provisions, it is difficult to say, because the rule of the common law was not clear upon the authorities; but for that very reason, and because the law of libel was sometimes administered with great harshness, it was certainly proper and highly desirable that a definite and liberal rule should be thus established.1

In all other cases the jury have the clear legal right to return a verdict of guilty or not guilty, and in so doing they necessarily decide such questions of law as well as of fact as are involved in the general question of guilt. If their view conduce to an acquittal, there is no mode known to the law by which their decision can be reviewed or set aside. In such a case, therefore, it appears that they judge of the law as well as of the facts, and that their judgment is final. If, on the other hand, their view lead them to a verdict of guilty, and it is the opinion of the court that such verdict is against law, the verdict will be set aside and a new trial granted. In such a case, although they have judged of the law, the court sets aside their conclusion as improper and unwarranted. But it is clear that the jury are no more the judges of the law when they acquit than when they condemn, and the different result in the two cases arises from the merciful maxim in the common law, which will not suffer an accused party to be twice put in jeopardy, however erroneous may have been the first acquittal. In theory therefore the rule of law would seem to be, that it is the duty of the

proper so to hazard a breach of their oath,' &c. 4 Bl. Com. 361; Co. Lit. 228 a; 2 Hale, P. C. 313. Our legislature have left no doubt about this matter. The juries in Georgia can find no special verdict at law. They are declared to be judges of the law and the facts, and are required in every case to give a general verdict of guilty or not guilty; so jealous, and rightfully jealous, were our ancestors of the influence of the State upon the trial of a citizen charged with crime. We are not called upon in this case to determine the relative strength of the judgment of the court and the jury, upon the law in criminal cases, and shall express no opinion thereon. We only say, it is the right and duty of the court to declare the law in criminal cases as well as civil, and that it is at the same time the right of the jury to judge of the law as well as of the facts in criminal cases. I would not be understood as holding that it is not the province of the court to give the law of the case distinctly in charge to the jury: it is unquestionably its privilege and its duty to instruct them as to what the law is, and officially to direct their finding as to the law, yet at the same time in such way as not to limit the range of their judgment." See also M'Guffie v. State, 17 Geo. 497.

1 For a condensed history of the struggle in England on this subject, see May's Constitutional History, ch. 9. See also Lives of the Chancellors, by Lord Campbell, ch. 178.

jury to receive and follow the law as delivered to them by the court and such is the current of authority.1 There are, however, opposing decisions,2 and it is evident that the prerogative of the court to direct conclusively upon the law cannot be carried very far or insisted upon with much pertinacity, when the jury have the complete power to disregard it, without its action degenerating into mere scolding. Upon this subject the remarks of Mr. Justice Baldwin, of the Supreme Court of the United States, to a jury assisting him in the trial of a criminal charge, and which are given in the note, seem peculiarly dignified and appropriate, and at the same time to embrace about all that can properly be said to a jury on this subject.3

1 United States v. Battiste, 2 Sum. 240; Stittinus v. United States, 5 Cranch, C. C. 573; United States v. Morris, 1 Curtis, 53; Montgomery v. State, 11 Ohio, 427; Commonwealth v. Porter, 10 Met. 263; State v. Peace, 1 Jones, 251; Handy v. State, 7 Mo. 607; Nels v. State, 2 Texas, 280; People v. Pine, 2 Barb. 566; Carpenter v. People, 8 Barb. 603; McGowen v. State, 9 Yerg. 184; Pleasant v. State, 13 Ark. 360; Montee v. Commonwealth, 3 J. J. Marsh, 132; Commonwealth v. Van Tuyl, 1 Met. (Ky.) 1. "As the jury have the right, and if required by the prisoner are bound to return a general verdict of guilty or not guilty, they must necessarily, in the discharge of their duty, decide such questions of the law as well as of fact as are involved in the general question, and there is no mode in which their opinions on questions of law can be reviewed by this court or any other tribunal. But this does not diminish the obligation of the court to explain the law. The instructions of the court in matters of law may safely guide the consciences of the jury, unless they know them to be wrong; and when the jury undertake to decide the law (as they undoubtedly have the power to do), in opposition to the advice of the court, they assume a high responsibility, and should be very careful to see clearly that they are right." Commonwealth v. Knapp, 10 Pick. 496. Cited with approval in McGowan v. State, 9 Yerg. 195; and Dale v. State, 10 Yerg. 555.

