156 U.S. 51 (1895)
To the same purport are the text writers. "In theory, therefore," says Judge Cooley, "the rule of law would seem to be, that it is the duty of the jury to receive and follow the law as delivered to them by the court; and such is the clear weight of authority." Const. Lim. 323, 324. Greenleaf, in his treatise on the Law of Evidence, says: "In trials by jury, it is the province of the presiding judge to determine all questions on the admissibility of evidence to the jury, as well as to instruct them in the rules of law, by which it is to be weighed. Whether there be any evidence or not is a question for the judge; whether it is sufficient evidence is a question for the jury." "Where the question is mixed, consisting of law and fact, so intimately blended as not to be easily susceptible of separate decision, it is submitted to the jury, who are first instructed by the judge in the principles and rules of law, by which they are to be governed in finding a verdict, and these instructions they are bound to follow." Vol. 1, § 49. Starkie, in his treatise on Evidence, observes: "Where the jury find a general verdict they are bound to apply the law as delivered by the court, in criminal as well as civil cases." p. 816. So in Phillips on Evidence: "They [the jury] are not in general, either in civil or criminal cases, judges of the law. They are bound to find the law as it is propounded to them by the court. They may, indeed, find a general verdict, including both law and fact; but if, in such verdict, they find the law contrary to the instructions of the court, they thereby violate their oath." Vol. 3, Hill & Cowen's Notes, part 2, 1501. See also 1 Taylor on Ev. §§ 21 to 24; 1 Best's Ev. Morgan's ed. § 82.
In 1 Crim. Law Mag. 51 will be found a valuable note to the case of Kane v. Commonwealth, prepared by Mr. Wharton, in which the authorities are fully examined, and in which he says: "It would be absurd to say that the determination of the law belongs to the jury, not court, if the court has power to set aside that which the jury determines. We must hold, to enable us to avoid the inconsistency, that, subject to the qualification that all acquittals are final, the law in criminal cases is to be determined by the court. In this way we have our liberties and rights determined, not by an irresponsible, but by a responsible, tribunal; not by a tribunal ignorant of the law, but by a tribunal trained to and disciplined by the law; not by an irreversible tribunal, but by a reversible tribunal; not by a tribunal which makes its own law, but by a tribunal that obeys the law as made. In this way we maintain two fundamental maxims. The first is, that while to facts answer juries, to the law answers the court. The second, which is still more important, is `nullum crimen, nulla pœna, sine lege.' Unless there be a violation of law preannounced, and this by a constant and responsible tribunal, there is no crime, and can be no punishment." 1 Crim. Law Mag. 56. The same author, in his treatise on Pleadings and Practice, concludes his examination of the question in these words: "The conclusion we must, therefore, accept is, that the jury are no more judges of law in criminal than in civil cases, with the qualification that owing to the peculiar doctrine of autrefois acquit, a criminal acquitted cannot be overhauled by the court. In the Federal courts such is now the established rule." §§ 809, 810.
Forsyth, in his History of Trial by Jury — a work of merit — discusses the doctrine advanced by some that the jury were entitled in all cases, where no special pleas have been put on the record, to give a general verdict according to their own views of the law, in criminal as well as in civil cases. He says: "It is impossible to uphold the doctrine. It is founded on a confusion between the ideas of power and right." "Indeed, it is difficult to understand how any one acquainted with the principles and settled practice of the English law can assert that it sanctions the doctrine which is here combated." Again: "The distinction between the province of the judge and that of the jury is, in the English law, clearly defined, and observed with jealous accuracy. The jury must in all cases determine the value and effect of evidence which is submitted to them. They must decide what degree of credit is to be given to a witness, and hold the balance between conflicting probabilities. The law throws upon them the whole responsibility of ascertaining facts in dispute, and the judge does not attempt to interfere with the exercise of their unfettered discretion in this respect. But, on the other hand, the judge has his peculiar duty in the conduct of a trial. He must determine whether the kind of evidence offered is such as ought or ought not to be submitted to the jury, and what liabilities it imposes. When any questions of law arise, he alone determines them, and their consideration is absolutely withdrawn from the jury, who must in such cases follow the direction of the judge; or if they perversely refuse to do so, their verdict (in civil cases) will be set aside, and a new trial granted." London ed. 1852, pp. 261, 262, 282; Morgan's ed. pp. 235, 236.
Worthington, in his Inquiry into the Power of Juries, an English work published in 1825, and often cited in the adjudged cases, says: "Were they [the jury] permitted to decide the law, the principles of justice would be subverted; the law would become as variable as the prejudices, the inclinations and the passions of men. If they could legally decide upon questions of law, their decision must of necessity be final and conclusive, which would involve an absurdity in all judicial proceedings, and would be contradictory to the fundamental principles of our jurisprudence." "The jury, when called upon to decide facts which are complicated with law, are therefore constitutionally, and must be, from the nature and intention of the institution, bound to seek and to obey the direction of the judge with respect to the law. It becomes their duty to apply to the law thus explained to them the facts, (which it is their exclusive province to find,) and thus they deliver a verdict compounded of law and fact; but they do not determine or decide upon the law in any case." pp. 193, 194.
Judge Thompson, in his work on Trials, §§ 1016, 1017, thus states the principles: "The judge decides questions of law; the jury questions of fact." So in Proffat on Trial by Jury, § 375: "The preponderance of judicial authority in this country is in favor of the doctrine that the jury should take the law from the court and apply it to the evidence under its direction."
The language of some judges and statesmen in the early history of the country, implying that the jury were entitled to disregard the law as expounded by the court, is, perhaps, to be explained by the fact that "in many of the States the arbitrary temper of the colonial judges, holding office directly from the Crown, had made the independence of the jury in law as well as in fact of much popular importance." Wharton's Cr. Pl. & Pr. 8th ed. § 806; Williams v. State, 32 Mississippi, 389, 396.
Notwithstanding the declarations of eminent jurists and of numerous courts, as disclosed in the authorities cited, it is sometimes confidently asserted that they all erred when adjudging that the rule at common law was that the jury in criminal cases could not properly disregard the law as given by the court. We are of opinion that the law in England at the date of our separation from that country was as declared in the authorities we have cited. The contrary view rests, as we think, in large part upon expressions of certain judges and writers enforcing the principle, that when the question is compounded of law and fact, a general verdict, ex necessitate, disposes of the case in hand, both as to law and fact. That is what Lord Somers meant when he said in his essay on "The Security of Englishmen's Lives, or the Trust, Power, and Duty of the Grand Juries of England," that jurors only "are the judges from whose sentence the indicted are to expect life or death," and that "by finding guilty or not guilty, they do complicately resolve both law and fact." In the speeches of many statesmen and in the utterances of many jurists will be found the general observation that when law and fact are "blended" their combined consideration is for the jury, and a verdict of guilty or not guilty will determine both for the particular case in hand. But this falls far short of the contention that the jury, in applying the law to the facts, may rightfully refuse to act upon the principles of law announced by the court.
It is to be observed that those who have maintained the broad position that a jury may, of right, disregard the law as declared by the court, cite the judgment of Chief Justice Vaughan in Bushell's case, Vaughan, 135. In that case the accused were acquitted by a general verdict in opposition, as it was charged, to the directions of the court. And the question presented upon habeas corpus was, whether, for so doing, they were subject to be fined and committed to prison until the fine was paid. Upon a careful examination of the elaborate opinion in that case, it will become clear that the fundamental proposition decided was that, in view of the different functions of court and jury, and because a general verdict of necessity resolves "both law and fact complicately, and not the fact by itself," it could never be proved, where the case went to the jury upon both law and facts, that the jurors did not proceed upon their view of the evidence. Chief Justice Vaughan said that the words in the warrant, "that the jury did acquit against the direction of the court in matter of law, literally taken, and de plano, are insignificant and not intelligible; for no issue can be joined of matter in law, no jury can be charged with the trial of matter in law barely, no evidence ever was or can be given to a jury of what is law or not; nor no such oath can be given to or taken by a jury, to try matter in law; nor no attaint can lie for such a false oath." Vaughan, 143. Touching the distinction between the oath of a witness and that of a juror, he said: "A witness swears but to what ... hath fallen under his senses. But a juryman swears to what he can infer and conclude from the testimony of such witnesses, by the act and force of his own understanding, to be the fact inquired after, which differs nothing in the reason, though much in the punishment, from what a judge, out of various cases considered by him, infers to be law in the question before him." p. 142.
