II. The Jury are to decide the Question of Law. Is there a statute or custom denouncing a penalty on that special deed? is the statute constitutional? To determine this matter, there are three sources of evidence external to their own knowledge.
1. The Testimony of the Government's Attorney. The Government itself is his client, and he gives such a statement of the law as suits the special purposes of the rulers and his own private and particular interest, selects such statutes, customs, and decisions, as will serve this purpose, and declares, Such is the law. Nay, he makes inferences from the law, and thereby infers new customs, and constructs new statutes, invents new crimes. He treats the law as freely as he treats the facts—making the most that is possible against the party accused. You have seen already what tricks Government attorneys have played, how they pervert and twist the law—making it assume shapes never designed by its original makers. He gives his opinion as to the law, as he gave an opinion as to the fact. This is not necessarily his personal and actual, but only his official and assumed opinion—what he wishes the Jury to think is law in this particular case.
2. The Testimony of the Defendant's Attorney. The accused is his client. He is to do all he can to represent the law as favorable as possible to the man on trial. He gives an opinion of the law, not his personal and actual, but his official and assumed opinion—what he wishes the Jury to think is law in this particular case.
3. The Testimony of the Judge on the Bench. But in the English courts, and the Federal courts of the United States, he is commonly no more than a government attorney in disguise; I speak only of the general rule, not the exceptions to it. He has received his office as the reward for party services—was made a judge because he was one-sided as a lawyer. In all criminal cases he is expected to twist the law to the advantage of the hand that feeds him. Especially is this so in all Political trials—that is, prosecutions for opposition to the party which the judge represents. The judge may be impartial, or partial, just or unjust, ignorant or learned. He gives an opinion of the law,—not his personal and actual, but his official and assumed opinion—what he wishes the jury to think is law in this particular case. For the court also is a stage, and the judges, as well as the attorneys, may be players,
"And one man in his time play many parts."
Of these three classes of witnesses, no one gives evidence under special oath to tell the law, the whole law, and nothing but the law—or if it be so understood, then all these men are sometimes most grossly and notoriously perjured; but each allows himself large latitude in declaring the law. The examples I have already cited, show that the judge often takes quite as wide a range as the attorney-general, or the prisoner's counsel.
As the jury hears the manifold evidence as to the facts, and then makes up its mind thereon and decides the Question of Fact, often rejecting the opinion of various witnesses, as ignorant, partial, prejudiced, or plainly false and forsworn; so will the jury hear the manifold and often discrepant evidence as to the law, and then make up their mind thereon and decide the Question of Law, often rejecting the opinion of various witnesses thereupon ignorant, partial, prejudiced, or plainly false and forsworn.
In regard to the Fact, the jury is limited to the evidence adduced in court. What any special juror knows from any other source is not relevant there to procure conviction. But in regard to the Law there is no such restriction; for if the jury know the law better than these three classes of witnesses for it in court, then the jury are to follow their better knowledge. At any rate, the jury are to make up their minds on this question of Law, and for themselves determine what the special Law is.
Every man is to be held innocent until proved guilty—until the special Deed charged is proved against him, and until that special deed is proved a Crime. The jury is not to take the government attorney's opinion of the Fact, nor the prisoner's counsel's opinion of the Fact, nor yet the judge's opinion thereon; but to form their own opinion, from the evidence offered to make up their own judgment as to the Fact. So likewise they are not to take the government attorney's opinion of the Law, or the prisoner's counsel's opinion of the Law, nor yet the judge's opinion thereon; but from all the evidence offered, [not] otherwise known to them, to make up their own judgment as to the Law. After they have done so—if they decide the Law in favor of the accused, the process stops there. The man goes free; for it does not appear that his deed is unlawful. But if the jury find the Law against the deed, they then proceed to their third function.
III. The jury is to decide the Question of the Application of the Law to the Fact. Here is the question: "Ought the men who have done this deed against the form of Law to be punished thereby?" The government attorney and the judge are of the opinion that the law should be thus applied to this case, but they cannot lay their finger on him until the jury, specially sworn "well and truly to try and true deliverance make," have unanimously come to that opinion, and say, "Take him and apply the law to him."