The testimony for the people in criminal cases can only be given, as a general rule, by witnesses who are present in court. The defendant is entitled to be confronted with the witnesses against him; and if any of them be absent from the Commonwealth, so that their attendance cannot be compelled, or be dead, or have become incapable of being sworn, there is no mode by which their statements against the prisoner can be used for his conviction. The exceptions to this rule are of cases which are excluded from its reasons from their peculiar circumstances; but they are far from numerous. If the witness was sworn before the examining magistrate, and the accused had an opportunity then to cross-examine him, or before a coroner, or if there was a former trial on which he was sworn, it seems allowable to make use of his deposition, or of the minutes of his examination, if the witness has since deceased, or is out of the jurisdiction, or cannot be found after diligent search, or is insane, or sick and unable to testify, or has been summoned, but appears to have been kept away by the opposite party. So also if a party is on trial for homicide, the declarations of the party whom he is charged with having killed, if made under the solemnity of a conviction that he was at the point of death, and relating to matters of fact concerning the homicide, which passed under his own observation, may be given in evidence against him, the condition of the party who made them being such that every motive to falsehood must be supposed to be silenced, and the mind to be induced by the most powerful considerations to speak the truth.2 Not that such evidence is of very conclusive character; it is not always easy to determine, when the declaration is repeated, how much relates to what was seen and positively known, and how much is surmise referred to. Under that statute the wife may be sworn as a witness for the husband with his assent; but it has been held that his failure to call upon her was not to subject him to inferences of guilt, even though the case was such that, if his defence was true, his wife must have been cognizant of the facts. Knowles v. People, 15 Mich. 408. For considerations concerning the working of a system which allows the evidence of defendants in criminal cases to be received, see Am. Law Register, N. S. vol. 5, pp. 129 and 705. 1 1 Greenl. Ev. § 163 to 166; Bish. Cr. Pro. § 520 to 527. 2 1 Greenl. Ev. § 156; Phil. Ev. by Cowen, Hill, & Edwards, vol. 1, 285 to 289; Donnelley v. State, 2 Dutch. 463; Hills's case, 2 Grat. 594; State v. Freeman, 1 Spears, 57. and suspicion only; but it is admissible from the necessity of the case, and the jury must judge of the weight to be attached to it. The Traverse Jury. The trial of the guilt or innocence of the accused must be by jury; and wherever this right is preserved by the constitution, it must be understood as retained in all those cases which were triable by jury at the common law, and with all the common-law incidents to a jury trial, so far as they can be regarded as tending to the protection of the accused. A petit, petty, or traverse jury is a body of twelve men, who are sworn to try the facts of a case as they are delivered from the evidence placed before them. Any less than this number of twelve would not be a common-law jury, and not such a jury as the constitution preserves to accused parties; and unless that instrument allows a less number in express terms, a full panel could not be waived by consent.2 The trial of a criminal case by a jury of less than twelve by consent would be void, because the tribunal would be one unknown to the law, the mere voluntary creation of the parties; and it would in effect be an attempt to submit to a species of arbitration the question whether the accused has been guilty of an offence against the State. But in those cases which were formerly not triable by jury, if the legislature should provide for such a trial now, it might doubtless create a statutory tribunal, composed of any number of persons for the purpose, and no question of constitutional law would arise. The mode of trial by jury is an essential part of the right. The jury must be indifferent between the prisoner and the commonwealth; and to secure this, challenges are allowed, both for cause, and peremptory without cause. The jury must be sum All that is extant of the legislation of the Plymouth Colony for the first five years consists of the single regulation, "that all criminal facts, and also all manner of trespasses and debts between man and man, shall be tried by the verdict of twelve honest men, to be impanelled by authority in form of a jury, upon their oath." 1 Palfrey's New England, 340. 2 Work v. State, 2 Ohio, N. S. 296; Cancemi v. People, 18 N. Y. 128; Brown v. State, 8 Blackf. 