Sparf & Hansen v. U S, 156 U.S. 51 (1895)

January 21, 1895.

F. J. Kierce, for plaintiffs in error.

Asst. Atty. Gen. Conrad, for the United States.

Mr. Justice HARLAN delivered the opinion of the court.

The plaintiffs in error and Thomas St. Clair were indicted jointly for the 
murder of Maurice Fitzgerald upon the high seas, on board of an American 
vessel, the bark Hesper, as set forth in the indictment mentioned in St. 
Clair v. U. S., 154 U.S. 134, 14 Sup. Ct. 1002. On motion of the accused, it 
was ordered that they be tried separately. St. Clair was tried, found guilty 
of murder, and sentenced to suffer the punishment of death. Subsequently the 
order for separate trials was set aside, and the present defendants were 
tried together, and both were convicted of murder. A motion for a new trial 
having been overruled, a like sentence was imposed upon them.

The general facts of this case do not differ from those proved in St. 
Clair's Case, and some of the questions arising upon the present assignments 
of error were determined in that case. Only such questions will be here 
examined as were not properly persented or did not arise in the other case, 
and are of sufficient importance to require notice at our hands.

In the night of January 13, 1893, Fitzgerald, the second mate of the Hesper, 
was found to be missing, and it was believed that he had been killed, and 
his body thrown overboard. Suspicion being directed to St. Clair, Sparf, and 
Hansen, part of the crew of the Hesper, as participants in the killing, they 
were put in irons, by order of Capt. Sodergren, master of the vessel, and 
were so kept during the voyage from the locality of the supposed murder to 
Tahiti, an island in the South Pacific, belonging to the French government. 
They were taken ashore by the United States consul at that island, and 
subsequently were sent, with others, to San Francisco, on the vessel Tropic 
Bird.

At the trial, Capt. Sodergren, a witness for the government, was asked 
whether or not after the 13th day of January, and before reaching Tahiti, 
which was more than 1, 000 miles from the locality of the alleged murder, he 
had any conversation with the defendant Hansen about the killing of 
Fitzgeraid. This question having been answered by the witness in the 
affirmative, he was fully examined as to the circumstances under which the 
conversation was held. He said, among other things, that no one was present 
but Hansen and himself. Being asked to repeat the conversation referred to, 
the accused, by the counsel who had been appointed by the court to represent 
them, objected to the question as 'irrelevant, immaterial, and incompetent, 
and upon the ground that any statement made by Hansen was not and could not 
be voluntary.' The objection was overruled, and the defendants duly 
excepted. The witness then stated what Hansen had said to him. That evidence 
tended strongly to show that Fitzgerald was murdered pursuant to a plan 
formed between St. Clair, Sparf, and Hansen; that all three actively 
participated in the murder; and that the crime was committed under the most 
revolting circumstances.

Thomas Green and Edward Larsen, two of the crew of the Hesper, were also 
witnesses for the government. They were permitted to state what Hansen said 
to them during the voyage from Tahiti to San Francisco. This evidence was 
also objected to as irrelevant, immaterial, and incompetent, and upon the 
further ground that the statement the accused was represented to have made 
was not voluntary. But the objection was overruled, and an exception taken.

