Commonwealth v. Anthes

Shaw, C. J.

This case was argued more than a year ago, and the points arising thereon were ably discussed; but as the principal point considered came up in various parts of the Commonwealth, it has been postponed from time to time, in order to give it t,he fullest consideration.

These exceptions directly raise the questions, both of the construction and constitutionality of the jury law of 1855 ; and if it were necessary to consider these questions, so far only as might be necessary rightly to decide the present case, a very brief view only would seem to be necessary. But as there are now many more cases before us, presenting these and other questions of like kind on the same subject, a more enlarged and extended consideration of this statute seems to be required, embracing the two questions: what is the true meaning and interpretation of this statute; and whether it is constitutional.

The statute is short, and to the following effect: “ In all trials for criminal offences, it shall be the duty of the jury to try, according to established forms and principles of law, all causes *187 which shall be committed to them, and, after having received the instructions of the court, to decide at their discretion, by a general verdict, both the fact and the law involved in the issue, ox to find a special verdict, at their election; but it shall be the duty of the court to superintend the course of the trials, to decide upon the admission and rejection of evidence, and upon all questions of law raised during the trials, and upon collateral and incidental proceedings, and also to charge the jury, and to allow bills of exception ; and the court may grant a new trial in cases of conviction.” St. 1855, c. 152.

In the case before us, the court instructed the jury, that the jury, by force of this statute, had a right to judge of the meaning of a law, but had no right to judge of its constitutionality. Taking both these clauses together, and considering that the subject was the construction of a statute, it is plain, we think, that the court intended to instruct the jury, that they had a just and full authority to exercise their own reason and judgment, in determining the interpretation of a legislative enactment, and though the court directed them as matter of law, that the enactment bore one meaning and interpretation, and the jury clearly understood such direction, and perceived its application to the facts of the case before them, they might lawfully and rightfully reconsider the reasons and grounds of such decision and come to an opposite decision, on such interpretation, as matter of law. Taking such to be the import and legal effect of the learned judge’s ruling, my own opinion is, that it was incorrect in point of law, and that the statute will not bear that construction. On the contrary, it seems to me that this was a declaratory act, making no substantial change in the law regulating the relative rights and functions of the court and of the jury, in the trial of criminal cases.

On the other point, the court, in this particular case, charged the jury, that, though they might judge of the meaning of a legislative act, they had no authority to judge of its constitutionality. Yet in some other cases, courts, under like circumstances, have charged the jury, that they were judges of the constitutionality of any legislative enactment; and therefore if *188 the court judged, and directed the jury, that the act was constitutional, the jury, fully understanding that direction, might, in the exercise of their own reason and judgment, consider the constitutionality of the enactment, upon all the grounds and principles of constitutional law, in the same way in which a superior court of acknowledged appellate jurisdiction would revise the decision of an inferior court in matter of law, and might pronounce it constitutional; or vice versa, if the court directed them that it was constitutional, they might pronounce it unconstitutional.

And we really can perceive no ground, upon which the power of the jury to decide on the question of constitutionality can be distinguished, in principle, from the power to decide on any other question of law, involved in the verdict. Many criminal prosecutions are of such a nature, that they impose a duty on some department of the judicial authority to decide, whether a particular legislative enactment be consistent with or repugnant to the Constitution of the Commonwealth, or of the United States, and it must be definitively adjudicated, on true and just principles, by either judge or jury.

To comprehend this the better, let us analyze a criminal prosecution, and the judgment therein, and inquire of what ingredients it is composed. We are to bear in mind that the purpose, the ultimate end and object of criminal jurisprudence, is the better to secure the peace and good order of society, and to ensure the security of public and private rights, by the punishment of crimes and offences, and all violations of law. These may be either mala in se, such crimes and offences as are in themselves wrong and injurious; or mala prohibita, things not wrong in themselves, but prohibited and made punishable by law, because they tend to injurious consequences, and their prevention is judged necessary by the lawmaking power, to secure the peace and good order of a well regulated community.

Every criminal prosecution therefore necessarily involves two very distinct inquiries: First. Is there such a law as it is alleged in the indictment that the person accused has violated ? Second. Has the person accused done the act or acts, which it is alleged in the indictment he has done ?

*189 If both of these are found in the affirmative, according to the Constitution and law, the accused is guilty; if either be negaatived, if there is no such law, or if the accused has not done the acts charged in that indictment, he is not guilty.

It will be at once perceived that, in resolving the first question, the inquiry divides itself into several distinct inquiries, namely:

1. Supposing the prosecution to be on a statute, is there any such legislative enactment?

2. Does the statute, when expounded according to the rules of law, according to the true intent of the legislature, bear the meaning and interpretation put upon it in the indictment, so as to bring the acts charged against the defendant within the true meaning of the statute, and render him liable to the penalty of it?

3. Is it within the constitutional power of the legislature, as fixed and limited by the Constitution of the Commonwealth; or does it exceed those limits, so that, although it has all the forms of a law, it wants the vital energy, which can only be breathed into it by the Constitution, and therefore is inoperative and void ?

4. Does it contravene any law of the United States, made within the scope of their limited powers, as given by the Constitution of the United States, and which, when so made, is the supreme law of the land, and so must exercise a controlling power over all state legislatures ? If it does contravene any such law of the United States, it is inoperative and void. •

Perhaps the matter may be illustrated by supposing a familiar example of a prosecution under a provision of statute, for some act indifferent in itself, but to which a penalty is annexed by statute, say an indictment for selling lottery tickets. The whole proceeding assumes the form of a syllogism, of which the law is the major proposition, the fact the minor, and the judgment the conclusion, and is of something like the following form:

First. There is a law prohibiting the sale of lottery tickets ;

Second. John Styles has sold a lottery ticket, within the time, &c., at, &c.;

*190 Conclusion. Therefore John Styles has violated the law, and become subject to the penalty.

Upon the first, or major, it may be denied that there was such a law in force. This is commonly answered by reading the clause from the statute. But it may be still insisted, that this enactment was made after the act done, which is relied on as a violation, or that its operation was suspended or repealed by a subsequent enactment, or that it had expired by its own limitation, before trial. These are not difficult questions, but they are pure questions of law.

Then comes the question of interpretation, What was the true intent and meaning of the statute ? In the case supposed, evidence is offered, tending to prove that, at the time fixed, John Styles and a number of his charitably disposed friends had a poor neighbor, an artist in great distress for money. He had a picture worth one hundred dollars, but no one there could afford to purchase it, though all were disposed to help him. They agreed to contribute five dollars each, and make what is called a raffle. They requested John Styles to take the money, give each a bit of paper with a number marked on it, from 1 to 20; and it was then determined by lot, in some agreed manner, which contributor should have it. It is contended in defence, that this was not a lottery, that such pieces of paper were not tickets, and such distribution of them not a sale; that the whole was a pure act of charity, and not a violation of the statute; all of which is of course controverted by the prosecutor.

Here then may arise questions of law of the utmost difficulty and delicacy, and turning upon that abstruse but most necessary duty of judges, the exposition of statutes, involving inquiries respecting the ordinary and technical meaning of the language used, the preamble and other provisions of the same statute, all other statutes and parts of statutes on the same subject, the previous state of the common law, and the mischief intended to be suppressed, in order to ascertain the true intent and meaning of the legislature in the specific enactment in question.

Here then are questions of law, of the utmost importance to the security and happiness of all those who live or come within *191 the territorial limits of the government for which such statute was made, questions the solution of which requires not only wisdom and integrity, but the most thorough experience and skill in .aw as a science. It is of the highest importance, not only that there should be a true and correct interpretation of the statute, so that those, and those only, whom the legislature intended to restrain and punish, may be brought under its operation ; but also that such operation shall be equal and uniform over all those who are subject to the same government. And perhaps the latter consideration is, if possible, more important than the former. If the intention of the legislature, in a particular enactment, after a full investigation by the highest judicial authority of the same government, should happen to be misunderstood or mistaken, it will be easy for the legislature, by a subsequent act, to correct it, by a more explicit provision. But if the same penal statute could so operate as to subject one person to pun ishment, and exempt another, equally liable, and this in its ordinary operation, it would bring the law into discredit, work great injustice, and defeat the purposes both of legislation and of the administration of justice.

But the trial may also draw in question the constitutionality of the statute on which the prosecution rests. Continuing the supposed case, let us further suppose that the defendant offers evidence to prove that the tickets he sold were those, and those only, of a lottery authorized by a previous act of the legislature, and justifies under that authority. He might here contend, with what effect I will not say, that such former license was a grant, a contract by the government with its grantees; that although it had altered its policy, and that upon the highest considerations of public benefit, and although it had in terms, by this very act, repealed all prior laws granting licenses for lotteries, yet it was beyond its constitutional power to revoke a grant, and annul a contract; that such repealing act, in terms ever so explicit, was itself void, and therefore that the defendant had violated no existing law, and must be acquitted.

Or suppose the defendant should insist, and the evidence on both sides should plainly prove, that the defendant sold lottery *192 tickets in a national lottery, authorized by the congress of the United States, and should insist that a lottery was a well known financial expedient for raising revenue, resorted to by many sovereign states, and, until recently, by the government of Great Britain, and many of the states of the Union; that, under the authority vested in the government of the United States to raise revenue, they had a constitutional power to establish a lottery and license the sale of tickets in every state of the Union, even against its consent, and notwithstanding any state act prohibiting it; and justify under that authority.

It is very obvious to any one, that the discussion and decision of this question must necessarily involve that great class of difficult problems, as to the limited powers of the United States government, vested therein by the Constitution, and the supremacy of all legislative acts passed by congress within the just scope of these limited powers. These are questions which have tasked the minds of the most eminent American statesmen and jurists, from the adoption of the Federal Constitution to the present time.-

These last questions can arise in American courts only, where, in each state, the written constitution of such state and that of the United States form a part of the written law, controlling to a certain extent all other laws, and must, like all other existing rules of law, be taken notice of and applied by the judiciary department. No such question ever could arise in England; and therefore English jurisprudence affords no precedent and hardly any analogy to aid us, in the solution of these questions.

Such then is the nature and character of a criminal prosecution in every system of jurisprudence ; it necessarily embraces two questions: first, whether there is such a law as the indictment assumes; and next, whether the accused has violated it.

The one requires the most accurate and complete knowledge both of the written and unwritten law, and, in America, an equally thorough and practical knowledge of constitutional law, as they are to be derived from records and adjudged cases, ancient and modern, and books of acknowledged authority in *193 which they are embodied, from statutes, and from the constitutions of the United States and the state in which the case arises, and adjudications thereon.

The other is a question of fact, to be decided by competent evidence, to be weighed and considered in reference to its tendency to prove the acts charged to have been done by the defendant; and the question is, are these facts true ? The adjudication of this question, in addition to the integrity and impartiality requisite to the decision of both, requires experience, practical knowledge of affairs, and a quick and accurate discernment of the motives, reasons and intentions by which persons in various circumstances are actuated.

Both are of an important character, upon the correct decision of which in every case the security for the rights of life, liberty and property essentially depends; but they are essentially distinct in their nature, requiring different modes of training and preparation.

Now, to whom do the Constitution and laws of this commonwealth entrust the ultimate and final duty and power of adjudicating on these distinct questions ? I use the term “ adjudicate,” in preference to others nearly synonymous, and often used as synonymous; and to make the question more plain, to whom do the Constitution and law ultimately entrust the power to exercise that reason and judgment, acting upon all the appropriate premises, and thereupon to draw the conclusion whether there is such a law, when its existence, interpretation or validity is drawn in question ?

And in like manner, to whom do the Constitution and law rightfully entrust the power to adjudicate and decide upon the appropriate evidence, whether the facts charged in the indictment are true, when their truth is controverted ?

In my opinion, it is for the judges to adjudicate, (using the term in the sense above stated,) to adjudicate finally, upon the whole question of law, and for a jury to adjudicate upon the whole question of fact.

It appears to me that this is the true theory and fundamental principle of the common law, both in its civil and criminal de *194 oartments. I speak not now of trials by impeachment, of cases of equity or admiralty or .ecclesiastical jurisdiction, or of trials by court martial; but of civil and criminal proceedings, conducted according to the course of the common law. And the general theory and principle above stated, in common law proceedings, are considered applicable as well to criminal as to civil trials, subject to some modification, hereafter stated.

In the first place, wherever the form of the proceeding is such that the facts are not controverted, and the only question which is controverted is a question of law, the judges, in the first instance or ultimately, decide the case, and render a judgment, without the intervention of a jury, in criminal as well as civil cases. On a motion to quash an indictment, on a demurrer, which, though not frequent in a criminal case, is still legal and admissible, on a plea of nolo contendere, and on a motion in arrest of judgment, in all which cases the facts are not controverted, the judgment is rendered exclusively by the court

Again, when the facts of any case are adjudicated and decided by a jury, such adjudication affects the particular case only, and forms no precedent for any other, although it may depend on precisely the same evidence.

But, on the contrary, an adjudication in matter of law, especially if made by a court of last resort, is regarded as a precedent, and affords a rule of decision for the same court and for all other courts, judges and magistrates, very strong, if not absolutely binding and conclusive, in all subsequent cases depending on the same facts, and involving the same principles. I say, “ if not absolutely binding and conclusive,” because we may suppose a case where it is subject to a slight modification. Such an adjudication of a court of last resort, made on full deliberation, is held, by the fundamental principles of the common law, binding upon all judges of inferior and subordinate courts, and upon all single judges. But the same court who made it may not be considered as absolutely bound; because, though such an adjudication is of great weight, and will only be reconsidered with great caution, yet if, after a first decision of a new and important question of municipal or constitutional law, it is shown to" *195 the court that the subject has not been sufficiently examined, or that some weighty consideration has been omitted to be presented, or has been overlooked or mistaken by the court, a re-argument of such question of law may be allowed, in the same case, or in another case involving the same question. This very allowance of a second, and, in possible cases, a third argument, indicates that feeling of heavy responsibility felt by such courts, to come to a right conclusion upon a question of law, and not to come to it till all the means have been used to enable them to make it right, where such decision is to stand as a fixed rule for all like cases, until the law is altered by the legislature ; and this responsibility is greatly increased where the question is a constitutional one, and a change in the results of such decision cannot be effected by any legislation. And where such an adjudication is finally settled, it becomes a binding and conclusive rule of decision to the same court, to the several judges thereof when sitting and acting separately, and to all subordinate courts, judges and magistrates. Such adjudications upon a statute become as essential a part .of the law to which such statute relates as the statute itself.

