga. 853; State v. Jones (1843) 5 Ala. 666; Bostwick v. Gasquet 

(1836) 10 La. 80; State v. Scott (1856) 11 La. Ann. 429; State v. Jurche 

(1865) 17 La. Ann. 71.



The ordinance of the continental congress of 1787 for the government of the 

Northwest Territory provided that the inhabitants of the territory should 

always be entitled to the benefit of the trial by jury, and that no man 

should be deprived of his liberty or property, but by the judgment of his 

peers or the law of the land; and the constitutions of the state of Indiana 

in 1816, and of Illinois in 1818 and 1848, contained similar provisions. 1 

Charters and Constitutions, 431, 446, 447, 466, 500, 501.



In Indiana, the supreme court, under the constitution of 1816, having 

alternately denied and affirmed the right of the jury in criminal cases to 

decide the law, the people, by the constitution which took effect in 

November, 1851, declared that 'in all criminal cases whatever the jury shall 

have the right to determine the law and the facts'; and this right has since 

been maintained by that court, even when the constitutionality of a statute 

was involved. Townsend v. State (1828) 2 Blackf. 151; Warren v. State (1836) 

4 Blackf. 150; Carter v. State (May, 1851) 2 Ind. 617; 1 Charters and 

Constitutions, 513, 526; Lynch v. State (1857) 9 Ind. 541; McCarthy v. State 

(1877) 56 Ind. 203; Hudelson v. State (1883) 94 Ind. 426; Blaker v. State 

(1891) 130 Ind. 203, 29 N. E. 1077.



In Illinois, the Criminal Code having declared that 'juries in all cases 

shall be judges of the law and the fact,' the jury, at a trial for murder, 

after being out for some time, came into court, and, through their foreman, 

suggested that a juror maintained that he was competent to judge of the 

correctness of the instructions of the judge as the juror's opinion of the 

law might dictate. The judge instructed the jury that they must take the law 

as laid down to them by the court, and could not determine for themselves 

whether the law so given to them was or was not the law. Upon exception to 

the instructions, the supreme court of Illinois, speaking by Judge Breese, 

granted a new trial, and said: 'Being judges of the law and the fact, they 

are not bound by the law as given to them by the court, but can assume the 

responsibility of deciding, each juror for himself, what the law is. If they 

can say, upon their oaths, that they know the law better than the court, 

they have the power so to do. If they are prepared to say the law is 

different from what it is declared to be by the court, they have a perfect 

legal right to say so, and find the verdict according to their own notions 

of the law. It is a matter between their consciences and their God, with 

which no power can interfere.' Fisher v. People (1860) 23 Ill. 283, 294. 

See, also, Mullinix v. People (1875) 76 Ill. 211; Spies v. Illinois (1887) 

122 Ill. 1, 252, 12 N. E. 865, and 17 N. E. 898.



In the declaration of rights unanimously adopted October 14, 1774, by the 

continental congress, of which John Adams, Samuel Adams, Roger Sherman, John 

Jay, Samuel Chase, George Washington, and Patrick Henry were members, it was 

resolved 'that the respective colonies are entitled to the common law of 

England, and more especially to the great and inestimable privilege of being 

tried by their peers of the vicinage, according to the course of that law.' 

1 Jour. Cong. 28.



The constitution of the United States, as framed in 1787, and adopted in 

1788, ordained, in article 3, 2, that 'the trial of all crimes, except in 

cases of impeachment, shall be by jury; and such trial shall be held in the 

state where the said crime shall have been committed'; and, in the fifth, 

sixth, and seventh amendments, adopted in 1791, 'nor shall any person be 

subject for the same offence to be twice put in jeopardy of life or limb,' 

'nor be deprived of life, liberty or property, without due process of law'; 

'in all criminal prosecutions, the accused shall enjoy the right to a speedy 

and public trial, by an impartial jury of the state and district wherein the 

crime shall have been committed, which district shall have been previously 

ascertained by law'; and 'in suits at common law, where the value in 

controversy shall exceed twenty dollars, the right of trial by jury shall be 

preserved, and no fact tried by a jury shall be otherwise reexamined in any 

court of the United States, than according to the rules of the common law.'



Within six years after the constitution was established, the right of the 

jury, upon the general issue, to determine the law as well as the fact in 

controversy, was unhesitatingly and unqualifiedly affirmed by this court, in 

the first of the very few trials by jury ever had at its bar, under the 

original jurisdiction conferred upon it by the constitution.



That trial took place at February term, 1794, in State v. Brailsford, 3 

Dall. 1, which was an action at law by the state of Georgia against 

Brailsford and others, British subjects. The pleadings, as appears by the 

files of this court, were as follows: The declaration was in assumpsit, for 

money had and received; the defendants pleaded non assumpsit, and 'put 

themselves upon the country'; and the replication was, 'and the said state 

of Georgia also putteth herself upon the country.' The action, as the report 

shows, was brought to recover moneys received by the defendants upon a bond 

of a citizen of Georgia to them, to which the state of Georgia claimed title 

under an act of confiscation passed by that state in 1782, during the 

Revolutionary War, under circumstances which were agreed to be as stated in 

the suit in equity between the same parties, reported in 2 Dall. 402, 415. 

After the case had been argued for four days to the court and jury, Chief 

Justice Jay, on February 7, 1794, as the report states, 'delivered the 

following charge':



     'This cause has been regarded as of great importance, and

     doubtless it is so. It has accordingly been treated by the counsel

     with great learning, diligence, and ability; and on your part, it has

     been heard with particular attention. It is therefore unnecessary

     for me to follow the investigation over the extensive field into

     which it has been carried. You are now, if ever you can be,

     completely possessed of the merits of the cause. 



     'The facts comprehended in the case are agreed. The only point

     that remains is to settle what is the law of the land arising from

     those facts; and, on that point, it is proper that the opinion of the

     court should be given. It is fortunate on the present, as it must be

     on every, occasion, to find the opinion of the court unanimous.

     We entertain no diversity of sentiment, and we have experienced

     no difficulty in uniting in the charge which it is my province to

     deliver.' 



The chief justice, after stating the opinion of the court in favor of the 

defendants upon the questions of law, proceeded 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.'



Then, after telling the jury that they should not be influenced by a 

consideration of the comparative situations and means of the parties, he 

concluded the charge thus: 'Go, then, gentlemen, from the bar, without any 

impressions of favor or prejudice for the one party or the other. Weigh well 

the merits of the case, and do on this, as you ought to do on every, 

occasion, equal and impartial justice.' The jury, after coming into court, 

and requesting and receiving further explanations of the questions of law, 

returned a verdict for the defendants, without going again from the bar. 3 

Dall. 3-5.



The report shows that, in a case in which there was no controversy about the 

facts, the court, while stating to the jury its unanimous opinion upon the 

law of the case, and reminding them 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,' expressly informed them that 'by the same 

law, which recognizes this reasonable distribution of jurisdiction,' the 

jury 'have nevertheless a right to take upon yourselves to judge of both, 

and to determine the law as well as the fact in controversy.'



The court at that time consisted of Chief Justice Jay and Justices Cushing, 

Wilson, Blair, Iredell, and Paterson, all of whom, as appears by its 

records, except Justice Iredell, were present at the trial.



The doubts which have been sometimes expressed of the accuracy of Mr. 