Upon the conclusion of the evidence, the defendants requested certain 
instructions, which the court refused to give, and they excepted to its 
action in that particular, as well as to certain parts of the charge to the 
jury. 1. The declarations of Hansen, as detailed by Sodergren, Green, and 
Larsen, were clearly admissible in evidence against him. There was no ground 
on which their exclusion could have been sustained. In reference to this 
proof, the court charged the jury that if they believed from the evidence 
that Green and Larsen, or either of them, were accomplices in the commission 
of the acts charged in the indictment, they should act upon their testimony 
with great caution, subjecting it to a careful examination, in the light of 
all the other evidence, and ought not to convict upon their testimony alone, 
unless satisfied beyond reasonable doubt of its truth; that if Larsen and 
Green, or either of them, or any other person, were induced to testify by 
promises of immunity from punishment, or by hope held out from any one that 
it would go easier with them in case they disclosed their confederates, or 
in case they implicated some one else in the crime, this must be taken into 
consideration in determining the weight to be given to their testimony, and 
should be closely scrutinized; that the confessions of a prisoner out of 
court and in custody, made to persons having no authority to examine him, 
should be acted upon and received with great care and caution; that words 
are often misreported through ignorance, inattention, or malice, are 
extremely liable to misconstruction, are rarely sufficient to warrant 
conviction, as well on account of the great danger of mistake upon the part 
of the witness as of the fact that the mind of the prisoner himself may be 
oppressed by his situation or influenced by motives of hope or fear to make 
an untrue confession; that, in considering the weight to be given to the 
alleged confessions of the defendants, the jury were to consider their 
condition at the time they were made, the fact that they had been charged 
with crime, and were in custody; and that the jury were to determine whether 
those confessions were voluntary, or whether any inducements were held out 
to them by any one. The defendants did not offer themselves as witnesses, 
and the court took care to say that a person charged with crime is under no 
obligation to testify in his own behalf, and that his neglect to testify did 
not create any presumption whatever against him. So far as the record 
discloses, these confessions were entirely free and voluntary, uninfluenced 
by any hope of reward or fear of punishment. In Hopt v. People, 110 U.S. 
574, 584, 4 S. Sup. Ct. 202, it was said: 'While some of the adjudged cases 
indicate distrust of confessions which are not judicial, it is certain, as 
observed by Baron Parke, in Reg. v. Baldry, 2 Denison, Cr. Cas. 430, 445, 
that the rule against their admissibility has been sometimes carried too 
far, and in its application justice and common sense have too frequently 
been sacrificed at the shrine of mercy. A confession, if freely and 
voluntarily made, is evidence of the most satisfactory character. Such a 
confession, said Eyre, C. B. (King v. Warickshall, 1 Leach, 263),'is 
deserving of the highest credit, because it is presumed to flow from the 
strongest sense of guilt, and therefore it is admitted as proof of the crime 
to which it refers.' Elementary writers of authority concur in saying that 
while, from the nature of such evidence, it must be subjected to careful 
scrutiny, and received with great caution, a deliberate voluntary confession 
of guilt is among the most effectual proofs in the law, and constitutes the 
strongest evidence against the party making it that can be given of the 
facts stated in such confession.'

Counsel for the accused insist that there cannot be a voluntary statement, a 
free, open confession, while a defendant is confined and in irons, under an 
accusation of having committed a capital offense. We have not been referred 
to any authority in support of that position. It is true that the fact of a 
prisoner being in custody at the time he makes a confession is a 
circumstance not to be overlooked, because it bears upon the inquiry whether 
the confession was voluntarily made, or was extorted by threats or violence, 
or made under the influence of fear. But confinement or imprisonment is not 
in itself sufficient to justify the exclusion of a confession, if it appears 
to have been voluntary and was not obtained by putting the prisoner in fear 
or by promises. Whart. Cr. Ev. (9th Ed.) 661, 663, and authorities cited. 
The import of Sodergren's evidence was that, when Hansen manifested a desire 
to speak to him on the subject of the killing, the latter said he did not 
wish to hear it, but 'to keep it until the right time came, and then tell 
the truth.' But this was not offering to the prisoner an inducement to make 
a confession. Littledale, J., well observed in Rex v. Court, 7 Car. & P. 
487, that telling a man to be sure to tell the truth is not advising him to 
confess anything of which he is really not guilty. See, also Queen v. 
Reeves, L. R. 1 Cr. Cas. 362. Nothing said to Hansen prior to the confession 
was at all calculated to put him in fear, or to excite any hope of his 
escaping punishment by telling what he knew or witnessed or did in reference 
to the killing.

The deciarations of Hansen after the killing, as detailed by Green and 
Larsen, were also admissible in evidence against Sparf, because they appear 
to have been made in his presence, and under such circumstances as would 
warrant the inference that he would naturally have contradicted them if he 
did not assent to their truth.

But the confession and declarations of Hansen to Sodergren after the killing 
of Fitzgerald were incompetent as evidence against Sparf. St. Clair, Hansen, 
and Sparf were charged jointly with the murder of Fitzgerald. What Hansen 
said after the deed had been fully consummated, and not on the occasion of 
the killing, and in the presence only of the witness, was clearly 
incompetent against his codefendant, Sparf, however strongly it tended to 
connect the latter with the commission of the crime. If the evidence made a 
case of conspiracy to kill and murder, the rule is settled that 'after the 
conspiracy has come to an end, and whether by success or by failure, the 
admissions of one conspirator by way of narrative of past facts are not 
admissible in evidence against the others.' Logan v. U. S., 144 U.S. 263, 
309, 12 S. Sup. Ct. 617; Brown v. U. S., 150 U. S., 93, 98, 14 Sup. Ct. 37; 
Wright, Cr. Consp. (Carson's Ed.) 212, 213, 217; 1 Greenl. Ev. 233. The same 
rule is applicable where the evidence does not show that the killing was 
pursuant to a conspiracy, but yet was by the joint act of the defendants.