In referring to the opinion in Bushell's case, Mr. Justice Curtis well observed that it would be found that Chief Justice Vaughan "confines himself to a narrow though, for the case, a conclusive line of argument, that the general issue embracing fact as well as law, it can never be proved that the jury believed the testimony on which the fact depended, and in reference to which the direction was given, and so they cannot be shown to be guilty of any legal misdemeanor in returning a verdict, though apparently against the direction of the court in matter of law." And this is the view of the opinion in Bushell's case expressed by Hallam in his Constitutional History of England. c. 13.
A similar criticism was made by the Supreme Judicial Court of Massachusetts in the case of Anthes. Chief Justice Shaw, after stating the principles involved in Bushell's case, said: "It may be remarked that from the improved views of the nature of jury trials, during the two hundred years which have elapsed since the decision of Chief Justice Vaughan, the juror is now in no more danger of punishment, for giving an erroneous judgment in matter of fact, than a judge is for giving an erroneous judgment in matter of law. But his statement clearly implies that the judge, within his appropriate sphere, is to act by the force of his reason and understanding, and, by the aid of his knowledge of the law and all appropriate means, to adjudge all questions of law, and direct the jury thereon; and in like manner the jury, by the force of their reason and understanding, acting upon all the competent evidence in the case, to reason, weigh evidence, draw inferences, and adjudge the question of fact embraced in the issue. Again: In these cases the jury, and not the judge, resolve and find what the fact is. Therefore, always, in discreet and lawful assistance of the jury, the judge's direction is hypothetical and upon supposition, and not positive upon coercion, namely: If you find the fact thus, (leaving it to them what to find,) then you are to find for the plaintiff; but if you find the fact thus, then it is for the defendant.' Vaughan, 144." "It is strange," Chief Justice Shaw felt constrained to say, "that the authority of Vaughan, C.J., in this case should be cited, as it has been, to prove that a juror in finding a general verdict, embracing law and fact, being sworn to try the issue, must find his verdict upon his own conviction and conscience, relying, in support of the proposition, upon the following words of Vaughan, C.J.: A man cannot see by another's eye, nor hear by another's ear; no more can a man decide and infer the thing to be resolved by another's understanding or reasoning.' Vaughan, 148." Had these words been applied to the whole issue embraced in a general verdict, as would be implied from the manner of referring to them, they would have countenanced the proposition; but they are used expressly to illustrate the position, that the jury cannot be required implicitly to give a verdict by the dictates and authority of the judge. "I refer," Chief Justice Shaw continued, "only to one other passage, which serves as a key to the whole judgment. He says: `That decantatum in our books, ad quæstionem facti non respondent judices, ad quæstionem legis non respondent juratores, literally taken, is true, for if it be demanded, What is the fact? the judge cannot answer; if it be asked, What is the law in the case? the jury cannot answer it.' Vaughan, 149." All this tends to show that the leading thought in the opinion of Chief Justice Vaughan was that while the jury cannot answer as to the law, nor the court as to the fact, a general verdict, compounded of law and fact, of necessity determines both as to the case on trial.
In Townsend's case, an office taken by virtue of a writ of mandamus, and decided in the sixteenth century, the court said: "For the office of twelve men is no other than to inquire of matters of fact, and not to adjudge what the law is, for that is the office of the court, and not of the jury, and if they find the matter of fact at large, and further say that thereupon the law is so, where in truth the law is not so, the judges shall adjudge according to the matter of fact, and not according to the conclusion of the jury." 1 Plowd. 111, 114. In Willion v. Berkley, 1 Plowd. 223, 231, also a civil case: "Matters of fact being traversed, shall be tried by twelve men, and if the plaintiff should take a traverse here, it would be to make twelve illiterate men try a matter of law whereof they have no knowledge. It is not their office to try matters of law, but only to try matters of fact; for at the beginning of our law it was ordained that matters of fact should be tried by twelve men of the country where the matter arises, and matters of law by twelve judges of the law, for which purpose there were six judges here, and six in the King's Bench, who, upon matters of law, used to assemble together in a certain place, in order to discuss what the law was therein. So that if a traverse should be here taken, it would be to make twelve ignorant men of the country try that whereof they are not judges, and which does not belong to them to try." See also Grendon v. Bishop of London, 2 Plowd. 493, 496.
As early as 1727, Raymond, C.J., delivering the unanimous opinion of the twelve judges of the King's Bench in a case of murder, said that the jury are judges only of the fact, and the court of the law. Rex v. Oneby, 2 Str. 766, 773. The force of this language as to the functions of judge and jury is not materially weakened by the fact that the case was before the judges upon a special verdict, for it was expressly declared that jurors were judges only of the fact.
Within a few years after Oneby's case was determined, in 1734, the case of King v. Poole, which was a criminal information in the nature of a quo warranto, came before Lord Hardwicke. In passing upon a motion for a new trial that famous judge, than whom there could be no higher authority as to what was the settled law of England, said: "The thing that governs greatly in this determination is, that the point of law is not to be determined by juries; juries have a power by law to determine matters of fact only: and it is of the greatest consequence to the law of England and to the subject, that these powers of the judge and the jury are kept distinct; that the judge determine the law, and the jury the fact; and if ever they come to be confounded, it will prove the confusion and destruction of the law of England." Cas. Temp. Hardwicke, 23, 27, 28.
Upon the question here under examination Mr. Foster, to whose work Chief Justice Marshall frequently refers in his opinion or charge delivered in Burr's case, says, in the first edition of his work, which appeared in 1762, and again in the third edition, which appeared in 1792: "In every case where the point turneth upon the question whether the homicide was committed wilfully and maliciously, or under circumstances justifying, excusing, or alleviating the matter of fact, viz., whether the facts alleged by way of justification, excuse, or alleviation are true, is the proper and only province of the jury. But whether, upon a supposition of the truth of facts, such homicide be justified, excused, or alleviated must be submitted to the judgment of the court; for the construction the law putteth upon facts stated and agreed, or found by a jury is in this, as in all other cases, undoubtedly the proper province of the court. In cases of doubt and real difficulty it is commonly recommended to the jury to state facts and circumstances in a special verdict. But where the law is clear, the jury, under the direction of the court in point of law, matters of fact being still left to their determination, may, and, if they are well advised, always will find a general verdict, conformably to such direction." Foster's Crown Law, 255, 256, 3d ed. See also The King v. Withers, (Lord Kenyon,) 3 T.R. 428; Bacon's Abridg. Title Juries, M. 2; 2 Hawkins' P.C. c. 22, § 21; 1 Duncomb, Trials per Pais, (Dublin, 1793,) pp. 229, 231.
In Wynne's Eunomus, or Dialogues Concerning the Law and Constitution of England, a work of considerable reputation, the first edition having been published about the time of the adoption of our Constitution, the principle is thus stated: "All that I have said or have to say upon the subject of juries is agreeable to this established maxim, that juries must answer to questions of fact and judges to questions of law.' This is the fundamental maxim acknowledged by the Constitution." "It is undoubtedly true that the jury are judges, the only judges of the fact; is it not equally within the spirit of the maxim that judges only have the competent cognizance of the law? Can it be contended that the jury have, in reality, an adequate knowledge of law? Or, that the Constitution ever designed they should?" "Well — but the law and the fact are often complicated' — then it is the province of the judge to distinguish them; to tell the jury, that supposing such and such facts were done, what the law is in such circumstances. This is an unbiassed direction; this keeps the province of judge and jury distinct; the facts are left altogether to the jury, and the law does not control the fact, but arises from it." "Every verdict is compounded of law and fact, but the law and fact are always distinct in their nature." Wynne's Eunomus, Dialogue III, § 53, 5th ed. 1822, pp. 523, 527, 528; 3d ed. 1809, Vol. 2, pp. 142, 144.