It is this fundamental principle of the common law, that the adjudications of the highest tribunal, or court of last resort, in matters of law, shall stand as rules of law in all similar cases, which makes it necessary, in every system of jurisprudence following the common law, that all decisions in matters of law, made by subordinate courts and judges, shall in some mode be reexaminable, and in some form be brought before the court of last resort, to one tribunal, one judicial mind and judgment, whether vested in one or many persons, in order that the rules of law may be uniform throughout the whole extent of territory subject to the same government, that all the inhabitants alike owning allegiance shall stand equal before the law, alike entitled to its protection and benefits, and alike amenable and punishable for its violation.

It is from the consideration that the adjudications of courts of last resort, in matters of law, are regarded as rules of law, and that it is necessary to the freedom of the citizen, arid the *196 peace and good order of society, that all rules of law should be certain and uniform, that the necessity has been felt of establishing one court, and one only, of last resort, be it called superior court, supreme judicial court, or court of errors. The business of the community, the great pressure upon one court, and the necessary delays consequent thereon, would often render it highly expedient for a prosperous and affluent community to establish two, three or more supreme courts, that afi its judicial business might be done speedily and promptly. But it is obvious, were such courts established, one court might decide one way upon the construction or constitutionality of a statute, and another another way; and one accused party might be punished, and another acquitted, under the operation of one and the same statute, and having done precisely the same acts. The reason therefore for not establishing more than one court of last resort, which would in many respects be highly convenient and desirable, is not the expense, not any difficulty in finding men for judges, equally wise, learned, honest and industrious, and equally capable of expounding the laws ; but the difficulty, not to say the impossibility, of maintaining more than one such court, consistently with that uniformity and certainty in the application of the laws and the administration of justice, which are of paramount importance. This consideration was felt and acted upon in framing the Constitution of the United States, adopted a few years after that of our own state, and perhaps under a somewhat more matured experience, in providing, in terms, that “ the judicial power of the United States shall be vested in one supreme court, and in such inferior courts as the congress may from time to time order and establish.” Art. 3, § 1. Notwithstanding the vast extent of territory, the great number of interests, the variety and importance of the subjects, commercial, political and personal, which would fall under the operation of this judicial power, there could be but one supreme court, though the subordinate courts might be unlimited in number. The reason is obvious; otherwise, there could be no certainty and uniformity in the administration and exercise of that judicial power.

*197 If it be asked why such adjudication of a court of last resort should have such effect, the answer, it appears to me, is this: It is necessary to the security of public and private rights, to the liberty of the subject, and the safety of the community, that there be an authoritative exposition, as well as an authoritative enactment of all laws, especially all penal laws; that, as far as possible, they should be declared, published and known ; and the adjudications of the highest court, or court of last resort, are conclusive, because there is no power under the Constitution and laws, by which they can be reversed or altered.

That there should be somewhere entrusted an authority to exercise reason and judgment, and adjudicate finally upon the questions both of law and fact, is too obvious to require argument. Interest reipublicce, ut finis sit litium. There must be an end, a termination, a conclusion of litigation; otherwise, suits civil and criminal would not only be ruinous, but fruitless. If, because on the first trial there may have been error by which a party has suffered, therefore there must be a second, the same may be said of the second, which would require a third, and so on. It is certainly true that, in the decision of either the fact or the law, or both, there may be error; but this is only saying that to err is human, and however the law or fact is decided, it must be by the minds and judgment of men, whether the same or different. And this must continue, because there is no other mode. It is the lot of humanity, and we must yield to its inexorable demands. The law therefore must entrust the power, and make it the duty of one person or set of persons to adjudicate finally upon questions of law and fact; and when so done, all parties must acquiesce and abide by it as conclusive, because it is the nearest approximation to correctness which can be reached.

If then it be asked why the adjudications of juries are not as conclusive and binding as those of judges, I say that, in my opinion, they are. They are conclusive of the facts of that case; they cannot have the same conclusive character, as precedents, rules for the decision of other cases, not because they are not entitled to the same consideration as definitive, but from the nature of *198 the questions decided. The facts proved in one case to the satisfaction of a jury, from which they have found that one man did a criminal act, with a certain criminal intent, and in violation of the same law, have no tendency to aid another jury in deciding, on the evidence- before them, that similar acts were done by another man at another time and place.

But where the law has entrusted to juries the power and authority to exercise their own reason and judgment, and adjudicate on questions of fact, it would be as absurd to say that they can be punishable for a false verdict, as to say that a judge, who has determined a question of law according to the best powers of his mind, can be punished for a false judgment. But there were times in the earlier periods of the law, when juries might be subject to an attaint, and were liable to be tried before a double jury, upon whose verdict the former verdict might be set aside and reversed, and the jurors themselves subjected to punishment. This, like many anomalies of the like kind, such as the peine forte et dwre for refusing to plead, punishing a party on trial for challenging peremptorily more than twenty jurors, instead of simply overruling his challenge, and many other practices of like kind, show how little the true nature and principle of jury trial, in its perfection, were understood, and afford us a caution against attributing much weight to rules and precedents of such a period. But these abuses and anomalies have long since passed away, and both in Great Britain and in this country the principle of jury trial is well understood.

And in my judgment the true glory and excellence of the trial by jury is this; that the power of deciding fact and law is wisely divided ; that the authority to decide questions of law is placed in a body well qualified, by a suitable course of training, to decide all questions of law; and another body, well qualified for the duty, is charged with deciding all questions of fact, definitively ; and whilst each, within its own sphere, performs the duty entrusted to it, such a trial affords the best possible security for a safe administration of justice and the security of public and private rights.

Nor do we consider that this great fundamental principle of *199 the common law respecting jury trial, which gives to this department of jurisprudence that symmetry, consistency and perfection, by which it commands the favor and admiration of all friends of free institutions, and of civil liberty secured by law, is controlled or limited in its just and legitimate operation by the acknowledged rule, that, in all criminal prosecutions, the jury have the power of deciding, that is, of embracing and declaring the law as well as the fact, by a general verdict. This results from a few well established rules of law and practice, incident to the trial of a criminal case.

In criminal cases, special pleading, technically admissible, has never been practised, and all trials therefore, in which both law and fact are controverted, are had upon a general plea of “ not guilty; ” and the result is a conviction, if both the law and the fact are found against the accused, or an acquittal, if either is found in his favor. Both must be tried, that is, submitted fully and freely to the consideration of the appropriate tribunal appointed by law, to exercise its reason and judgment without control or restraint; but the result is one single response to both questions—“ Is there such a law ? ”—“ Has the defendant done the acts charged?”—and that response is expressed, and entered and placed on the record in due form, “ guilty ” or “ not guilty.” We are then to look at the means by which these two questions are resolved by a single answer; through what intellectual processes, of reason and judgment, the elements of these two distinct questions must pass, in order to reach this one required result. Assuming it as the theory and fundamental principle of the common law, that the judge is to adjudicate the law, and the jury the fact, it follows that the mind of the judge should act freely and fully, and within the scope of its proper authority and province, finally and exclusively decide upon the question of law, and that the mind of the jury should act freely and fully, and within the scope of its authority and duty, definitively and exclusively, in deciding the truth of the fact; and this is to be done in one of two modes. By the one, the jury, in the exercise of their exclusive right, find the facts in detail, which can only be done in the form of a special verdict; and *200 then the court, in the exercise of their judgment, determine whether in law, under all the aspects in which these facts can be placed, they do bring the accused within the penal provisions, and the result is declared by the court, “ guilty ” or “ not guilty.” But how is it if the more plain, intelligible and usual course is adopted, by the return of a general verdict ? Do not the same ingredients, in another form, enter into and compose the elements from which the same result is drawn ? The judge directs the jury in all matters of law, at each step of the trial, as questions arise, and ultimately in its application to the facts of the case, if proved by the evidence submitted to them. As the judge cannot foresee how the jury will find the facts, until they have retired to consider of their verdict, these directions are of necessity hypothetical; if they find certain facts proved, he directs them that the law affixes to them a certain character, and so upon each material point of law, and then if they find so, the accused is guilty, if otherwise, not guilty, and that they are to return their verdict accordingly.

The law presumes that every man will do his duty, more especially every man invested with a high power in the administration of justice; it will presume that both judges and jurors have done their duty. If they have, and it is within the province of the jury to adjudicate on the question of fact, and of the judge to adjudicate on the question of law, the general verdict of “ guilty,” or “ not guilty,” is as full and complete an answer to the compound question of law and fact, each adjudged by its appropriate organ, as the like conviction pronounced by the judge after a special verdict. As the law presumes that each has done its appropriate duty, in case of a special verdict, the court cannot question the truth of any fact expressly found by the jury, or assume the existence and truth of any fact not so found, or draw any inferences of fact not drawn by the jury and expressed in the verdict. By parity of reasoning, the law presumes, in case of a general verdict, that the jury have understood and conformed to the directions of the judge in matters of law, and so, as before said, the general verdict in the latter is as full a response to the compound question. The difference *201 is, that, in the former case, of a general verdict, the law, coming authoritatively from the rightful source, is first stated to the jury for their government, is assumed to have its legitimate and proper effect, is by them combined with their own conclusive findings in matters of fact on the evidence, and so the combined result is effectually embodied in their verdict of conviction or acquittal.

But in another aspect this difference is most essential, and attended with important consequences. In the one case, that part of the respective duties of the court, composed of judge and jury, which is done by the one, and which by the other, appears on the record; but although the law presumes that the rules of law, as adjudicated by the judge, have been received, understood, acted upon, and truly reported upon and embodied in the verdict, yet this does not appear upon the record. And there is no legal or practicable mode by which it can be brought to the knowledge of any other court or tribunal or revising judicial power whatever, that the jury did not adopt the rales of law as stated by the judge. The jury cannot be legally inquired of, what were the rules of law adopted by them; nor if the judge could be called on, in any legal or practicable mode, to declare what rales of law he did prescribe for the direction of the jury, could it be made to appear that the jury did follow them. As the jury have full power and rightful authority to adjudge the fact, and as on a general verdict it cannot appear that they did not act on right principles in matters of law, it cannot appear that their verdict, so far as they acted upon their own reason and judgment, was not limited to the decision of the questions of fact, it cannot be known that they exceeded the limits of their power, and therefore such general verdict, embodying and placing on record the law as well as the fact, stands as conclusive. No writ of error lies in such case, for no error in law appears on the face of the judgment.

Hence it is, that where the real controversy is upon the law, and the facts are not substantially controverted, the universal practice has been to agree that a special verdict be returned, or an agreed statement of facts, with liberty for either party to *202 turn such agreement into a special verdict. In that- case, the question of law distinctly appears on the record of the judgment, upon which a writ of error lies, by which it may be carried to the tribunal of last resort for the decision of the law.

And in my opinion the rightful power of the judge to adjudicate the law, as it is conceded to be that of the jury to judge of the fact, is not controverted, but confirmed as the ancient and fundamental rule of the common law, by the doctrine of attaint. We are inclined to think that an attaint was not held to lie in a criminal case, though there may be some conflict amongst ancient writers upon that point. But it is immaterial, because the fundamental general principle, that the judge is to answer to the question of law, and the jury to the fact, applies as well to criminal as civil cases. We may therefore safely resort to the proceedings in civil cases, to ascertain the general principle applicable to both. The attaint originated in barbarous times, when the true principles of jurisprudence were not well understood ; originally, it was a proceeding before a double jury against the first jury, for finding a false verdict; it not only, if successful, reversed the judgment and restored the party against whom the first verdict was returned to all his lost rights, but subjected the jury to deprivation of all civil and social rights, and operated as a forfeiture of all the property of the jurors, required, that each juror’s wife and children be turned out of his house, and his house prostrated. The charge was, that they had given a false verdict. This was mitigated by the advance of civilization, and has been since completely exploded. But it appears to me that the existence of such a law, and the means adopted to mitigate it, by statute and by judicial proceeding, all tend to show where, by the ancient law, the ultimate power to decide the law and the fact respectively and ultimately resided.

I assume that the responsibility for declaring the law rested on the judge, and for the fact only on the jury. In law, in duty and in conscience, they were only to answer for the fact; but if they would return a general verdict, they made the whole verdict, law and fact, their own; if they, mistook the law, yet *203 the party against whom they mistook it was deprived of his writ of error, his only remedy to reverse the judgment was by attaint, and therefore the jury should not be heard to say, that they ought not to be held liable for the whole verdict, if false. And here it is necessary to avoid being misled by the use of such terms as “ responsibility,” ambiguous in meaning and in idea. It is one thing to be responsible, that is, to be liable over to another party, liable in damages, liable to punishment, liable to censure and animadversion; it is another thing to be responsible to God and his own conscience for speaking the truth, for doing his duty, though not liable over to any earthly power, by way of censure, punishment or damages. It is to be borne in mind that it is in this last sense that responsibility is to be now understood.

Regarding these burdensome penal consequences of a .false verdict, the question must naturally arise, to what extent are the jury responsible for a false verdict 1 If it is for the truth of the fact only, then the anxiety of jurors must be, how shall that liability be limited to its proper sphere. We have seen, that if they return a general verdict, the whole appears to be fact, there are no means of distinguishing, and they are liable to an attaint if any part is false. It is obvious therefore that this responsibility will be limited to its proper sphere, the truth of the fact, by returning the facts specially, and leaving the law to be- decided by this court. To enable them to do so seems, amongst other things, to have been the precise object of one of the clauses of St. Westm. 2, c. 30.

The clause in the statute, as translated by Lord Coke, is as follows: “ And also it is ordained, that the justices assigned to take assizes shall not compel the jurors to say precisely whether it be disseizin or not, so that they do show the truth of the deed, and require aid of the justices. But ir they of their own head will say that it is disseizin, their verdict shall be admitted, at their own peril.” Lord Coke, after several other remarks, says “ In the end it hath been resolved, that in all actions, real, personal and mixed, and upon all issues joined, general or special, the jury might find the special matter of fact pertinent and tend *204 ing only to the issue joined, and thereupon pray the discretion of the court for the law; ” and then he adds, as a statement of the law, of his own knowledge, “ and this the jurors might do at the common law, not only in cases between party and party, but also in pleas of the crown at the king’s suit.” 2 Inst. 422, 425.