2 See especially State v. Croteau, 23 Vt. 14, which is a very full and carefully considered opinion, holding that at the common law the jury are the judges of the law in criminal cases. See also State v. Wilkinson, 2 Vt. 280; Doss v. Commonwealth, 1 Grat. 557; State v. Jones, 5 Ala. 666; State v. Snow, 6 Shep. 346 ; State v. Allen, 1 McCord, 525; Armstrong v. State, 4 Blackf. 247; Warren v. State, Ibid. 150; Stocking v. State, 7 Ind. 326; Lynch v. State, 9 Ind. 541; Nelson v. State, 2 Swan, 482.

"In repeating to you what was said on a former occasion to another jury, that you have the power to decide on the law, as well as the facts of this case, and are not bound to find according to our opinion of the law, we feel ourselves constrained to make some explanations not then deemed necessary, but now called for from the course of the defence. You may find a general verdict of guilty or not guilty, as you think proper, or you may find the facts specially, and leave the guilt or innocence of the prisoner to the judgment of the court. If your verdict

One thing more is essential to the complete protection of jury trial, and that is, that the accused shall not be twice put in jeopacquit the prisoner, we cannot grant a new trial, however much we may differ with you as to the law which governs the case; and in this respect a jury are the judges of the law, if they choose to become so. Their judgment is final, not because they settle the law, but because they think it not applicable or do not choose to apply it to the case.

"But if a jury find a prisoner guilty against the opinion of the court on the law of the case, a new trial will be granted. No court will pronounce a judgment on a prisoner against what they believe to be the law. On an acquittal there is no judgment; and the court do not act, and cannot judge, there remaining nothing to act upon.

"This, then, you will understand to be what is meant by your power to decide on the law, but you will still bear in mind that it is a very old, sound, and valuable maxim in law, that the court answers to questions of law, and the jury to facts. Every day's experience evinces the wisdom of this rule." United States v. Wilson, Baldw. 108. We quote also from an Alabama case: "When the power of juries to find a general verdict, and consequently their right to determine without appeal both law and fact, is admitted, the abstract question whether it is or is not their duty to receive the law from the court becomes rather a question of casuistry or conscience than one of law; nor can we think that anything is gained in the administration of criminal justice by urging the jury to disregard the opinion of the court upon the law of the case. It must, we think, be admitted, that the judge is better qualified to expound the law, from his previous training, than the jury; and in practice unless he manifests a wanton disregard of the rights of the prisoner, a circumstance which rarely happens in this age of the world and in this country, his opinion of the law will be received by the jury as an authoritative exposition, from their conviction of his superior knowledge of the subject. The right of the jury is doubtless one of inestimable value, especially in those cases where it may be supposed that the government has an interest in the conviction of the criminal; but in this country where the government in all its branches, executive, legislative, and judicial, is created by the people, and is in fact their servant, we are unable to perceive why the jury should be invited or urged to exercise this right contrary to their own convictions of their capacity to do so, without danger of mistake. It appears to us that it is sufficient that it is admitted that it is their peculiar province to determine facts, intents, and purposes; that it is their right to find a general verdict, and consequently that they must determine the law; and whether in the exercise of this right, they will distrust the court as expounders of the law, or whether they will receive the law from the court, must be left to their own discretion under the sanction of the oath they have taken." State v. Jones, 5 Ala. 672.

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It cannot be denied that discredit is sometimes brought upon the administration of justice by juries acquitting parties who are sufficiently shown to be guilty, and where, had the trial been by the court, a conviction would have been sure to follow. In such cases it must be supposed that the jury have been controlled by their prejudices or their sympathies. However that may be, it by no means follows that because the machinery of jury trial does not work satisfactorily in

ardy upon the same charge. One trial and verdict must, as a general rule, protect him against any subsequent accusation, whether the verdict be for or against him, and whether the courts. are satisfied with the verdict or not. We shall not attempt at this point to collect together the great number of legal decisions bearing upon the question of legal jeopardy, and the exceptions to the general rule above stated; for these the reader must be referred to the treatises on criminal law, where the subject will be found extensively treated. It will be sufficient for our present purpose to indicate very briefly the general rules.