Mr. Stephens, in his great work on the History of the Criminal Law of England, in discussing the powers of juries in France, says: "The right of the counsel for the defence to address the jury on questions of law, as, for instance, whether killing in a duel is meurtre, is one of the features in which the administration of justice in France differs essentially from the administration of justice in England. In England the judge's duty is to direct the jury in all matters of law, and any arguments of counsel upon the subject must be addressed to him and not to the jury. This is not only perfectly well established as matter of law, but it is as a fact acquiesced in by all whom it concerns." Vol. 1, p. 551.
To the same effect is Levi v. Milne, 4 Bing. 195, reported as Levy v. Milne, 12 J.B. Moore, 418, and decided in 1827. That was an action of libel. Mr. Sergeant Wilde, a counsel in the case, contended that in cases of libel the jury are judges of the law as well as of the fact. But Lord Chief Justice Best said: "If the jury were to be made judges of the law as well as of fact, parties would be always liable to suffer from an arbitrary decision. In the present case, the jury have made themselves judges of the law, and have found against it." "My brother Wilde has stated that in cases of libel the jury are judges of the law as well as of fact; but I beg to deny that. Juries are not judges of the law, or at any rate not in civil actions. The authority on which the learned Sergeant has probably grounded his supposition is the 32d G. 3, c. 60, which was the famous bill brought in by Mr. Fox, or, more properly, by Lord Erskine. But whoever reads that act will see that it does not apply to civil actions — it applies only to criminal cases. There is nothing in it that in any way touches civil actions, and the jury, with respect to them, stand in the same situation as they ever have done. I mean, however, to protest against juries, even in criminal cases, becoming judges of the law: the act only says that they may find a general verdict. Has a jury then a right to act against the opinion of the judge, and to return a verdict on their own construction of the law? I am clearly of opinion that they have not." The report by Moore of this opinion is not as full as the report in Bingham, but the two reports do not differ in any material respect.
But a later decision was that by Lord Abinger, Chief Baron, in 1837, in Regina v. Parish, 8 Carr. & P. 94. That was an indictment for offering, disposing of, and putting off a forged bill of exchange. In the course of his argument to the jury the counsel for the accused read the observations of Mr. Justice Coleridge in a certain case as sustaining his view of the law. He was interrupted by the judge, who said: "I cannot allow you to read cases to the jury. It is the duty of the jury to take the law from the judge. It no doubt often happens that, in an address to the jury, counsel cite cases; but then it is considered that that part of the speech of the counsel is addressed to the judge. That cannot be so here, as you very properly in the first instance referred me to the case, and you have my opinion upon it; you can therefore make no further legitimate use of the case, and the only effect of reading it would be to discuss propositions of law with the jury, with which they have nothing to do, and which they ought to take from me."
The case of Parmiter v. Coupland, 6 M. & W. 104, 106, 108, which was an action for libel, is not without value as tending to show that Fox's Libel Bill, so far from changing the rule, as generally applicable in criminal cases, only required the same practice to be pursued in prosecutions for libel as in other criminal cases. In the course of the argument of counsel, Parke, B., said: "In criminal cases, the judge is to define the crime, and the jury are to find whether the party has committed that offence. Mr. Fox's act made it the same in cases of libel, the practice having been otherwise before." Again: "But it has been the course for a long time for a judge, in cases of libel, as in other cases of a criminal nature, first to give a legal definition of the offence, and then to leave it to the jury to say whether the facts necessary to constitute that offence are proved to their satisfaction; and that, whether the libel is the subject of a criminal prosecution, or civil action. A publication, without justification or lawful excuse, which is calculated to injure the reputation of another, by exposing him to hatred, contempt, or ridicule, is a libel. Whether the particular publication, the subject of inquiry, is of that character, and would be likely to produce that effect, is a question upon which a jury is to exercise their judgment, and pronounce their opinion, as a question of fact. The judge, as a matter of advice to them in deciding that question, might have given his own opinion as to the nature of the publication, but was not bound to do so as a matter of law. Mr. Fox's Libel Bill was a declaratory act, and put prosecution for libel on the same footing as other criminal cases." Alderson, B., concurring, said that the judge "ought — having defined what is a libel — to refer to the jury the consideration of the particular publication, whether falling within that definition or not."
It is, therefore, a mistake to suppose that the English Libel Act changed in any degree the general common law rule in criminal cases, as to the right of the court to decide the law, and the duty of the jury to apply the law thus given to the facts, subject to the condition, inseparable from the jury system, that the jury by a general verdict of necessity determined in the particular case both law and fact as compounded in the issue submitted to them. That act provides that "the court or judge, before whom such indictment or information shall be tried, shall, according to their or his discretion, give their or his opinion and directions to the jury on the matter in issue between the King and the defendant, in like manner as in other criminal cases." "This seems," Mr. Justice Curtis well said, "to carry the clearest implication that, in this and all other criminal cases, the jury may be directed by the judge; and that, while the object of the statute was to declare that there was other matter of fact besides publication and the innuendoes to be decided by the jury, it was not intended to interfere with the proper province of the judge to decide all matters of law." 1 Curtis, 55. And this accords with the views expressed by Lord Abinger in Reeves v. Templar, 2 Jur. 137, 138. He said: "Before that statute a practice had arisen of considering that the question, libel or no libel, was always for the court, independent of the intention and meaning of the party publishing. That statute corrected the error; and now, if the intention does not appear on the body of the libel, a variety of circumstances are to be left to the jury from which to infer it; but it was never intended to take from the court the power of deciding whether certain words are per se libellous or not."
The rule that jurors do not respond to questions of law was illustrated in Bishop of Meath v. Marquis of Winchester, 4 Cl. & Fin. 445, 557, where Lord Chief Justice Tindal, delivering the unanimous opinion of the judges, said: "With respect to the second question lastly above proposed to us, viz., whether if the fine were received in evidence it ought to be left to the jury to say whether it barred the action of quare impedit, we all think that the legal effect of such fine as a bar to the action of quare impedit is a matter of law merely, and not in any way a matter of fact; and, consequently, the judge who tried the cause should state to the jury whether in point of law the fine had that effect, or what other effect on the rights of the litigant parties, upon the general and acknowledged principle ad quæstionem juris non respondent juratores."
Briefly stated, the contention of the accused is that although there may not have been any evidence whatever to support a verdict of guilty of an offence less than the one charged — and such was the case here — yet, to charge the jury, as matter of law, that the evidence in the case did not authorize any verdict except one of guilty or one of not guilty of the particular offence charged, was an interference with their legitimate functions, and, therefore, with the constitutional right of the accused to be tried by a jury.
The error in the argument, on behalf of the accused, is in making the general rule as to the respective functions of court and jury, applicable equally to a case in which there is some substantial evidence to support the particular right asserted, and a case in which there is an entire absence of evidence to establish such right. In the former class of cases the court may not, without impairing the constitutional right of trial by jury, do what, in the latter cases, it may often do without at all entrenching upon the constitutional functions of the jury. The law makes it the duty of the jury to return a verdict according to the evidence in the particular case before them. But if there are no facts in evidence bearing upon the issue to be determined, it is the duty of the court, especially when so requested, to instruct them as to the law arising out of that state of case. So, if there be some evidence bearing upon a particular issue in a cause, but it is so meagre as not, in law, to justify a verdict in favor of the party producing it, the court is in the line of duty when it so declares to the jury. Pleasants v. Fant, 22 Wall. 116, 121; Montclair v. Dana, 107 U.S. 162; Randall v. Baltimore & Ohio Railroad, 109 U.S. 478, 482; Schofield v. Chicago & St. Paul Railway, 114 U.S. 615, 619; Marshall v. Hubbard, 117 U.S. 415, 419; Meehan v. Valentine, 145 U.S. 611, 625.