Lord Coke has elsewhere stated that the term “ discretion of the court ” means the legal discretion, in other words the judicial determination of the law, as follows : “ ‘ And prayed the discretion of the justices’ That is to say, they, having declared the special matter, pray the discretion of the justices; which is as much as to say, as that they would discern what the law adjudgeth thereupon, whether for the demandant, or for the tenant ; for as, by the authority of Littleton, discretio est discernere per legem quid sit justum, that is, to discern by the right line of law, and not by the crooked cord of private opinion.” Co. Lit. 227 b.

To come back then to the statute, the natural interpretation seems to be this; that, as it is the province assigned to the jury to find the facts, and the province of the judges to determine the law arising thereon, if the jury will confine themselves to their proper sphere, and give a true verdict upon the facts only, they perform their whole duty, they are in no peril of an attaint or any other injurious consequence, and the purpose of this statute was to confirm the common law authorizing them so to do; and though the statute speaks only of actions between party and party, yet the principle of the common law, of which this statute is declaratory, extends to pleas of the crown, or criminal prosecutions. It presupposes the principle as well understood, that juries are not responsible for a right decision on the law, because the law does not entrust them with that authority, but has entrusted it with the judges. If they were entrusted with the duty of deciding the law, in opposition to that of the judge, a right to overrule and revise his adjudication, they could not divest themselves of the obligation to do it rightly, any more by a special, than by a general verdict.

It would seem to be an extraordinary proposition, and I do not know that I have seen it suggested, that the law vested the *205 authority in jurors in all cases definitively to decide the law, but left it to their discretion, in each case, to exercise that power, or refuse to exercise it altogether, and by their act vest it in the judges. Had this been the intent, would there have been such an elaborate provision for revising every question of law, and bringing it to the test of one standard, which Lord Coke calls “ the right line of law,” in contradistinction to “ the crooked cord of private opinion,” without any possibility of reexamining a rule of law, and ascertaining its correctness* when definitively settled by the jury. But upon the theory that they are not judges of the law, but only incidentally declare the law, by a general verdict, the provisions of the act, as well as the rule of the common law, are entirely intelligible. The reason why the jurors are liable to an attaint when they return a general verdict, is, that they go beyond the line of their duty, beyond the province assigned them, and put the whole upon the footing of matter of fact.

So in another passage, Lord Coke, commenting on Littleton’s speaking of a verdict of twelve men, says, “ Veredictum, quasi dictum veritatis, as judicium est quasi juris dictumthat is, vere dictum, a true declaration, or declaration of the truth, as judicium, juris dictum, a statement of the law; and then adds the familiar Latin maxim, “ Et sicut ad qucestionem juris non respondent jur atores, sedjudices; sic ad qucestionem facti non respondent judices, sed juratores. For jurors are to try the fact, and the judges ought to judge according to the law that riseth upon the fact.” Co. Lit. 226 a. And so in a subsequent page: “ Although the jury, if they will take upon them 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 matter is the safest way, where the case is doubtful.” Co. Lit. 228 a. And so in Rawlyns’s case, 4 Co. 53, Lord Coke has this sentence: “ In such case the jury ought, if they will not find the special matter, and leave it to the judgment of the law, to find ‘ at their peril ’ according to law.”

Whence then are these remarkable phrases Í In the St. of *206 Westm. 2, for instance: “ But if they [the jury] of their own head will say,” “ their verdict shall be admitted, at their own peril” Is it not equivalent to this, if they officiously go beyond the line of their province and duty ? So in Co. Lit., last cited : “ Although the jury, if they will take upon them 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,” &c. Why dangerous, except it is going beyond their duty, and beyond the trust reposed in them ? And if they are authorized to decide the law finally, why do they incur danger of punishment 1 Is a judge ever punishable for a mistake of the law ? and would it not be inconsistent with all just notions, to say that, where the law has entrusted to any functionary a power finally to judge upon any question affecting the rights of the public or of parties, and he has executed that duty and passed his honest judgment, he shall be punished for a mistake ? The reason, then, why a juror is punishable for a mistake of the law, is because he has exceeded his authority in a manner which affects the rights of others injuriously. The necessary conclusion is, that, regarded as the law was at the period in question, the jurors had no legitimate power to adjudicate questions of law, but for that part of every trial judges alone were entrusted with the power of adjudicating the law. The authorities may be almost indefinitely multiplied. Without referring to them, I would refer to Hargrave’s extremely instructive note to Co. Lit. 155, for a summing up of them.

We are then to consider upon what grounds it is held, that, although, in a criminal case, a verdict of “ guilty ” or “ not guilty,” which embodies and declares both the fact and law, is held conclusive ; yet, though they thus have a power, they have not a right to decide, that is, to adjudicate, on both law and evidence. From the foregoing discussion, which might be greatly enlarged by many pertinent and strong reasons, I think a satisfactory answer may be drawn. It is conceded on all hands, that, upon a general issue, the only issue upon which the merits of a criminal charge can be tried, the jury have an unquestionable right to return a general verdict. And although *207 they may return a special verdict, they are not bound to do so. And as a special verdict implies a knowledge of the forms of law and practice, and requires great nicety to be correctly framed, it is very seldom in practice that a jury ex mero motn resort to this expedient.

The difference between a civil and criminal case always was, that in the latter, where the judgment was on a verdict of “ not guilty,” no writ of error would lie, even where it was alleged that error in the judgment appeared on the face of the record. So in more modern times, when exceptions have taken the place of other modes of revising a judgment, exceptions are not allowed in favor of the king, nor in this commonwealth in favor of the prosecutor, though they are in favor of the accused. Commonwealth v. Cummings, 3 Cush. 212 . The reason is obvious ; the. effect of allowing and sustaining a bill of exceptions, where the accused is acquitted, would not be to reverse the decision of a jury, and enable the court to render such judgment as they should have rendered, but only to set aside the verdict and order a new trial. And in case of acquittal, the law does not allow a new trial, proceeding in this respect on the ground of several humane and equitable principles, wisely adopted by the law in favor of life, and in tenderness to those accused of crimes and offences.

No person shall be twice put in jeopardy for the same cause. Having been put on his trial, and stood for his deliverance, and been acquitted by a general verdict, it would be a violation of this humane principle to subject him to the same peril again, on the same or different evidence. If on different evidence, the injustice and inhumanity of it would be a palpable violation of the letter and spirit of the above maxim. If it were proposed to submit it to another jury upon the same evidence, it would be a violation of another admitted and just principle of criminal law, which is, that, to warrant a verdict of conviction, the facts upon which it depends must be proved beyond reasonable doubt. The case supposes the accused to have been acquitted by the first jury on certain specified evidence. There is no more ground upon which the law can repose confidence in the *208 integrity and discernment of one jury than of the other. AH that a second jury could do would be to say, that in their judgment the accused was guilty, leaving verdict against verdict, and so at least balanced, and doubtful.

The result of these several rules and principles is, that, in practice, the verdict of a jury, both upon the law and the fact, is conclusive; because, from the nature of the proceeding, there is no judicial power by which the conclusion of law thus brought upon the record by that verdict can be reversed, set aside or inquired into.

A general verdict, either of conviction or acquittal, does embody and declare the result of both the law and the fact, and there is no mode of separating them on the record so as to ascertain whether the jury passed their judgment on the law, or only on the evidence. The law authorized them to adjudicate definitively on the evidence; the law presumes that they acted upon correct rules of law given them by the judge; the verdict therefore stands conclusive and unquestionable, in point both of law and fact.

In a certain limited sense, therefore, it may be said that the jury have a power and a legal right to pass upon both the law and the fact. And this is sufficient to account for many and most of the dicta in which the proposition is stated. But it Would be more accurate to state, that it is the right of the jury to return a general verdict; this draws after it, as a necessary consequence, that they incidentaUy pass upon the law. But here again is the question, what is intended by “ passing upon the law ? ” I think it is by embracing it in their verdict, and thus bringing it upon the record, with their finding of the facts. But does it foUow that they may rightfuUy, and by authority of the common law, by which all are conscientiously bound to govern their conduct, proceed upon the same grounds and principles in the one case as the other 1

What the jury have a right to do, and what are the grounds and principles upon which they are in duty and conscience bound to act and govern themselves in the exercise of that right, are two very distinct questions. The latter is the one we have *209 to deal with. Suppose they have a right to find a general verdict, and by that verdict to conclude the prosecutor in the matter of law, still it is an open and very different question, whether, in making up that verdict and thereby embracing the law, they have the same right to exercise their own reason and judgment, against the statement of the law by the judge, to adjudicate on the law, as unquestionably they have on the fact. The affirmative of this proposition is maintained by the defendant in this case, and by others in many of the cases before us.

If I am right in the assumption that the judge is to adjudge the law and the jury the fact only, it furnishes the answer to this question, to what extent the jury adjudicate the law; and it is, that they receive authoritative directions from the court, and act in conformity with them, though by their verdict they thus embrace the law with the fact, which they may rightfully adjudicate. I do not intend to revise the authorities, but, in addition to those already cited, I will refer to a few, taken almost at random.

The opinion of Chief Justice Vaughan, in 1670, in Bushell’s case, is of high authority. It arose on a writ of habeas corpus. It appeared that Bushell and eleven other jurors, who had sat on the trial of Penn and Mead on a charge of sedition, were fined by the judge, and ordered to be imprisoned, as appeared by the return on habeas corpus of the warrant of commitment, for finding the defendants not guilty, as alleged in the warrant of the judges by whom they were committed there, “ against the law of this realm of England, against full and manifest evidence, and against the direction of the court in matter of law.” The imprisoned jurors were discharged, as being punished illegally. The case is reported in Vaughan, 135, and 6 Howell’s State Trials, 999, and the relative powers of judge and jury in criminal trials largely stated.

The whole case is extremely instructive; the result of the whole is plainly this: That according to the long course of law and practice, in trials of criminal cases, a jury cannot be punished for giving a verdict either of acquittal or conviction, on the ground that such verdict is either against the law or against *210 evidence. They cannot be punished for finding against law The court say 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.” Vaugh. 143.

Nor can the jury be punished, because their verdict is against evidence; because it is impossible for the judge to know the evidence; it is not his province to weigh evidence, decide on the credit of witnesses, and draw inferences, and therefore on such general verdict the court cannot know that the verdict was not given upon the evidence, which it is the province of the jury alone to consider and decide, according to its influence on their own minds and judgments. The court mark the obvious distinction between the oath of a witness and that of a juror. “ 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.” Vaugh. 139, 142.

It may be remarked, that from the improved views of the nature of jury trial, 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 verdict 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, *211 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 and 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.” Vaugh. 144.

It is strange 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, G. 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.” Vaugh. 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 only to one other passage, which serves as a key to the whole judgment. He says: “ That decantatwn * in our books, ad qucestionem facti non respondent judices, ad qucestionem legis non respondent juratores, literally taken, is true; for if it be demanded, What is the fact? the judge cannot answer it; if it be asked, What is the law in the case ? the jury cannot answer it.” Vaugh. 149.

The next case to which I refer is that of Rex v. Oneby, 2 Ld. Raym. 1485. It was an indictment for murder; the jury found *212 a special verdict, upon which, as I understand, it was brought before the twelve judges, and the opinion was given by Lord Raymond. In the course of it he said: “ But before I mention their reasons, I must lay down this proposition, which they all agreed, namely, that the court are judges of the malice, and not the jury; and that the court are also judges upon the facts found by the jury.” 2 Ld. Raym. 1493. This was in 1727.

I will cite one other case, because it was before any question arose out of the controverted libel cases, and determined by a very eminent judge of great experience, Lord Hardwicke. It was on a criminal information in the nature of a quo warrcmto, to try the validity of an election to a corporate office ; and one point discussed was, whether it was to be regarded as a civil or criminal prosecution. But as the verdict was against the accused, it was considered that he had a right to move, upon the statement of the judge, that in his opinion the verdict was against the law. Lord Hardwicke 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 mat-' ters 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 jury are kept distinct; that the judge determines the law, and the jury the fact; and if they ever come to be confounded, it will prove the confusion and destruction of the law of England.” The King v. Poole, Cas. temp. Hardw. 28. This was in the King’s Bench in 1734.

I had noted many other English cases, which, however, I must pass over without citing; but I am unwilling to forego a bare reference without quoting it, to Mr. Wynne’s celebrated work, entitled Eunomus, or Dialogues concerning the Law and Constitution of England, a work of great merit and reputation, and first published about the time of the adoption of our constitution. 3 Eunomus, § 53.

I desire however to refer to one subject, that of libel, which in some quarters seems to have been regarded as settling the question, that in all criminal cases juries may rightfully adjudicate upon the law, as well as the fact; but it seems to me so *213 manifestly to lead to the opposite conclusion, and to involve a discussion of the true principle on which jury trial is placed by the common law, that, at the risk of appearing tedious, I wish to state it fully enough to make it intelligible.

This controversy arose in England during a period shortly-preceding the American Revolution, respecting the relative powers of courts and juries, in cases of public prosecutions for libel. It arose in times of great party violence and heat, connected itself intimately with the great political contests of the time, and was conducted in the courts of justice, in parliament, and in the country, with a warmth of passion not favorable to the satisfactory determination of legal principles. But it appears to me that, whether we consider the point upon which the controversy turned, the principles assumed and admitted on all sides as the basis of the argument, or the provisions of the act of parliament, commonly known as Mr. Fox’s bill, by which it was terminated, they do not impugn the great principle of the common law, that to questions of fact the jurors respond, to •questions of law the judges.

Criminal prosecutions for libel might, by the common law, be by indictment or information; but in point of fact they were most usually state prosecutions, commenced by information filed by the attorney or solicitor general, ex officio, and most frequently for political offences, and therefore were often contested with great bitterness, the political parties actively taking sides, in favor of the crown or of the accused respectively.

