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sity and propriety; that any departure by the jury from the law laid down by the court must be taken solely upon their own responsibility; and that the safer, and better, and fairer way, in ordinary criminal cases, is to take the law from the court, and they are always justified in doing so. This is substantially what was done by the court below, and we see no just ground of exception to the mode in which it was done.”
In State v. Haynes, 36 Vt. 667, while the rule laid down in State v. Croteau, 23 Vt. 14, 54 Am. Dec. 90, was recognized, it was held that records of former convictions, to enhance the penalty, need not be offered to the jury, as the law then stood, but might be introduced after verdict to affect the sentence only. Poland, C. J., in delivering the opinion of the court said: "To say that the defendants must have an opportunity to have this question of law submitted to the jury, so as to have the benefit of the chance of their deciding it contrary to law, seems to us a very great absurdity."
In State v. Barron, 37 Vt. 57, decided in 1864, the court said: “We think the rule is now settled in this state that in criminal cases the jury are judges of the law. It is the duty of the court, however, to instruct the jury as to the law applicable to the case on trial, and if the jury disregard the instructions or mistake the law, and render a verdict that is clearly in violation of law, the court may for that reason set aside the verdict, if the respondent is convicted.” The court thus in effect held that jurors are judges of the law to acquit, but not, in the discretion of the trial court, to convict.
In State v. Hopkins, 56 Vt. 263, decided in 1883, this court affirmed the ruling of the court below, denying to respond. ent's counsel the right and privilege of reading to the jury authorities in support of the rule of law for which he contended. In passing upon this question the court say: "It does not follow that because the jury are judges of the law, that counsel can read what they please to them. This rule, that the jury are judges of the law, does not affect the course or order of procedure of the trial in the least; it is the result of the power of the jury rather than of any abstract inherent right, and the trial should be conducted in the usual course of proceedings.”
In Stute v. Meyer, 58 Vt. 457, heard in January, 1886, and which was an indictment for murder, the court below in. structed the jury that they had the right to adopt their theory of the law instead of that of the court, with the qualification
that they must not adopt a rule of law more prejudicial to the respondent than the law laid down by the court. In paseing upon this point this court say: "The charge was clearly more favorable to the respondent than the request or the law, and he cannot complain.
“There is no qualification of the right of the jury, in criminal cause, to disregard the law, as given them by the court, and adopt their own theory; and they may, in the exercise of this power, with the same propriety, adopt a rule of law more prejudicial to the respondent as well as one less prejudicial.”
In State v. Freeman, 63 Vt. 496, heard in May, 1891, which was a complaint for profane swearing, based upon the Revised Laws, section 4254, the respondent claimed in the trial below, that it should be submitted to the jury to say, as a matter of law, whether the words used by him were profane curses or not, and it was so submitted to the jury, and they found the respondent guilty. In this court he contended that the jury made a mistake as to the law. Upon this contention the court say: "The respondent evidently was not satisfied with the judgment of the court in respect to the law, but insisted that the jury should pass upon both law and fact, and they were permitted to do so; if they judged correctly, he is not harmed, if erroneously, as it was a matter of his own seeking, he should not now be permitted 'to unravel the whole proceedings,' to be relieved from a misfortune which he has brought upon himself. If he was erroneously convicted it is only another instance of the engineer hoist with his own petard.""
The views expressed in State v. Meyer, 58 Vt. 457, and State v. Freeman, 63 Vt. 496, are in accord witb the opinion of the court delivered by Barrett, J., in State v. Clark, 37 Vt. 471, although that case cannot be considered an authority, as it was held that it was not properly before the court.
These are all the cases in this state in which the question whether jurors, in criminal cases, are judges of the law and the fact, has been passed upon, and they all substantially follow the doctrine laid down in State v. Croteau, 23 Vt. 14, 54 Am. Dec. 90, and are based upon it, with the exception of State v. Woodward, 23 Vt. 97. It will be observed, however, that in the later cases there has been a tendency to give this rule such 11 effect, even to its extreme, logical results as to
discourage and perhaps deter respondents from invoking it in their behalf.
Neither the constitution of this state nor its statutes confer, in express terms, this power upon jurors, if they possess it.
Revised Laws, section 689, provides that “so much of the common law of England as is applicable to the local situation and circumstances, and is not repugnant to the constitution or laws, shall be law in this state."
Therefore, in this state, jurors do not possess the legal right to judge of the law as well as of fact, unless jurors had such right at common law. If such right existed at common law, but is repugnant to the constitution and laws of this state, then the common law does not confer such right. In other words, to establish that jurors have such right, it must appear that it existed at common law, and that it is not repugnant to our constitution and laws.
The decisions of the courts of justice contain the most cer. tain and authoritative evidence of what the rules of the common law are: 1 Blackstone's Commentaries, 69-73; 1 Kent's Commentaries, 473. That respondents on trial have claimed jurors to be judges of the law, or that jurors in some instances have returned verdicts apparently contrary to the law as laid down by the court, affords no evidence of what the common law is on this subject.