The objection to the question in answer to which the declarations of Hansen 
to Sodergren were given was sufficiently specific. The general rule 
undoubtedly is that an objection should be so framed as to indicate the 
precise point upon which the court is asked to rule. It has therefore been 
often held that an objection to evidence as irrelevant, immaterial, and 
incompetent, nothing more being stated, is too general to be considered on 
error, if in any possible circumstances it could be deemed or could be made 
relevant, material, or competent. But this principle will not sustain the 
ruling by which the declarations of Hansen, made long after the commission 
of the alleged murder, and not in the presence of Sparf, were admitted as 
evidence against the latter. In no state of case were those declarations 
competent against Sparf. Their inadmissibility as to him was apparent. It 
appeared upon the very face of the question itself.

In People v. Beach, 87 N. Y. 508, 513, which was an indictment for petit 
larceny, the prosecution offered in evidence the statements of a third 
party, not in the presence of the accused, which related to the vital point 
upon which the conviction turned. There was a general objection to the 
evidence. The court said: 'We think, however, the general objection made in 
this case was sufficient. It appeared, when the objection was made, that the 
conversation proposed to be shown was between the prosecutor and Hardacre, 
when the defendant was not present. There was no possible view of the case, 
as it then or afterwards stood, in which such a conversation was admissible. 
When the witness was asked to state the conversation, and counsel objected, 
both the court and the prosecuting officer must have understood that it was 
an objection to the competency of the proposed evidence. If the objection 
had been made in terms, on the ground that the evidence was incompetent, the 
sufficiency of the objection could not have been questioned, and the 
objection, as made, necessarily implied this. Neither the court nor 
prosecuting attorney could have been misled as to the point of the 
objection. It was patent on considering the objection in connection with the 
proof offered. If any doubt could be entertained as to the technical 
sufficiency of the objection, we should be disinclined, in a criminal case, 
to deprive a defendant of the benefit of an exception by the strict 
application of a rule more especially applicable to civil cases, when we can 
see that its application would produce injustice.' And in Turner v. City of 
Newburgh, 109 N. Y. 301, 308, 16 N. E. 344, it was said: 'This court has 
held that when the objection to evidence is general, and it is overruled, 
and the evidence is received, the ruling will not be held erroneous, unless 
there be some grounds which could not have been obviated had they been 
specified, or unless the evidence in its essential nature be incompetent.' 
Tozer v. Railroad Co., 105 N. Y. 659, 11 N. E. 846; Alcorn v. Railroad Co., 
108 Mo. 81, 18 S. W. 188; Curr v. Hundley (Colo. App.) 31 Pac. 939, 940; 
Lowenstein v. McCadden, 92 Tenn. 614, 22 S. W. 426; Ward v. Wilms, 16 Colo. 
86, 27 Pac. 247.

We are of opinion that as the declarations of Hansen to Sodergren were not, 
in any view of the case, competent evidence against Sparf, the court, upon 
objection being made by counsel representing both defendants, should have 
excluded them as evidence against him, and admitted them against Hansen. The 
fact that the objection was made in the name of both defendants did not 
justify the court in overruling it as to both, when the evidence was 
obviously incompetent, and could not have been made competent against Sparf, 
and was obviously competent against Hansen. It was not necessary that 
counsel should have made the objection on behalf of one defendant, and then 
formally repeated it, in the same words, for the other defendant. If Sparf 
had been tried alone, a general objection in his behalf, on the ground of 
incompetency, would have been sufficiently definite. Surely, such an 
objection coming from Sparf when tried with another ought not to be deemed 
ineffectual because of the circumstance that his counsel, who, by order of 
the court, represented also his codefendant, incautiously spoke in the name 
of both defendants. Each was entitled to make his own defense, and the jury 
could have found one of them guilty, and acquitted the other. Insurance Co. 
v. Hillmon, 145 U.S. 285, 293, 12 S. Sup. Ct. 909. See, also, Com. v. 
Robinson, 1 Gray, 555, 560.

For the error of the court in not sustaining the objection referred to so 
far as it related to Sparf, the judgment must be reversed as to him. If he 
were the only defendant, we might withhold any expression of opinion upon 
other questions raised by the assignments of error. But as some of those 
questions are important, and may arise upon another trial of Sparf, and 
especially as they must be now determined with reference to Hansen, we 
proceed to their examination.

2. One of the specifications of error relates to the refusal of the court to 
give certain instructions asked by the defendants, and to parts of the 
charge to the jury.

The defendants asked the court to instruct the jury as follows:

     'In all criminal causes the defendant may be found guilty of any
     offense the commission of which is necessarily included in that
     with which he is charged in the indictment, or the defendant may
     be found guilty of an attempt to commit the offense so charged,
     provided that such attempt be itself a separate offense.' 'Under
     an indictment charging murder, the defendant may be convicted
     of murder, of manslaughter, or an attempt to commit either
     murder or manslaughter.' 'Under the indictment in this case, the
     defendants may be convicted of murder, or manslaughter, or of
     an attempt to commit murder or manslaughter; and if, after a full
     and careful consideration of all the evidence before you, you
     believe, beyond a reasonable doubt, that the defendants are
     guilty either of manslaughter, or of an assault with intent to
     commit murder or manslaughter, you should so find your
     verdict.' These instructions were refused, and the defendants
     excepted. 