Dallas' report are unfounded, as is apparent from several considerations. He 

was of counsel for the plaintiff. The court was then held at Philadelphia; 

and there is no reason to doubt that the practice mentioned in the preface 

to his first volume, containing reports of cases in the courts of 

Pennsylvania only, by which 'each case, before it was sent to the press, 

underwent the examination of the presiding judge of the court in which it 

was determined,' was continued in his succeeding volumes containing 'reports 

of cases ruled and adjudged in the several courts of the United States and 

of Pennsylvania, held at the seat of the federal government.' The charge 

contains internal evidence of being reported verbatim, and has quotation 

marks at the end, although they are omitted at the beginning And the charge, 

in the same words, with the prefix that it 'was delivered by Jay, Chief 

Justice, on the 7th of February, in the following lowing terms,' is printed 

in Dunlop & Claypole's American Daily Advertiser of February 17, 1794.



That was not a criminal case, nor a suit to recover a penalty. Had it been, 

it could hardly have been brought within the original jurisdiction of this 

court. Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 294, 295 S., 8 Sup. Ct. 

1370. But it was a suit by a state to assert a title acquired by an act of 

its legislature in the exercise of its sovereign powers in time of war 

against private individuals. As the charge of the court dealt only with the 

case before it, without any general discussion, it does not appear whether 

the opinion expressed as to the right of the jury to determine the law was 

based upon a supposed analogy between such a suit and a prosecution for 

crime, or upon the theory, countenanced by many American authorities of the 

period, that at the foundation of the republic, as in early times in 

England, the right of the jury extended to all cases, civil or criminal, 

tried upon the general issue.



However that may have been, it cannot be doubted that this court, at that 

early date, was of opinion that the jury had the right to decide for 

themselves all matters of law involved in the general issue in criminal 

cases; and it is certain that in the century that has since elapsed there 

has been no judgment or opinion of the court deciding or intimating, in any 

form, that the right does not appertain to the jury in such cases. And the 

opinions expressed by individual justices of the court upon the subject, 

near the time of the decision in State v. Brailsford, or within 40 years 

afterwards, of which any reports are known to exist, tend, more or less 

directly, to affirm this right of the jury. That there is not a greater 

accumulation of evidence to this effect is easily accounted for when it is 

remembered that comparatively few reports of trials were printed, and that 

the right of the jury was considered to be so well settled that it was 

seldom controverted in practice, or specially noticed in reporting trials.



Upon the trial of Gideon Henfield in the circuit court of the United States 

for the district of Pennsylvania in 1793, before Justices Wilson and Iredell 

and Judge Peters, for illegal privateering, Mr. Justice Wilson told the jury 

that, 'the questions of law coming into joint consideration with the facts, 

it is the duty of the court to explain the law to the jury and give it to 

them in direction'; and, after expressing the unanimous opinion of the court 

upon the questions of law involved in the case, 'concluded by remarking that 

the jury, in a general verdict, must decide both law and fact, but that this 

did not authorize them to decide it as they pleased. They were as much bound 

to decide by law as the judges. The responsibility was equal upon both.' 

Whart. St. Tr. 49, 84, 87, 88, Fed. Cas. No. 6, 360.



This statement that the jury, in a general verdict, must decide both law and 

fact, and were as much bound to decide by law as the judges, and under an 

equal responsibility, is quite inconsistent with the idea that the jury were 

bound to accept the explanation and direction of the court in matter of law 

as controlling their judgment. That neither Mr. Justice Wilson nor Mr. 

Justice Iredell entertained any such idea is conclusively disproved by 

authentic and definite statements of their views upon the question.



Mr. Justice Iredell, speaking for himself only, in a civil case before this 

court, at February term, 1795, said: 'It will not be sufficient that the 

court might charge the jury to find for the defendant, because, though the 

jury will generally respect the sentiments of the court on points of law, 

they are not bound to deliver a verdict conformably to them.' Bingham v. 

Cabbot, 3 Dall. 19, 33. [158-Continued]



In a charge to the grand jury of the circuit court of the United States for 

the district of Georgia, in 1792, Mr. Justice Iredell said: 'Where a killing 

is clearly proved, if the case be not very plain indeed, the grand jury 

should find the indictment for murder, and leave the consideration as to the 

species of homicide to the court and jury on the trial. I say the court and 

jury; for though it is held to be the province of the court to decide what 

species of homicide the offense belongs to, and that the province of the 

jury is merely to be confined to the facts, yet, in my opinion, this can 

mean nothing more, according to the true principles of law, than that, if a 

jury find a special verdict stating the facts, the court may pronounce the 

law upon it, and give judgment as effectually as they could have done on a 

general verdict. But as it is in the option of the jury to give a special 

verdict or not, and as they unquestionably may find a general verdict, I 

conceive they must find that verdict conscientiously, on the best of their 

judgment, after receiving all such assistance as the court may think proper 

to give them, which assistance, where points of law are complicated with 

facts, will often be found very useful, and in some instances absolutely 

necessary. But as they, in the case of a general verdict, are by the law 

judges in the last resort (so far, at least, as the giving of that verdict 

is concerned), they have, I think, clearly a right, as well as power, to 

determine as shall appear to them just; since it seems to me absurd to say 

that, where there is a lawful authority to determine, that determination 

must be made, not according to the judgment of those who have such 

authority, but according to the judgment of those who have it not. I know no 

trammels of precedent in this country to overrule a principle which appears 

to me so plain, and which is so well calculated to guard against indecent 

altercations between a court and jury, as well as, in my opinion, to prevent 

any of the rights or liberties of the citizens being overborne (as might 

otherwise sometimes be the case) by violent exertions of power.' 2 McRee, 

Life of Iredell, 350.



Mr. Justice Wilson, in his lectures on law at the Philadelphia College in 

1790 and 1791, discussing the maxim that the judges determine the law and 

the jury determine the fact, made the following observations:



     'This well-known division between their provinces has been long

     recognized and established. When the question of law and the

     question of fact can be decided separately, there is no doubt or

     difficulty in saying by whom the separate decision shall be made.

     If, between the parties litigant, there is no contention concerning

     the facts, but an issue is joined upon a question of law, as is the

     case in a demurrer, the determination of this question, and the

     trial of this issue, belongs exclusively to the judges. On the other

     hand, when there is no question concerning the law, and the

     controversy between the parties depends entirely upon a matter

     of fact, the determination of this matter, brought to an issue,

     belongs exclusively to the jury. But in many cases the question of

     law is intimately and inseparably blended with the question of

     fact, and when this is the case the decision of one necessarily

     involves the decision of the other. When this is the case it is

     incumbent on the judges to inform the jury concerning the law,

     and it is incumbent on the jury to pay much regard to the

     information which they receive from the judges. But now the

     difficulty in this interesting subject begins to press upon us.

     Suppose that, after all the precautions taken to avoid it, a

     difference of sentiment takes place between the judges and the

     jury with regard to a point of law. Suppose the law and the fact

     to be so closely interwoven that a determination of one must at

     the same time embrace the determination of the other. Suppose

     a matter of this description to come in trial before a jury. What

     must the jury do? The jury must do their duty, and their whole

     duty. They must decide the law as well as the fact. This doctrine

     is peculiarly applicable to criminal cases, and from them, indeed,

     derives its peculiar importance.' 



