or a woman be arraigned. And the subject under consideration is important even to men, who are regardless of the rights of women.

I shall, therefore, proceed to inquire, as I think the committee ought to have done, whether the memorialist has been deprived, as she alleges, of the right of trial by jury, secured to her by the Constitution of the United States.

The memorialist claims that the court erred in its ruling, and in taking the case from the jury and directing a verdict against her; and also in refusing to have the jury polled in regard to their verdict; and she prays that her fine may be remitted by act of Congress.

The first question is, whether in a criminal trial, plea not guilty, the jury have a right to render a general verdict involving questions of law as well as fact, under instructions by the court upon matters of law; or whether, when the testimony is not conflicting, the court may take the case from the jury and direct a verdict of guilty to be entered. It is the practice in civil causes for the court, if there is no conflict in the evidence, to direct a verdict for the plaintiff or for the defendant; because in such case the court may set aside a verdict and grant a new trial in favor of plaintiff or defendant. It would, therefore, be a barren form to require the jury to deliberate, and find a verdict, in a case where, if the verdict was not one way, the court would set it aside and order a new trial, and so on, until a verdict should be found that was satisfactory to the court. So in practice it is usual for the court to direct the jury to acquit the prisoner in a criminal case; because, if the jury find against the prisoner, the court may set the verdict aside and order a new trial, and continue to do so until a verdiet of acquittal shall be rendered; though it is doubtful whether, even in a civil cause, the court could refuse to let the jury be polled, or could enter a verdict for the jury to which they did not agree. The court could direct the jury what to do, and set aside the verdict if they did otherwise; but it is not admitted that, even in a civil cause, the court could enter a verdict against the wishes of the jury.

But at the common law and in the Federal courts it is certain that where the jury render a verdict of acquittal, even against the evidence and the instructions of the court on propositions of law, the court cannot set aside the verdict and order another trial. From this it follows that the court cannot take from the jury this power of acquittal in a criminal case, by directing and compelling a verdict against the prisoner, and refusing to have the jury polled. But the importance of this question requires its examination not only in the light of reason, but of authority.

The Constitution of the United States provides :

In all criminal prosecutions, the accused shall enjoy the right to a speedy and a publie trial by an impartial jury of the State and district wherein the crime shall have been committed, &c.

The Constitution does not define or regulate the trial by jury, but secures it as it was then known to the common law.

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

Therefore, if it can be shown that, at the time the Constitution was adopted, it was well settled that the jury in a criminal cause might find a general verdict, including both law and fact, then this right is secured

to juries in the Federal courts by the Constitution itself; and not even an act of Congress could take it away. What the law was at that time, is mere matter of historical inquiry, wholly different from another question, which is so often mistaken for it, whether juries ought to possess the right.

What, then, was the law upon this subject when the Constitution was adopted?

Mr. Hargrave, in one of his annotations upon Lord Coke's first Insti tute, declares that, inasmuch as the jury may, as often as they think fit, find a general verdict, it was unquestionable that they might so far decide upon the law as well as fact, such a verdict necessarily involving both. "In this opinion," says Mr. Hargrave, "I have the authority of Littleton himself, who writes, that if the inquest will take upon them the knowledge of the law upon the matter, they may give their verdict generally.'"

6

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

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

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

Again, he says:

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

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

And a bill declaratory of the right of the jury to give a general verdict upon the whole

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

And again he says:

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

This celebrated opinion may safely be relied upon as a correct statement of the law as it stood when it was delivered in 1804. But still more conclusive authority remains to be considered.

The sedition-act of 1798, after defining what should be a criminal libel, and declaring that the defendant might give the truth of the matter in evidence, provides as follows:

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

The language of this act, "as in other cases," recognizes the right here contended for.

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

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

And again he says:

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

Though, with seeming want of logic, he held that the jury could not decide whether the statute was constitutional or not.

But the full admission that the jury were judges of the law as well as the fact, shows the general understanding upon this subject, though the judge may have erred in applying the principle in the case before him. In Fries's case, who was tried for treason, 1799-1800, the jury were instructed by Judge Peters as follows:

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

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

It is the duty of the court in this case, and in all criminal cases, to state to the jury their opinion of the law arising on the facts; but the jury are to decide in the present, and in all criminal cases, both the law and the facts, on their consideration of the whole case. (2 Chase's Trial, Appendix 1.)

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

He well knows that it is the right of juries, in criminal cases, to give a general verdict of

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

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

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

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

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

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

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

We have thus stated to you the law of this case under the solemn duties and obliga tions imposed on us, under the clear conviction that in doing so we have presented to you the true test by which you will apply the evidence to the case; but you will distinctly understand that you are the judges both of the law and the fact in a criminal case. and are not bound by the opinion of the court. You may judge for yourselves; and if you should feel it your duty to differ from us, you must find your verdict accordingly. At the same time, it is our duty to say that it is in perfect accordance with the spirit of our legal institutions that the courts should decide questions of law, and the juries of facts. The nature of the tribunals naturally leads to this division of powers; and it is better for the sake of public justice that it should be so. When the law is settled by a court there is more certainty than when done by a jury. It will be better known and more respected in public opinion. But if you are prepared to say that the law is different from what you have heard from us, you are in the exercise of a constitutional right to do so. In United States vs. Porter, 1 Bald., 108, the doctrine was stated more guardedly, as follows:

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

You may find a general verdict of guilty or not guilty, as you think proper, or may find the facts specially, and leave the guilt or innocence of the prisoner to the judgment of the court. If your verdict acquits the prisoner, we 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 law, if they choose to become so.

In Farmer's trial before the supreme court of the State of New Hampshire, in 1821, the chief justice, speaking for the whole court, told the jury that they were the judges both of the law and the fact; that

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

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

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

cases.

On the trial of John Hodges, for high treason, before the circuit court of the United States for the district of Maryland, in 1815, the court charged the jury as follows:

The court said they were bound to declare the law whenever they were called upon, in civil or criminal cases. In the latter, however, it was also their duty to inform the jury that they were not obliged to take their direction as to the law. (Hodges's Trial, p. 20.) The elementary writers declare the same principle. Comm., 361, says:

Blackstone, 4

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

In Wilson's Lectures, vol. 2, p. 72, the same doctrine is declared and illustrated; and he says:

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.

In Forsyth's Jury Trials, after an examination of the subject, it is said, p. 265:

It cannot, therefore, be denied that, in all criminal cases, the jury do virtually possess the power of deciding questions of law as well as of fact.

The authorities quoted from conclusively show that, at the time the Constitution was adopted, and for nearly a quarter of a century afterS. Rep. 472-2