In its charge to the jury, the court, among other things, said: 'What, then, 
is murder? There are only two kinds of felonious homicide known to the laws 
of the United States. One is murder, and the other is manslaughter. There 
are no degrees of murder.' 'There is no definition of 'murder' by any United 
States statute. We resort to the common law for that. By the common law, 
murder is the unlawful killing of a human being in the peace of the state, 
with malice aforethought, either express or implied. Malice, then, is an 
element in the offense, and discriminates it from the other crime of 
felonious homicide which I have mentioned, to wit, manslaughter; that is, 
malice, express or implied, discriminates murder from the offense of 
manslaughter.' 'Express malice exists when one, by deliberate premeditation 
and design, formed in advance, to kill or to do bodily harm, the 
premeditation and design being implied from external circumstances capable 
of proof, such as lying in wait, antecedent threats, and concerted schemes 
against a victim. Implied malice is an inference of the law from any 
deliberate and cruel act committed by one person against another. The two 
kinds of malice, therefore, to repeat, indicate but one state of mind, 
established in different ways, -- the one by circumstances showing 
premeditation of the homicide, the other by an inference of the law from the 
act committed; that is, malice is inferred when one kills another without 
provocation, or when the provocation is not great. Manslaughter is the 
unlawful killing of a human being without malice, either expressed or 
implied. I do not consider it necessary, gentlemen, to explain it further, 
for if a felonious homicide has been committed, of which you are to be the 
judges from the proof, there is nothing in this case to reduce it below the 
grade of murder. In other words, it may be in the power of the jury, under 
the indictment by which these defendants are accused and tried, of finding 
them guilty of a less crime than murder, to wit, manslaughter, or an attempt 
to commit murder; yet, as I have said in this case, if a felonious homicide 
has been committed at all, of which I repeat you are the judges, there is 
nothing to reduce it below the grade of murder.'

The court further said to the jury:

     'You are the exclusive judges of the credibility of the witnesses,
     and, in judging of their credibility, you have a right to take into
     consideration their prejudices, motives, or feelings of revenge, if
     any such have been proven or shown by the evidence in the
     case. If you believe from the evidence that any witness or
     witnesses have knowingly and willfully testified falsely as to any
     material fact or point, you are at liberty to disregard entirely the
     testimony of such witness or witnesses.' 'Gentlemen, I have given
     you these instructions as carefully as I could, avoiding all
     references to the testimony; but I do not wish to be
     misunderstood, and out of abundant caution I say further to you,
     in giving you these instructions, I may be accident have assumed
     facts to be proven. If so, you must disregard the assumption. It
     is not my purpose, nor is it my function, to assume any fact to be
     proven, nor to suggest to you that any fact has been proven.
     You are the exclusive judges of the fact. No matter what
     assumption may appear during the course of the trial in any ruling
     of mine, or what may appear in any one of these instructions,
     you are to take this case and consider it, and remember you are
     the tribunal to which the law has referred the case, and whose
     judgment the law wants on the case.' 

After the jury had been in consultation for a time, they returned into court 
for further instructions. The colloquy between the court and the jurors is 
set forth at large in the margin.1 The requests for instruction made by the 
defendants were based upon section 1035 of the Revised Statutes of the 
United States, providing that 'in all criminal causes the defendant may be 
found guilty of any offence the commission of which is necessarily included 
in that with which he is charged in indictment, or may be found guilty of an 
attempt to commit the offence so charged: provided, that such attempt be 
itself a separate offence.'

The refusal to grant the defendants' requests for instructions, taken in 
connection with so much of the charge as referred to the crime of 
manslaughter, and the observations of the court when the jury, through their 
foreman, applied for further instructions, present the question whether the 
court transcended its authority when saying, as in effect it did, that, in 
view of the evidence, the only verdict the jury could under the law properly 
render would be either one of guilty of the offense charged, or one of not 
guilty of the offense charged; that if a felonious homicide had been 
committed by either of the defendants, of which the jury were the judges 
from the proof, there was nothing in this case to reduce it below the grade 
of murder; and that,'as one of the tribunals of the country, a jury is 
expected to be governed by law, and the law it should receive from the 
court.'