     'Juries undoubtedly may make mistakes. They may commit

     errors. They may commit gross ones. But, changed as they

     constantly are, their errors and mistakes can never grow into a

     dangerous system. The native uprightness of their sentiments will

     not be bent under the weight of precedent and authority. The

     esprit de corps will not be introduced among them, nor will

     society experience from them those mischiefs of which the esprit

     de corps, unchecked, is sometimes productive. Besides, their

     mistakes and their errors, except the venial ones on the side of

     mercy made by traverse juries, are not without redress. The

     court, if dissatisfied with their verdict, have the power, and will

     exercise the power, of granting a new trial. This power, while it

     prevents or corrects the effects of their errors, preserves the

     jurisdiction of juries unimpaired. The cause is not evoked before

     a tribunal of another kind. A jury of the country -- an abstract,

     as it has been called, of the citizens at large -- summoned,

     selected, impaneled, and sworn as the former, must still decide.' 



     'One thing, however, must not escape our attention. In the cases

     and on the principles which we have mentioned, jurors possess

     the power of determining legal questions. But they must

     determine them according to law.' 2 Wilson, Works, 371-374. 



In closing his discussion of the subject, and reviewing the principles 

before stated, he said: 'With regard to the law in criminal cases, every 

citizen, in a government such as ours, should endeavor to acquire a 

reasonable knowledge of its principles and rules, for the direction of his 

conduct, when he is called to obey, when he is called to answer, and when he 

is called to judge. On questions of law, his deficiencies will be supplied 

by the professional directions of the judges, whose duty and whose business 

it is professionally to direct him; for, as we have seen, verdicts in 

criminal cases generally determine the question of law as well as the 

question of fact. Questions of fact, it is his exclusive province to 

determine. With the consideration of evidence unconnected with the question 

which he is to try, his attention will not be distracted, for everything of 

that nature, we presume, will be excluded by the court. The collected powers 

of his mind, therefore, will be fixed, steadily and without interruption, 

upon the issue which he is sworn to try. This issue is an issue of fact.' 2 

Wilson, Works, 386, 387.



These passages, taken together, clearly evince the view of Mr. Justice 

Wilson to have been that, while an issue of law is to be tried and decided 

by the judge, an issue of fact, although it involve a question of law 

blended and interwoven with the fact, is to be tried and decided by the jury 

after receiving the instructions of the court, and, if a difference of 

opinion arise between them and the judge upon the question of law, it is 

their right and their duty to decide the law as well as the fact; that a 

reasonable knowledge of the principles and rules of law is important to the 

citizen, not only 'when he is called to obey,' as an individual, and 'when 

he is called to answer,' as a defendant, but also 'when he is called to 

judge,' as a juror; and that the general issue which the jury in a criminal 

case are sworn to try, and which it is their duty to decide, even if it 

involve questions of law, is 'an issue of fact.'



The provision of section 3 of the act of congress of July 14, 1798 (chapter 

74), for punishing seditious libels, that '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. 597), is a clear and express 

recognition of the right of the jury, in all criminal cases, to determine 

the law and the fact. The words, 'direction of the court,' as here used, 

like the words 'opinions and directions' in the English libel act, do not 

oblige the jury to adopt the opinion of the court, but are merely equivalent 

to 'instruction,' 'guide,' or 'aid,' and not to 'order,' 'command,' or 

'control.' The provision is in affirmance of the general rule, and not by 

way of creating an exception, and the reason for inserting it probably was 

that the right of the jury had been more often denied by the English courts 

in prosecutions for seditious libels than in any other class of cases.



Upon the trial of John Fries for treason, in 1800, before Mr. Justice Chase 

and Judge Peters, in the circuit court of the United States for the district 

of Pennsylvania, the district attorney having quoted from English law books 

definitions of actual and constructive treason, Mr. Justice Chase said: 

'They may, any of them, be read to the jury, and the decisions thereupon, 

not as authorities whereby we are bound, but as the opinions and decisions 

of men of great legal learning and ability. But even then the court would 

attend carefully to the time of the decision, and in no case must it be 

binding upon our juries.' Trials of Fries, 180. And he afterwards 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 on the present and in all criminal cases 

both the law and the facts, on their consideration of the whole case.' And 

he concluded his charge in these words: 'If, upon consideration of the whole 

matter (law as well as fact), you are not fully satisfied, without any 

doubt, that the prisoner is guilty of the treason charged in the indictment, 

you will find him not guilty; but if, upon the consideration of the whole 

matter (law as well as fact), you are convinced that the prisoner is guilty 

of the treason charged in the indictment, you will find him guilty.' These 

instructions, with words italicized as above, are in the exhibits annexed by 

Mr. Justice Chase to his answer upon the impeachment in 1805. Chase, Trial 

(Evans' Ed.) Append. 44, 45, 48. See, also, Trials of Fries, 196, 199, 

Whart. St. Tr. 634, 636, Fed. Cas. No. 5, 127.



In 1806, at the trial of William S. Smith, in the circuit court of the 

United States for the district of New York, upon an indictment for setting 

out a military expedition against a foreign country at peace with the United 

States, Judge Talmadge said to the jury: 'You have heard much said upon the 

right of a jury to judge of the law as well as the fact.' 'The law is now 

settled that this right appertains to a jury in all criminal cases. They 

unquestionably may determine upon all the circumstances, if they will take 

the responsibility and hazard of judging incorrectly upon questions of mere 

law. But the jury is not therefore above the law. In exercising this right, 

they attach to themselves the character of judges, and as such are as much 

bound by the rules of legal decision as those who preside upon the bench.' 

Trials of Smith and Ogden, 236, 237.



In prosecutions in the district court of the United States for the district 

of Massachusetts, under the act of congress of January 8, 1808 (chapter 8), 

laying an embargo (2 Stat. 453), Samuel Dexter argued the 

unconstitutionality of the act to the jury; and they acquitted the 

defendant, although the evidence of the violation of the act was clear, and 

the court held, and instructed the jury, that the act was constitutional. 3 

Bradf. Hist. Mass. 108, note; 3 Webst. Works, 329, 330; U. S. v. The 

William, 2 Hall, Law J. 255; Sigma, Reminiscences of Dexter, 60, 61.



In 1812, at the trial of an action in the district court of the United 

States for the district of New York, upon a bond given under the embargo 

act, Judge Van Ness instructed the jury that 'this was in its nature and 

essence, though not in its form, a penal or criminal action, and they were 

therefore entitled to judge both of the law and the fact.' U. S. v. Poillon, 

1 Car. Law Repos. 60, 66.



In 1815, at the trial of John Hodges, in the circuit court of the United 

States for the district of Maryland, for treason, William Pinkney, for the 

defendant, argued: 'The best security for the rights of individuals is to be 

found in the trial by jury. But the excellence of this institution consists 

in its exclusive power. The jury are here judges of law and fact, and are 

responsible only to God, to the prisoner, and to their own consciences.' And 

Mr. Justice Duvall, of this court, after expressing his opinion upon the law 

of the case, said, with the concurrence of Judge Houston: 'The jury are not 

bound to conform to this opinion, because they have a right, in all criminal 

cases, to decide on the law and the facts.' Hall, Law Tracts, III. 19, 28; 2 

Wheeler, Cr. Cas. 477, 478, 485; Fed. Cas. No. 15, 374.



