21 We have been unable to find any English case since the Dean of St. Asaph's case holding that that case was not decided in accordance with the common law and the uniform course of decision.

The controversy in England over the question whether jurors are judges of the law originated largely from the course of procedure in prosecutions for libel. Under the law as it stood at the time of the Dean of St. Asaph's case, and for some years after, if the respondent made no attempt at justification on trial, the only questions submitted to the jury were whether the respondent was guilty of publishing the alleged libel, and whether the innuendoes were true as charged. The judges in such cases were accustomed to direct the jury to return a verdict of guilty upon proof of publication and the truth of the innuendoes, without instructing them as to whether the paper, if they so found, was or was not a libel. The question of the malicious intent charged in the indictment was not submitted to the jury. If the verdict was guilty, whether the publication was libelous, was determined by the court, and, if held to be libelous, then malicious intent was applied as a matter of law, and need not be proved. The respondent was thus put to the trouble and expense of moving in arrest of judgment, or suing out a writ of error, if he thought the publication innocent. The doctrine of implied malice, which, when applied to homicides, has been questioned by some of the ablest jurors in this country and in England, was very obnoxious to respondents when thus applied to libels. It was strenuously contended that the intent with which an alleged criminal act was done was not a question of law, but one of fact, to be determined by the jury, and that the jury should be permitted to pass upon the malicious intent in libel cases the same as in other criminal cases. After a discussion of this question in the courts and Parliament for over half a century in England it was finally settled in A. D. 1792, by statutes 32, 22 George III., chapter 60, known as "Fox's Libel Act," which provides that in prosecutions for libel the jury may give a general verdict of guilty or not guilty upon the whole matter put in issue, and they shall not be required or directed by the court to find the respondent guilty merely on proof of publication and of the truth of the innuendoes. This act further provides that on every such trial the court shall, according to their discretion, give their opinion and direction to the jury on the matter in

issue, in like manner as in other criminal cases; that nothing in the act shall prevent jurors from finding a special verdict in their discretion, as in other criminal cases, and that in case the respondent is found guilty by the jury he may move an arrest of judgment on such ground and in such manner as by law he might have done before the passage of the act.

It has been claimed that this act made jurors, at least in libel cases, judges of the law, and declared such to be the common law. But such is not the construction given to it in England. In Rex v. Burdett, 4 Barn. & Ald. 131, 6 E. C. L. Rep. 420, Best, J., says: "The judge is the judge of the law in libel as in all other cases": Regina v. Parish, 8 Car. & P. 94; 34 E. C. L. Rep. 628; Parmiter v. Coupland, 6 Mees & W. 105; Levi v. Milne, 4 Bing. 195; Forsyth's Trial by Jury (Morgan's ed.), 233.

After a careful examination of the authorities Judge Curtis, in United States v. Morris, 1 Curt. 53, says: "Considering the intense interest excited, the talent and learning employed, and consequently the careful researches made in England near the close of the last century, when the law of libel was under discussion in the courts and in Parliament, it cannot be doubted that if any decision having the least weight could have been produced in support of the general proposition that juries are judges of the law in criminal cases it would then have been brought forward. I am not aware that any such was produced. And the decision 23 of the king's bench in Rex v. Dean of St. Asaph, 3 Term Rep. 428, note, and the answers of the twelve judges to the questions propounded to them by the House of Lords, assume, as a necessary postulate, what Lord Mansfield so clearly declares in terms, that by the law of England juries cannot rightfully decide a question of law.

Passing over what was asserted by ardent partisans and eloquent counsel, it will be found that the great contest concerning what is know in history as Mr. Fox's Libel bill, was carried on upon quite a different ground by its leading friends; a ground which, while it admits that the jury are not to decide the law, denies that the libellous intent is matter of law; and asserts that it is so mixed with the fact that, under the general issue, it is for the jury to find it as fact: 34 Annual Register, p. 180; 29 Parliamentary History Debates in the House of Lords, and particularly Lord Camden's speeches. Such I understand to be the effect of that great famous de

claratory law: Statutes 32, Geo. III., c. 60. The defendant's counsel argued that this law had declared that on trials for libel the jury should be allowed to pass on law and fact, as in other criminal cases. But this is erroneous. Language somewhat like this occurs in the statute, but in quite a different connection, and, as I think, with just the opposite meaning.

The court or judge before whom such indictment or information shall be tried shall, according to their or his discretion, give their or his opinion and directions to the jury, on the matter in issue between the king and the defendant, in like manner as in other criminal cases. This seems to me to carry the clearest implication that in this and all other criminal cases the jury may be directed by the judge; and that while the object of the statute was to declare that there was other matter of fact besides publication and the innuendoes to be decided by the jury, it was not intended to interfere with the proper province of the judge, to decide all matters of law.