The controverted question arose in this way: By the theory of the law, language, the meaning, effect and interpretation of all language is of legal construction, and must be settled as matter of law by courts. This rule applied to statutes, proclamations, treaties and other acts of state, and also to private contracts of all sorts; and this, in theory, was considered as applicable to publications charged to be libellous. But it is obvious that the same language may have a different meaning, according to the thing referred to, from existing facts or external circumstances, not apparent in the written or printed publication itself. To meet this view, the rules of pleading strict.lv *214 required that the indictment or information should set out the matter charged to be libellous, in hcec verba. If the words should be charged to have any peculiar meaning beyond then-ordinary sense, by reason of any fact, then such fact is to be distinctly averred, with time and place, so that it may be put in issue and tried. If it was relied on that such words were written or spoken in connection with such fact or circumstance, it must be stated, in terms, that they were written or spoken “ of and concerning” such facts, ordinarily styled the colloquium,, adding in all suitable places innuendoes, pointing the meaning of the words to the particular persons or things to which it is intended to charge that they did apply.

Now the theory of those judges, who held that the jury were only to find the fact of publication, and the truth of the averments, colloquia and innuendoes was this; that when the words of the alleged libel are exactly copied, and all the circumstances and incidents which can affect their meaning are stated on the record, inasmuch as the construction and interpretation of language, when thus explained, is for the court, the question of the legal character of such libel, whether seditious or obscene, whether it illegally slanders the living, or blackens the memory of any one deceased, would be placed on the record, and therefore, as a question of law, would be open after verdict, on a motion in arrest of judgment. Whatever might be the verdict, if . the publication thus spread on the record, with its averments, is not libellous, the court must so declare it. Those who took this side of the question insisted, that if the publication was per se libellous, it was unlawful, and the innocent intent and purpose of the publisher afforded no excuse, and if libellous and illegal, the malicious intent was an inference of law. Those reasoners therefore maintained that a criminal prosecution for libel was peculiar, and distinguishable from all others in this, that, by the form of proceeding, the whole matter was spread upon the record ; that, when the fact of publication and the truth of the averments and innuendoes were established, the whole question of guilty or not, as in case of a special verdict, was a question of law; and they therefore held that it was right to instruct the *215 jury that, if they found these facts true, they ought to return a verdict of guilty, without passing their judgment upon the question of malicious intent or guilty purpose. These views, it .was maintained, were supported by a series of respectable authorities, nearly or quite uniform, from the English Revolution to the time of this controversy.

On the contrary, it was maintained by the popular party, that such a view of the law of libel tended to discourage and repress all free and manly discussion of public affairs, and destroy the just freedom of the press; that whether a publication was libellous or not, depended upon the justifiable motive, or mischievous intent, with which it was written ; that if it was fairly intended to expose and correct the abuses of bad government, or wickedly to weaken and impair the acts of good government, that these were questions of fact, depending on many facts of a public nature, which could not be brought upon the record; and that therefore the question, whether it was unlawful, malicious and wicked, false in fact, and not written with good motives and for justifiable ends, might even depend on the purpose and character of the whole publication, of which the parts selected as libellous are usually extracts only; that these are all facts bearing upon the general question of guilt, and therefore like other facts, on which the guilt of a party accused of crime depends, were to be found by the jury. Some respectable authorities could be adduced to show that such had, at times, been the course of eminent judges in instructing the jury.

The first case, I believe, in which this was made the subject of much controversy was that of Rex v. Woodfall, 5 Bur. 2661 , in the year 1770, which was an information for the publication of a seditious libel, being one of the letters of Junius. When we consider that Lord Mansfield was the judge, and remember the vehement attacks made by that popular, eloquent and unscrupulous writer on the judicial character of Lord Mansfield, we cannot be surprised to find that the question should assume an air of some bitterness. Upon the trial, the jury found the defendant guilty of printing and publishing only. The verdict was afterwards set aside, on the ground that it was ambiguous *216 and uncertain; but the judge charged the jury, and this again was affirmed by the whole court after argument, that “ whether the paper was in law a libel was a question of law upon the face of the record; ” and again; “1 Guilty of printing and publishing,’ when there is no other charge, is 6 guilty; ’ for nothing more is to be found by the jury.” 5 Bur. 2666 , 2668 That the court intended thus to state and declare upon the theory above stated is manifest from the whole tenor of the case. The court say, in terms, that if the jury “ meant to say £ they did not find it a libel,’ or £ did not find the epithets,’ [that is, wickedly, maliciously, &c.,] or £ did not find any express malicious intent,’ it would not affect the verdict; because none of these things were to be proved or found either way.” 5 Bur. 2669 . And they say this had long been the settled rule of practice.

But the great struggle on this subject took place in the case of The King v. Dean of St. Asaph, reported most fully in 3 T. R. 428, note. The case was tried before Buller, J., who charged, in summing up, that there were two facts for the consideration of the jury, namely, the fact of the publication, and the truth of the innuendoes. It came before the full court, and was argued in a masterly manner for the defendant by Mr. Erskine, in one of his celebrated speeches. The opinion of the court was given by Lord Mansfield, who again affirmed the correctness of the ruling, and upon the same grounds, and he cited many authorities to show that this had long been the established practice.

Lord Kenyon, a few years later, directed the jury in the same terms, in The King v. Withers, 3 T. R. 428.

Thus stood the law, as declared and administered in the highest courts of Great Britain, until this remarkable controversy was terminated by an act of parliament, St. 32 G. 3, c. 60, which settled the law for that government. After reciting that doubts had arisen, it declared and enacted that on every such trial, the jury may give a general verdict of guilty or not guilty upon the whole matter put in issue upon the indictment or information, and shall not be required or directed by the court or judge to find the defendant guilty, merely on proof of the publication by the defendant of the paper charged to be a *217 libel, and of the sense ascribed to the same in the indictment or information; that, on every such trial, the court or judge shall, according to their or his discretion, give their or his opinion and directions to the jury on the matter in issue, in like manner as in other criminal cases; that nothing in the act shall be construed to prevent the jury from finding a special verdict, at their discretion, as in other criminal cases; and in case the jury shall find the defendant guilty, it shall be lawful for him to move in arrest of judgment, on such ground and in such manner as he might have done before the passing of the act.

It will be borne in mind that the leading adjudications above cited were made, and this act of parliament was passed, after the separation of the United States from Great Britain, so that they, have no authority here as positive law; and they are referred to only as historical evidence, showing what the ancient common law of England was when it became the common law of Massachusetts and the other colonies of English origin.

It appears to me that the manner in which this controversy was conducted, and the ancient authorities which it brought to light, have a significant and direct application in support of the proposition I am endeavoring to maintain. Both parties acted on the assumption that, by the common law, the juries answer to questions of fact, and judges to those of law, and when all the facts appear on the record, it is for the court only to decide and pronounce the law. It is frequently stated in the course of the controversy, as by Lord Mansfield in The King v. Dean of St. Asaph, 3 T. R. 431, note, that this is a universal maxim, without exception. But those who favored the power of the crown and high prerogative insisted, that when the alleged libel was placed on record, as the meaning and interpretation of language is for the court, the question whether guilty or not was a question of law. Lord Mansfield said, in the case cited •

“ It is almost peculiar to the form of a prosecution for a libel, that the question of law remains entirely open for the court upon the record, and that the jury cannot decide it against the defendant; so that a general verdict, that the defendant is guilty, is equivalent to a special verdict in other cases. It finds all *218 which belongs to the jury to find, and finds nothing as to the question of law.” He also says, that when the offence depends upon an indifferent act, done with a criminal intent, Tie intent must be averred and proved as a fact, like other facts 1 ut that libel is an exception. 3 T. R. 429, note.

On the contrary, it was maintained by those opposed to the high prerogative of the crown, and more in sympathy with the popular writers who were the parties subject to crown prosecutions, for writings which they maintained to be innocent, but which were charged as treasonable or seditious, intended to bring the government into hatred and contempt, and promote illegal insurrection or forcible opposition, that a writing in itself is simply innocent or indifferent; that, if it tend to' disturb the public peace, the criminality consists entirely in the malicious intent and injurious purpose with which it is written or published ; that, after a paper charged to be libellous is set out in precise words, with all the averments, colloquia and innuendoes with which the most skilful pleader can draw up an information, the question of malicious intent and injurious purpose depends upon many facts, some of a public and some of a private nature ; that- the criminal intent and purpose, therefore, which alone.can make the publication illegal and punishable, is a question of fact, and of course for the jury, subject only to this difference in matter of form, that the judge directs the jury in matter of law before they return their verdict, the law relying upon the intelligence and sense of duty of the jury, to apply the law to the facts- they may find, and declare the result by a general verdict. These considerations certainly have great weight, and seem to render the case of libel analogous to other criminal cases, where guilty intent and purpose appear to be of the essence of the offence; and upon this ground -the statute ultimately placed it. -

Now to apply this to the point respecting which we are inquiring, the relative powers and functions of the court and the jury. Both parties assume the existence and force of the rule we are attempting to establish, as the ancient rule of the common law. The court and high prerogative party say, judges *219 answer to the law and jurors to the fact; the question of guilty or not, in the peculiar form of a criminal prosecution for libel, after the jury have found the fact of publication and truth of the innuendoes, is a question of law, and therefore must be declared exclusively by the court. The popular party, assuming the saíne major proposition, say, the question of guilty or not is a question of fact, and can be found only by the jmy-

It appears to me therefore, as I stated in the outset, that, considering the course of the controversy, the earnestness and ability with which every point was contested, and the thorough examination of the ancient authorities, this concurrence of views on the point in question affords strong proof that, up to the period of our separation from England, the fundamental definition of trials by jury depended on the universal maxim, without an exception, “ ad qucestionem facti respondent jwatores, ad qucestionem jwris respondent judices.”

Perhaps, instead of this revision of the authorities upon the general subject, it would have been sufficient, for the purpose of this inquiry, to refer to the case of Commonwealth v. Porter, 10 Met. 263 , as declaratory of the law of Massachusetts upon this subject, and as it has been since understood. But as the question now comes up in a more solemn form, and involves a grave constitutional power, it has appeared to me to be worthy of the subject and of the occasion to examine it more at large than seemed to be necessary in deciding an ordinary question of law. Besides, with reference to another part of this discussion, it seemed to be useful to take something of a historical view of the origin and progress of the English common law on this subject, and how it stood at the time of the Declaration of American Independence, at which time the English common law ceased tv have any operation, and by adoption became the common law of Massachusetts. This will be found most useful in construing the provisions of the Constitution soon after made, and the views and purposes of the wise and enlightened statesmen who laid the foundations of oúr present government.

*220 I will now proceed to the case more immediately before us. It appears to me that the statute of 1855, c. 152, construed according to all the soundest rules of exposition, the preexisting state of the common law, all statutes in pari materia, and the Constitution, which is part of the law of the land, did not alter, but was only declaratory of the existing law; and that ■it was not the purpose of the legislature to authorize a jury to adjudicate the law otherwise than by a general verdict. If this was a verdict of “ not guilty,” it was not subject to exception, and therefore their finding- would be conclusive; but if there was a general one of “ guilty,” it was taken subject to exception on the part of the defendant; both of which were precisely the same before the statute. Besides, they were “ to try according to established forms and principles of law.” That clause gave full effect to the great fundamental principle of the common law, vesting in judges the authority to adjudicate all questions of law, and giving the jury the power to adjudicate on all questions of fact, and sanctioning the usual form of doing this by a general verdict, which, for reasons already stated, would be conclusive, in case of acquittal, of the whole case, or they might find a special verdict. So it was made the duty of the court to superintend the trial, to decide upon the admission and rejection of evidence and upon all questions of law raised during the trial, and charge the jury and allow bills of exception. It often happens that the decisive „and turning question of law, upon which the whole case depends, arises during the course of the trial, and yet the court are to decide on it. So the court must decide upon the admission or rejection of evidence, and yet the question, whether particular evidence is competent or not, depends upon the facts put in issue, and those again" depend upon the decision of the main question, to be first ruled by the court. Supposing the question to be upon the construction of a' penal statute, the court must first interpret the statute, and decide authoritatively what are the acts which, by the true construction of the statute, the legislature intended to punish, and then the evidence admissible must be limited to proofs offered which have a legitimate tendency to prove or disprove those facts. So *221 the court may allow exceptions; this must be limited to the exceptions of the defendant, for such was the principle of law.

In every view in which we consider this statute, it appears to me to be declaratory only, and not to alter the law, or vest in the jury a power to adjudicate questions of law, contrary to the ruling and adjudication of the law by the court in the same case.

If then the court, on a jury trial, are asked to instruct the jury that they have a legitimate right and power under this statute to adjudicate the law against the ruling of the court, in my judgment the answer should be that they have not.

If they be asked to instruct the jury that they have a right to return a general verdict, and that by doing so their verdict will be conclusive both on the law and the fact, if it be in favor of the defendant, in my judgment the answer ought to be that they have.

For the reasons before given, I am of opinion that the statute of 1855, construed as I think it must be according to all the established and approved rules of exposition, was not intended by the legislature to change, and has not, in its legal operation and effect, changed and varied the provisions of law prescribing and limiting the relative powers and functions of judges and jurors in criminal trials. The language is, that “it shall be the duty of the jury to try, according to established forms and principles of law,” all criminal cases committed to them, and “ to decide by a general verdict both the fact and the law involved in the issue, or find a special verdict.” The ambiguity lies in the words “ try” and “ decide by a general verdict.” The argument is, that from and after the passing of this statute the jury have a right to adjudicate, by the exercise of their own reason and judgment, and decide against the direction of the court, though received and well understood, whether there is such a rule of law ; if a statute, what is the legal meaning and effect of it, what does it prescribe, and under what qualifications and limitations, and whether or not it is repugnant to the Constitution of the United States or of this Commonwealth, and according to their judgment in matters of law, contrary to the *222 direction of the court, to acquit or convict a party accused. If these words, “ try ” and “ decide by a general verdict,” under the limitation stated, were intended by the legislature to have the construction contended for, and can properly bear that con-' struction—and from the various interpretations put upon the statute by judges of the superior court of Suffolk and the judges of the court of common pleas in other counties, who alone are called upon to try all criminal cases except capital, and therefore, in the first instance, to lay down the law for the case, I am bound to believe that the statute may admit of that construction—then it becomes necessary to consider its constitutionality. And in my opinion a statute, which should in explicit terms provide that a jury should have such a power as that claimed to be conferred on them by this statute, would be repugnant to the Constitution of the Commonwealth, and to that extent inoperative and void.