In 1830, George Wilson and James Porter were jointly indicted in the circuit 

court of the United States for the district of Pennsylvania for robbing the 

mail, and were tried separately. In Wilson's Case, Mr. Justice Baldwin 

(Judge Hopkinson concurring), after expressing to the jury an opinion upon 

the law, said to them: '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 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 courts should 

decide questions of law; and the juries, of facts. The nature of the 

tribunals naturally leads to this division of duties, 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. We have only one other remark 

to make on this subject: By taking the law as given by the court, you incur 

no moral responsibility; in making a rule of your own, there may be some 

danger of a mistake.' Baldw. 78, 99, 100, Fed. Cas. No. 16, 730. And in 

Porter's Case, the court, after repeating and explaining these instructions, 

said to the jury: 'In a word, gentlemen, decide on the law and the facts as 

best comports with your sense of duty to the public and yourselves. Act on 

the same rule under which you would be guided, as a magistrate or judge, on 

the oath and responsibility of office. Then you will not err.' Baldw. 108, 

109, Fed. Cas. No. 16, 730.



Some justices of this court, indeed, who, as already shown, admitted the 

general right of jurors in criminal cases to decide both law and fact, 

denied their right to pass upon the constitutionality of a statute, 

apparently upon the ground that the question of the existence or the 

validity of a statute was for the court alone. Paterson, J., in Lyon's Case 

(1798) Whart. St. Tr. 333, 336, Fed. Cas. No. 8, 646; Chase, J., in 

Callender's Case (1800) Whart. St. Tr. 688, 710-718, Fed. Cas. No. 14, 709; 

Baldwin, J., in U. S. v. Shive (1832) Baldw. 510, Fed. Cas No. 16, 278. It 

may well be doubted whether such a distinction can be maintained. Com. v. 

Anthes, 5 Gray, 185, 188-192, 262; Cooley, Const. Lim. (6th Ed.) 567. But 

the point does not arise in this case Upon the general question of the right 

of the jury in criminal cases to decide the law, Chief Justice Marshall's 

opinion is of so great weight that the evidence of that opinion, although, 

perhaps, not so satisfactory as might be wished, should not be disregarded.



At the trial of Aaron Burr in the circuit court of the United States for the 

district of Virginia, in 1808, for treason by levying war in 

Blennerhassett's Island, Chief Justice Marshall, in delivering an opinion 

upon the order of evidence, said: 'Levying of war is a fact, which must be 

decided by the jury. The court may give general instructions on this, as on 

every other question brought before them, but the jury must decide upon it 

as compounded of fact and law.' 1 Burr's Trial, 470.



In the charge, Drawn up by the chief justice in writing, and read by him to 

the jury, speaking of the question of the defendant's constructive presence, 

he said: 'Had he not arrived in the island, but had taken a position near 

enough to co-operate with those on the island, to assist them in any act of 

hostility, or to aid them if attacked, the question whether he was 

constructively present would be a question compounded of law and fact, which 

would be decided by the jury, with the aid of the court, so far as respected 

the law.' 2 Burr's Trial, 429.



The chief justice took occasion to demonstrate that questions of the 

admissibility of evidence must be decided by the court only, saying: 'No 

person will contend that in a civil or criminal case either party is at 

liberty to introduce what testimony he pleases, legal or illegal, and to 

consume the whole term in details of facts unconnected with the particular 

case. Some tribunal, then, must decide on the admissibility of testimony. 

The parties cannot constitute this tribunal, for they do not agree. The jury 

cannot constitute it, for the question is whether they shall hear the 

testimony or not. Who then but the court can constitute it? It is, of 

necessity, the peculiar province of the court to judge of the admissibility 

of testimony.' Page 443.



Referring to his previous opinion on the order of testimony, he remarked: 

'It was said that levying war is an act compounded of law and fact, of which 

the jury, aided by the court, must judge. To that declaration the court 

still adheres.' Page 444. And he concluded his charge thus: 'The jury have 

now heard the opinion of the court on the law of the case. They will apply 

that law to the facts, and will find a verdict of guilty or not guilty as 

their own consciences may direct.' Page 445.



It thus appears that Chief Justice Marshall, while affirming that a question 

of the admissibility of evidence must be decided by the court, because that 

question was whether the jury should hear the evidence or not, yet told the 

jury (in many forms, but of the same meaning) that upon a question 

compounded of fact and law, involved in the issue submitted to the jury, the 

court might give general instructions, but the jury must decide it; that 

such a question, compounded of law and fact, would be decided by the jury, 

with the aid of the court, so far as respects the law; that of such a 

question the jury, aided by the court, must judge; and that, having 'heard 

the opinion of the court on the law of the case, they will apply,' not 'that 

opinion,' but 'that law,' namely, the law as to which the court had 

expressed its opinion, 'to the facts, and will find a verdict of guilty or 

not guilty as their own consciences may direct.' The manifest intent and 

effect of all this were that the jury, after receiving the aid of the 

instructions of the court on matter of law, must judge of and determine, as 

their own consciences might direct, every question compounded of law and 

fact involved in the general issue of guilty or not guilty.



The meaning of the charge in this respect, as carefully prepared by the 

chief justice, is too clear to be controlled by the words attributed to him 

by the reporter, on page 448, in the course of a desultory conversation with 

counsel in regard to other defendants, after the jury had found Burr not 

guilty.



In 1817, before Chief Justice Marshall, in the same court, there was tried 

an indictment for piracy, by robbing on the high seas, under Act Cong. April 

30, 1790, c. 9, 8 (1 Stat. 113; Rev. St. 5372), enacting that any person 

committing upon the high seas 'murder or robbery, or any other offense 

which, if committed within the body of a county, would by the laws of the 

United States be punishable with death,' should be deemed a pirate. Mr. 

Upshur, for the defendant, argued 'that it was necessary that robbery should 

first be made punishable with death by the laws of the United States, when 

committed on land, before it could amount to piracy, when committed on the 

sea, which was not now the case; that Judge Johnson had so decided in South 

Carolina, although a contrary decision had been subsequently pronounced by 

Judge Washington; that the conflict between these two learned judges proved 

that the law was at least doubtful; that the jury, in a capital case, were 

judges as well of the law as the fact, and were bound to acquit, where 

either was doubtful.' Chief Justice Marshall (far from denying this right of 

the jury), 'being appealed to for the interpretation of the law, decided that 

it was not necessary that robbery should be punishable by death when 

committed on land, in order to amount to piracy if committed on the ocean; 

but as two judges (for both of whom the court entertained the highest 

respect) had pronounced opposite decisions upon it, the court could not 

undertake to say that it was not at least doubtful.' And, the case being 

submitted to the jury, they returned a verdict of not guilty. U. S. v. 

Hutchings, 2 Wheel. Cr. Cas. 543, 547, 548, Fed. Cas. No. 15, 429.3



It may be added that Mr. Conway Robinson, well known to many members of this 

court and this bar as a most careful and accurate as well as learned lawyer, 

informed Mr. Justice Blatchford and myself that he well remembered hearing 

Chief Justice Marshall, presiding at the trial of a criminal case in the 

circuit court of the United States at Richmond, after expressing, at the 

request of the counsel on both sides, his own opinion upon the construction 

of the statute on which the indictment was founded, conclude his charge to 

the jury by telling them that, as it was a criminal case, they were not 

bound to accept his opinion, but had the right to decide both the law and 

the fact.



