case; but neither a writ of error nor a motion for a new trial could reach an erroneous determination by the jury, because, as they do not give reasons for their verdict, the precise grounds for it can never be legally known, and it is always presumable that it was given in favor of the accused because the evidence was not sufficient in degree or satisfactory in character; and no one is at liberty to allege or suppose that they have disregarded the law.

Nevertheless, as it is the duty of the court to charge the jury upon the law applicable to the case, it is still an important question whether it is the duty of the jury to receive and act upon the law as given to them by the court, or whether on the other hand, his opinion is advisory only, so that they are at liberty either to follow it if it accords with their own convictions, or to disregard it if it does not.

In one class of cases, that is to say, in criminal prosecutions for libels, it is now very generally provided by the State constitutions, or by statute, that the jury shall determine the law and the facts.2

mings, 3 Cush. 212; People v. Corning, 2 N. Y. 9; State v. Kemp, 17 Wis. 669. A constitutional provision, saving "to the defendant the right of appeal” in criminal cases, does not, by implication, preclude the legislature from giving to the prosecution the same right. State v. Tait, 22 Iowa, 143.

1 People v. Comstock, 8 Wend. 549; State v. Brown, 16 Conn. 54; State v. Kanouse, 1 Spencer, 115; State v. Burns, 3 Texas, 118; State v. Taylor, 1 Hawks, 462.

* See Constitutions of Alabama, Connecticut, California, Delaware, Georgia, Kentucky, Maine, Michigan, Missouri, Nebraska, New York, Pennsylvania, South Carolina, Tennessee, and Texas. That of Maryland makes the jury judges of the law in all criminal cases; and the same rule is established by constitution or statute in some other States. In Holder v. State, 5 Geo. 444, the following view was taken of such a statute: "Our penal code declares, On every trial of a crime or offence contained in this code, or for any crime or offence, the jury shall be judges of the law and the fact, and shall in every case give a general verdict of guilty or not guilty, and on the acquittal of any defendant or prisoner, no new trial shall on any account be granted by the court.' Juries were, at common law, in some sense judges of the law. Having the right of rendering a general verdict, that right involved a judgment on the law as well as the facts, yet not such a judgment as necessarily to control the court. The early commentators on the common law, notwithstanding they concede this right, yet hold that it is the duty of the jury to receive the law from the court. Thus Blackstone equivocally writes: And such public or open verdict may be either general, guilty or not guilty, or special, setting forth all the circumstances of the case, and praying the judgment of the court whether, for instance, on the facts stated, it be murder or manslaughter, or no crime at all. This is where they doubt the matter of law, and therefore choose

How great a change is made in the common law by these.

* provisions it is difficult to say, because the rule of the [* 323] common law was not very clear upon the authorities; but

for that very reason, and because the law of libel was sometimes administered with great harshness, it was certainly proper, and highly desirable, that a definite and liberal rule should be thus established.1

In all other cases the jury have the clear legal right to return a simple verdict of guilty or not guilty, and in so doing they necessarily decide such questions of law as well as of fact as are involved in the general question of guilt. If their view conduce to an acquittal, their verdict to that effect can neither be reviewed nor set aside. In such a case, therefore, it appears that they pass upon the law as well as the facts, and that their finding is conclusive. If, on the other hand, their view leads them to a verdict of guilty, and it is the opinion of the court that such verdict is against law, the verdict will be set aside and a new trial granted. In such a case, although they have judged of the law, the court sets aside their conclusion as improper and unwarranted. But it is clear that the jury are no more the judges of the law when they acquit than

to leave it to the determination of the court, though they have an unquestionable right of determining upon all the circumstances, and of finding a general verdict if they think proper so to hazard a breach of their oath,' &c. 4 Bl. Com. 361; Co. Lit. 228 a; 2 Hale, P. C. 313. Our legislature have left no doubt about this matter. The juries in Georgia can find no special verdict at law. They are declared to be judges of the law and the facts, and are required in every case to give a general verdict of guilty or not guilty; so jealous and rightfully jealous were our ancestors of the influence of the State upon the trial of a citizen charged with crime. We are not called upon in this case to determine the relative strength of the judgment of the court and the jury, upon the law in criminal cases, and shall express no opinion thereon. We only say it is the right and duty of the court to declare the law in criminal cases as well as civil, and that it is at the same time the right of the jury to judge of the law as well as of the facts in criminal cases. I would not be understood as holding that it is not the province of the court to give the law of the case distinctly in charge to the jury; it is unquestionably its privilege and its duty to instruct them as to what the law is, and officially to direct their finding as to the law, yet at the same time in such way as not to limit the range of their judgment." See also McGuffie v. State, 17 Geo. 497; Clem v. State, 31 Ind. 480.