The cases just cited were, it is true, of a civil nature; but the rules they announce are, with few exceptions, applicable to criminal causes, and indicate the true test for determining the respective functions of court and jury. Who can doubt, for instance, that the court has the right even in a capital case to instruct the jury as matter of law to return a verdict of acquittal on the evidence adduced by the prosecution. Could it be said, in view of the established principles of criminal law, that such an instruction entrenched upon the province of the jury to determine from the evidence whether the accused was guilty or not guilty of the offence charged, or of some lesser offence included in the one charged? Under a given state of facts, outlined in an instruction to the jury, certain legal presumptions may arise. May not the court tell the jury what those presumptions are, and should not the jury assume that they are told truly? If the court excludes evidence given in the hearing of the jury, and instructs them to disregard it altogether, is it not their duty to obey that instruction, whatever may be their view of the admissibility of such evidence? In Famous Smith v. United States, 151 U.S. 50, 55, which was an indictment for the murder, in the Indian Territory, of one Gentry, "a white man and not an Indian," we said: "That Gentry was a white man, and not an Indian, was a fact which the government was bound to establish, and if it failed to introduce any evidence upon that point, defendant was entitled to an instruction to that effect. Without expressing any opinion as to the correctness of the legal propositions embodied in this charge, we think there was no testimony which authorized the court to submit to the jury the question whether Gentry was a white man and not an Indian. The objection went to the jurisdiction of the court, and if no other reasonable inference could have been drawn from the evidence than that Gentry was an Indian, defendant was entitled, as matter of law, to an acquittal" — citing Pleasants v. Fant, 22 Wall. 116; County Commissioners v. Clark, 94 U.S. 278, and Marshall v. Hubbard, 117 U.S. 415. So, in this case, it was competent for the court to say to the jury that on account of the absence of all evidence tending to show that the defendants were guilty of manslaughter, they could not, consistently with law, return a verdict of guilty of that crime.
Any other rule than that indicated in the above observations would bring confusion and uncertainty in the administration of the criminal law. Indeed, if a jury may rightfully disregard the direction of the court in matter of law, and determine for themselves what the law is in the particular case before them, it is difficult to perceive any legal ground upon which a verdict of conviction can be set aside by the court as being against law. If it be the function of the jury to decide the law as well as the facts — if the function of the court be only advisory as to the law — why should the court interfere for the protection of the accused against what it deems an error of the jury in matter of law.
Public and private safety alike would be in peril, if the principle be established that juries in criminal cases may, of right, disregard the law as expounded to them by the court and become a law unto themselves. Under such a system, the principal function of the judge would be to preside and keep order while jurymen, untrained in the law, would determine questions affecting life, liberty, or property according to such legal principles as in their judgment were applicable to the particular case being tried. If because, generally speaking, it is the function of the jury to determine the guilt or innocence of the accused according to the evidence, of the truth or weight of which they are to judge, the court should be held bound to instruct them upon a point in respect to which there was no evidence whatever, or to forbear stating what the law is upon a given state of facts, the result would be that the enforcement of the law against criminals and the protection of citizens against unjust and groundless prosecutions, would depend entirely upon juries uncontrolled by any settled, fixed, legal principles. And if it be true that jurors in a criminal case are under no legal obligation to take the law from the court, and may determine for themselves what the law is, it necessarily results that counsel for the accused may, of right, in the presence of both court and jury, contend that what the court declares to be the law applicable to the case in hand is not the law, and, in support of his contention, read to the jury the reports of adjudged cases and the views of elementary writers. Undoubtedly, in some jurisdictions, where juries in criminal cases have the right, in virtue of constitutional or statutory provisions, to decide both law and facts upon their own judgment as to what the law is, and as to what the facts are, it may be the privilege of counsel to read and discuss adjudged cases before the jury. And in a few jurisdictions, in which it is held that the court alone responds as to the law, that practice is allowed in deference to long usage. But upon principle, where the matter is not controlled by express constitutional or statutory provisions, it cannot be regarded as the right of counsel to dispute before the jury the law as declared by the court. Under the contrary view — if it be held that the court may not authoritatively decide all questions of law arising in criminal cases — the result will be that when a new trial in a criminal case is ordered, even by this court, the jury, upon such trial, may of right return a verdict based upon the assumption that what this court has adjudged to be law is not law. We cannot give our sanction to any rule that will lead to such a result. We must hold firmly to the doctrine that in the courts of the United States it is the duty of juries in criminal cases to take the law from the court and apply that law to the facts as they find them to be from the evidence. Upon the court rests the responsibility of declaring the law; upon the jury, the responsibility of applying the law so declared to the facts as they, upon their conscience, believe them to be. Under any other system, the courts, although established in order to declare the law, would for every practical purpose be eliminated from our system of government as instrumentalities devised for the protection equally of society and of individuals in their essential rights. When that occurs our government will cease to be a government of laws, and become a government of men. Liberty regulated by law is the underlying principle of our institutions.
To instruct the jury in a criminal case that the defendant cannot properly be convicted of a crime less than that charged, or to refuse to instruct them in respect to the lesser offences that might, under some circumstances, be included in the one so charged — there being no evidence whatever upon which any verdict could be properly returned except one of guilty or one of not guilty of the particular offence charged — is not error; for the instructing or refusing to instruct, under the circumstances named, rests upon legal principles or presumptions which it is the province of the court to declare for the guidance of the jury. In the case supposed the court is as clearly in the exercise of its legitimate functions, as it is when ruling that particular evidence offered is not competent, or that evidence once admitted shall be stricken out and not be considered by the jury, or when it withdraws from the jury all proof of confessions by the accused upon the ground that such confessions, not having been made freely and voluntarily, are inadmissible under the law as evidence against the accused.
These views are sustained by a very great weight of authority in this country. In People v. Barry, 90 California, 41, which was a criminal prosecution for an assault with intent to commit robbery, the accused having been twice before convicted of petit larceny, it was held not to be error to refuse to instruct the jury that under the charge they might find him guilty of simple assault, because "the evidence tended to show that he was guilty of the crime charged or of no offence at all," and, therefore, "the instruction asked was not applicable to the facts of the case;" in People v. McNutt, 93 California, 658, the offence charged being an assault with a deadly weapon and with intent to commit murder, that an instruction that the jury might convict of a simple assault could have been properly refused, because "under the evidence he was either guilty of an offence more serious than simple assault or he was not guilty;" in Clark v. Commonwealth, 123 Penn. St. 81, a case of murder, that the omission of an instruction on the law of voluntary manslaughter, and the power of the jury to find it, was not error, because the murder was deliberate murder, and "there was no evidence on which it could be reduced to a milder form of homicide;" in State v. Lane, 64 Missouri, 319, 324, which was an indictment for murder in the first degree, that "if the evidence makes out a case of murder in the first degree, and applies to that kind of killing, and no other, the court would commit no error in confining its instructions to that offence and refusing to instruct either as to murder in the second degree or manslaughter in any of its various degrees," and when an instruction "is given for any less grade of offence, and there is no evidence upon which to base it," the judgment should be reversed for error; in McCoy v. State, 27 Texas App. 415, the charge being murder of the first degree, that the refusal to charge the law of murder in the second degree was not error, for the reason that if the defendant was "criminally responsible at all for the homicide, the grade of the offence under the facts is not short of murder of the first degree;" in State v. McKinney, 111 N.C. 683, a murder case, that as there was no testimony on either side tending to show manslaughter, a charge that there was no element of manslaughter in the case, and that the defendant was guilty of murder or not guilty of anything at all, as the jury should find the facts, was strictly in accordance with the testimony and the precedents; in State v. Musick, 101 Missouri, 260, 270, where the charge was an assault with malice aforethought, punishable by confinement in the penitentiary, that an instruction looking to a conviction for a lower grade included in the offence charged, was proper where there was evidence justifying it; in State v. Casford, 76 Iowa, 330, 332, that the defendant, so charged in an indictment that he could be convicted of rape, an assault to commit rape, or an assault and battery, was not prejudiced by the omission of the court to instruct the jury that he could be convicted of a simple assault, there being no evidence to authorize a verdict for the latter offence; in Jones v. State, 52 Arkansas, 345, a murder case, that it was not error to refuse to charge as to a lower grade of offence, there being "no evidence of any crime less than murder in the first degree," and the defendant being therefore guilty of "murder in the first degree, or innocent;" in McClevnard v. Commonwealth, (Kentucky,) 12 S.W. Rep. 148, and in O'Brien v. Commonwealth, 89 Kentucky, 354, murder cases, that an instruction as to manslaughter need not be given, unless there is evidence to justify it; in State v. Estep, 44 Kansas, 572, 575, a case of murder of the first degree, that there was no testimony tending to show that the defendant was guilty of manslaughter in either the first, second, or fourth degrees, instructions as to those degrees should not have been given; and in Robinson v. State, 84 Georgia, 674, a case of assault with intent to murder, that the refusal to instruct the jury that the defendant could have been found guilty of an assault, or of assault and battery, was not error, "for there was nothing in the evidence to justify the court in so instructing the jury."