In discussing this question we must consider the common law of England, slightly modified in operation in the Colony and Province of Massachusetts, as it stood in 1776, at the time of our Declaration of Independence, and as it was understood at the time of the adoption of the Constitution in 1780. That constitution, in all which bears upon the question we are now considering, has remained unchanged to the present time, and therefore we are to look to the principles and provisions of that constitution in both its departments, the Declaration of Rights, and the Frame of Government, to ascertain its true construction, and upon every part of it. In coming to that construction I think we are bound to examine it in no nice, criticising spirit, but to take the broadest and most liberal view of it, with a reverential regard to the great objects and purposes of its founders. The object manifestly was, in all truth and sincerity to establish a system of government for a free people, permanent in its character, equitable in its principles, not only recognizing and declaring the equal rights of all to the enjoyment of life, liberty, property and reputation, but providing for the maintenance and security of those rights against all encroachment, as far as the lot of humanity would admit, by the enactment, the adminis *223 tration and the execution of fixed and standing laws. These are fundamental principles of the Constitution, and we are not only warranted in the use of the terms by the Constitution itself, but are admonished that a frequent recurrence to these principles is absolutely necessary, to preserve the advantages of liberty, afid to maintain a free government. Declaration of Rights, art. 18.

One favorite and leading idea of the authors of this constitution was, that in entrusting and distributing the great powers of government, which must be large in order to be efficient, safety was to be sought, where practicable, by a system of checks and balances; so three coordinate branches of government are established, and great solicitude manifested to keep them separate and distinct, the executive, legislative and judicial. In providing for the making of laws, the power is vested in the governor and two distinct assemblies of delegates, each having a negative upon the other. It seems to have been consonant to this prevailing idea, that the two great functions of judicial duty, the one of declaring the law, and the other of adjudging on the facts, should be performed by functionaries, each best adapted to perform its appropriate duty; the one, the former, to be vested in judges, as free, impartial and independent as the lot of humanity will admit; Declaration of Rights, art. 29; and, “ in criminal prosecutions, the verification of facts in the vicinity "where they happen is one of the greatest securities of the life, liberty and property of the citizen.” Declaration of Rights, art. 13.

This corresponds to the old law, facts to be tried by experienced men, conversant with affairs, drawn from the “ vicinage,” now settled to be the county, serving temporarily and then dispersing; and courts of law of last resort, to be held by judges trained to the law, permanent in tenure of office, and having jurisdiction over the whole commonwealth.

Another leading idea which pervades the whole system—Preamble, Declaration of Rights and Frame of Government—is the absolute necessity to the peace, harmony and tranquillity of the citizens of a free government that the laws under which they *224 live be fixed and settled. They manifestly had in view the consideration often alluded to in works popular at the time, expatiating on the misery and wretchedness of a people where the laws are uncertain, vague and fluctuating, prescribing one rule to one man and a different one to another, this day punishing and tomorrow exempting from punishment, under the same circumstances, so that no man, be he ever so honest, can know by what rule of law to square his conduct, faithfully perform his social duty, and avoid the penalties of the law.

President Adams, who, according to historical evidence, sub mitted the original draft of a constitution, and who exerted a commanding influence in the convention, in defence of the Constitution, has some significant passages indicative of this strong prevailing sentiment. It is curious to find here, as apparently taken from Harrington, the original of the sententious and expressive words with which the Declaration of Rights closes, namely, “ to the end that it may be a government of laws and not of men.” I cite but a passage or two from Mr. Adams: “ Although-there may be unjust and unequal laws, obedience to which would be incompatible with liberty; yet no man will contend that a nation can be free, that is not governed by fixed laws. All other government than that of permanent known laws is the government of mere will and pleasure, whether it be exercised by one, a few, or many.” “ Well ordered governments were those where the law prevailed. Harrington says : ‘ Government de jure, or according to ancient prudence, is an art whereby a civil society of men is instituted and preserved upon the foundation of common interest, or, to follow Aristotle and Livy, it is an empire of laws and not of men? ” “ All men must agree that there can be no uninterrupted enjoyment of liberty, nor any good government in society, without laws, or where standing laws do not govern.” “ The great question therefore is, what combination of powers in society, or what form of government, will compel the formation, impartial execution and" faithful interpretation of good and equal laws, so that the citizens may constantly enjoy the benefit of them, and may be sure of their continuance.” 4 John Adams’s Works, 403, 404, 405, 406,

*225 The nature of that security and safety to be derived from the operation of the law may be ascertained by the whole tenor of the Constitution. It makes ample provision for the enactment and promulgation of good and wholesome laws, to be carried into effect by suitable penalties. But it would be in vain to make laws if they were not steadily applied and enforced. An eminent and judicious writer on criminal law (Beccaria on Crimes) has said, that certainty in the infliction of punishments is much more essential to their efficacy, than the severity of them. Wherever laws, however wise, discriminating and salutary, through any defect in the administration of justice, should fail to inflict the proposed punishment upon the actually guilty, they would fail to command the respect and obedience of the subject, which is their sole object. But whilst the Constitution is so solicitous to ensure the punishment of the guilty, it is still more anxious to provide that these laws, in their application to individual cases, in a regular course of the administration of justice, whilst they are certain to reach the guilty, shall as certainly protect and shield the innocent. This is required, not only in justice to the individual who may be accused without just cause, either through honest though groundless suspicion, or through private malice, or public prejudice, but it is also .nec essary to the dignity and efficacy of the law itself, which is as much mistaken in its object,and dishonored, when it falls upon the innocent, as when it suffers the guilty to escape.

Such being the certainty at which the Constitution aims, in providing for the administration of criminal law, we are next to see what means it has taken to secure that certainty.

The Constitution provides that, in every charge of crime, the party accused shall be entitled to a trial by jury. Declaration of Rights, art. 12. We have already cited art. 13, as to the verification of facts in the vicinity where they happen. The two provisions in effect declare, that every party accused shall be entitled to have the facts tried by a jury of the county; and in most cases his guilt or innocence of the offence charged turns upon the truth of the facts alleged.

But every such trial puts in issue the law as well as the fact *226 and if certainty is essential in determining the facts in each case, a fortiori is it absolutely necessary in determining the law, which must not only govern that case, but the case of every other person in the Commonwealth. To see the difference between an adjudication of the law and the fact, we look at the difference in the nature of the two questions. The facts in each case differ from those of every other, and therefore the decision of one by a jury affords no precedent for the decision of another.

By the old established rule of the common law, when a rule of law is once judicially determined and adjudged by the court ©f last resort, it does become a precedent and rule of law for all similar cases, till altered or repealed. But this does not stand mainly or principally upon authority. It arises from the very nature of the subject. The decision of facts depends upon the evidence in the particular case ; but the decision of a question of law depends upon a consideration of principles always the same, fixed and immutable ; whether it be the principles of natural justice, ancient or modern statutes, or customary and unwritten law ascertained by precedent and tradition; still the elements from which the decision must be drawn are unchangeable. New statutes may be passed, new questions may arise, leading to new discussions and judicial determinations, adapting established principles to such new cases; hence the advancement, and, we may hope, improvement, in exactness in the science of jurisprudence. This embraces necessarily the validity and interpretation of new statutes. Statutes may afford occasion for such interpretation, arising from the uncertainty of language ; if language were exact enough, and the words of a statute were copious enough to express the precise and full meaning and intention of the legislature, and no more, there would be less frequent call for interpretation; but in the actual condition of written language, and in the usual practice of legislation, we cannot expect such exactness.

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 *227 in any well ordered system of jurisprudence, provision is made that it be reexaminable 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 may be 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. When therefore such judicial construction has been put upon a statute, it becomes as essentially a part of the law as the text of the statute itself. Various questions may arise on the same statute, as it is drawn in question in the judicial administration of the law, and the judge will decide each question as it arises, subject to such reexamination and final adjudication ; and it is such final adjudication, so made in the actual administration of the law in particular cases, which thus becomes, in legal effect, an essential part of the rule of law created by such statute.

But the force and weight of this established principle of the common law are greatly enhanced in this commonwealth, by embodying the principle and substance of the system of government in a written constitution. It is expressly declared, in the last clause of the Frame of Government, that this form of government shall be enrolled on parchment, and be a part of the laws of the land. As the Constitution cannot be revoked or changed by any power short of that of the sovereign people who established it, it follows that it is a fixed and permanent law, binding upon the conduct and upon the consciences of all officers and subjects, and of all departments of the government.

But there is another consideration of still greater weight *228 The Constitution has prescribed limits to the powers of the legislature, and has provided a coordinate, and, as far as practicable, independent department of government, to wit, a judicial department, to decide whether, in any particular act of the legislature having the forms of law, the legislature have exceeded their constitutional powers, and if they have, to adjudge the enactment inoperative and void. To the judicial department is' also entrusted the power to decide upon the constitutionality of the acts of the executive.

1 will now examine the provisions of the Constitution somewhat in detail, because, as I have said, I think the character of the Constitution, as an equitable and permanent government for a free people, is rather to be learned from its general tenor and pervading spirit than from any specific provisions.

Even in the preamble is found the germ of the three distinct departments of government. “ It is the duty of the people, in framing a constitution of government, to provide for an equitable mode of making laws, as well as for an impartial interpreta tion and a faithful execution of them.”

In the Declaration of Rights are various clauses bearing on the subject. After various articles declaring equality of rights, that government is to be established for the common good of all:

“ Ait. 10. Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty and property, according to standing laws.”

“ Art. 11. Every subject of the Commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property or character. He ought to obtain right and justice freely,” &c., “ conformably to the laws.”

Art. 12. This article is long, and the whole article is applicable to the subject we are discussing. It provided for several changes in the administration of criminal law. It saved the accused from being compelled to confess, or furnish evidence against himself; it secured to him a right to produce all proofs favorable, to him, (contrary to the rule which had prevailed in *229 the ruder ages of the law—at one time, that the accused should, call no witnesses, at another that he should not have the benefit of having them sworn, so that their testimony might have the same sanction with that of the witnesses against him ;) it secured a hearing by counsel in his defence ; it declared that he should not be punished or deprived of his property, but by the judgment of his peers or the law of the land; but to make this more certain and explicit, the last clause is added : “ And the legislature shall not make any law that shall subject any person to a capital or infamous punishment, except for the government of the army and navy, without trial by jury.”

It was a provision for securing to all the great benefit of jury trial, as it was then understood and practised. As then understood, the indictment set forth the facts specifically, alleging that which constituted an offence by force of existing laws. If the defendant pleaded not guilty, both the fact and the law were put in issue, and thereupon the issue thus joined was brought before a court and jury for trial. The judge ruled and charged the jury upon all questions of law; the jury, under those directions, considered all the competent evidence, with a view to an adjudication upon the truth of the facts. They might bring in a special verdict upon the facts, submitting the law to the court; but as this would be difficult in' practice for unlettered men, conversant with affairs, but not familiar with the forms of law, by far the most easy, simple and direct course, and an acknowledged legal course, was to return a general verdict. This form of general verdict embraced a decision both upon the law and fact, each by its appropriate organ. And both law and fact were thus legally adjudicated; the decision of the judge on the question of law being given to the jury, and their decision upon the fact being combined with it. This verdict was taken to be conclusive of both. The judge could only rule hypothetically, if they found so, then the law was so; otherwise, the law would be otherwise. If the jury found in conformity with the direction of the court, then the verdict did truly embody answers to both the law and the fact, each by its proper organ. If the jury found against what appeared to be the direction of *230 the judge, still in theory of law it was right and conclusive; they were conclusive judges of the fact, they had means of judging which the court could not have, and then the legal presumption is, that they did not find the facts true according to the hypothesis upon which the judge gave his directions, ami therefore that the verdict was right. If the law was ruled unfavorably to the accused, and the jury convicted him, all was right, both concurred. But in the same case, if they acquitted him, he went free ; because by the record it so appears, and the law presumes he was rightly acquitted on the fact; and this was irreversible, on several grounds of humanity and tenderness to all persons accused of crime.

The public prosecutor, in case of acquittal, can have no writ of error and no bill of exceptions, because no one shall be twice put in jeopardy for the same cause ; and the only purpose of a bill of exceptions sustained would be, not to reverse the judgment and enter a judgment against him, but to send him to a new trial before another jury.

Nor is this result of a general verdict of 11 not guilty,” making it irreversible and conclusive in favor of the accused, an exception to the general rule of law. The law does not seek a verdict of conviction but upon evidence beyond all reasonable doubt, and though he may be in fact guilty, the verdict of twelve men upon the same facts does create some reasonable doubt. Then comes in another maxim, which is not only founded in humanity, but upon the soundest principle of criminal law, which would be weakened and disparaged by inflicting punishment on an innocent person under the forms of law, that it is better that nine guilty persons should escape, than that one innocent man should suffer. It is therefore equally consistent with sound law and with true wisdom, that when one is acquitted by a general verdict of “ not guilty,” he should forever be discharged from that accusation. This modification and application of the principle, “ ad qucestionem jwis non respondent juralores” is as well established as the rule.

But if the judge instructs the jury against the accused, and the jury convict him, he may have a bill of exceptions ; *231 and if, upon reexamination in the court above, it is found that the instruction was incorrect in matter of law, the verdict shall be set aside, and he shall have a new trial under right instructions in matter of law. This shows the humane and tender regard which the law has for the rights of the accused.

But there is one other alternative, that is, that the court instruct the jury in favor of the accused, and yet the jury convict him ; at law, he can have no redress. He cannot file exceptions, because the law was decided in his favor. If the jury could definitively decide the law against the decision of the court, then, notwithstanding the evidence was wholly insufficient to bring the case within the statute, as the court construed it and directed them, yet it might be quite sufficient to bring it within the penal operation of the statute, as the jury understood and decided it, and that would be conclusive. It would equally deprive the party, thus convicted against the direction of the judge, of a remedy by new trial, which it is conceded the court have a right to grant, and which has been resorted to in modern times to correct errors and mistakes, and the consequent injuries which would arise in the conduct of this most excellent and salutary mode of trial in criminal cases.