24 In 1 Russell on Crimes, 8th Am. ed., sec. 263, it is said: "In criminal cases the judge is to define the crime, and the jury are to find whether the party has committed that offense. This act made it the same in cases of libel, the practice having been otherwise before. It has been the course for a long time for the judge, in cases of libel, as in other cases of a criminal nature, first to give a legal definition of the offense, and then leave it to the jury to say whether the facts necessary to constitute that offense are proved to their satisfaction, and that whether the libel is the subject of a criminal prosecution or a civil action."

The old common-law oath of jurors would seem to indicate that they were not the judges of the law. By it they are sworn "a true verdict to give according to the evidence": 4 Blackstone's Commentaries, 355. This must mean that they are to decide the facts according to the evidence. If they may decide the law, they may act as to that without the obligation of an oath. The law is not given in evidence.

It has been urged that because jurors have the power, therefore they have the legal right to ignore the law as laid down by the court, and to decide it according to their own notion. This argument proves too much, and is based upon a confusion of the idea of physical power to do a thing, as distinguished from the moral and legal right to do it. A judge has

the power to render a judgment which is corrupt and contrary to law, but when he does so he goes beyond his legal right as judge, and violates his oath of office. No one claims that in civil cases jurors are judges of the law, yet they have the same power in an action of trespass or trover to return a verdict contrary to the instructions of the court as to the law, that they have in a criminal case. If the physical power to do a thing makes them judges of the law in the one case, it is not apparent why it should not have the same effect in the other, and therefore make them paramount judges of the law in all cases, civil and criminal.

25 If, at the common law, jurors are the paramount judges of the law in criminal cases, the respondent must have the legal right to have such supreme judges pass upon the law of his case when he puts himself upon his country for trial. By the common law, however, jurors in such a case may, if they so elect, return a special verdict setting forth the facts which they find, and leave it for the court to pass upon and apply the law: 4 Blackstone's Commentaries, sec. 361.

Notwithstanding the doctrine laid down in State v. Croteau, 23 Vt. 14, 54 Am. Dec. 90, we have seen that under the decisions of this court, cited, it is not error for the trial court to attempt to persuade jurors not to act as judges of the law, thus without doubt, in a great majority of cases actually depriving the accused of his right to have them pass upon the law as well as the facts of his case, if they are the paramount judges of the law.

Again, if jurors are the judges of the law, if in them is vested the right and supreme power by the law to declare what the law is which shall govern and decide each case as it comes before them, it seems inconsistent and absurd to hold, as do the courts in this and other states, that the court may direct a verdict of acquittal, when in its opinion the evidence will not justify a conviction, and may also set aside a verdict convicting the accused, if it thinks the verdict is contrary to law or not warranted by the evidence.

As before suggested, this practice in effect makes jurors paramount judges of the law only in case they acquit, as in that event the court cannot set aside the verdict, nor can the accused be again put upon trial for the same offense. But the doctrine of autrefois acquit is in no wise dependent on jurors being judges of the law. A verdict of acquittal in a criminal case is final, "not because the jury have a right

finally to decide the law, but because of the rule ne bis idem, familiar to all jurisprudence, that no man is to be tried for 26 an offense of which he has been acquitted": 1 Crim. Law Mag. 54.

In the opinion of the court in State v. Croteau, 23 Vt. 14, 54 Am. Dec. 90, considerable stress is laid upon the idea that in the past jurors have been the palladium of the liberties of the subject against the encroachments of the government, and the usurpation of unjust judges in its behalf, and that the mutation of time may bring in a day when our judges will become corrupt and the tools of tyranny in high places, and that then the rule that jurors are judges of the law will prove to be the conservator of the rights of individuals. When examined in the light of facts, this argument is without weight. This is a "government of the people, by the people, for the people." In this state the making of constitutions and the enacting of laws is vested in the people. However elected or appointed, our judges are the servants of the people, to administer justice according to law and equity, and it would be sufficient to say that they have never been recreant to the trust imposed upon them. Whenever a rule of law as administered by the courts becomes obnoxious to the people, or they think it detrimental to their best interests, they have only to exercise their power to abolish or modify it to rid themselves of it.

In times of public commotion or excitement, a respondent charged with the commission of crime often has just cause to fear popular passion and predjudice, which may be represented more or less by the jury, more than anything else in the case against him, and it is then that he has occasion to rely upon the court to protect him from the vox populi, and to see that he is tried and judged according to the law, and not by the passions or caprice of a jury.

The theory that jurors have always proved a protection to the individual against the corruption and oppression of those of influence and of those in power is not sustained by the facts of history.

27 In Queen Elizabeth's time, trial by jury was not much in favor among the middle and lower classes on account of the corruption of juries and their subserviency to the upper classes: 1 Brodie's Constitutional History of England, 227. Says Wharton (1 Criminal Law Magazine, 54): "The despo tism of which William Penn complained was exercised not