561; Hill v. People, 16 Mich. 351; 2 Lead. Cr. Cas. 337. In Commonwealth v. Dailey, 12 Cush. 80, it was held that in a case of misdemeanor, the consent of the defendant, that a verdict might be received from eleven jurors, was binding upon him, and the verdict was valid. See also State v. Cox, 3 Eng. 436. moned from the vicinage where the crime is supposed to have been committed; and the accused will thus have the benefit of his own good character and standing with his fellows, if these he has preserved,- and also of such knowledge as the jurors may possess of the witnesses who may give evidence against him. He will also be able with more certainty to secure the attendance of his own witnesses. The jury must unanimously concur in the verdict. And they must be left free to act. The final decision upon the facts is to rest with them, and any interference by the court to coerce them into a verdict against their will is irregular and unconstitutional. A judge is not justified in expressing his opinion to the jury that the defendant is guilty upon the evidence adduced. Still less would he be justified in refusing to receive and record the verdict of the jury, because, in his opinion, it is rendered in favor of the prisoner when it ought not to have been. 1 Work v. State, 2 Ohio, N. S. 296. 2 Better far to dispense with jury trial altogether, than for the judge to urge his opinion of the facts upon the jury; for under such a practice he decides the cause while avoiding the responsibility. How often would a jury be found bold enough to declare their opinion in opposition to that of the judge upon the bench, whose words would fall upon their ears with all the weight which experience, learning, and commanding station must always carry with them? What lawyer would care to sum up his case, if he knew the judge, whose words would be so much more powerful, was to declare in his favor, or who would be bold enough to argue the facts to the jury if he knew the judge was to declare against him? Blackstone has justly remarked that, "in settling and adjusting a question of fact, where intrusted to any single magistrate, partiality and injustice have an ample field to range in; either by boldly asserting that to be proved which is not so, or by more artfully distinguishing away the remainder." 3 Bl. Com. 380. These are evils which jury trial is designed to prevent; but vain the effort if the judge is to control by his opinion where the law has given him no power to command. In Campbell's Lives of the Chancellors, ch. 181, the author justly condemns the practice with some judges, in libel cases, of expressing to the jury their belief in the defendant's guilt. On the trial of parties charged with a libel on the Empress of Russia, Lord Kenyon, sneering at the late Libel Act, said: "I am bound by my oath to declare my own opinion, and I should forget my duty were I not to say to you that it is a gross libel." Upon this the author remarks: "Mr. Fox's act only requires the judges to give their opinion on matters of law in libel cases as in other cases. But did any judge ever say, 'Gentlemen, I am of opinion that this is a wilful, malicious, and atrocious murder'? For a considerable time after the act passed against the unanimous opposition of the judges, they almost all spitefully followed this course. I myself heard one judge say: As the legislature requires me to give my own opinion in the present case, I am of opinion that this is a diabolically atrocious libel."" And see M'Guffie v. State, 17 Geo. 497. He discharges his duty, in giving instructions to the jury, when he has informed them what the law is which is applicable to the case, and what facts will constitute the offence charged; and the jury should be left free and unbiassed by his opinion to determine for themselves whether the facts in evidence against the accused are such as, under the instructions of the judge, show, beyond any reasonable doubt, that he is guilty of the charge.1 How far the jury are to judge of the law as well as of the facts, in criminal cases, is a question a full discussion of which we should enter upon with much reluctance. If it be their choice to do so, they may return specially what facts they find established by the evidence, and submit to the court to apply the law to these facts, and thereby determine whether the party is proved to be guilty or not. But they are not obliged in any case to find a special verdict ; they have a right for themselves to apply the law to the facts, and to express their own opinion, upon the whole evidence, of the defendant's guilt. Where a general verdict is thus given, the jury necessarily determine in their own mind what the law of the case is; and if their determination is favorable to the prisoner, no mode is