Dissenting Opinion: Gray, Shiras, JJ. 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, 51. 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." Commonwealth 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 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. 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 VOL. CLVI-10 Dissenting Opinion: Gray, Shiras, JJ. 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." Commonwealth 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 5 Gray, 275–280, and in a note to Quincy's Reports, 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 Maine, 346; Doe, C. J., in State v. Hodge, 50 N. H. 510, 523; State v. Wilkinson, (1829) 2 Vermont, 480, 488; State v. Croteau, (1849) 23 Vermont, 14; Witter v. Brewster (1788) Kirby, 422; Bartholomew v. Clark, (1816) 1 Connecticut, 472, 481; State v. Buckley, (1873) 40 Connecticut, 246. See Laws of 1647 in 1 Rhode Island Col. Rec. 157, 195, 203, 204. In the Province of New York, in 1702, on the trial of Colonel 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 Howell's State Trials, 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 libellous, 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 Dissenting Opinion: Gray, Shiras, JJ. words of Lord Chief Justice Holt, in Tutchin's case, 14 Howell's State Trials, 1128, above cited, the question whether the words set forth were libellous. And Zenger was acquitted by the jury. 17 Howell's State Trials, 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 The 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, pp. 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, (7 Hamilton's Works, 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 entrusted 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 Dissenting Opinion: Gray, Shiras, JJ. 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 Dissenting Opinion: Gray, Shiras, JJ. 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." 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 vigour 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; and 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 |