The court below assumed, and correctly, that section 1035 of the Revised 
Statutes did not authorize a jury in a criminal case to find the defendant 
guilty of a less offense than the one charged, unless the evidence justified 
them in so doing. Congress did not intend to invest juries in criminal cases 
with power arbitrarily to disregard the evidence and the principles of law 
applicable to the case on trial. The only object of that section was to 
enable the jury, in case the defendant was not shown to be guilty of the 
particular crime charged, and if they evidence permitted them to do so, to 
find him guilty of a lesser offense necessarily included in the one charged, 
or of the offense of attempting to commit the one charged. Upon a careful 
scrutiny of the evidence, we cannot find any ground whatever upon which the 
jury could properly have reached the conclusion that the defendant Hanson 
was only guilty of an offense included in the one charged, or of a mere 
attempt to commit the offense charged. A verdict of guilty of an offense 
less than the one charged would have been in flagrant disregard of all the 
proof, and in violation by the jury of their obligation to render a true 
verdict. There was an entire absence of evidence upon which to rest a 
verdict of guilty of manslaughter or of simple assault. A verdict of that 
kind would have been the exercise by the jury of the power to commute the 
punishment for an offense actually committed, and thus impose a punishment 
different from that prescribed by law.

The general question as to the duty of the jury to receive the law from the 
court is not concluded by any direct decision of this court. But it has been 
often considered by other courts and by judges of high authority; and, where 
its determination has not been controlled by specific constitutional or 
statutory provisions expressly empowering the jury to determine both law and 
facts, the principle by which courts and juries are to be guided in the 
exercise of their respective functions has become firmly established. If 
this be true, this court should not announce a different rule, unless 
impelled to do so by reasons so cogent and controlling that they cannot 
properly be overlooked or disregarded. Some of the members of this court, 
after much consideration, and upon an extended review of the authorities, 
are of opinion that the conclusion reached by this court is erroneous, both 
upon principle and authority. For this reason, and because the question is 
of great importance in the administration of justice, and also involves 
human life, we deem it appropriate to state with more fullness than under 
other circumstances would be necessary the grounds upon which our judgment 
will rest, looking first to cases determined in the courts of the United 
States.

In State v. Brailsford, 3 Dall. 1, 4, a case in f the court, to decide. But 
it must be amicable issue, Chief Justice Jay is reported to have said: 'It 
may not be amiss here, gentlemen, to remind you of the good old rule that on 
questions of fact it is the province of the jury, on questions of law it is 
the province of the court, to decide. But it must be observed that, by the 
same law which recognizes this reasonable distribution of jurisdiction, you 
have, nevertheless, a right to take upon yourselves to judge of both, and to 
determine the law as well as the fact in controversy. On this, and on every 
other, occasion, however, we have no doubt you will pay that respect which 
is due to the opinion of the court; for, as on the one hand, it is presumed 
that juries are best judges of facts, it is, on the other hand, presumable 
that the courts are the best judges of the law. But still both objects are 
lawfully within your power of decision.' Of the correctness of this report, 
Mr. Justice Curtis in U. S. v. Morris, 1 Curt. 23, 58, Fed. Cas. No. 15, 
815, expressed much doubt, for the reason that the chief justice is reported 
as saying that, in civil cases, -- and that was a civil case, -- the jury 
had the right to decide the law, and because, also, the different parts of 
the charge conflict with each other; the chief justice, according to the 
report, saying at the outset that it is the province of the jury to decide 
questions of fact, and of the court to decide questions of law, and in the 
succeeding sentence informing the jury that they had the right to take upon 
themselves the determination of both law and fact. If the chief justice said 
that it was the province of the court to decide questions of law, and the 
province of the jury to decide questions of fact, he could not have said 
that the jury had the right, in a civil case, to judge of and determine both 
law and fact. 'The whole case,' Mr. Justice Curtis said,'was an anomaly. 
It purports to be a trial by jury in the supreme court of the United States 
of certain issues out of chancery; and the chief justice begins by telling 
the jury that the facts are all agreed, and the only question is a matter of 
law, and upon that the whole court were agreed. If it be correctly reported, 
I can only say it is not in accordance with the views of any other court, so 
far as I know, in this country or in England, and is certainly not in 
accordance with the course of the supreme court for many years.'

Certain observations of Chief Justice Marshall in the course of the trial of 
Burr have sometimes been referred to in support of the contention that the 
jury in a criminal case are under no legal obligation to accept the law as 
laid down by the court. But nothing said by him at that trial was 
inconsistent with the views expressed by eminent jurists in cases to be 
presently cited. In the course of an opinion relating merely to the order of 
evidence, the chief justice said: 'Levying of war is a fact which must be 
decided by the jury. The court may give general instructions on this as on 
every other question brought before them, but the jury must decide upon it 
as compounded of fact and law.' 1 Burr's Trial, 470. This language is 
supposed to justify the contention that the jury in a criminal case are 
entitled, of right, to determine questions of pure law adversely to the 
direction of the court. But that no such thought was in the mind of the 
chief justice is manifest from his written charge to the jury at a 
subsequent stage of the trial, -- the accuracy of the report of which has 
never been disputed, -- in which he discussed, in the light of the 
authorities, the question as to what constituted treason.