We have said that, with few exceptions, the rules which obtain in civil cases in relation to the authority of the court to instruct the jury upon all matters of law arising upon the issues to be tried, are applicable in the trial of criminal cases. The most important of those exceptions is that it is not competent for the court, in a criminal case, to instruct the jury peremptorily to find the accused guilty of the offence charged or of any criminal offence less than that charged. The grounds upon which this exception rests were well stated by Judge McCrary, Mr. Justice Miller concurring, in United States v. Taylor, 3 McCrary, 500, 505. It was there said: "In a civil case, the court may set aside the verdict, whether it be for the plaintiff or defendant, upon the ground that it is contrary to the law as given by the court; but in a criminal case, if the verdict is one of acquittal, the court has no power to set it aside. It would be a useless form for a court to submit a civil case involving only questions of law to the consideration of a jury, where the verdict, when found, if not in accordance with the court's view of the law, would be set aside. The same result is accomplished by an instruction given in advance to find a verdict in accordance with the court's opinion of the law. But not so in criminal cases. A verdict of acquittal cannot be set aside; and therefore, if the court can direct a verdict of guilty, it can do indirectly that which it has no power to do directly."
We are of opinion that the court below did not err in saying to the jury that they could not consistently with the law arising from the evidence find the defendants guilty of manslaughter or of any offence less than the one charged; that if the defendants were not guilty of the offence charged, the duty of the jury was to return a verdict of not guilty. No instruction was given that questioned the right of the jury to determine whether the witnesses were to be believed or not, nor whether the defendant was guilty or not guilty of the offence charged. On the contrary, the court was careful to say that the jury were the exclusive judges of the facts, and that they were to determine — applying to the facts the principles of law announced by the court — whether the evidence established the guilt or innocence of the defendants of the charge set out in the indictment.
The trial was thus conducted upon the theory that it was the duty of the court to expound the law and that of the jury to apply the law as thus declared to the facts as ascertained by them. In this separation of the functions of court and jury is found the chief value, as well as safety, of the jury system. Those functions cannot be confounded or disregarded without endangering the stability of public justice, as well as the security of private and personal rights.
The main reason ordinarily assigned for a recognition of the right of the jury, in a criminal case, to take the law into their own hands, and to disregard the directions of the court in matters of law, is that the safety and liberty of the citizen will be thereby more certainly secured. That view was urged upon Mr. Justice Curtis. After stating that if he conceived the reason assigned to be well founded, he would pause long before denying the existence of the power claimed, he said that a good deal of reflection had convinced him that the argument was the other way. He wisely observed, that "as long as the judges of the United States are obliged to express their opinions publicly, to give their reasons for them when called upon in the usual mode, and to stand responsible for them, not only to public opinion, but to a court of impeachment, I can apprehend very little danger of the laws being wrested to purposes of injustice. But, on the other hand, I do consider that this power and corresponding duty of the court, authoritatively to declare the law, is one of the highest safeguards of the citizen. The sole end of courts of justice is to enforce the laws uniformly and impartially, without respect of persons or times or the opinions of men. To enforce popular laws is easy. But when an unpopular cause is a just cause; when a law, unpopular in some locality, is to be enforced, there then comes the strain upon the administration of justice; and few unprejudiced men would hesitate as to where that strain would be most firmly borne." United States v. Morris, 1 Curtis, 23, 62, 63.
The questions above referred to are the only ones that need be considered on this writ of error.
MR. JUSTICE JACKSON participated in the decision of this case and concurs in the views herein expressed.
The judgment of the Circuit Court is affirmed as to Hansen, but is reversed as to Sparf, with directions for a new trial as to him.
I concur in the views expressed in the opinion of the court as to the separate functions of court and jury, and in the judgment of affirmance against Hansen; but I do not concur in holding that the trial court erred in admitting evidence of confessions, or in the judgment of reversal as to Sparf.
The facts briefly stated are these: There was a single indictment charging the defendants jointly with the crime of murder. There was a single case on trial, a case in which the government was the party on one side and the two defendants the party on the other. These two defendants were represented by the same counsel. Three witnesses testified to confessions of Hansen. Counsel for defendants objected to each of these confessions. These objections were in the same form. They purported to be for the defendants jointly, and not separately for each. Two of the confessions were given in the presence of Sparf, and in admitting them it is not pretended that there was any error. One was made in the absence of Sparf, and it is held that the court erred in overruling the objection to it. The objection was that the testimony offered was "irrelevant, immaterial, and incompetent, and upon the ground that any statement made by Hansen was not and could not be voluntary." It will be noticed that this objection was both general and special; the special ground, that which would naturally arrest the attention of the court, being that the confession was not voluntary. This ground of objection it is admitted was not well taken. If there was any error it was in overruling the general objection that the testimony was irrelevant, immaterial, and incompetent. But it is conceded that this confession was material, relevant, and competent, was properly admitted in evidence on the single trial then pending, and properly heard by the jury. The real burden of complaint is that when the court admitted the testimony it ought to have instructed the jury that it was evidence only against Hansen, and not against Sparf. But in common fairness ought not the attention of the court to have been called to the difference, and a ruling had upon that difference? Cannot parties present a joint objection to testimony and rest their case upon such objection? Is it the duty of the court to consider a matter which is not called to its attention, and make a ruling which it is not asked to make? Is it not the duty of the court to be impartial between the government and the defendant, and decide simply the questions which each party presents? Is it its duty to watch over the interests of either party, and to put into the mouth of counsel an objection which he does not make? To my mind such a doctrine is both novel and dangerous. I do not question the proposition that a confession made by one of two defendants in the absence of the other is to be considered by the jury only as against the one making it, and I admit that if a separate objection had been made by Sparf the court would have been called upon to formally sustain such objection, and instruct the jury that such testimony was to be considered by them only as against Hansen. If an instruction had been asked, as is the proper way, the attention of the court would have been directed to the matter, and an adverse ruling would have rightly presented the error which is now relied upon. But I need not refer to the oft-repeated decisions of this court that there is no error in failing to give an instruction which is not asked, unless it be one of those which a statute in terms requires the court to give, and there is no pretence of any such statute. Lewis v. Lee County, 66 Alabama, 480, 489, was decided in accordance with the views which I have expressed. The court in that case say:
"The witness Frazier's testimony, as to his conversation with the defendant Lewis, regarding the condition of his accounts as county treasurer, was properly admitted in evidence. It was certainly good as an admission against him, and could not be excluded because not admissible against the sureties, who were his codefendants in the action. The practice on this point is well settled in this State, that the only remedy of a codefendant, in such a case, is to request a charge from the court to the jury, limiting the operation of the evidence, so as to confine its influence only to the defendant against whom it is admissible."
So in State v. Brite, 73 N.C. 26, 28, a similar ruling was made, the court saying:
"The defendant's first exception is that his honor allowed Culpepper, a codefendant, to introduce witnesses to prove his (Brite's) declarations while in jail, which tended to exonerate Culpepper."
