There are two theories of the function of the jury in criminal trials. One I will call the theory of the Government; the other the theory of the People. The first has of late been insisted on in certain courts, and laid down by some judges in their charges to the jury. The second lies, perhaps dimly, in the consciousness of the people, and may be gathered from the conduct of juries in trials where the judges' law would do obvious injustice to the prisoner.
I. According to the theory of the Government. The judge is to settle the law for the jury. This involves two things:
1. He is to declare the law denouncing punishment on the alleged crime.
2. To declare what constitutes the crime. Then the jury are only to determine whether the prisoner did the deed which the judge says constitutes the crime. He, exclusively, is to decide what is the law, and what deed constitutes the crime; they only to decide if the prisoner did the deed. For example, to take a case which has not happened yet, to my knowledge: John Doe is accused of having eaten a Medford cracker; and thereupon, by direction of the Government, has been indicted by a grand jury for the capital offence of treason, and is brought before a traverse jury for trial. The judge tells the jury, 1. That eating a Medford cracker constitutes the crime of treason. 2. That there is a law denouncing death on that crime. Then the jury are to hearken to the evidence, and if it is proved to their satisfaction that John Doe ate the Medford cracker, they are to return a verdict of guilty. They are only to judge of the matter of fact, and take the law on the judge's authority.
II. According to the theory of the People, in order to render their verdict, the jury are to determine three things:
1. Did the man do the deed alleged?
2. If so, Is there a legal and constitutional statute denouncing punishment upon the crime? Here the question is twofold: (a) as to the deed which constitutes the crime, and (b) as to the statute which denounces the crime.
3. If all this is settled affirmatively, then, Shall this man suffer the punishment thus legally and constitutionally denounced?
For example: John Doe is accused of having eaten a Medford cracker, is indicted for treason, and brought to trial; the judge charges as above. Then the jury are to determine:
1. Did John Doe eat the Medford cracker in the manner alleged?