In the course of that charge he indicated quite distinctly his view of the 
respective functions of court and jury. 'It has been thought proper,' he 
said,'to discuss this question at large, and to review the opinion of the 
supreme court [Ex parte Bollman, 4 Cranch, 75], although this court would be 
more disposed to leave the question of fact whether an overt act of levying 
war were committed on Blennerhassett's island to the jury under this 
explanation of the law, and to instruct them that, unless the assemblage on 
Blennerhassett's island was an assemblage in force, -- was a military 
assemblage in a condiction to make war, -- it was not levying war, and that 
they could not construe it into an act of war, than to arrest the further 
testimony which might be offered to connect the prisoner with that 
assemblage, or to prove the intention of those who assembled together at 
that place. This point, however, is not to be understood as decided. It 
will, perhaps, constitute an essential inquiry in another case.' This 
language is wholly inconsistent with the theory that the chief justice 
recognized the right of the jury to disregard the court's view of the law 
upon any question arising in the case before them. It was consistent only 
with the theory that the court could speak authoritatively as to the law, 
while the function of the jury was to respond as to the facts. Again: 'It is 
the further opinion of the court that there is no testimony whatever which 
tends to prove that the accused was actually or constructively present when 
that assemblage did take place; indeed, the contrary is most apparent.' 'The 
opinion of this court on the order of testimony has frequently been adverted 
to as deciding this question against the motion. If a contradiction between 
the two opinions exist, the court cannot perceive it. It was said that 
levying war is an act compounded of law and fact, of which the jury, aided 
by the court, must judge. To that declaration the court still adheres.' He 
concluded his memorable charge in these words: 'The jury have now heard the 
opinion of the court on the law of the case. They will apply that law to the 
facts, and will find a verdict of guilty or not guilty as their own 
consciences may direct.' Again, according to the only recognized report of 
that trial ever published, the chief justice, in response to certain 
inquiries of counsel made after the jury returned their verdict, said: 
'Without doubt the court intended to deliver merely a legal opinion as to 
what acts amounted in law to an overt act of levying war, and not whether 
such an overt act has or has not been proved. It merely stated the law, to 
which the jury would apply the facts proved. It is their province to say 
whether according to this statement and the evidence an overt act has been 
proved or not.' 2 Burr's Trial, 401, 422, 439, 444, 448. The language of the 
chief justice plainly imports that, while the jury must of necessity often 
pass upon a question 'compounded of fact and law,' their duty, when 
considering the evidence, was to apply the law, as given by the court, to 
the facts proved; and, thus applying the law, return a verdict of guilty or 
not guilty as their consciences might direct. If he had believed that the 
jury were entitled, of right, whatever might be the views of the court, to 
determine for themselves the law of the case, it is impossible that he could 
have said that 'they will apply that law [the law as he declared it to be] 
to the facts.' On the contrary, he observed that the province of the jury 
was to determine whether the accused was guilty or not guilty, according to 
his statement of the law as applied to the evidence. Of course, this court 
has no means of determining what were the views of Chief Justice Marshall, 
except by referring to such authorized publications as show what he said 
while discharging judicial functions. In none of his opinions delivered at 
the circuit court and published can there be found anything at all in 
conflict with his declarations at the trial of Burr. And it may be observed 
that the circumstances attending that trial were such as to induce him to 
weigh every word embodied in his elaborate written charge to the jury. That 
he understood the gravity of the occasion, so far as it related to the 
conduct of the trial, is manifest from his referring in the following 
language to certain considerations that had been advanced in argument: 'That 
this court dare not usurp power is most true. That this court dare not 
shrink from its duty is not less true. No man is desirous of placing himself 
in a disagreeable situation. No man is desirous of becoming the peculiar 
subject of calumny. No man, might he let the bitter cup pass from him 
without self-reproach, would drain it to the bottom. But if he have no 
choice in the case, if there be no alternative presented to him but a 
dereliction of duty or the opprobrium of those who are denominated the 
'world,' he merits the contempt as well as the indignation of his country 
who can hesitate which to embrace. That gentlemen, in a case the most 
interesting, in the zeal with which they advocate particular opinions, and 
under the conviction in some measure produeed by that zeal, should on each 
side press their arguments too far, should be impatient at any deliberation 
in the court, and should suspect of fear the operation of motives to which 
alone they can ascribe that deliberation, is perhaps a frailty incident to 
human nature; but, if any conduct on the part of the court could warrant a 
sentiment that it would deviate to the one side or the other from the line 
prescribed by duty and by law, that conduct would be viewed by the judges 
themselves with an eye of extreme severity, and would long be recollected 
with deep and serious regret.' 