Until nearly 40 years after the adoption of the constitution of the United 

States, not a single decision of the highest court of any state, or of any 

judge of a court of the United States, has been found, denying the right of 

the jury upon the general issue in a criminal case to decide, according to 

their own judgment and consciences, the law involved in that issue, except 

the two or three cases, above mentioned, concerning the constitutionality of 

a statute. And it cannot have escaped attention that many of the utterances 

above quoted, maintaining the right of the jury, were by some of the most 

eminent and steadfast supporters of the constitution of the United States, 

and of the authority of the national judiciary.



It must frankly be admitted that in more recent times, beginning with the 

judgment of the court of appeals of Kentucky in 1830 in Montee v. Com., 3 J. 

J. Marsh. 132, and with Mr. Justice Story's charge to a jury in 1835 in U. 

S. v. Battiste, 2 Sumn. 240, Fed. Cas. No. 14, 545, the general tendency of 

decision in this country (as appears by the cases cited in the opinion of 

the majority of the court) has been against the right of the jury, as well 

in the courts of the several states, including many states where the right 

was once established, as in the circuit courts of the United States. The 

current has been so strong that in Massachusetts, where counsel are admitted 

to have the right to argue the law to the jury, it has yet been held that 

the jury have no right to decide it, and it has also been held, by a 

majority of the court, that the legislature could not constitutionally 

confer upon the jury the right to determine, against the instructions of the 

court, questions of law involved in the general issue in criminal cases; and 

in Georgia and in Louisiana a general provision in the constitution of the 

state declaring that 'in criminal cases the jury shall be judges of the law 

and fact' has been held not to authorize them to decide the law against the 

instructions of the court. Com. v. Porter, 10 Metc. (Mass.) 263; Com. v. 

Anthes, 5 Gray, 185; Ridenhour v. State, 75 Ga. 382; State v. Tisdale, 41 

La. Ann. 338, 6 South. 579.



But, upon the question of the true meaning and effect of the constitution of 

the United States in this respect, opinions expressed more than a generation 

after the adoption of the constitution have far less weight than the almost 

unanimous voice of earlier and nearly contemporaneous judicial declarations 

and practical usage. Stuart v. Laird, 1 Cranch, 299. And, upon this 

constitutional question, neither decisions of state courts, nor rulings of 

lower courts of the United States, can relieve this court from the duty of 

exercising its own judgment. Liverpool & G. W. Steam Co. v. Phenix Ins. Co., 

129 U.S. 397, 443, 9 S. Sup. Ct. 469; Andrews v. Hovey, 124 U.S. 694, 717, 8 

S. Sup. Ct. 676; The J. E. Rumbell, 148 U.S. 1, 17, 13 S. Sup. Ct. 498.



The principal grounds which have been assigned for denying the right of a 

jury, upon the general issue in a criminal case, to determine the law 

against the instructions of the court, have been that the old maxim, 'Ad 

quaestionem juris respondent judices, ad quaestionem facti respondent 

juratores,' is of universal application; that judges are more competent than 

juries to determine questions of law; and that decisions upon such questions 

in one case become precedents to guide the decision of subsequent cases.



But the question, what are the rights, in this respect, of persons accused 

of crime, and of juries summoned and impaneled to try them, under the 

constitution of the United States, is not a question to be decided according 

to what the court may think would be the wisest and best system to be 

established by the people or by the legislature; but what, in the light of 

previous law, and of contemporaneous or early construction of the 

constitution, the people did affirm and establish by that instrument.



This question, like all questions of constitutional construction, is largely 

an historical question; and it is for that reason that it has seemed 

necessary, at the risk of tediousness, to review and to state at some length 

the principal authorities upon the subject in England and America. The 

reasons to be derived from these authorities for maintaining the contested 

right of the jury in this regard may be summed up as follows:



By the Great Charter of England, and by the American constitutions, it is 

not by a decision of the ablest or most learned judges that the citizen can 

be deprived of his life or liberty, but it is only by 'the judgment of his 

peers,' or, in the ancient phrase, 'by his country,' -- a jury taken from 

the body of the people.



The ancient forms, used before and since the adoption of the constitution, 

and hardly altered at the present day, in which the general issue is pleaded 

by the accused, and submitted to the jury, are significant. When the 

defendant, being arraigned upon the indictment, pleads not guilty, he is 

asked by the clerk of the court, 'How will you be tried?' and answers, 'By 

God and my country.' The oath administered to each juror as he is called and 

accepted is: 'You shall well and truly try and true deliverance make between 

our sovereign lord the king [or the state or people, or the United States, 

as the case may be] and the prisoner at the bar, whom you shall have in 

charge, according to your evidence. So help you God.' And, after the jury 

have been impaneled, the clerk reads the indictment to the jury, and then 

says to them: 'To this indictment the prisoner at the bar has pleaded not 

guilty, and for trial has put himself upon the country, which country you 

are. You are now sworn to try the issue. If he is guilty, you will say so; 

if not guilty, you will say so; and no more.'



In the maxim, 'Ad quaestionem juris respondent judices, ad quaestionem facti 

respondent juratores,' the word 'quaestio' denotes an issue joined by the 

pleadings of the parties, or otherwise stated on the record, for decision by 

the appropriate tribunal. Issues of law, so joined or stated, are to be 

decided by the judge; issues of fact, by the jury. If the accused demurs to 

the indictment, an issue of law only is presented, which must be decided and 

judgment rendered thereon by the court, and by the court alone. But, if the 

accused pleads generally not guilty, the only issue joined is an issue of 

fact, to be decided by the jury, and by the jury only, unless the jury 

choose to return a special verdict, so that the record may present an issue 

of mere law, to be decided by the court. After a verdict of guilty, again, 

any defense in matter of law, apparent on the record, is to be considered 

and decided by the court on motion in arrest of judgment.



The maxim has no application to rulings, in the course of the trial, upon 

the admission of evidence. The object of rules as to the competency of 

evidence is to prevent trials from being unduly prolonged, and the 

consideration and decision of the merits of the real issue on trial 

obscured, embarrassed, or prejudiced by the introduction of irrelevant 

matter. The question whether particular evidence shall be admitted or not is 

one to be decided before the evidence can be submitted to the jury at all, 

and must be, as it always is, decided by the court; and this is so, whether 

the admissibility of the evidence depends, as it usually does, upon a 

question of law only, or depends largely or wholly upon a question of fact, 

as whether dying declarations were made under immediate apprehension of 

death, or whether a confession of the defendant was voluntary, or whether 

sufficient foundation has been laid for the introduction of secondary 

evidence, or for permitting a witness to testify as an expert. To infer, 

because the court must decide questions of law upon which the admissibility 

of evidence depends, that the jury have no right to determine the matter of 

law involved in the general issue, would be as unwarrantable as to infer, 

because the court must decide questions of fact upon which the admissibility 

of evidence depends, that the jury have no right to decide the matter of 

fact involved in that issue.



The jury to whom the case is submitted, upon the general issue of guilty or 

not guilty, are intrusted with the decision of both the law and the facts 

involved in that issue. To assist them in the decision of the facts, they 

hear the testimony of witnesses; but they are not bound to believe the 

testimony. To assist them in the decision of the law, they receive the 

instructions of the judge; but they are not obliged to follow his 

instructions.



Upon the facts, although the judge may state his view of them, the duty of 

decision remains with the jury, and cannot be thrown by them upon the judge. 