"While these declarations are not evidence, either for or against Culpepper, being, as to him, res inter alios acta, and made by one not under oath, and subject to cross-examination, yet they are clearly admissible against Brite, and it makes no difference whether they were called forth by the State, or by Culpepper, without objection, or rather with the sanction of the State."
I have been able to find no case laying down a contrary doctrine. In Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285, each defendant separately for itself presented the objection, and each, therefore, had the right to avail itself of the ruling made by the court. Indeed, I think this will be found to be the first case in which it has been held that, while the court properly allowed testimony to go to the jury on the trial of a case, the judgment has been reversed because it failed to call the attention of the jury to the bearing of that evidence upon the different parties when such parties never asked the court to so instruct the jury.
I am authorized to say that MR. JUSTICE BROWN concurs in these views.
Mr. Justice Shiras and myself concur in so much of the opinion of the majority of the court as awards a new trial to one of the defendants, by reason of the admission in evidence against him of confessions made in his absence by the other.
But from the greater part of that opinion, and from the affirmance of the conviction of the other defendant, we are compelled to dissent, because, in our judgment, the case, involving the question of life or death to the prisoners, was not submitted to the decision of the jury as required by the Constitution and laws of the United States.
The two defendants, Herman Sparf and Hans Hansen, together with Thomas St. Clair, seamen on board the brig Hesper, an American vessel, were indicted for the murder of Maurice Fitzgerald, the second mate, on the high seas, on January 13, 1893, by striking him with a weapon and by throwing him overboard and drowning him.
St. Clair was separately tried, convicted and sentenced, and his conviction was affirmed by this court at the last term. 154 U.S. 134.
At the trial of Sparf and Hansen, there was no direct testimony of any eye-witness to the killing, or to any assault or affray. There was evidence that, at ten o'clock in the evening of the day in question, the second mate was at the wheel, in charge of the starboard watch, consisting of St. Clair, Sparf, Hansen and another seaman; and that, when the watch was changed at midnight, the second mate could not be found, and there was much blood on the deck, as well as a bloody broomstick and a wooden bludgeon. The rest of the evidence consisted of testimony of other seamen to acts and statements of each defendant and of St. Clair, before and after the disappearance of the second mate, tending to prove a conspiracy to kill him; and to subsequent confessions of Hansen, tending to show that the killing was premeditated.
The judge, in his charge to the jury, gave the following instructions: "The indictment is based upon section 5339 of the Revised Statutes, which provides, among other things, that every person who commits murder' upon the high seas, or in any arm of the sea, or in any river, haven, creek, basin, or bay, within the admiralty and maritime jurisdiction of the United States, and out of the jurisdiction of any particular State, or who upon any of such waters maliciously strikes, stabs, wounds, poisons, or shoots at any other person, of which striking, stabbing, wounding, poisoning, or shooting such other person dies, either on land or at sea, within or without the United States, shall suffer death.'"
"Murder is the unlawful killing of a human being in the peace of the State, with malice aforethought, express or implied." "Express malice" was defined as "deliberate premeditation and design, formed in advance to kill or to do bodily harm, the premeditation and design being implied from external circumstances capable of proof, such as lying in wait, antecedent threats, and concerted schemes against a victim;" and "implied malice" as "an inference of the law from any deliberate and cruel act committed by one person against another," "that is, malice is inferred when one kills another without provocation, or when the provocation is not great." "Manslaughter is the unlawful killing of a human being, without malice, either expressed or implied. I do not consider it necessary, gentlemen, to explain it further; for, if a felonious homicide has been committed, of which you are to be the judges from the proof, there is nothing in this case to reduce it below the grade of murder." "Every person present at a murder, willingly aiding or abetting its perpetration, is guilty of murder, and may be indicted and convicted as principal in the first degree." "It is not my purpose, nor is it my function, to assume any fact to be proven, nor to suggest to you that any fact has been proven. You are the exclusive judges of the facts."
The defendants requested the judge to instruct the jury that "under the indictment in this case the defendants may be convicted of murder, or manslaughter, or of an attempt to commit murder or manslaughter; and if, after a full and careful consideration of all the evidence before you, you believe beyond a reasonable doubt that the defendants are guilty either of manslaughter, or of an assault with intent to commit murder or manslaughter, you should so find your verdict." The judge refused to give this instruction, and the defendants excepted to the refusal.
The jury, after deliberating on the case for some time, returned into court, and being asked whether they had agreed upon a verdict, the foreman said that one of the jurors wished to be instructed upon certain points under the laws of the United States as to murder upon the high seas. One of the jurors then said that he "would like to know, in regard to the interpretation of the laws of the United States in regard to manslaughter, as to whether the defendants can be found guilty of manslaughter, or that the defendants must be found guilty," evidently meaning "of murder," the whole offence charged in the indictment. The judge then read again section 5339 of the Revised Statutes. The juror asked: "Are the two words aiding' or abetting' defined?" The judge replied: "The words aiding' or abetting' are not defined. But I have instructed you as to the legal effect of aiding and abetting, and this you should accept as law. If I have made an error, there is a higher tribunal to correct it." The juror said: "I am the spokesman for two of us. We desire to clearly understand the matter. It is a barrier in our mind to our determining the matter. The question arising amongst us is as to aiding and abetting. Furthermore, as I understand, it must be one thing or the other. It must be either guilty or not guilty." The judge replied: "Yes; under the instructions I have given you." The judge then, after repeating the general definitions, as before given, of murder and of manslaughter, said: "If a felonious homicide has been committed by either of the defendants, of which you are to be the judges from the proof, there is nothing in this case to reduce it below the grade of murder;" and, in answer to further questions of the juror, repeated this again and again, and said: "In a proper case, it may be murder, or it may be manslaughter; but in this case it cannot properly be manslaughter." The defendants excepted to these instructions. And finally, in answer to the juror's direct question, "Then there is no other verdict we can bring in, except guilty or not guilty?" the judge said: "In a proper case, a verdict for manslaughter may be rendered, as the district attorney has stated; and even in this case you have the physical power to do so; but, as one of the tribunals of the country, a jury is expected to be governed by law, and the law it should receive from the court." The juror then said: "There has been a misunderstanding amongst us. Now it is clearly interpreted to us, and no doubt we can now agree on certain facts." Thereupon a verdict of guilty of murder was returned against both defendants, and they were sentenced to death, and sued out this writ of error.
The judge, by instructing the jury that they were bound to accept the law as given to them by the court, denied their right to decide the law. And by instructing them that, if a felonious homicide by the defendants was proved, there was nothing in the case to reduce it below the grade of murder, and they could not properly find it to be manslaughter, and by declining to submit to them the question whether the defendants were guilty of manslaughter only, he denied their right to decide the fact. The colloquy between the judge and the jurors, when they came in for further instructions, clearly shows that the jury, after deliberating upon the case, were in doubt whether the crime which the defendants had committed was murder or manslaughter; and that it was solely by reason of these instructions of the judge, that they returned a verdict of the higher crime.
It is our deep and settled conviction, confirmed by a reëxamination of the authorities under the responsibility of taking part in the consideration and decision of the capital case now before the court, that the jury, upon the general issue of guilty or not guilty in a criminal case, have the right, as well as the power, to decide, according to their own judgment and consciences, all questions, whether of law or of fact, involved in that issue.
The question of the right of the jury to decide the law in criminal cases has been the subject of earnest and repeated controversy in England and America, and eminent jurists have differed in their conclusions upon the question. In this country, the opposing views have been fully and strongly set forth by Chancellor Kent in favor of the right of the jury, and by Chief Justice Lewis against it, in People v. Croswell, 3 Johns. Cas. 337; by Judge Hall in favor of the right, and by Judge Bennett against it, in State v. Croteau, 23 Vermont, 14; and by Chief Justice Shaw against the right, and by Mr. Justice Thomas in its favor, in Commonwealth v. Anthes, 5 Gray, 185.