In Henfield's Case, Fed. Cas. No. 6, 360, Mr. Justice Wilson, with whom sat 
Mr. Justice Iredell, stated that the jury, in a general verdict, must decide 
both law and fact, but that 'this did not authorize them to decide it as 
they pleased,' and that,'the questions of law coming into joint 
consideration with the facts, it is the duty of the court to explain the law 
to the jury, and give it to them in direction.' Whart. St. Tr. 84, 87, 88. 
This statement of the principle is sometimes referred to in support of the 
proposition that the jury is not under a legal duty to accept the law as 
declared by the court in a criminal case. We think it tends to show that it 
is the province and duty of the jury to apply to the facts of the case the 
law as given to them by the court 'in direction.'

There is nothing in conflict with this in the Lectures on Law delivered by 
Mr. Justice Wilson. In one of those lectures, referring to the duties of 
jurors in criminal cases, he said: 'On questions of law, his [ the juror's] 
deficiencies will be supplied by the professional directions of the judges, 
whose duty and whose business it is professionally to direct him; for, as we 
have seen, verdicts, in criminal cases generally determine the question of 
law as well as the question of fact. Questions of fact it is his exclusive 
province to determine. With the consideration of evidence unconnected with 
the question which he is to try, his attention will not be distracted; for 
everything of that nature, we presume, will be excluded by the court. The 
collected powers of his mind, therefore, will be fixed, steadily and without 
interruption, upon the issue he is sworn to try. This issue is an issue of 
fact.' 2 Wilson, Works, 386. Other observations found in these lectures, if 
considered alone, are not so explicit upon the question of the respective 
functions of court and jury; but, taken in connection with all that he said, 
it is reasonably clear that when Mr. Justice Wilson spoke of the 
determination by a jury, in a criminal case, of both law and fact, he meant, 
only that a general verdict of guilty or not guilty, of necessity, decided 
every question before them which involved a joint consideration of law and 
fact, not that the jury could ignore the directions of the court, and take 
the law into their own hands.

The observations of Mr. Justice Samuel Chase in the Case of Fries, Fed. Cas. 
No. 5, 126, tried for treason, 1800, are supposed to sustain the broad 
proposition that the jury may, of right, disregard the law as expounded by 
the court. He undoubtedly did say that while it was the duty of the court, 
in all criminal cases, to state the law arising on the facts, the jury were 
to decide 'both the law and facts, on their consideration of the whole 
case.' Chase, Trial, Append. 45. But on the trial, in the same year, in the 
circuit court of the United States for the Virginia district, of James 
Thompson Callender for seditious libel, he was appalled at the suggestion by 
learned counsel that the jury were entitled, of right, to determine the 
constitutional validity of the act of congress under which the accused was 
indicted. Mr. Wirt, counsel for the defendant, said: 'Since, then, the jury 
have a right to consider the law, and since the constitution is law, the 
conclusion is certainly syllogistic that the jury have a right to consider 
the constitution.' But Mr. Justice Chase declined to accept this view. He 
said: 'The statute on which the traverser is indicted enacts 'that the jury 
who shall try the cause shall have a right to determine the law and the 
fact, under the direction of the court, as in other cases.' By this 
provision I understand that a right is given to the jury to determine what 
the law is in the case before them, and not to decide whether a statute of 
the United States produced to them is a law or not, or whether it is void, 
under an opinion that it is unconstitutional; that is, contrary to the 
constitution of the United States. I admit that the jury are to compare the 
statute with the facts proved, and then to decide whether the acts done are 
prohibited by the law, and whether they amount to the offense described in 
the indictment. This power the jury necessarily possesses, in order to 
enable them to decide on the guilt or innocence of the person accused. It is 
one thing to decide what the law is on the facts proved, and another and a 
very different thing to determine that the statute produced is no law. To 
decide what the law is on the facts is an admission that the law exists. If 
there be no law in the case, there can be no comparison between it and the 
facts; and it is unnecessary to establish facts before it is ascertained 
that there is a law to punish the commission of them.' 'It was never 
pretended,' he bontinued,'as I ever heard, before this time, that a petit 
jury in England (from whence our common law is derived), or in any part of 
the United States, ever exercised such power. If a petit jury can rightfully 
exercise this power over one statute of congress, they must have an equal 
right and power over any other statute, and indeed over all the statutes; 
for no line can be drawn, no restriction imposed, on the exercise of such 
power; it must rest in discretion only. If this power be once admitted, 
petit jurors will be superior to the national legislature, and its laws will 
be subject to their control. The power to abrogate or to make laws nugatory 
is equal to the authority of making them. The evident consequences of this 
right in juries will be that a law of congress will be in operation in one 
state, and not in another. A law to impose taxes will be obeyed in one 
state, and not in another, unless force be employed to compel submission. 
The doing of certain acts will be held crim inal, and punished in one state, 
and similar acts may be held innocent, and even approved and applauded, in 
another. The effects of the exercise of this power by petit jurors may be 
readily conceived. It appears to me that the right now claimed has a direct 
tendency to dissolve the union of the United States, on which, under divine 
Providence, our political safety, happiness, and prosperity depend.' He 
concluded his opinion in these words: 'I consider it of the greatest 
consequence to the administration of justice that the powers of the court 
and the powers of the petit jury should be kept distinct and separate. I 
have uniformly delivered the opinion 'that the petit jury have a right to 
decide the law as well as the fact in criminal cases'; but it never entered 
into my mind that they, therefore, had a right to determine the 
constitutionality of any statute of the United States.' Whart. St. Tr. 713, 
714, 718.

