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generally, as put in their charge. An extended examination of the rights of juries would have been foreign to the particular matter in hand, and it was necessary for him merely to state the effect of a general verdict relative to estates upon condition. Littleton's treatise was written in the reign of Edward IV., between the years 1461 and 1483, and his remark is nothing more than a cursory statement of 15 the provision of the Statutes of Westminster, 2. It is plain from Lord Coke's Commentary, that he did not understand Littleton as laying down the limits of the duties of jurors, or meaning to go any further than to allude to this statute. Coke says: 'Although the juries, if they will take upon them (as Littleton here saith) the knowledge of the law, may give a general verdict, yet it is dangerous for them so to do, for if they doe mistake the law, they runne into the danger of an attaint': Co. Litt. 228 a. This by no means admits, but substantially denies, the right of juries to decide the law. If they may settle the law, their conclusion is the law, and they cannot runne into the danger of attaint.'”

We do not think the authorities support the decision in State v. Croteau, 23 Vt. 14; 54 Am. Dec. 90.

In State v. Croteau, after citing several early English cases in which jurors had been fined or imprisoned for disregarding the instructions of the judges as to the law, the court cite Bushell's Case, Vaughn, 135 (6 State Trials, 999), as the final vindication of the claim that jurors, at common law, are judges of the law in criminal cases. This was not the ground of the decision in that case. That case arose in this way: William Penn and William Mead were tried together at the Old Bailey before a court of oyer and terminer, for a breach of the peace in being concerned in a tumultuous and unlawful assembly. The proof tended to show that two or three hundred persons had quietly and peaceably met in Grace street, London, and listened to the preaching of Penn. Penn contended that there had been no breach of the peace. The court charged against the prisoners, but disregarding the charge, the jury returned a verdict of not guilty. The court thereupon fined them forty marks each, and committed them to Newgate. Bushell, one of the jurors, brought his writ of habeas corpus to the court of common pleas. The return upon the writ was that Bushell, being one of the jury, nad acquitted Penn and 16 Mead against evidence, and " that the jury did acquit against the direction of the court

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in matter of law.” The court put its decision upon the narrow, though, for the case, conclusive, ground, that the general issue, embracing fact as well as law, it can never be proved that the jury believed the testimony on which the fact depended, and in reference to which the direction was given, and so they cannot be shown to be guilty of any legal misdemeanor in returning a verdict, though apparently against the direction of the court in matter of law. The relator was accordingly discharged, and it has been the settled law from that day to this in England and this country that jurors cannot be called to account for their verdict. This, however, is far from saying that it is their legal province to override the law laid down by the court, and to declare it for themselves.

We think such a rule contrary to the fundamental maxims of the common law, and to adjudged cases in England and the uniform practice of its highest courts.

In his able work on Trial by Jury, Mr. Forsyth says: “It was early provided that the jury should not entangle themselves with questions of law, but confine themselves simply and exclusively to facts. This rule was afterwards expressed by the well-known maxim called 'that decantatum in our books,' 'ad quæstionem facti non respondent judices, ad quæstionem juris non respondent juratores '-it is the office of the judge to instruct the jury in points of law-of the jury to decide on matters of fact: Broom's Legal Maxims, 6th Am. ed., 80. “An invaluable principle of jurisprudence, which more than anything else has upheld the character and maintained the efficiency of English juries as tribunals for the judicial investigation of truth": Forsyth's Jury Trials, Morgan's ed., 216. In further discussing the claims of some writers that “the jury are entitled in all cases, where no special pleas have been put on the record, to give a general verdict according to their own views of the law, in 17 criminal as well as civil cases,” he says (pp. 217-219): “But it is impossible to uphold the doctrine. It is founded on a confusion between the ideas of power and right. . . . . Although juries have undoubtedly the power in such cases to take the law into their own hands, and so, it may be, defeat the ends of justice, or do what they believe to be substantially justice, they do so at a sacrifice of conscience and duty. The law cannot depend upon a verdict of a jury, whose office is simply to find the truth of disputed facts; and yet such must be the result if they may decide contrary to wbat the judge, the


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authorized expounder of the law, lays down for their guidance. This would introduce the most miserable uncertainty as to our rights and liberties, the misera servitus of vagum jus, and be the most fatal blow that could be struck at the existe ence of trial by jury. Can it for a moment be contended that twelve men in a jury-box are to determine that not to be an offense which the law, under a penalty, forbids? May they pronounce that to be manslaughter or justifiable homicide which the law declares to be murder? If so, then they may by their verdict abrogate, by rendering ineffective every enactment of the legislature, and they become a court of appeal from the solemn decision of parliament and the crown. That they can do so is not disputed, but so can the judges give judgments contrary to law, if they choose to disregard their oaths and yield to the influence of corrupt motives. In both cases the law presumes that men will act according to their duties.

“Indeed, it is difficult to understand how anyone acquainted with the principles and settled practice of the English law, can assert that it sanctions the doctrine which is here combated."