Here it is therefore that parties accused have need of the protection of the law, which the Declaration of Rights and the entire Constitution promise them. Take the illustration before given, of an indictment on the statute for the sale of lottery tickets. Several persons, from pure motives of charity, agree to advance five dollars each for the relief of a deserving person, an artist, it may be, who has a picture worth possibly one hundred dollars somewhere, but which he cannot sell. They agree to take it, and decide by lot who shall have it. The question is, whether this was within the penalties of the statute. The judge decides that it is not; the facts are unquestionable. The jury, yielding perhaps to a popular feeling that though lotteries were once sanctioned as a means of affording public charity, yet now they are odious and pernicious, and the raffle in question was a lottery, convict the accused. The interpretation of the statute being part of the statute, and the direction of the judge being *232 conclusive till reexamined, of course conclusive for that case, the verdict of the jury, that the offence is within the statute and punishable, is directly contrary to law, there is no means provided for reexamining it, and therefore the accused is convicted against law, without redress. He is deprived of that protection of the law which the Declaration of Rights ass raes to him.

The case seems to have been argued as if the only object of the Constitution, in securing a jury trial, is to rescue a party accused from the grasp of the public prosecutor, and that all the propensities of the judge are in favor of the public prosecutor. But the Constitution countenances no such theory; on the contrary, it is solicitous to make the judge impartial and independent, so that he may throw the broad shield of the law over an innocent man who is entitled to its protection, whilst it gives a true direction to the weapon of the law to punish those who have been guilty of its violation.

We now resume the examination of the Declaration of Rights, which concur in affirming the foregoing to be a correct view of the jury tidal, which the Constitution intended to establish and make perpetual.

“ Art. 29. It is essential to the preservation of the rights of every individual, his life, liberty, property and character, that there be an impartial interpretation of the laws, and administration of justice. It is the right of every citizen to be tried by judges as free, impartial and independent, as the lot of humanity will admit. It is therefore not only the best policy, but for the security of the rights of the people, and of every citizen, that the judges of the supreme judicial court should hold their offices as long as they behave themselves well, and that they should have honorable salaries, ascertained and established by standing laws.”

This clause offers several remarks. The term “judges,” if this stood alone, might be supposed to be used in its large and general sense, including all who are called to judge upon any thing, and so include jurors. But here it is limited, by its connection and context. After declaring the general truth, that *233 judges should be as free, &c., it goes on to draw the conclusion, it is therefore not only the best policy,” &c., “ that the judges of the supreme judicial court should hold their offices,” Sec. It appears clear therefore that, in this connection, it means judges of law, judges commissioned, having a permanent tenure of office, meaning the same designated in the Frame of Government as judicial officers.

Then why is special provision made for the independence of the judges of the supreme judicial court, except it be that, in every well ordered system of jurisprudence, all questions of • law are ultimately to be adjudged by such supreme judicial tribunal, and for the very reason that, when so decided, their determinations are authoritative expositions, constituting part of the law of the land, and therefore ought to be certain and uniform throughout the Commonwealth ?

Art. 30. The last article is very significant, especially coming, as it does, as a conclusion of all the rest. “ In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end

IT MAY BE A GOVERNMENT OF LAWS AND NOT OF MEN.”

This clearly marks the distinction between the three great powers, executive, legislative, and judicial, creates three distinct departments for their exercise, makes them as far as possible independent of each other, and in terms prohibits the encroachment of one upon the other.

It declares the end of all good government to depend on the honest' execution of good laws. In its application to judicial power it intimates, that the judicial power, when it shall duly and deliberately pronounce its behests, shall be, as nearly as consistently with human passions and infirmities it can be, the pure voice of the law. The security of the public, in the right and pure administration of the law, punishing offences, and the security and protection of individuals rightfully or wrongfully accused, are made to depend, not upon the supnosed interests, *234 proclivities, or even honest and well founded opinions of the men, who happen in any department to be the organs through which its behests are uttered, but the voice of the law.

There are a few clauses only, in the Frame of Government, to which I think it important to allude. “All judicial officers shall be nominated and appointed by the governor, by and with the advice and consent of the council.” c. 2, § 1, art. 9. “ Perma-

nent and honorable salaries shall also be established by law for the justices of the supreme judicial court. And if it shall be found that any of the salaries aforesaid so established are insufficient, they shall, from time to time, be enlarged, as the general court shall judge proper.” c. 2, § 1, art. 13. “ The tenure, that all commission officers shall by law have in their offices, shall be expressed in their respective commissions. All judicial officers, duly appointed, commissioned, and sworn, shall hold their offices during good behavior, except such concerning whom there is different provision made in this constitution: Provided, nevertheless, the governor, with consent of the council, may remove them upon the address of both houses of the legislature.” c. 3, art. 1.

These are all the passages which it seems necessary specially to cite. I think the result is, that the Constitution most sedulously endeavors to provide for a government of fixed, perma uent laws:

That this certainty depends in a great measure upon having a steady, fixed and uniform interpretation of the laws and administration of justice, including all questions of the constitutionality and validity of legislative enactments of the legislature of the State or of the United States:

That the better to secure this certainty and uniformity, the constitution provided for a distinct judicial department with whom this power was to be deposited,and by which alone and exclusively it was to be exercised:

That this was committed not to one judge or set of judges, but to a judicial department, constituted, as such department had ever been under the prior governments of Massachusetts, of one superior or supreme court, and as many subordinate courts and judges as the public exigencies might require, and to operate *235 as such a department must operate in systems following more or less closely the common law, which is, that the judge holding a jury trial, in a criminal case, will declare the law of that case to the jury, subject, if the jury convict, to be revised, by the highest legal tribunal, so that the law may be ultimately and definitively decided by the tribunal of last resort haAung juris diction coextensive with the commonwealth :

That the legislature have no authority themselves to exercise the powers of the judicial department, nor take away this essential attribute of jurisprudence, nor vest it in any other department, or in any other persons or classes of persons; and that jurors, though they have important duties to perform, in courts of justice, yet do not compose an essential element of the judicial department; that their duties are limited and temporary, and the necessity of the attendance of juries and a trial by them is distinctly provided for by the Constitution, and their function in such trial was well understood to be the finding of facts, upon evidence, under the direction of the court.

In conclusion, in the view I take of the Constitution, as a whole and in all its details, in its pervading spirit, as well as in its form and substance, it was the great purpose of its founders to provide a system of free government for all coming time ; to this end to ensure certainty in the making and administration of laws; to secure the peace of the whole, and the protection of every individual, by that certainty which shall make it affect every subject alike, as well in its protecting safety, as in its restraining efficacy. To ensure that certainty, it was indispensable that there should be a faithful, firm, and uniform administration of law, deciding on the constitutionality and interpretation of every written law, the existence, exposition and judicial application of all rules and maxims of the common law, of natural, customary and unwritten law, incident to the trial of criminal and civil causes. This was carefully provided for by a distinct, coordinate judiciary department.

The founders of our constitution understood, what every reflecting person must understand, from the nature of the law, in its fundamental principles, and in its comprehensive details, thaf *236 it is a science, requiring a long course of preparatory training, of profound study and active practice, to be expected of no one who has not dedicated his life to its pursuit; they well understood that no safe system of jurisprudence could be established, that no judiciary department of government could be constituted, v. itkout bringing into its service jurists thus trained and qualified. The judiciary department was intended to be permanent and coextensive with the other departments of government, and, as far as practicable, independent of them; and therefore it is not competent for the legislature to take the power of deciding the law from this judiciary department, and vest it in other oodies of men, juries, occasionally and temporarily called to attend courts, for the performance of very important duties indeed, but duties very different from those of judges, and requiring different qualifications.

If therefore the statute of 1855, c. 152, in providing that it shall be the duty of the jury to decide, at their discretion, by a general verdict, both the law and the fact involved in the issue, can be so interpreted as to prescribe that the jury, consistently with their duty, may decide the law, upon their judgment, contrary to the decision and instruction of the court before whom the trial is had, as received and understood by them, such enactment is, in my opinion, beyond the scope of legitimate legislative power, repugnant to the Constitution, and, of course, inoperative and void. In all those cases, therefore, in which a different direction has been given by any judge to a jury as the true interpretation of the statute, or affirming its constitutionality, exceptions to such rulings must, in my opinion, be sustained. If the statute will not bear that construction, but was declaratory only, it did not change the preexisting law, then for that reason such instructions as above stated were given without warrant of law, and exceptions to them must in like manner be sustained.

Regretting that, after full deliberation of all the judges, we have not been able to come to one and the same result, I am authorized to say, that in this opinion my brethren Metcalf and Merrick, JJ. concur.

*237 Dewey, J.

The present case is certainly one entitled to the fullest and most deliberate consideration, involving, as it does, the grave question of the proper province and duty of jurors in criminal trials, under the existing laws of this commonwealth.

The origin and early history of trial by jury are as yet involved in great obscurity. We find no legislative act creating it and defining its powers. Certain it is, that its distinctive features and duties, as early developed, have been greatly modified, and from time to time materially changed. As a part of our system of criminal jurisprudence, we take it as we find it at the date of our independence as a nation, modified by our subsequent organic and statute law applicable thereto.

The precise extent of the legitimate powers of the jury in criminal cases, at common law, has been a fruitful theme for legal, as well as popular discussion.

To some extent, distinctions exist between trials in criminal and civil cases. In the former, the powers of the jury, through the effect given to a verdict of acquittal, are, it is conceded, incidentally greater. A difference also exists in the two cases in the manner of empanelling the jury, in the appointment of their foreman, in the form of the oath administered to them, and in the manner of returning their verdict.

But whether at common law the jury have, in criminal trials, the right to decide both the law and the facts, and whether they may lawfully and properly exercise this power by a general verdict, is a point upon which the opinions of learned jurists are in direct conflict. I do not deem it either useful or expedient to enter upon the discussion of that question. It has been considered very elaborately and ably in the cases of Pierce v. State, 13 N. H. 536; State v. Croteau, 23 Verm. 14 ; United States v. Battiste, 2 Sumner, 240; United States v. Morris, 1 Curt. C. C. 48; and Commonwealth v. Porter, 10 Met. 263 ; and the authorities and grounds of argument, both for and against the right of the jury to decide the law as well as the fact, in criminal trials, are fully presented by those cases.

It is sufficient, in my view, upon this point, to say that, after a very full argument and deliberate consideration of that ques *238 tion, which was supposed to be involved in the question raised by the bill of exceptions, in Commonwealth v. Porter, 10 Met. 263 , this court then came to the opinion that the jury were to receive the law from the court, and to conform their judgment and decision to the instructions of the court in matter of law.

The question there arose, it is to • be remembered, as a question entirely unaffected by any statute of Massachusetts, authorizing the jury “ to decide at their discretion, by a general verdict, both the fact and the law involved in the issue.” It was wholly a question of the right of jurors under the common law, as administered in this commonwealth. This court however, while they adopted the doctrine already stated, that the jury were to receive the law from the court, also as distinctly held that it was the right of the counsel of the defendant to address the jury upon questions of law embraced in the issue ; such practice, as was said in the opinion of the court pronounced, in that case, being 11 warranted by the long practice of the courts in this commonwealth in criminal cases.” 10 Met. 287 . This latter ruling has sometimes been considered by other judicial tribunals, and those having occasion to discuss the more general question, as not being in entire harmony with the other ruling in Porter’s case, declaring that the jury had not the right to decide both the law and fact, but were bound to adopt the instructions of the court in matters of law. That decision upon this controverted question of the rights of jurors, thus pronounced by our highest judicial tribunal, is to govern the present case, unless some new enactment, emanating from the legislative authority, requires us to modify that opinion.

This brings us directly to the inquiry, has there been any change in the law in this respect since that opinion was pronounced ? Those, who maintain the right of the jury to decide both the fact and the law involved in the issue in criminal cases, insist that the St. of 1855, c. 152, has conferred that right upon the jury, either as a new enactment, or as a declaratory act, declaring what the common law is and has been upon that subject. On the other side, it is contended, that this statute, properly construed, has no such effect in enlarging the powers of *239 jurors to decide both law and fact; and that its only object was to secure, more effectually and fully, the right of a jury, at their election, to return a general verdict, or a special one, but with no greater powers than before, as to deciding the law involved in the issue.

This statute is therefore to- be construed; and the question is not whether the provisions of the act are as plain and direct as would be desirable in an act “ concerning the duties and rights of jurors,” as this act is entitled, but whether, giving proper effect to its language, and construing it by the same rules by which other statutes are to be construed, it was not the purpose and effect of the act essentially to modify and change the law as declared by this court in Porter’s case.

Legislation is usually resorted to, not to reaffirm existing laws or decisions of the court, but to correct some supposed defect or omission in former statutes, or to introduce some change in the law as administered and declared by the court. In our elementary books we have as rules given us for construing statutes : 1. To see what the old law was; 2. What was the mischief complained of?

If it be true that the only purpose of the St. of 1855, c. 152, was to confer upon the jury the right to return, at their election, a general or special verdict, then there was no occasion for this statute. This right, on the pari? of the jury, to return a general verdict of guilty or not guilty, or a special verdict, finding merely the facts, and submitting the question of law to the court, has immemorially. existed, has been always practised upon, and has never been questioned by any court in Massachusetts. There was, upon this construction of the statute, no defect in the old law ; and no mischief complained of, which called for any remedial statute. On the other hand, we cannot shut our eyes to the fact, that there had been recently promulgated the decision of this court in Porter’s case, already referred to; and that, to a certain extent, there was an opinion in the community, adverse to that decision. Those entertaining such views of course thought the existing laws defective, and the mischief com* nlained of by such persons was that the jurors were not allowed, *240 in criminal cases, to have the right to take the final responsibility of deciding upon the law, as well as the facts, by their verdict. This state of things may have led to the enactment of a new statute changing the law; and the further inquiry is, whether the language of the statute indicates such purpose.