In State v. Croteau, 23 Vt. 14, 54 Am. Dec. 90, the majority opinion does not cite a single English decision which supports the rule laid down. De Lolme on the English constitution is there cited in support of the doctrine. This work, strictly speaking, was only an essay. It has been well said that its author “must be regarded simply as a learned foreigner, and sometimes showing that want of thoroughness and precision which even a learned man may display when writing 1% on subjects which his previous education had not fitted him to appreciate, and especially when discussing such a subject as the common law of England.” He cites no authority in support of what he says in regard to jury trials in criminal cases.
The court, in State v. Croteau, also rely upon the Statutes of Westminster, 2, chapter 30, 13 Edward I. (A. D. 1285) as showing that the common law is as stated in the majority opinion. It is difficult to see how it can be said to be an au. thority for the doctrine there declared to be the common law. This statute, so far as it relates to this subject, is as follows:
“The justices assigned to take assizes shall not compel the jurors to say precisely whether it be disseisin or not, so that they do show the truth of the fact, and require aid of the justices; but if they, of their own accord, are willing to say that it is disseisin or not, their verdict shall be admitted at their own peril": 2 Coke's Institutes, 421, 422.
In commenting upon this statute, the court in Pierce v. State, 13 N. H. 536, well say: “Now in giving construction to this act, Lord Coke says that the first question was, whether in case of assize, if the issue were joined upon a collateral matter out of the point of the assize, upon this special issue, the jury might give a special verdict. And it was resolved that in all actions the jury might find the special matter of fact pertinent, and pray the direction of the court for the law: 2 Inst. 425. If any collateral matter, distinct from the general issue of nul disseisin, etc., were pleaded, then the assize was turned into a jury, instead of a separate recognition to try the fact: Glanville, lib. 13, c. 20, 21. The collateral matter was determined by the same recognition in modum jura. tor. The jury were therefore limited to the collateral matter of fact out of the point of assize. But Glanville says that the assize could not decide upon the law connected with disseisin, He states that if the demandant object to put himself upon the grand assize, he 13 must show some cause why the assize should not proceed. If the objection be admitted, the assize itself shall thereby cease, so that the matter shall be verbally pleaded and determined in court, because it is then a question of law, etc. If the assize could not determine questions of law it would be most groundless assumption to say that they could be determined by the jury, who were to find only collateral facts out of the points of assize.
“The citation from Glanville is a strong authority against the right of the jury to decide the law upon the general issue involving law and fact. The implication from the latter part of the clause cited from Statutes of Westminster, 2, is a strong argument against it. If the jury 'of their accord, are willing to say that it is disseisin or not, their verdict shall be admitted at their own peril.' But what peril could they incur if, by deciding the law, they simply exercised & right given to them by the statute? This phraseology is most singular, if the statute was intended to submit the law to them. The reasonable construction of it is, that if the jury will undertake to decide the law, they shall be subject to
such penalty as may be imposed upon them for exceeding their jurisdiction. If they should incur a penalty, the act for doing which the penalty is imposed must be illegal, for nothing is better settled than that a penalty attached to the performance of an act makes the act itself unlawful."
In his great argument in support of a motion for a new trial in the case of King v. Dean of St. Asaph, 3 Term Rep. 428, note a; 1 Erskine's Speeches (ed. 1870) 170, Lord Erskine contended that, from the words of this statute, the right of the jury to decide the law upon the general issue was vested in them by the English constitution. But notwithstanding all the learning and genius with which he sought to maintain this proposition, he does not cite a single adjudged case in support of it.
The court, in State v. Croteau, 23 Vt. 14; 54 Am. Dec. 90, also cite Littleton's Tenures, sec. 368, 14 and Coke on Littleton, 228 b, as supporting their holding. After speaking of giving a general verdict in an assize, Littleton, in section 368, says: “In such case, where the inquest may give their verdict at large, if they will take upon themselves the knowledge of the law, they may give their verdict generally, as is put in their charge: as in the case aforesaid, they may well say the lessor did not disseise the lessee, if they will."
The comments of the court in Pierce v. State, 13 N. H. 536, upon this passage from Littleton are so gound that we quote them. The court say: “Now it is to be remembered that Littleton, in the section cited, was not examining the rights or powers of juries. He was discussing matters very differ. ent. The passage was introduced in explaining the pleadings in real actions relative to estates upon condition. His remarks are, in brief, that after an estate tail is determined for default of issue, the donor may enter by force of the condition. But in the pleadings he must vouch a record, or show a writing under seal, proving the condition; but though no writing was ever made of the condition, a man may be aided upon such condition by a verdict taken at large upon an assize of novel disseisin, for as well as the jury may have conusance of the lease, they also as well may have conusance of the condition which was declared and rehearsed upon the lease, And in all actions where the justices will take the verdict at large, there the manner of the whole entry is put in issue, He then adds: “If they will take upon them the knowledge of the law upon the matter, they may give their verdict