Upon the law involved in the issue of fact, the jury, if they are satisfied 

to do so, may let it be decided by the judge, either by returning a general 

verdict in accordance with his opinion as expressed to them, or by returning 

a special verdict reciting the facts as found by them, and, by thus 

separating the law from the facts, put the question of law in a shape to be 

decided by the court in a more formal manner. But the whole issue, 

complicated of law and fact, being submitted to their determination, the law 

does not require them to separate the law from the fact, but authorizes them 

to decide both at once by a general verdict.



The duty of the jury, indeed, like any other duty imposed upon any officer 

or private person by the law of his country, must be governed by the law, 

and not by willfulness or caprice. The jury must ascertain the law as well 

as they can. Usually they will, and safely may, take it from the 

instructions of the court. But, if they are satisfied on their consciences 

that the law is other than as laid down to them by the court, it is their 

right and their duty to decide by the law as they know or believe it to be.



In the forcible words of Chief Justice Vaughan in Bushell's Case, Vaughan, 

135, 148, already quoted: 'A man cannot see by another's eye, nor hear by 

another's ear; no more can a man conclude or infer the thing to be resolved 

by another's understanding or reasoning; and, though the verdict be right 

the jury give, yet they, being not assured it is so from their own 

understanding, are forsworn, at least in foro conscientiae.' Or, as more 

briefly stated in another report of the same case: 'The jury are perjured if 

the verdict be against their own judgment, although by directions of the 

court, for their oath binds them to their own judgment.' T. Jones, 13, 17.



It is universally conceded that a verdict of acquittal, although rendered 

against the instructions of the judge, is final, and cannot be set aside; 

and, consequently, that the jury have the legal power to decide for 

themselves the law involved in the general issue of guilty or not guilty. It 

has sometimes, however, been asserted that, although they have the power, 

they have no right to do this, and that it is their legal, or at least their 

moral, duty, in every criminal case, to obey and follow the judge's 

instructions in matter of law. The suggestion is not that the jury ought not 

to exercise the power wrongfully, but that they ought not to exercise it at 

all; that, whether the instructions of the court be right or wrong, just or 

arbitrary, according to the law as known of all men, or directly contrary to 

it, the jury must be controlled by and follow them.



But a legal duty which cannot in any way, directly or indirectly, be 

enforced, and a legal power of which there can never, under any 

circumstances, be a rightful and lawful exercise, are anomalies; 'the test 

of every legal power [as said by Alexander Hamilton, and affirmed by 

Chancellor Kent, in People v. Croswell, 3 Johns. Cas. 362, 368, above cited] 

being its capacity to produce a definitive effect, liable neither to 

punishment nor control,' 'to censure nor review.'



It has been said that, if not their legal duty, it is their moral duty, to 

follow the instructions of the court in matter of law. But moral duties, as 

distinguished from legal duties, are governed, not by human, but by divine, 

laws; and the oath which the jurors in a capital case severally take to the 

Almighty Judge is to well and truly try and true deliverance make between 

the government and the prisoner at the bar, according to their evidence, not 

according to the instructions of the court, and to decide whether, in their 

own judgment and conscience, the accused is guilty or not guilty.



The rules and principles of the criminal law are, for the most part, 

elementary and simple, and easily understood by jurors taken from the body 

of the people. As every citizen or subject is conclusively presumed to know 

the law, and cannot set up his ignorance of it to excuse him from criminal 

responsibility for offending against it, a jury of his peers must be 

presumed to have equal knowledge, and, especially after being aided by the 

explanation and exposition of the law by counsel and court, to be capable of 

applying it to the facts as proved by the evidence before them. On the other 

hand, it is a matter of common observation that judges and lawyers, even the 

most upright, able, and learned, are sometimes too much influenced by 

technical rules; and that those judges who are wholly or chiefly occupied in 

the administration of criminal justice are apt, not only to grow severe in 

their sentences, but to decide questions of law too unfavorably to the 

accused.



The jury having the undoubted and uncontrollable power to determine for 

themselves the law as well as the fact by a general verdict of acquittal, a 

denial by the court of their right to exercise this power will be apt to 

excite in them a spirit of jealousy and contradiction, and to prevent them 

from giving due consideration and weight to the instructions due 

consideration and weight to the instructions



In civil cases, doubtless, since the power to grant new trials has become 

established, the court, having the right to grant one to either party as 

often as the verdict appears to be contrary to the law, or to the evidence, 

may, in order to avoid unnecessary delay, whenever, in its opinion, the 

evidence will warrant a verdict for one party only, order a verdict 

accordingly. Pleasants v. Fant, 22 Wall. 116; Hendrick v. Lindsay, 93 U.S. 

143; Schofield v. Railway Co., 114 U.S. 615, 5 Sup. Ct. 1125.



But a person accused of crime has a twofold protection -- in the court

and the jury -- against being unlawfully convicted. If the evidence

appears to the court to be insufficient in law to warrant a conviction,

the court may direct an acquittal. Smith v. U. S., 151 U.S. 50, 14 Sup.

Ct. 234. But the court can never order the jury to convict, for no one

can be found guilty but by the judgment of his peers.



Decisions of courts, and especially of courts of last resort, upon issues of 

law, such as are presented by a demurrer or by a special verdict, become 

precedents to govern judicial decisions in like cases in the future. But the 

verdict of a jury, upon the general issue of guilty or not guilty, settles 

nothing but the guilt or innocence of the accused in the particular case; 

and the issue decided is so complicated of law and fact, blended together, 

that no distinct decision of any question of law is recorded or made. The 

purpose of establishing trial by jury was not to obtain general rules of law 

for future use, but to secure impartial justice between the government and 

the accused in each case as it arose.



As said by Alexander Hamilton in Croswell's Case, above cited, the power of 

deciding both law and fact upon the general issue in a criminal case is 

intrusted to the jury, 'for reasons of a political and peculiar nature, for 

the security of life and liberty.' 7 Hamilton's Works, 335; 3 Johns. Cas. 

362. The people, by a jury drawn from among themselves, take part in every 

conviction of a person accused of crime by the government; and the general 

knowledge that no man can be otherwise convicted increases public confidence 

in the justice of convictions, and is a strong bulwark of the administration 

of the criminal law. 



By the law of England, as has been seen, a person accused of murder or other 

felony, and convicted before a single judge, could not move for a new trial, 

and had no means of reviewing his instructions to the jury upon any question 

of law, unless the judge himself saw fit to reserve the question for 

decision by higher judicial authority.



Although Mr. Justice Story, in U. S. v. Gibert (1834) 2 Sumn. 19, Fed. Cas. 

No. 15, 204, thought that a new trial could not be granted to a man 

convicted of murder by a jury, because to do so would be to put him twice in 

jeopardy of his life, yet the circuit courts of the United States may 

doubtless grant new trials after conviction, though not after acquittal, in 

criminal cases tried before them. U. S. v. Fries (1799) 3 Dall. 515, Fed. 

Cas. No. 5, 126; U. S. v. Wilson & Porter (1830) Baldw. 78, 108, Fed. Cas. 

No. 16, 730; U. S. v. Harding (1846) 1 Wall. Jr. 127, Fed Cas. No. 15, 301; 

U. S. v. Keen (1839) 1 McLean, 429, Fed. Cas. No. 15, 510; U. S. v. Macomb 

(1851) 5 McLean, 286, Fed. Cas. No. 15, 702; U. S. v. Smith (1855) 3 

Blatchf. 255, Fed. Cas. No. 16, 320; U. S. v. Williams (1858) 1 Cliff. 5, 

Fed. Cas. No. 16, 707. But the granting or refusal of a new trial rests 

wholly in the discretion of the court in which the trial was had, and cannot 

be reviewed on error. Blitz v. U. S., 153 U.S. 308, 14 Sup. Ct. 924.