The question of the right of the jury under the Constitution of the United States cannot be usefully or satisfactorily discussed without examining and stating the authorities which bear upon the scope and effect of the provisions of the Constitution regarding this subject. In pursuing this inquiry, it will be convenient to consider, first, the English authorities; secondly, the authorities in the several Colonies and States of America; and lastly, the authorities under the national government of the United States.
By Magna Charta, no person could be taken or imprisoned, or deprived of his freehold or of his liberties or free customs, unless by the lawful judgment of his peers, or the law of the land — nisi per legale judicium parium suorum, vel per legem terræ. Accordingly, by the law of England, at the time of the discovery and settlement of this country by Englishmen, every subject (not a member of the House of Lords) indicted for treason, murder or other felony, had the right to plead the general issue of not guilty, and thereupon to be tried by a jury; and, if they acquitted him, the verdict of acquittal was conclusive, in his favor, of both the law and the fact involved in the issue. The jury, in any case, criminal or civil, might indeed, by finding a special verdict reciting the facts, refer a pure question of law to the court; but they were not bound and could not be compelled to do so, even in a civil action.
By the statute of Westm. 2, (13 Edw. I,) c. 30, "it is ordained, that the justices assigned to take assizes shall not compel the jurors to say precisely whether it be disseisin or not, so that they do shew the truth of the fact, and require aid of the justices; but if they of their own head will say, that it is or is not disseisin, their verdict shall be admitted at their own peril." 1 Statutes of the Realm, 86. That statute, as Lord Coke tells us, was declaratory of the common law; and before its enactment some justices directed juries to return general verdicts, thus subjecting them to the peril of an attaint if they mistook the law. 2 Inst. 422, 425.
Littleton, speaking of civil actions in which the jury, upon the general issue pleaded, might return a special verdict, says that "if they will take upon them the knowledge of the law upon the matter, they may give their verdict generally, as is put in their charge." Lit. § 368. And accordingly Lord Coke says: "Although the jury, if they will take upon them (as Littleton here saith) the knowledge of the law, may give a general verdict, yet it is dangerous for them so to do, for if they do mistake the law, they run into the danger of an attaint; therefore to find the special verdict is the safest where the case is doubtful." Co. Lit. 227 b.
Lord Coke elsewhere says that "the jury ought, if they will not find the special matter, to find `at their peril' according to law." Rawlyns's case, 4 Rep. 52 a, 53 b. And Lord Chief Justice Hobart says: "Legally it will be hard to quit a jury that finds against the law, either common law or several statute law, whereof all men were to take knowledge, and whereupon verdict is to be given, whether any evidence be given to them or not," and "though no man informed them what the law was in that case." Needler v. Bishop of Winchester, Hob. 220, 227.
The peril or danger, above spoken of, into which the jury ran by taking upon themselves the knowledge of the law, and undertaking to decide by a general verdict the law involved in the issue of fact submitted to them, was the peril of an attaint, upon which their verdict might be set aside and themselves punished. Upon the attaint, however, the trial was not by the court, but by a jury of twenty-four; it was only by a verdict of the second jury, and not by judgment of the court only, that the first verdict could be set aside; and, if not so set aside, the second verdict was final and conclusive. Co. Lit. 293 a, 294 b; Vin. Ab., Attaint, A. (6); Com. Dig., Attaint, B. Moreover, no attaint lay in a criminal case. Bushell's case, Vaughan, 135, 146; The King v. Shipley, 4 Doug. 73, 115.
Lord Bacon, in his History of Henry VII, (originally written and published in English, and afterwards translated into Latin by himself or under his supervision,) speaking of the Parliament held in the eleventh year of his reign, says: "This Parliament also made that good law, which gave the attaint upon a false verdict between party and party, which before was a kind of evangile, irremediable — in the Latin, judicia juratorum, quæ veredicta vocantur, quæ ante illud tempus evangelii cujusdam instar erant, atque plane irrevocabilia. It extends not to causes capital; as well because they are for the most part at the King's suit, as because in them, if they be followed in course of indictment, there passeth a double jury, the indictors and the triers, and so not twelve men, but four and twenty. But it seemeth that was not the only reason; for this reason holdeth not in the appeal — ubi causa capitalis a parte gravata peragitur. [That is, the appeal of murder, brought by the heir of the deceased. See Louisville & St. Louis Railroad v. Clarke, 152 U.S. 230, 239.] But the great reason was, lest it should tend to the discouragement of jurors in cases of life and death — ne forte juratores in causis capitalibus timidius se gererent — if they should be subject to suit and penalty, where the favour of life maketh against them." 6 Bacon's Works, (ed. 1858,) 5, 7, 160, 161; 5 Bacon's Works, (ed. 1803,) 117; 9 Id. 483.
Lord Bacon was mistaken in assuming that the attaint was introduced by the St. of 11 Hen. VII, c. 24; for it existed at common law in writs of assize, and had been regulated and extended to other civil actions by many earlier statutes. 2 Inst. 130, 237, 427; Finch, Law, lib. 4, c. 47.
But the mistake does not diminish the force of Lord Bacon's statements that, wherever an attaint did not lie, the "judgment of the jury, commonly called verdict, was considered as a kind of gospel;" and that the reasons why an attaint did not lie in a capital case were, not only that two juries, the indictors and the triers, had passed upon the case, but chiefly that juries, in cases of life and death, should not be discouraged, or act timidly, by being subjected to suit and penalty if they decided in favor of life.
John Milton, in his Defence of the People of England, after speaking of the King's power in his courts and through his judges, adds: "Nay, all the ordinary power is rather the people's, who determine all controversies themselves by juries of twelve men. And hence it is that when a malefactor is asked at his arraignment, How will you be tried? he answers always according to law and custom, By God and my country; not by God and the King, or the King's deputy." 8 Milton's Works, (Pickering's ed.) 198, 199. The idea is as old as Bracton. Bract. 119.
In the reign of Charles II, some judges undertook to instruct juries that they must take the law from the court, and to punish them if they returned a verdict in favor of the accused against the judge's instructions. But, as often as application was made to higher judicial authority, the punishments were set aside, and the rights of juries vindicated.
In 1665, upon the trial of an indictment against three Quakers for an unlawful conventicle, Wagstaffe and other jurors were fined by Chief Justice Kelyng for acquitting "against full evidence, and against the direction of the court in matter of law, in said court openly given and declared" — contra plenam evidentiam, et contra directionem curiæ in materia legis, in dicta curia ibidem aperte datam et declaratam. His reasons for this (as stated in his own manuscript note of the case, not included in the first edition of his reports, published by Lord Holt in 1708) were "that they and others may know that a wilful jury cannot make an act of Parliament or the law of England of no effect but they are accountable and punishable for it;" and "that in criminal cases the court may fine a jury who will give a verdict contrary to their evidence; and the reason (as I take it) is that otherwise a headstrong jury might overthrow all the course of justice, for no attaint lieth in criminal causes, and also one verdict is peremptory, and a new trial cannot be granted in criminal causes, and therefore the judges have always punished such wilful juries by fine and imprisonment, and binding them to their good behavior." But at the end of his report is this memorandum: "Note, the whole case of the Quakers, as to fining jury, now not law." J. Kel. (3d ed.) 69-75. And Lord Hale, then Chief Baron, tells us that the jurors "were thereupon committed, and brought their habeas corpus in the Court of Common Bench, and all the judges of England were assembled to consider of the legality of this fine, and the imprisonment thereupon;" and the jurors were discharged of their imprisonment, for the following reasons:
"It was agreed by all the judges of England (one only dissenting) that this fine was not legally set upon the jury, for they are the judges of matters of fact; and although it was inserted in the fine, that it was contra directionem curiæ in materia legis, this mended not the matter, for it was impossible any matter of law could come in question, till the matter of fact were settled and stated and agreed by the jury, and of such matter of fact they were the only competent judges. And although the witnesses might perchance swear the fact to the satisfaction of the court, yet the jury are judges, as well of the credibility of the witnesses, as of the truth of the fact; for possibly they might know somewhat of their own knowledge, that what was sworn was untrue, and possibly they might know the witnesses to be such as they could not believe, and it is the conscience of the jury that must pronounce the prisoner guilty or not guilty. And to say the truth, it were the most unhappy case that could be to the judge, if he at his peril must take upon him the guilt or innocence of the prisoner; and if the judge's opinion must rule the matter of fact, the trial by jury would be useless." 2 Hale P.C. 312, 313.