For a condensed history of the struggle in England on this subject, see May's Constitutional History, c. 9. See also Lord Campbell's Lives of the Chancellors, c. 178; Introduction to Speeches of Lord Erskine, edited by James L. High; Forsyth's Trial by Jury, c. 12.

when they condemn, and the different result in the two cases comes from the merciful maxim of the common law, which will not suffer an accused party to be twice put in jeopardy for the same cause, however erroneous may have been the first acquittal. In theory, therefore, the rule of law would seem to be, that it is the [324] duty of the jury to receive and follow the law as delivered to them by the court; and such is the clear weight of

2

authority.1 There are, however, opposing decisions, and it is evident that the judicial prerogative to direct conclusively upon the law cannot be carried very far or insisted upon with much pertinacity, when the jury have such complete power to disregard it, without the

1 United States v. Battiste, 2 Sum. 240; Stittinus v. United States, 5 Cranch, C. C. 573; United States v. Morris, 1 Curt. 53; United States v. Riley, 5 Blatch. 206; Montgomery v. State, 11 Ohio, 427; Robbins v. State, 8 Ohio, N. s. 131; Commonwealth v. Porter, 10 Met. 263; Commonwealth v. Anthes, 5 Gray, 185; Commonwealth v. Rock, 10 Gray, 4; State v. Peace, 1 Jones, 251; Handy v. State, 7 Mo. 607; Nels v. State, 2 Texas, 280; People v. Pine, 2 Barb. 566; Carpenter v. People, 8 Barb. 603; People v. Finnigan, 1 Park. C. R. 147; Safford v. People, ib. 474; McGowan v. State, 9 Yerg. 184; Pleasant v. State, 13 Ark. 360; Montee v. Commonwealth, 3 J. J. Marsh. 132; Commonwealth v. Van Tuyl, 1 Met. (Ky.) 1; Pierce v. State, 13 N. H. 536; People v. Stewart, 7 Cal. 40; Batre v. State, 18 Ala. 119, reviewing previous cases in the same State. "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 their duty, decide such questions of law as well as of fact as are involved in the general question, and there is no mode in which their opinions on questions of law can be reviewed by this court or any other tribunal. But this does not diminish the obligation of the court to explain the law. The instructions of the court in matters of law may safely guide the consciences of the jury, unless they know 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." Commonwealth v. Knapp, 10 Pick. 496, cited with approval in McGowan v. State, 9 Yerg. 195, and Dale v. State, 10 Yerg. 555.

2 See especially State v. Croteau, 23 Vt. 14, where will be found a very full and carefully considered opinion, holding that at the common law the jury are the judges of the law in criminal cases. See also State v. Wilkinson, 2 Vt. 280; Doss v. Commonwealth, 1 Grat. 557; State v. Jones, 5 Ala. 666; State v. Snow, 6 Shep. 346; State v. Allen, 1 McCord, 525; Armstrong v. State, 4 Blackf. 247; Warren v. State, ib. 150; Stocking v. State, 7 Ind. 326; Lynch v. State, 9 Ind. 541; Nelson v. State, 2 Swan, 482; People v. Thayers, 1 Park. C. R. 596; People v. Videto, ib. 603; McPherson v. State, 22 Geo. 478. The subject was largely discussed in People v. Croswell, 3 Johns. Cas. 337.

action degenerating into something like mere scolding. Upon this subject the remarks of Mr. Justice Baldwin, of the Supreme Court of the United States, to a jury assisting him in the trial of a criminal charge, and which are given in the note, seem peculiarly dignified and appropriate, and at the same time to embrace about all that can properly be said to a jury on this subject.1

"In repeating to you what was said on a former occasion to another jury, that you have the power to decide on the law, as well as the facts of this case, and are not bound to find according to our opinion of the law, we feel ourselves constrained to make some explanations not then deemed necessary, but now called for from the course of the defence. You may find a general verdict of guilty or not guilty, as you think proper, or you may find the facts specially, and leave the guilt or innocence of the prisoner to the judgment of the court. If your verdict acquit the prisoner, we cannot grant a new trial, however much we may differ with you as to the law which governs the case; and in this respect a jury are the judges of the law, if they choose to become so. Their judgment is final, not because they settle the law, but because they think it not applicable, or do not choose to apply it to the case.