By the constitution of the United States, this court has appellate 

jurisdiction in such cases, and under such regulations only, as congress may 

prescribe; and, under the legislation of congress before 1889, no rulings or 

instructions of a circuit court of the United States in a criminal case 

could be brought to this court, unless upon a certificate of division of 

opinion between two judges presiding at the trial. A person accused of 

murder or other crime might be tried, and, if convicted by the jury, 

sentenced before a single judge, perhaps only a district judge; and, if so 

convicted and sentenced, there was no way in which the judge's rulings could 

be reviewed by this court. Act April 29, 1802, c. 31, 6 (2 Stat. 159); Rev. 

St. 651, 697; U. S. v. More, 3 Cranch, 159, 172; Ex parte Kearney, 7 Wheat. 

38, 42; Ex parte Gordon, 1 Black, 503; Ex parte Yarbrough, 110 U.S. 651, 4 

Sup. Ct. 152; U. S. v. Perrin, 131 U.S. 55, 9 Sup. Ct. 681.



By the acts of February 6, 1889 (chapter 113, 6), and March 3, 1891 (chapter 

517), indeed, a person convicted of murder or other infamous crime in a 

circuit court of the United States may bring the case to this court by writ 

of error, although the United States cannot do so. 25 Stat. 656; 26 Stat. 

827; U. S. v. Sanges, 144 U.S. 310, 12 Sup. Ct. 609. But the right of 

review, so given to this court, cannot supersede or impair the rightful 

power of the jury under the constitution, in deciding the issue submitted to 

them at the trial.



There may be less danger of prejudice or oppression from judges appointed by 

the president elected by the people than from judges appointed by an 

hereditary monarch. But, as the experience of history shows, it cannot be 

assumed that judges will always be just and impartial, and free from the 

inclination, to which even the most upright and learned magistrates have 

been known to yield, -- from the most patriotic motives, and with the most 

honest intent to promote symmetry and accuracy in the law, -- of amplifying 

their own jurisdiction and powers at the expense of those intrusted by the 

constitution to other bodies. And there is surely no reason why the chief 

security of the liberty of the citizen -- the judgment of his peers -- 

should be held less sacred in a republic than in a monarchy.



Upon these considerations, we are of opinion that the learned judge erred in 

instructing the jury that they were bound to accept the law as stated in his 

instructions, and that this error requires the verdict to be set aside as to 

both defendants.



But we are also of opinion that the judge committed an equally grave error 

in declining to submit to the jury matter of fact involved in the issue on 

trial.



It clearly appears that the jury were not only instructed that, while they 

had the physical power to return a verdict of manslaughter, yet they must 

take the law from the court; but that they were also instructed that, if 

they found these defendants guilty of any crime, it could not properly be 

manslaughter. There can be no doubt upon the record before us -- and it is 

admitted in the opinion of the majority of the court -- that the judge 

denied the right of the jury to find as a fact that the defendants had been 

guilty of manslaughter only. Nor can there be any doubt that the jury were 

thereby led to agree upon a verdict of guilty of murder, to the great 

prejudice of the defendants.



In a case in which the jury, as appeared by their inquiries of the court, 

were in doubt whether the homicide committed by the defendants was murder or 

manslaughter, to instruct them that they could not acquit the defendants of 

murder and convict them of manslaughter only, but must find them guilty of 

murder or of no crime at all, does not appear to us to differ, in principle, 

from instructing them, in a case in which there was no question of 

manslaughter, that there was no evidence upon which they could acquit the 

defendant, or do anything but convict him of murder.



This is not a case in which the judge simply declined to give any 

instructions upon a question of law which he thought did not arise upon the 

evidence. But, after giving sufficient definitions both of murder and of 

manslaughter, he peremptorily told them that they could not convict the 

defendants of manslaughter only, and thereby denied the right of the jury to 

pass upon a matter of fact necessarily included in the issue presented by 

the general plea of not guilty.



This appears to us to be inconsistent with settled principles of law and 

with well-considered authorities. As said by this court, speaking by Mr. 

Justice Clifford: 'In criminal cases the true rule is that the burden of 

proof never shifts; that in all cases, before a conviction can be had, the 

jury must be satisfied from the evidence, beyond a reasonable doubt, of the 

affirmative of the issue presented in the accusation that the defendant is 

guilty in the manner and form as charged in the indictment.' Lilienthal's 

Tobacco v. U. S., 97 U.S. 237, 266. See, also, Potter v. U. S., 155 U.S. 

438, 15 Sup. Ct. 144; Com. v. McKie, 1 Gray, 61; People v. Downs, 123 N. Y. 

558, 25 N. E. 988.



Upon the trial of an indictment under a statute of the territory of Utah, 

establishing two degrees of murder, with different punishments, the jury 

were instructed 'that an atrocious and dastardly murder has been committed 

by some person is apparent, but in your deliberations you should be careful 

not to be influenced by any feeling'; and the defendant was found guilty of 

murder in the first degree, and sentenced to death. This court, upon writ of 

error to the supreme court of the territory, reversed the judgment, because 

that instruction must have been regarded by the jury as 'an instruction that 

the offense, by whomsoever committed, was murder in the first degree; 

whereas it was for the jury, having been informed as to what was murder by 

the laws of Utah, to say whether the facts made a case of murder in the 

first degree or murder in the second degree'; and 'the prisoner had the 

right to the judgment of the jury upon the facts, uninfluenced by any 

direction from the court as to the weight of the evidence.' Hopt v. People, 

110 U.S. 574, 582, 583 S., 4 Sup. Ct. 202. 



As stated by the chief justice, speaking for this court, in a case of 

murder, decided at the last term: 'It is true that in the federal courts the 

rule that obtains is similar to that in the English courts, and the 

presiding judge may, if in his discretion he think proper, sum up the facts 

to the jury; and if no rule of law is incorrectly stated, and the matters of 

fact are ultimately submitted to the determination of the jury, it has been 

held that an expression of opinion upon the facts is not reviewable on 

error. Rucker v. Wheeler, 127 U.S. 85, 93, 8 Sup. Ct. 1142; Lovejoy v. U. 

S., 128 U.S. 171, 173, 9 S. Sup. Ct. 57. But he should take care to separate 

the law from the facts, and to leave the latter in unequivocal terms to the 

judgment of the jury as their true and peculiar province. M'Lanahan v. 

Insurance Co., 1 Pet. 170, 182. As the jurors are the triers of facts, 

expressions of opinion by the court should be so guarded as to leave the 

jury free in the exercise of their own judgments.' Starr v. U. S., 153 U.S. 

614, 624, 625 S., 14 Sup. Ct. 919.



The supreme court of Michigan, speaking by Chief Justice Cooley, in setting 

aside a verdict of murder, in a case in which the homicide was admitted, and 

the only question was whether it was murder or manslaughter, said: 'The 

trial of criminal cases is by a jury of the country, and not by the court. 