known to the law in which it can be reviewed or reversed. A writ of error does not lie on behalf of the Commonwealth to reverse an acquittal, unless expressly given by statute,3 nor can a new The independence of the jury, so far as matters of fact are concerned, was settled by Penn's case, 6 Howell's State Trials, 951, and by Bushell's case, which grew out of it, and is reported in Vaughan's Rep. 135. A very full account of the case is also found in Forsyth on Trials by Jury, 397. Bushell was foreman of the jury which refused to find a verdict of guilty at the dictation of the court, and he was punished as for contempt of court for his refusal, but was released on habeas corpus. "As the main object of the institution of the trial by a jury is to guard accused persons against all decisions whatsoever by men intrusted with any permanent official authority, it is not only a settled principle that the opinion which the judge delivers has no weight but such as the jury choose to give it, but their verdict must besides [unless they see fit to return a special finding] comprehend the whole matter in trial, and decide as well upon the fact as upon the point of law which may arise out of it; in other words they must pronounce both on the commission of a certain fact, and on the reason which makes such fact to be contrary to law." De Lolme on the Constitution of England, ch. 13. * See State v. Reynolds, 4 Hayw. 110; United States v. More, 3 Cranch, 174; People v. Dill, 1 Scam. 257; People v. Royal, Ibid. 557; Commonwealth v. Cummings, 3 Cush. 212; People v. Corning, 2 N. Y. 9. A constitutional provision saving "to the defendant the right of appeal," in criminal cases, does not, by im trial be granted in such a case;1 but neither a writ of error nor a motion for a new trial could reach an erroneous determination by the jury, since, as they do not give reasons for their verdict, it can never be legally known what were the precise grounds for it, and it is always presumable that it was given in favor of the accused because the evidence was not sufficient in degree or satisfactory in character; and no one is at liberty to allege or suspect that they have disregarded the law. Nevertheless, as it is the duty of the court to charge the jury upon the law applicable to the case, it is still an important question whether the jury are bound to receive and act upon the law as given to them by the judge, or whether, on the other hand, his opinion is advisory only, so that they are at liberty to follow it if it accords with their own convictions, or to disregard it if it does not. In one class of cases that is to say, in criminal prosecutions for libelit is now very generally provided by the State constitutions or by statute that the jury shall determine the law and the facts. How great a change is made in the common law by these plication, preclude the legislature from giving to the State the same privilege. State v. Tait, 22 Iowa, 142, 143. 1 People v. Comstock, 8 Wend. 549; State v. Brown, 16 Conn. 54; State v. Kanouse, 1 Spencer, 115; State v. Burris, 3 Texas, 118; State v. Taylor, 1 Hawks, 462. • See constitutions of Missouri, Alabama, Arkansas, Illinois, Kentucky, Pennsylvania, Texas, Maine, Tennessee, Michigan, and New York. The constitution of Maryland makes the jury the judges of the law in all criminal cases, and the same rule is established by constitution or statute in some other States. In Holder v. State, 5 Geo. 444, the following view was taken of such a statute: "Our penal code declares: On every trial of a crime or offence contained in this code, or for any crime or offence, the jury shall be judges of the law and the fact, and shall in every case give a general verdict of guilty or not guilty, and on the acquittal of any defendant or prisoner no new trial shall on any account be granted by the court.' Juries were at common law in some sense judges of the law. Having the right of rendering a general verdict, that right involved a judg ment on the law as well as the facts, yet not such a judgment as necessarily to control the court. The early commentators on the common law, notwithstanding they concede this right, yet hold that it is the duty of the jury to receive the law from the court. Thus Blackstone equivocally writes: And such public or open verdict may be either general, guilty or not guilty, or special, setting forth all the circumstances of the case, and praying the judgment of the court whether, for instance, on the facts stated, it be murder, or manslaughter, or no crime at all. This is where they doubt the matter of law, and therefore choose to leave it to the determination of the court, though they have an unquestionable right of determining upon all the circumstances, and of finding a general verdict, if they think |