I find the language of it to be thus: “ It shall be the duty of the jury, after having received the instructions of the court, to decide, at their discretion, by a general verdict, both the fact and the law involved in the issue, or to find a special verdict at their election.” It is time this power, thus conferred upon the jury, is surrounded with many other provisions, intended as checks or preventives of those evils which might naturally arise from placing in the hands of the jury the power to decide both the law and fact in criminal cases. But those other provisions more fully confirm me in my views of the intention of the framers of the statute to give the jury the right to decide both the law and the fact involved in the issue, if they elect so to do. If this statute confers no right upon jurors beyond that of authorizing the jury to return a general or special verdict, at their election, why the provision in this statute, “ it shall be the duty of the jury to try, according to established forms and principles of law, all causes which shall be committed to them ” ? Why the enactment as to “ the duty of the court to superintend the course of the trials, to decide upon the admission and rejection of evidence, and upon all questions of law raised during the trials, and also to charge the jury and to allow bills of exception,” and their authority to “ grant a new trial in .cases of conviction”? All these provisions were uncalled for, unless required by something in the statute, enlarging the powers and rights of the jury. These were duties required by the then existing laws, duties always conceded and exercised. Their introduction into this statute can only be accounted for upon the hypothesis, that there had been some new power conferred upon the jury, and that it was necessary to guard this new power by throwing around it all the security for its proper discharge that could result from such other provisions.

If the statute had simply declared, that the jury might decide *241 both the law and the facts in the case, in criminal trials, it might be supposed that the court would assume that they had no duty devolving on them to charge the jury in matter of law, or to decide any questions of law arising in the progress of the trial. Hence the necessity of the provisions that the court should, as heretofore, direct the course of the trial, and decide upon all questions of law raised at the trial; and that the court should charge the jury, that thereby the jury might be informed from the court what the law was, as held by the court; thus leaving the jury to act not without light, and the full benefit of the knowledge and learning of the judicial mind, and under all the responsibility that would attach from deciding the law contrary to the instructions of the court. So also as to the provision in this statute, that the court may set aside the verdict and grant a new trial in cases of conviction ; this was a power well known to exist by force of previous statutes, and totally unnecessary to be here introduced if there had been no change enlarging the duties and rights of jurors. It could have been reasserted here only to remove all doubts upon the point, that, by conferring the right upon the jury to decide the law and the fact by their verdict, the legislature did not mean to deprive the party on trial of the long enjoyed right, to apply to this court to grant a new trial, when the verdict was, in the view of the court, contrary to law or the evidence. It is to be remembered that the same form of expression is adopted in reference to the action of the jury as to that of the court. The court are “ to decide ” upon the admission of evidence. The jury are “to decide,” at their discretion, by a general verdict, both the fact and the law involved in the issue.

If it be said that the St. of 1855, c. 152, is a mere revival ot St. 1807, c. 140, § 15, one answer to this suggestion may be, that while there is much similarity in the two enactments, yet there are many additional provisions introduced into the act of 1855, which strengthen very much the belief that this act was intended to introduce material changes in the subject of trial by jury. But if the leading provisions in each are similar, it should not perhaps change our views of the construction to be given *242 to the act of 1855. During the period of the existence of St. 1807, c. 140, which was until the 1st of May 1836, no question, so far as we know, was ever raised as to its construction, and no suggestion is known to have fallen from the bench, that its effect was not to give to the jury the rights now claimed for them in criminal trials. The opinion of this court, pronounced in 1830 by Putnam, J., in Commonwealth v. Knapp, 10 Pick. 496 , is often referred to by those who maintain the right of the jury to decide the law .in criminal cases, as conceding this right* However that may be, certainly nothing to the contrary was judicially declared during the existence of the St. of 1807, c. 140.

As it seems to me, the proper construction to be given to the St. of 1855, c. 152, is that, under its provisions, the jury may, by a general verdict, decide both the fact and the law involved in the issue. They are in the first instance to be instructed by the court fully in matter of law appertaining to the case. The organ selected to discharge this important duty is the judge, who, from his professional experience, long practice, and familiarity with this class of duties, is supposed to be a competent expounder of the law. His judicial rulings and instructions would usually be the sole guide of an honest juror in passing upon the case committed to him; but the statute has seen fit to clothe the juror with the power and the right, after he shall have repaired to the jury room, by a general verdict to decide both the law and the fact. But the jury are to try the case “ according to established principles of law.” They have no right to contravene the established principles of law.

The provision in the statute seems practically to be no more than this, that if the juror knows that the law has not been correctly stated from the bench, he may act upon such knowledge, and return a verdict in conformity thereto. In so doing he assumes a great responsibility, but that must rest with the conscience of the juror. In the language of Putnam, J., in delivering the opinion of this court in the case of Commonwealth v Knapp , it may be truly said, “ the instructions of the court, in matters of law, may safely guide the consciences of the jury, *243 unless they know them to be wrong; and when the jury undertake to decide the law in opposition to the advice of the court, they assume a high responsibility.” 10 Pick. 496 .

This construction of the St. of 1855, c. 152, is decisive of the present case, unless the statute is set aside as an unconstitutional enactment. This opens the further inquiry, Is this statute, if thus construed, in contravention of the Constitution of Massachusetts ? If this be so, if in passing this statute the legislature have obviously transcended the powers conferred on the legislative department, it is the duty of the court to regard it as entirely nugatory, and to give it no effect.

Proper respect for a coordinate branch of the government should however lead us to assume that they have acted within the limits of their constitutional authority, until the contrary shall be clearly made apparent. It must be shown affirmatively that the statute in question contravenes some constitutional provision. If that is doubtful merely, our duty is to give effect to the law thus enacted by a coordinate branch of the government. These are familiar principles, always acknowledged, and often stated.

By the organic law of the Commonwealth the whole lawmaking power of the State is committed to the legislature, subject only to such restrictions as are expressed or implied therein. This authority is very broad and general. By c. 1, § 1, art. 4, full power is given “ to make all manner of wholesome and reasonable laws, so that the same be not repugnant or contrary to this constitution, as they shall judge to be for the good and welfare of this commonwealth, and for the government thereof,” This delegation of power is certainly ample authority for enacting the St. of 1855, c. 152, unless there be some prohibition or limitation in this respect, found in other parts of the Constitution. That must be shown' by those who deny such authority. There is no express provision forbidding the legislature to enlarge the powers of juries in the trial of criminal cases. The only supposed prohibition is that arising by implication from other provisions in the Constitution, alleged to be inconsistent with such exercise of legislative authority.

*244 ■ Our next inquiry is therefore what are these other provisions, supposed to be so far inconsistent with it as to operate as limitations and restraints upon the legislative power in this respect ? Those relied upon are the following: The second paragraph of the preamble to the Constitution of Massachusetts, wherein it is declared that it is the duty of the people, in framing a constitution of government, to provide for an impartial interpretation and faithful execution of the laws ; Art. 10 of the Declaration of Rights. “ Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty and property, according to standing laws ; ” Art. 11. “ Every subject ought to find a certain remedy, by having recourse to the laws, for all injuries he may receive in his person, property or character; ” Art. 29. “ It is essential that there be an impartial interpretation of the laws and administration of justice,” and “ it is the right of every citizen to be tried by judges as free, impartial and independent as the lot of humanity will admit; ” and Art. 30, providing for the separation of the executive, judicial and legislative departments, “ to the end it may be a government of laws and not of men.” These principles are declared in the Constitution for the purpose of giving greater security to the subject’s life, liberty and property. A new statute cannot be held to contravene any of these principles, unless it be found to interfere with the full enjoyment of the rights thus declared.

What would be the effect of a statute making the jury in the first instance the expounders of the law applicable to the case on trial, and restricting the court from ruling in matter of law, and upon the competency of evidence, and from granting new trials where the jury find a verdict against the party on trial, contrary to the views of the court, is not the present inquiry. The St. of 1855, c. 152, has not these elements. The law is to be stated by the court. The inquiry is therefore merely whether this statute, with all its collateral provisions, requiring the jury to try the case “ according to the established principles of law,” and requiring “ the court to superintend the course of the trials, to decide upon the admission and rejection of evidence, and upon all questions of law raised during the *245 trials, and to charge the jury and to allow bills of exception, and authorizing them to grant a new trial in case of conviction, is unconstitutional, because in violation of the articles above stated, and not affording to the party on trial the full enjoyment of his constitutional rights.

The only effect of this statute is to deal more liberally with the party on trial, and grant him greater privileges than he had before. It gives full force and effect to a verdict of acquittal by the jury, however erroneous it may be. It allows the jury to decide both the law and the fact involved in the issue, and thus enables them to render a verdict of acquittal against the instructions of the court, if they will take the responsibility so to do. In case a verdict of guilty is returned by the jury, the prisoner has every provision in his favor that existed before the passage of the statute : first, by the court being required to perform the duties above stated during the progress of the trial; secondly, by the full power given to the court, in case the jury return a verdict of guilty, to grant a new trial.

If it be said that it is impossible for the court to know upon what grounds the jury may have found a verdict of guilty, and therefore they cannot know but that the jury may have conformed to the opinion of the court in matter of law, and found the party guilty upon the evidence under such instructions, when in fact the jury disregarded the instructions of the court, and found the party guilty without the proper proof, it may be said, in reply, that although theoretically this may be so, yet it can hardly be possible that an intelligent judge, conversant with the trial and the questions in issue, will not easily understand whether the rulings of the court were disregarded by the jury. But if it be otherwise, the power of the court to set aside a verdict of guilty is not confined to cases where the jury may have disregarded the instructions of the court. They are to set aside the verdict as well where it is against the evidence, or without evidence, as where the jury have erred in matter of law. The whole case is before the court—the facts, and the questions of law applicable to them ; and if the case, for any reason, be it error in construing the law, or in weighing the *246 testimony, does not authorize a conviction, the court have full power to set aside the verdict.

The effect of the statute in question is, in my opinion, to -increase the facilities for an acquittal of the accused, but it has no tendency to subject the party on trial to any increased danger of conviction and punishment. I see in it no violation of either of those parts of the Constitution to which we are referred. The party is tried “ by standing laws.” In the language of art. 12 of the Declaration of Rights, he is not “ deprived of his life, liberty or estate, but by the judgment of his peers, or the law of the land.” His judges are, as much as before, “ as free, impartial and independent as the lot of humanity will admit; ” and the government is, as before, in the administration of the criminal law, in the language of arts. 29 and 30, “ a government of laws and not of men,” and there is the like “ impartial interpretation of the laws and administration of justice.”

The objection to this statute, if any exists, is not that the party on trial has not fully secured to him all the protection of his rights guarantied by the Constitution. It is the public who are most likely to suffer from the change made by the law, in the increased facilities to the accused to escape from conviction. But such legislation, however unwise, is not therefore unconstitutional. Lax criminal laws, furnishing facilities for the escape of the guilty from punishment, however censurable as proceeding from want of wise forecast in legislators, may be yet valid laws, and to be regarded and acted upon in courts of justice.

How far, and to what extent, it is competent for the legislature to legislate on the subject of jurors, it may be difficult to say with precision; and certainly it would be a much more embarrassing question if the statute were in derogation of the rights of the jury, as they existed at the time of the adoption of the Constitution. But as no suggestion is or can be made, that this statute is in derogation of the rights of jurors, or of trial “ by his peers,” the constitutional objections to this statute must be found exclusively elsewhere than in those provisions securing the right of trial by jury.

• The rights, powers and duties of the jury, as connected with *247 the administration of justice, have been the subject of great changes. At one time, it was a tribunal composed of none other than witnesses, and persons who, from their own knowledge, decided the case; and so far was this rule carried, that those who were returned as jurors, and alleged that they had no such knowledge, were declared incompetent, and their places filled by others who had this qualification.

By our colony laws it was enacted, that “whensoever any juror or jurors are not clear in their judgments or conscience, concerning any case wherein they are to give their verdict, they shall have liberty in open court (but not otherwise) to advise with any man they think fit to resolve or direct them before they give in their verdict.” Another provision of the same statute bears upon the rights of jurors at that time, and may be . thought perhaps to favor the position that there was a period in the history of Massachusetts when the jury dealt with the law ; it being enacted, “ that in all cases wherein the law is so obscure, so as the jury cannot be satisfied therein, they have liberty to present a special verdict, namely, if the law be so in such a point, we find for the plaintiff, but if the law be otherwise, we , find for the defendant; in which case the determination doth properly belong to the court.” Anc. Chart. 145.

In England, it has been thought a proper exercise of legislative power to secure more fully the rights of the jury in libel cases, as was done by St. 32 G. 3, c. 60, after the decision of Lord Mansfield in the celebrated gase of the Dean of St. Asaph, 3 T. R. 428 note. It is true that there no questions of constitutional restrictions could arise, and nothing further is to be inferred from the passage of that act than that it was deemed a legislative, rather than a judicial matter, to prescribe the rights and duty of jurors in criminal prosecutions for libels. The legislation of the State of New York in 1805 is more to the point. There the legislature, after the decision of the court in the case of People v. Croswell, 3 Johns. Cas. 337 , on an indictment for a libel, declared the jury in libel cases to have certain rights, which had been denied by the court as existing at common law. In consequence of that statute, the court unani *248 mously ordered a new trial in CroswelVs case. 3 Johns. Cas. 413 . And I am not aware that any question was ever made as to the authority of the legislature to enact it.

Our statute of 1807, c. 140, if it gave no other or greater power to juries, certainly gave them the right to give a general or special verdict, at their election. The same statute also materially abridged the power of the court in reference to the jury, by depriving the court of the right, in civil cases, to send the jury out after a second return into court without having agreed upon a verdict.

In the case of State v. Croteau, already cited, Hall, J., who pronounced the opinion of the majority of the court, holding that at common law, in criminal cases, the jury were judges of the law and fact, distinctly conceded that this was a subject of legislation, saying: “ If the legislature desire that jurors should hereafter take the law in criminal trials from the court, they can readily say so, and prescribe a mode for carrying their will into effect.” 23 Verm. 47 .

For the greater public security, or, in the language of the Constitution, “ for the good and welfare of the Commonwealth,” our legislature have, by statute, required the court, in capital trials, to exclude from the panel any juror who entertains such opinions upon the subject of capital punishment, as would preclude him from finding a party guilty of a crime punishable with death. Rev. Sts. c. 137, § 6. And as early as St. 1784, c. 7, and by all the legislation since, jurors have been excluded from the panel who had formed an opinion, or had any bias or prejudice in the case. Rev. Sts. c. 95, § 27.