Lord Hale's apparent meaning is that, at a trial upon the plea of not guilty, the jury are the judges of the issue of fact thereby presented, and it is the conscience of the jury that must pronounce the prisoner guilty or not guilty; that, as no matter of law can come in question unless the facts are first found by the jury in a special verdict, it were idle to say that a general verdict was against the judge's direction or opinion in matter of law; and that if the judge's opinion in matter of law must rule the issue of fact submitted to the jury, the trial by jury would be useless.
The reasons are more fully brought out in Bushell's case, in 1670, not mentioned in the text of Lord Hale's treatise, and doubtless decided after that was written. William Penn and William Mead having been indicted and tried for a similar offence, and acquitted against the instructions of the court, Bushell and the other jurors who tried them were fined by Sir John Howell, Recorder of London, and Bushell was committed to prison, in like terms, for not paying his fine, and sued out a writ of habeas corpus. Penn & Mead's case, 6 Howell's State Trials, 951; Bushell's case, Vaughan, 135; S.C. 6 Howell's State Trials, 999; 1 Freeman, 1; T. Jones, 13.
At the hearing thereon, Scroggs, the King's serjeant, argued: "It is granted, that in matters of fact only, the jury are to be judges; but when the matter of fact is mixed with matter of law, the law is to guide the fact, and they are to be guided by the court. The jury are at no inconvenience, for if they please they may find the special matter; but if they will take upon them to know the law, and do mistake, they are punishable." 1 Freeman, 3.
But Bushell was discharged from imprisonment, for reasons stated in the judgment delivered by Sir John Vaughan, Chief Justice of the Common Pleas, after a conference of all the judges of England, including Lord Hale, and with the concurrence of all except Chief Justice Kelyng. Vaughan, 144, 145; 1 Freeman, 5; Lord Holt, in Groenwelt v. Burwell, 1 Ld. Raym. 454, 470.
In that great judgment, as reported by himself, Chief Justice Vaughan discussed separately the two parts of the return; first, that the acquittal was "against full and manifest evidence;" and, second, that it was "against the direction of the court in matter of law."
"COURT. The instruction which I gave you, gentlemen, in regard to the law upon which the indictment was based was section 5339 of the Revised Statutes, which I will read to you again. JUROR. Your honor, I would like to know in regard to the interpretation of the laws of the United States in regard to manslaughter, as to whether the defendants can be found guilty of manslaughter, or that the defendants must be found guilty.
"COURT. I will read the section to you and see if that touches the proposition. The indictment is based upon section 5339, which provides, among other things, that every' person who commits murder upon the high seas or in any arm of the sea, or in any river, haven, creek, basin, or bay, within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State, or who, upon any such waters, maliciously strikes, stabs, wounds, poisons, or shoots any other person, of which striking, stabbing, wounding, poisoning, or shooting such other person dies on land or at sea, within or without the United States, shall suffer death.' Hence, that is the penalty for the offence described in the indictment. I have given you the definition of murder. If you remember it, you will connect it with these words: Every person who commits murder upon the high seas, or in any arm of the sea, or in any river, haven, etc. JUROR. Are the two words aiding' or abetting' defined? COURT. The words aiding' or abetting' are not defined, but I have instructed you as to the legal effect of aiding and abetting, and this you should accept as law. If I have made an error there is a higher tribunal to correct it.
"JUROR. I am the spokesman for two of us. We desire to clearly understand the matter. It is a barrier in our mind to our determining the matter. The question arising amongst us is as to aiding and abetting. Furthermore, as I understand, it must be one thing or the other. It must be guilty or not guilty. COURT. Yes; under the instructions I have given you. I will read them to you again, so as to be careful and that you may understand. Murder is the unlawful killing of a human being in the peace of the State, with malice aforethought, either express or implied. I defined to you what malice was, and I assume you can recall my definition to your minds. Manslaughter is the unlawful killing of a human being without malice, either express or implied. I do not consider it necessary to explain it further. If a felonious homicide has been committed by either of the defendants, of which you are to be the judges from the proof, there is nothing in this case to reduce it below the grade of murder.
"JUROR. Then, as I understand your honor clearly, there is nothing about manslaughter in this court? COURT. No; I do not wish to be so understood. A verdict must be based on evidence, and in a proper case a verdict for manslaughter may be rendered.
"JUROR. A crime committed on the high seas must have been murder, or can it be manslaughter? COURT. In a proper case, it may be murder or it may be manslaughter, but in this case it cannot be properly manslaughter. As I have said, if a felonious homicide has been committed, the facts of the case do not reduce it below murder. Do not understand me to say that manslaughter or murder has been committed. That is for you gentlemen to determine from the testimony and the instructions I have given you... . MR. SMITH. We take an exception. JUROR. We have got to bring a verdict for either manslaughter or murder? COURT. Do not misunderstand me. I have not said so. JUROR. I know you have not. COURT. I cannot direct you what conclusion to come to from the facts. I direct you only as to the law. A judgment on the facts is your province.
"MR. GARTER. May I ask the court to instruct this jury that in cases where persons are being tried upon a charge of murder, and the facts proven at their trial show that the defendants are guilty of manslaughter, under an indictment, they may find him guilty of manslaughter, as a general rule; but, however, if the facts show that the defendants have been guilty of murder, and that, in this case, there is no evidence tending to establish the crime or offence of manslaughter —
"MR. SMITH. It is the province of the jury. COURT. I have already so instructed the jury. I have endeavored to make myself understood. JUROR. If we bring in a verdict of guilty, that is capital punishment? COURT. Yes. JUROR. Then there is no other verdict we can bring in except guilty or not guilty? COURT. In a proper case, a verdict for manslaughter may be rendered, as the district attorney has stated; and even in this case you have the physical power to do so; but as one of the tribunals of the country, a jury is expected to be governed by law, and the law it should receive from the court. JUROR. There has been a misunderstanding amongst us. Now it is clearly interpreted to us, and no doubt we can now agree on certain facts."
The decision of Mr. Justice Johnson, there referred to, does not appear to have been reported. But the decision of Mr. Justice Washington is reported as United States v. Jones, (1813) 3 Wash. C.C. 209; and the point was decided the same way by this court, Mr. Justice Johnson dissenting, in United States v. Palmer, (1818) 3 Wheat. 610.
People v. Wright, 93 Cal. 564; Brown v. Commonwealth, 87 Va. 215; People v. Barry, 90 Cal. 41; People v. Madden, 76 Cal. 521; State v. Jeandell, 5 Harr. (Del.) 475; State v. Wright, 53 Maine, 328; Commonwealth v. Van Tuyl, 1 Met. (Ky.) 1; Montgomery v. State, 11 Ohio, 427; Adams v. State, 29 Ohio St. 412; Robbins v. State, 8 Ohio St. 131, 167; Williams v. State, 32 Miss. 389, 396; Pleasant v. State, 13 Ark. 360, 372; Robinson v. State, 66 Geo. 517; Brown v. State, 40 Geo. 689, 695; Hunt v. State, 81 Geo. 140; State v. Drawdy, 14 Rich. (S.C.) 87; Nels v. State, 2 Tex. 280; Myers v. State, 33 Tex. 525; State v. Jones, 64 Mo. 391; Hardy v. State, 7 Mo. 607; State v. Elwood, 73 N.C. 189; State v. McLain, 104 N.C. 894; People v. Neuman, 85 Mich. 98; State v. Johnson, 30 La. Ann. 904; State v. Ford, 37 La. Ann. 443, 465; Fisher v. Railway Co., 131 Penn. St. 292, 297; Union Pacific Railway v. Hutchinson, 40 Kansas, 51.