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.)
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 criminal cases.
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. (Hodge's Trial, p. 20.)
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 and 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 can not 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.
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.
It can not 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.
My opinion is that the jury are no more judges of the law in a criminal case upon the plea of not guilty than they are in every civil case tried upon the general issue. In each of these cases their verdict, when general, is necessarily compounded of law and of fact, and includes both. In each they must necessarily determine the law as well as the fact. In each they have the physical power to disregard the law as laid down to them by the court. But I deny that in any case, civil or criminal, they have the moral right to decide the law according to their own notions or pleasure.
On the whole subject, the views of the court may be summarily expressed in the following propositions: That in all criminal cases it is competent for the jury, if they see fit, to decide upon all questions of fact embraced in the issue, and to refer the law arising thereon to the court in the form of a special verdict. But it is optional with the jury thus to return a special verdict or not, and it is within their legitimate province and power to return a general verdict if they see fit. In thus rendering a general verdict, the jury must necessarily pass upon the whole issue, compounded of the law and of the fact, and they may thus incidentally pass on questions of law.
Now, when a new statute is passed, and a question of law is raised by counsel, it must first come before the court, charged by law with the conduct and superintendence of a jury trial; and, in any well-ordered system of jurisprudence, provision is made that it be re-examinable by the court of last resort. When this question is definitively adjudged by the tribunal of last resort—the principles on which it is adjudged being immutable, and the rule of law adjudged in any one case being equally applicable to every other case presenting the same facts—the decision is necessarily conclusive of the law. I do not say how and after what consideration it maybe considered as definitively decided. In the first instance it may be misunderstood or feebly presented. It may have been misapprehended by the judges, and not considered in all its bearings, or they may have wanted time and means for a careful and thorough investigation, and may therefore consent and desire to reconsider it one or more times. But I only say that, when thus definitively adjudged, the decision must be deemed conclusive and stand as a rule of law.
Mr. Tremaine, from the House Judiciary Committee, reported adversely on the prayer of Miss Anthony's Petition, and Benjamin F. Butler favorably.