We suppose no one would question the right of the legislature to provide by law for special or struck juries, in certain difficult or peculiar cases, where such juries would be useful, though no such practice now exists. Or, to take the case of foreigners, it would be competent to provide by statute that, on such trials, a jury de medietate Ungum should be empanelled, although neither the St. of 28 Edw. 3 , c. 13, nor any similar provision on the subject, was adopted and practised upon here before the time of the adoption of our Constitution.

*249 It certainly is not to be assumed that a statute is in violation of the Constitution, because it is one affecting the administration of justice, or trials in courts of law. The legislative department has, from time to time, changed materially the powers of this court, by prescribing their jurisdiction; assigning one class of duties to a single judge, and others exclusively to the full bench; by enacting codes of practice in utter annihilation of the good learning and ancient doctrines of the bench, and prescribing new rules of evidence directly at variance with those of the common law, as held by the court. The whole system of equity jurisdiction, so deeply affecting the judicial department, and to some extent certainly removing from the jury questions properly within their province in trials at common law, is the creation of statute law. Such acts of legislation have not been considered any violation of the fundamental provision, that the judicial and legislative departments are to be kept distinct. The legislative power enacts the laws, the judicial interprets those laws, and administers them.

Having ascertained the legislative will, thus conveyed through their acts of legislation, it is the duty of the judiciary to give effect to it, unless plainly in violation of some constitutional provision. The rules that are to govern us in the discharge of that most delicate part of our official duties have been already suggested. Our respect for a coordinate branch of the government, acting under the like solemn obligation of duty as ourselves, requires us to assume their acts to be constitutional until the contrary is clearly established. After much consideration, I cannot say that my mind is satisfied that the provisions of the St. of 1855, c. 152, are in conflict with any limitations in the Constitution, express or implied. I am bound therefore to give it full effect while it remains upon the statute book.

The question has been raised in this case, whether there may not be a distinction as to the right of the jury to decide upon the meaning of a statute, and the right to decide upon its constitutionality. But the distinction is untenable; the authority given by this statute being “ to decide the fact and the law involved in the issue.” The power to decide the law necessa *250 rily includes the question of the constitutionality of the statute under which the offence is sought to be punished; for if it be unconstitutional, it is no law, and the jury are not to regard it as of any effect, whatever may be its meaning. The fact, that the right of the jury to decide upon the constitutionality of the law is thus incident to the right to decide the law and facts involved in the issue, may add strongly to the objection to this statute on the ground of expediency and propriety. The question of the constitutionality of a law is ever a grave question, and one usually calling for the highest exercise of the judicial mind. It is a question which, when once settled, should be considered as forever settled, as to all persons and all cases. Such cannot, of course, be the result of a verdict of a jury, which settles nothing but the particular case. Its whole force is spent in the case. It decides nothing beyond it, and the same question is to be raised anew at each future trial. That it deprives the administration of the criminal law of that symmetry and uniformity which seems to be required, and which might be the more readily anticipated where one law and one rule only existed for all juries, is certainly no small objection to its usefulness. But these and other considerations, tending to show the law an unwise one, are solely for the consideration of the legislature. If this statute shall be found to be adverse to the proper and effective administration of the criminal law, a constitutional remedy is at hand, in the exercise of the legislative power to repeal or modify it, not because it is unconstitutional, but because it is not “for the good and welfare of the Commonwealth.”

In conclusion, I am of opinion that it was the purpose of the act of 1855, e. 152, to give to the jury in criminal trials the right, by a general verdict, to decide both the fact and the law involved in the issue.

I am also of opinion that such an enactment, accompanied with the surrounding provisions found in this statute, as to the duties of the jury and the court, and the course of proceedings in criminal trials, is not in contravention of the Constitution of Massachusetts.

*251 Bigelow, J.

I am of opinion that, by the true construction of St. 1855, c. 152, “ concerning the duties and rights of jurors,” it was the manifest intention of the legislature to change the rule of the common law, as settled by this court in Commonwealth v. Porter, 10 Met. 263 ; and that, if it was competent for the legislature to make such alteration, the language of the statute is sufficiently clear and explicit to confer on juries the right to decide questions of law involved in the issue in criminal cases, independently of and contrary to the instructions of the court. But I fully concur in the opinion expressed by the chief justice, that it was not within the constitutional authority of the legislature to confer such right on juries; and I therefore think that the statute is repugnant to the Constitution, and so inoperative and void. Upon this ground, my judgment is, that the exceptions in the case at bar, and in all other cases pending before us in which similar instructions have been given to the jury, should be sustained, and new trials ordered.

Thomas, J.

Our first duty in relation to the statute is that of interpretation. We must clearly ascertain what power this statute gives, and the limitations and conditions under which it is given, before we can proceed to the inquiry, whether it is in conflict with the Constitution. Its general object, as its title indicates, is to define the duties and rights of juries in the trial of criminal cases. In effecting this, its general purpose, it defines the duty of the jury as to the forms and rules of law by which all criminal cases are to be tried : the power and duty of the jury in the determination of the general issue; and the power and duty of the court.

In all trials for criminal offences, it is declared to be the “ duty of the jury to try, according to established forms and principles cf law, all causes which shall be committed to them.” To the forms of procedure, to the rules of law regulating the conduct and course of the trial, what may be called the law of the trial, it is made the duty of the jury, in all cases, to adhere ; a duty existing before the statute, and obviously recited in it to exclude the conclusion that, in defining the power and duty of the jury in the determination of the issue of guilty or not guilty, any *252 new power or right was given, expressly or by implication, as to the forms of procedure or the law of the trial.

Upon the question, who is to decide what are the forms and rules of law by which the trial is to be governed, no doubt can exist. The power was clearly in the court before the statute. The constitution of the jury is such as to render the discharge of the duty by them impracticable. They have no time or opportunity for deliberation, until the cause is finally committed to

them. If they had such opportunity, a difference of opinion upon any incidental matter of the trial would at once arrest its course. By the express provision of the statute, the court are to superintend the course of the trial, and to decide upon all questions of law raised during its progress. Under the statute,

then, the forms of procedure and the law of the trial are with the court. In relation to these, the opinion of the presiding judge,- subject to the revision of the court of last resort, is conclusive.

But the duty of the jury, to try all cases according to established principles of law, is not limited to the law of the trial, but extends as well to the law involved in the issue. The statute as clearly makes it the duty of the jury to adhere to established principles of law in the one case as in the other. Neither judges nor jury can substitute their discretion for the rules of law. The difference which the statute makes is, that, as to the law regulating the form and conduct of the trial, the opinion of the court is conclusive. In relation to the law involved in the issue, it is not.

The statute, having declared the duty of the jury to try all causes committed to them according to established rules of law, proceeds to define their duty in the determination of the issue. “Duty” is the only word used, a word which includes both power and right. What it is a man’s duty to do, he has the rightful power to do. That duty is thus stated: “ After having received the instructions of the court, to decide, at their discretion, by a general verdict, both the law and the fact involved in the issue, or to find a special verdict, at their election.” That is to say, the duty of the jury is to do one of two things ; *253 to decide both the fact and the law involved in the issue, or to find the facts specially, and leave the law to the decision of the court. If they do not choose to do the latter, it is their “ duty ” “ to decide, by a general verdict, both the fact and the law involved in the issue.” Of the meaning of these words 1 can have no doubt. “ To decide ” includes the power and right to deliberate, to weigh the reasons for and against, to see which preponderate, and to be governed by that preponderance. “ By a general verdict.” That verdict, the issue of which it is the result, the question to which it is an answer, is twofold: Is there such a rule of law as that which the defendant is charged with violating ? Does the evidence establish the fact of such violation by the defendant ? To decide the issue by a general verdict necessarily implies the power to decide all that is included in that issue, and it always includes a question of law and a question of fact. But that nothing may be left to implication, however clear, or inference, however sound, it is, in express terms, made the duty of the jury “ to decide both the fact and the law.” Nor can it escape observation that the same word, “ decide,” is used as to the determination of the law by the jury and by the court. The duty of the jury is “ to decide by a general verdict both the fact and the law involved in the issue; ” the duty of the court “ to decide upon the admission and rejection of evidence.” I can see no good reason for saying that, in the same clause of the statute, and upon the same subject matter, the legislature have used the word to express wholly different ideas; that, when used as to the court, it means to deliberate, to weigh the reasons for and against, and to determine; and, when used as to the jury, it means to follow implicitly the judgment and discretion of another. “ A man,” says Chief Justice Vaughan, in BushelVs case, “ cannot see by another’s eye, nor hear by another’s ear; no more can a man conclude or infer the thing to be resolved by another’s understanding or reasoning.” Vaugh. 148.

Looking then to the statute itself, giving to its words their usual, not to say obvious meaning, it seems to me plain the statute was intended to modify the rule stated in Common *254 wealth v. Porter, 10 Met. 263 , and, under the limitations hereafter expressed, to give to the jury, in criminal causes, the “ rightful ” power to decide the law and the fact involved in the issue.

I use the word “ rightful,” in deference to the opinion of others, and to guard against mistake; never having been able myself to understand what is meant by the existence of a civil power, of which there never could be a rightful use.

The well known history of the act confirms this construction. And it is the settled usage of this court to refer to the history of legislation, to aid in its interpretation, to inquire as to the previous legislation or judicial decisions upon the same subject matter, the law as it existed before the passage of the statute, and the occasion, if any there was, for new legislation. If the statute was not intended to change or modify, in any respect, the rule settled in Commonwealth v. Porter, its enactment was but the idlest of ceremonies. Nay more, its only possible effect was to increase the difficulties in which the subject was already sufficiently involved. If, on the other hand, the object of the statute was to modify the rule, as laid down in that decision., the reason for the act becomes obvious, and its passage is found to be in conformity to a well settled practice of the general court. To say that its only purpose was to declare that the jury might return a general or special verdict, is to find in it no purpose whatever; for this right was never questioned in this commonwealth. I cannot therefore doubt the intent of the legislature in passing this act, or that their intent has been fully expressed in the language they have used.

But before we can proceed to consider the validity of this statute, the question of its conflict with the Constitution, we must carefully ascertain the conditions and limitations under wnich this power given to the jury exists and is to be used. Such an examination will show that the exercise of this power has been carefully guarded and limited, and that, presuming, as we are bound to do, and as experience justifies us in doing, that juries, as well as judges, will do their duty and be bound by their oaths, the anticipation of disastrous results from the statute, rests on no solid foundation.

*255 The power has existed in the jury from its first institution. It has been but sparingly used, in the main wisely and justly used. And in the light of history it may be fairly said, that in the cases (as of constructive treason, sedition and libel) in which the jury have departed from the instructions of the judge, the principle involved in the dissent of the jury has finally become the rale of the court.

The first of the limitations upon the power of the jury has already been adverted to. It is found in the provision which makes it the duty of the jury to try all cases by the established forms and principles of law; that is, by the “ standing laws.” The inquiry of the jury is not what is wise or expedient, not what should be, but what is the law. There is no room for individual discretion, speculation or caprice. The juror is to adhere to the law with the same fidelity as the magistrate upon the bench. He, as well as the judge, is the servant of the law he is set to administer.

Other careful limitations of this power are found in the provisions prescribing the duty of the court in criminal trials. The court are to superintend the course of the trials, and to decide upon the admission and rejection of evidence. The judgment of the court upon such admission or rejection is conclusive. Evidence offered, but excluded, can have no weight with the jury, is not the subject of consideration. Evidence admitted by the court is to have, if credible, its full weight and force, whatever the jury may think of its competency. Irrelevant and distracting matter is thus shut out from the cause, and the attention of the jury confined to the matters legally in issue. It is scarcely necessary to remark, that he who regulates the admission of the evidence sees the result and leads the way to it; that the conclusion will ordinarily follow from the proof, with a force which the honest understanding cannot resist; that upon the admission or rejection of a single piece of testimony the result of the cause will often depend.

The court are also to decide upon all questions of law raised during the trial, that is, upon all questions of law arising before and not making part of the issue. To extend the decision of *256 the court to all questions suggested or discussed during the trial, though involved in and making part of the issue, would bring the provisions of the statute directly in conflict, by giving to the two departments of the tribunal the power of decision upon one and the same question. But we are to adopt, upon the familiar rules of interpretation, that construction which makes the statute sensible and consistent with itself; and by “questions of law raised during the trial” we must understand questions which have reached the condition for decision during the trial, and before the cause is finally given to the jury in the charge of the court. The distinction in the statute is substantially that made by this court in the case of Commonwealth v. Knapp, 10 Pick. 477 , where the court say: “ Although the jury have the power, and it is their duty, to decide all points of law which are involved in the general question of the guilt or innocence of the prisoner, yet when questions of law arise in the arraignment of the prisoner, or in the progress of the trial, in relation to the admissibility of testimony, they must be decided by the court, and may not afterwards be reviewed by the jury.”

In the power of the court to charge the jury, and allow bills of exception, exists, so far as the rights of the accused are concerned, another limitation upon the power of the jury. By the charge to the jury is meant the stating to them the opinion of the court upon the matters of law involved in the issue. The law presumes that the instructions of the judge will usually be regarded by the jury as the most satisfactory evidence of the law. It therefore permits the defendant to except to the charge, if it be adverse to him.

A further limitation of the right of the jury is found in the power of the court to grant new trials in cases of conviction. The judge is not only to give instructions to the jury upon matters of law; but if upon the whole case he sees the jury may have erred in matter of law against the prisoner, he is to set aside the verdict.

It may be said, that it will be impossible for the judge to say whether the error of the jury was in their judgment as to the facts, or as to the law. The objection is specious, but it is not *257 sound. In the first place, if the error be plain, even in matter of fact, the defendant should have a new trial. In the second place, an intelligent judge, familiar with his duties, watching carefully and at every stage the progress of the cause, can form a safe judgment whether, by a just application of the rules of law to the facts which the evidence, if believed, tends to prove, a verdict of conviction is a just result. If the judge sees the facts which the evidence tends to prove would not, in law, warrant a conviction, he should direct a verdict for the accused. If he reaches the same conclusion after a verdict of conviction has been rendered, he should set the verdict aside. If he is in doubt, he will, upon exceptions or report, reserve the question for this co

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