A person is once in jeopardy when he is put upon trial, before a court of competent jurisdiction, upon an indictment or inforevery case, we must therefore condemn and abolish the system, or, what is still worse, tolerate it, and yet denounce it as being unworthy of public confidence. Jury trial, when considered in all its aspects, as an instrument in the administration of justice; as an educator of the people in law and politics; and as a means of making them feel their responsibility in the government, and the important part they bear in its administration, is by far the best system of trial yet devised; and we must take it with all its concomitants, among which is a due sense of independence in the jurors. The institution loses its value when the jury becomes a mere instrument for receiving and echoing back the opinions of the judge on the case in trial. Concede its defects, and the truth still remains, that its benefits are indispensable. The remarks of the most distinguished jury lawyer known to English history may be quoted as peculiarly appropriate in this connection: "It is of the nature of everything that is great and useful, both in the animate and inanimate world, to be wild and irregular, and we must be content to take them with the alloys which belong to them, or live without them. ... Liberty herself, the last and best gift of God to his creatures, must be taken just as she is. You might pare her down into bashful regularity, shape her into a perfect model of severe, scrupulous law; but she would then be Liberty no longer; and you must be content to die under the lash of this inexorable justice which you had exchanged for the banners of freedom." Erskine on trial of Stackpole for libel on Hastings.

The province of the jury is sometimes invaded by instructions requiring them to adopt, as absolute conclusions of law, those deductions which they are at liberty to draw from a particular state of facts, if they regard them as reasonable: such as that a homicide must be presumed malicious, unless the defendant proves the contrary which is a rule contradictory of the results of common observation; or that evidence of a previous good character in the defendant ought to be disregarded, unless the other proof presents a doubtful case: which would deprive an accused party of his chief protection in many cases of false accusations and conspiracies. Upon the presumption of malice in homicide, the reader is referred to the Review of the Trial of Prof. Webster, by Hon. Joel Parker, in the North American Review, No. 72, p. 178. See also upon the functions of judge and jury respectively, the case of Maher v. People, 10 Mich. 212.

mation which is so far valid as to be sufficient to sustain a conviction, and a jury has been charged with his deliverance.1 And a jury is said to be thus charged when they have been impanelled and sworn.2 The defendant then becomes entitled to a verdict which shall constitute a bar to a new prosecution, and he cannot be deprived of this bar by a nolle prosequi entered by the prosecuting officer against his will, or by a discharge of the jury and a continuance of the cause."

6

If, however, the court had no jurisdiction of the case, or if the indictment was so far defective that it constituted no legal charge of crime, and no valid judgment could be rendered upon it, or if by any overruling necessity the jury are discharged without a verdict, which might happen from the sickness or death of the judge holding the court, or of a juror, or the inability of the jury to agree upon a verdict after reasonable time for deliberation and effort; 9 or if the term of the court comes to an end before the trial is finished,1o or the jury are discharged without verdict with the consent of the defendant, express or implied,11 or if, after verdict against the accused, it has been set aside on

1 Commonwealth v. Cook, 6 S. & R. 586; State v. Norvell, 2 Yerg. 24; People v. McGowan, 17 Wend. 386; Price v. State, 19 Ohio, 423; Wright v. State, 5 Ind. 292; People v. Cook, 10 Mich. 164; State v. Ned, 7 Port. 217; State v. Ephraim, 2 Dev. & Bat. 162. It cannot be said, however, that a party is in legal jeopardy in a prosecution brought about by his own procurement; and a former conviction or acquittal is consequently no bar to a second indictment, if the former trial was brought about by the procurement of the defendant, and the conviction or acquittal was the result of fraud or collusion on his part. State v. Green, 16 Iowa, 239.

2 McFadden v. Commonwealth, 23 Penn. St. 12.

'People v. Barrett, 2 Caines, 304; Commonwealth v. Tuck, 20 Pick. 365; Mounts v. State, 14 Ohio, 295.

⚫ Commonwealth v. Goddard, 13 Mass. 455; People v. Tyler, 7 Mich. 161. People v. Cook, 10 Mich. 164.

5

• United States v. Perez, 9 Wheat. 579; State v. Ephraim, 2 Dev. & Bat.

166; Commonwealth v. Fells, 9 Leigh, 620; People v. Goodwin, 18 Johns. 205.

Hector v. State, 2 Mo. 166; State v. Curtis, 5 Humph. 601; Mahala v. State, 10 Yerg. 532.

People v. Goodwin, 18 Johns. 187; Miller v. State, 8 Ind. 325.

10 State v. Brooks, 3 Humph. 70; State v. Battle, 7 Ala. 259; Mahala v. State, 10 Yerg. 532; State v. Spier, 1 Dev. 491.

" State v. Slack, 6 Ala. 676; Elijah v. State, 1 Humph. 103; Commonwealth v. Stowell, 9 Met. 572.