The jurors, and they alone, are to judge of the facts, and weigh the 

evidence. The law has established this tribunal, because it is believed 

that, from its numbers, the mode of their selection, and the fact that the 

jurors come from all classes of society, they are better calculated to judge 

of motives, weigh probabilities, and take what may be called a 'common-sense 

view' of a set of circumstances, involving both act and intent, than any 

single man, however pure, wise, and eminent he may be. This is the theory of 

the law, and, as applied to criminal accusations, it is eminently wise, and 

favorable alike to liberty and to justice. But, to give it full effect, the 

jury must be left to weigh the evidence, and to examine the alleged motives 

by their own tests. They cannot properly be furnished for this purpose with 

balances which leave them no discretion, but which, under certain 

circumstances, will compel them to find a malicious intent when they cannot 

conscientiously say they believe such an intent to exist.' People v. 

Garbutt, 17 Mich. 9, 27.



In Rex v. Burdett, cited in the earlier part of this opinion, Mr. Justice 

Best said: 'If there was any evidence, it was my duty to leave it to the 

jury, who alone could judge of its weight. The rule that governs a judge as 

to evidence applies equally to the case offered on the part of the 

defendant, and that in support of the prosecution. It will hardly be 

contended that, if there was evidence offered on the part of the defendant, 

a judge would have a right to take on himself to decide on the effect of the 

evidence, and to withdraw it from the jury. Were a judge so to act, he 

might, with great justice, be charged with usurping the privileges of the 

jury, and making a criminal trial, not what it is by our law, a trial by 

jury, but a trial by the judge.' And Lord Tenterden, in words peculiarly 

applicable to the present case, said: 'In cases of murder, it rarely happens 

that the eye of any witness sees the fatal blow struck, or the poisonous 

ingredients poured into the cup. In drawing an inference or conclusion from 

facts proved, regard must always be had to the nature of the particular 

case, and the facility that appears to be afforded, either of explanation or 

contradiction.' 'The premises may lead more or less strongly to the 

conclusion, and care must be taken not to draw the conclusion hastily; but 

in matters that regard the conduct of men, the certainty of mathematical 

demonstration cannot be required or expected; and it is one of the peculiar 

advantages of our jurisprudence that the conclusion is to be drawn by the 

unanimous judgment and conscience of twelve men, conversant with the affairs 

and business of life, and who know that, where reasonable doubt is 

entertained, it is their duty to acquit; and not of one or more lawyers, 

whose habits might be suspected of leading them to the indulgence of too 

much subtilty and refinement.' 4 Barn. & Ald. 95, 121, 161, 162.



The care with which courts of the highest authority have guarded the 

exclusive right of the jury to decide the facts in a criminal case is 

exemplified in a very recent case before the judicial committee of the privy 

council, in which, under section 423 of the criminal law amendment act of 

1883 (46 Vict. c. 17), authorizing the judge presiding at a criminal trial 

to reserve questions of law for review, with a proviso that no judgment 

should be reversed 'unless for some substantial wrong or other miscarriage 

of justice,' the questions reserved were whether certain evidence had been 

improperly admitted, and whether, if the court came to the conclusion that 

it was not legally admissible, the court could nevertheless affirm the 

judgment if it was of opinion that, independently of that evidence, there 

was sufficient evidence to support the conviction, and that the accused was 

guilty of the offense with which he was charged. It was argued that if, 

without the inadmissible evidence, there was evidence sufficient to sustain 

the verdict, and to show that the accused was guilty, there had been no 

substantial wrong or miscarriage of justice in affirming a judgment upon the 

conviction by the jury. But Lord Chancellor Herschell, speaking for six 

other law lords as well as for himself, held otherwise, and said: 'It is 

obvious that the construction contended for transfers from the jury to the 

court the determination of the question whether the evidence -- that is to 

say, what the law regards as evidence -- establishes the guilt of the 

accused. The result is that, in a case where the accused has the right to 

have his guilt or innocence tried by a jury, the judgment passed upon him is 

made to depend, not on the finding of the jury, but on the decision of the 

court. The judges are in truth substituted for the jury. The verdict becomes 

theirs, and theirs alone, and is arrived at upon a perusal of the evidence, 

with out any opportunity of seeing the demeanor of the witnesses and 

weighing the evidence with the assistance which this affords. It is 

impossible to deny that such a change of the law would be a very serious 

one, and that the construction which their lordships are invited to put upon 

the enactment would gravely affect the much-cherished right of trial by jury 

in criminal cases.' Makin v. Attorney General App. Cas. 57, 69, 70.



By section 1035 of the Revised Statutes, 'in all criminal causes, the 

defendant may be found guilty of any offence the commission of which is 

necessarily included in that with which he is charged in the indictment, or 

may be found guilty of an attempt to commit the offence so charged: 

provided, that such attempt be itself a separate offence.' The defendants, 

therefore, under this indictment, might have been convicted of murder, or of 

manslaughter, or of an assault only. Having pleaded not guilty, they could 

only be convicted by the verdict of a jury. If a homicide was committed with 

malice, it was murder; if committed without malice, but without any lawful 

excuse, it was manslaughter only. The burden of proof at every step was upon 

the government. In order to obtain a conviction of murder, it must prove 

beyond a reasonable doubt that the homicide was committed with malice. The 

question whether, taking into consideration all the circumstances in 

evidence, as well as the credibility of the several witnesses, there was a 

criminal homicide, and, if so, whether it was murder or only manslaughter, 

could be finally decided against the defendants by the jury alone. According 

to the settled practice of the courts of the United States, indeed, the 

court, even in a criminal case, may express its opinion to the jury upon any 

question of fact, provided that it submits that question to the jury for 

decision. But the court in this case went beyond this, and distinctly told 

the jury that, if they found that a felonious homicide had been committed by 

the defendants, they could not properly convict them of manslaughter, which 

was equivalent to saying that, if any crime was proved, it was murder. This 

instruction had the direct tendency and the actual effect of inducing the 

jury to return a verdict of guilty of the higher crime. The jury may have 

been satisfied that the defendants killed the mate without lawful excuse, 

and may yet have had doubts whether, upon so much of the testimony as they 

believed to be true, the killing was malicious, and therefore murder. That 

doubts had occurred to the jurors upon this point is shown by the questions 

addressed by one of them to the presiding judge. The judge dispelled those 

doubts, not by further defining the distinction as matter of law between 

murder and manslaughter, but by telling the jury that, as matter of fact, 

they could not convict the defendants of manslaughter only. He thus 

substituted his own decision upon this question of fact for the decision of 

the jury, to which the defendants were entitled under the constitution and 

laws of the United States. If all the justices of this court should concur 

in the opinion of the judge below upon this question of fact, still the 

defendants have not had the question decided by the only tribunal competent 

to do so under the constitution and laws.



For the twofold reason that the defendants, by the instructions given by the 

court to the jury, have been deprived both of their right to have the jury 

decide the law involved in the general issue, and also of their right to 

have the jury decide every matter of fact involved in that issue, we are of 

opinion that the judgment should be reversed, and the case remanded, with 

directions to order a new trial as to both defendants.





Footnotes



3. The decision of Mr. Justice Johnson, there referred to, does not appear 

to have been reported. But the decision of Mr. Justice Washington is 

reported as U. S. v. Jones (1813) 3 Wash. C. C. 209, Fed. Cas. No. 15, 494; 

and the point was decided the same way by this court (Mr. Justice Johnson 

dissenting) in U. S. v. Palmer (1818) 3 Wheat. 610.