Mr. Forsyth, after showing that juries became unpopular and fell into disuse in Scandinavia and Germany, for the reason that they there were invested with the whole judicial power, the right to determine the law as well as the fact, Bays 18 (pages 9, 10): “Far otherwise has been the case in England. Here the jury never usurped the functions of the judge. They were originally called to aid the court with information upon questions of fact, in order that the law might be properly applied; and this has continued to be their prope ince to the present day. The utility of such an office is felt in the most refined, as well in tbe simplest, state of jurisprudence. . . . . Hence it is that the English jury flourishes still in all its pristine vigor, while what are improperly called the old juries of the continent have either sunk into decay or been totally abolished."

In Townsend's Case, 1 Plow. 111, decided about A. D. 1554, the jury undertook to decide a point of law as to a reinitter, and the finding was held void, because it was not the duty of the jury to judge what the law is. The case of Willion v. Berkley, 1 Plow. 223, is express upon the same point. The court there said: “At the beginning of our law it was ordained that matters of fact should be tried by twelve men of the country

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where the matter arises, and matters of law by twelve judges of the law, for which purpose there were six judges here and six in the king's bench, who, upon matters of law, used to assemble, together in a certain place, in order to discuss what the law was therein, so that if a traverse should be here taken, it would be to make twelve ignorant men of the country try that whereof they are not judges, and which does not belong to them to try.” The case of Grendon v. Bishop of Lincoln, 2 Plow. 493, is also to the same effect.

In 1649 John Lilburne was tried for treason. At his trial he retorted upon the judges by saying: “You that call yourselves judges of the law are no more but Norman intruders; and in deed and in truth, if the jury please, are no more but cyphers to pronounce their verdict," a doctrine which caused Jermin, J., to exclaim, “Was there ever such a damnable, blasphemous heresy as this is, to call the judges of the law 19

cyphers?” The jury were instructed that they were not judges of the law, and that they "ought to take notice of it, that the judges, who are twelve in number, and who are sworn, have ever been the judges of the law, from the first time that we can ever read or hear that the law was truly ex. pressed in England, and the jury only judges of matter of fact”: 2 Hargrave's State Trials, 19, 70; Forsyth's Trial by Jury, 220.

In Algernon Sidney's Care, 3 Harg. St. Tr. 818, tried in 1683, and in Rex v. Oneby, 2 Strange, 766, tried in 1727, the jury were instructed to the same effect.

In King v. Poole, Hardw. 28, determined in 1734, and which was a criminal information in the nature of a quo war. ranto to try the validity of an election to a corporate office, and which had been submitted to a jury, a motion was made to set aside the verdict as against law. In passing upon this motion Lord Hardwicke said: “The thing that governs greatly in this determination is that points of law are not to be determined by juries; juries have a power by law to determine matters of fact only; and it is of the greatest consequence to the law of England, and to the subject, that these powers of the judge and jury are kept distinct; that the judge determine 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 case of Rex v. Dean of St. Asaph, 3 Term Rep. 428, noto 8, was determined in 1784, and was an indictment for libel.

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Mr. Erskine defended him, and insisted that the jury had the right to pass upon the whole issue, including the law as well as the fact. But Buller, J., instructed the jury that the judges were appointed to decide the law, the jury to decide the fact, and that whether the publication charged in the indictment was a libel or not was merely a question of law, with which the jury had nothing to do: 1 Erskine's Speeches, ed. 1870), 132. Erskine moved for a new trial on the ground of misdi. rection, 20 and in support of the motion is said to have made one of the most captivating arguments ever listened to in Westminster Hall. But the judges unanimously sustained the ruling of the court below. In delivering his opinion in this case, Lord Mansfield, who had been chief justice of the king's bench for twenty-eight years, said: “The fundamental definition of trial by jury depends upon a universal maxim that is without an exception. Though a definition or maxim without an exception, it is said, is hardly to be found, yet this I take to be a maxim without an exception: Ad quæztionem juris non respondent juratores; ad quæstionem facti non respondent judices.

“Where a question can be severed by the form of pleading, the distinction is preserved upon the face of the record, and the jury cannot encroach upon the jurisdiction of the court; when, by the form of the pleading, the two questions are blended together and cannot be separated upon the face of the record, the distinction is preserved by the honesty of the jury. The constitution trusts that under the direction of a judge they will not usurp a jurisdiction which is not in their province. They do not know, and are not presumed to know, the law; they are not sworn to decide the law; they are not required to decide the law. .... But further, upon the reason of the thing and the eternal principles of justice, the jury ought not to assume the jurisdiction of the law. As I said before, they do not know, and are not presumed to know, anything of the matter. .... It is the duty of the judge, in all cases upon general issues, to tell the jury how to do right, though they have it in their power to do wrong, which is a matter between God and their own consciences.

“To be free is to live under a government of law. .... Miserable is the condition of individuals, dangerous is the condition of the state, if there is no certain law, or which is the same thing, no certain administration of law, to protect individuals or to guard the state."


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