"But if a jury find a prisoner guilty against the opinion of the court on the law of the case, a new trial will be granted. No court will pronounce a judgment on a prisoner against what they believe to be the law. On an acquittal there is no judgment; and the court do not act, and cannot judge, there remaining nothing to act upon.

"This, then, you will understand to be what is meant by your power to decide on the law, but you will still bear in mind that it is a very old, sound, and valuable maxim in law, that the court answers to questions of law, and the jury to facts. Every day's experience evinces the wisdom of this rule." United States v. Wilson, Baldw. 108. We quote also from an Alabama case: "When the power of juries to find a general verdict, and consequently their right to determine without appeal both law and fact, is admitted, the abstract question whether it is or is not their duty to receive the law from the court becomes rather a question of casuistry or conscience than one of law; nor can we think that any thing is gained in the administration of criminal justice by urging the jury to disregard the opinion of the court upon the law of the case. It must, we think, be admitted, that the judge is better qualified to expound the law, from his previous training, than the jury; and in practice, unless he manifests a wanton disregard of the rights of the prisoner, a circumstance which rarely happens in this age of the world and in this country, his opinion of the law will be received by the jury as an authoritative exposition, from their conviction of his superior knowledge of the subject. The right of the jury is doubtless one of inestimable value, especially in those cases where it may be supposed that the government has an interest in the conviction of the criminal; but in this country where the government in all its branches, executive, legislative, and judicial, is created by the people, and is in fact their servant, we are unable to perceive why the jury should be invited or urged to exercise this right contrary to their own convictions of their capacity to do so, without danger of mistake. It appears to us that it is sufficient that it

[* 325]

*One thing more is essential to a proper protection of accused parties, and that is, that one shall not be subject to

is admitted that it is their peculiar province to determine facts, intents, and purposes; that it is their right to find a general verdict, and consequently that they must determine the law; and whether in the exercise of this right they will distrust the court as expounders of the law, or whether they will receive the law from the court, must be left to their own discretion under the sanction of the oath they have taken." State v. Jones, 5 Ala. 672. But as to this case, see Batre v. State, 18 Ala. 119.

It cannot be denied that discredit is sometimes brought upon the administration of justice by juries acquitting parties who are sufficiently shown to be guilty, and where, had the trial been by the court, a conviction would have been sure to follow. In such cases it must be supposed that the jury have been controlled by their prejudices or their sympathies. However that may be, it by no means follows that because the machinery of jury trial does not work satisfactorily in every case, we must therefore condemn and abolish the system, or, what is still worse, tolerate it, and yet denounce it as being unworthy of public confidence. Jury trial, when considered in all its aspects, as an instrument in the administration of justice; as an educator of the people in law and politics; and as a means of making them feel their responsibility in the government, and the important part they bear in its administration, is by far the best system of trial yet devised; and we must take it with all its concomitants, among which is a due sense of independence in the jurors. The institution loses its value when the jury becomes a mere instrument for receiving and echoing back the opinions of the judge on the case in trial. Concede its defects, and the truth still remains, that its benefits are indispensable. The remarks of Lord Erskine, the most distinguished jury lawyer known to English history, may be quoted as peculiarly appropriate in this connection: "It is of the nature of every thing that is great and useful, both in the animate and inanimate world, to be wild and irregular, and we must be content to take them with the alloys which belong to them, or live without them. . . . Liberty herself, the last and best gift of God to his creatures, must be taken just as she is. You might pare her down into bashful regularity, shape her into a perfect model of severe, scrupulous law; but she would then be Liberty no longer; and you must be content to die under the lash of this inexorable justice which you have exchanged for the banners of freedom."

The province of the jury is sometimes invaded by instructions requiring them to adopt, as absolute conclusions of law, those deductions which they are at liberty to draw from a particular state of facts, if they regard them as reasonable: such as that a homicide must be presumed malicious, unless the defendant proves the contrary; which is a rule contradictory of the results of common observation; or that evidence of a previous good character in the defendant ought to be disregarded, unless the other proof presents a doubtful case; which would deprive an accused party of his chief protection in many cases of false accusations and conspiracies. See People v. Garbutt, 17 Mich. 9; People v. Lamb, 2 Keyes, 360; State v. Henry, 5 Jones, N. C. 66; Harrington v. State,