What Mr. Justice Chase said is quite sufficient to show the mischievous 
consequences that would flow from the doctrine that the jury may, of right, 
disregard the directions of the court, and determine the law for themselves; 
for if, as is contended, the jury in criminal cases are not bound to take 
the law from the court, it is impossible to deny their absolute right in a 
case depending entirely upon an act of congress, or a statute of a state, to 
determine, upon their own responsibility, whether that act or statute is or 
is not law; that is, whether it is or is not in violation of the 
constitution. 

Mr. Justice Thompson, who became a member of this court in 1823, concurred 
in the opinion delivered by Kent, J., in People v. Croswell(1804) 3 Johns. 
Cas. 337, 362, where the court was equally divided, Chief Justice Lewis and 
Judge Brockholst Livingston, afterwards a justice of this court, holding 
that to questions of law the court, to questions of fact the jury, must 
respond. But in his opinion in Pierce v. State, 13 N. H. 356, 564, Chief 
Justice Parker, referring to Judge Kent's opinion in People v. Croswell, 
said: 'Mr. Justice Thompson, who concurred in that opinion, must have 
understood that concurrence to be merely in the opints necessary to the 
decision of that cause, or have subsequently changed his views; for I have 
his authority for saying that he has repeatedly ruled that the jury are not 
judges or the law in criminal cases.' And in the dissenting opinion of Judge 
Bennett in State v. Croteau, 23 Vt. 14, 63 (where it was held that the jury, 
in criminal cases, could rightfully decide questions of both law and fact, 
but which case has been overruled, 65 Vt. 1, 34, 25 Atl. 964), it was said: 
'Judge Thompson, whose judicial learning and experience, while on the bench 
of the supreme court of New York, and on the bench of the United States, 
were very extensive, thus wrote to a friend some short time before his 
death: 'I have repeatedly ruled on the trial of criminal cases that it was 
the right as well as the duty of the court to decide questions of law; and 
any other rule, it appears to me, would be at war with our whole judicial 
system, and introduce the utmost confusion in criminal trials. It is true, 
the jury may disregard the instructions of the court, and in some cases 
there may be no remedy. But it is still the right of the court to instruct 
the jury on the law, and the duty of the jury to obey the instructions." 
See, also, Whart, Cr. Pl. 810, note 3.

The remarks of Mr. Justice Baldwin in U. S. v. Wilson and Porter, Baldw. 78, 
100, 108, Fed. Cas. No. 16, 730, have sometimes been referred to as in 
conflict with the rule that it is the duty of the jury to accept the law as 
expounded by the court. It is quite true that, in the charge in Wilson's 
Case, Mr. Justice Baldwin said that, if the jury were prepared to say that 
the law was different from what the court had announced, they were in the 
exercise of their constitutional right to do so. But in his charge in 
Porter's Case he explained what was said in Wilson's Case. After remarking 
that, if a jury find a prisoner guilty against the court's opinion of the 
law of the case, a new trial would be granted, as no court would pronounce a 
judgment on a prisoner against what it believes to be the law, he said: 
'This, then, you will understand to be what is meant by your power to 
determine upon the law; but you will still bear in mind that it is a very 
old, sound, and valuable maxim that the court answers to questions of law, 
and the jury to facts. Every day's experience evinces the wisdom of this 
fule.' Subsequently, in U. S. v. Shive, Baldw. 510, 513, Fed. Cas. No. 16, 
278, which was an indictment for passing a counterfeit note of the Bank of 
the United States, and when the question arose as to the right of the jury 
to pass upon the constitutionality of the act of congress on which the 
prosecution was founded, Mr. Justice Baldwin said in his charge: 'If juries 
once exercise this power, we are without a constitution or laws; one jury 
has the same power as another; you cannot bind those who may take your 
places; what you declare constitutional to-day another jury may declare 
unconstitutional to-morrow.'

The question before us received full consideration by Mr. Justice Story in 
U. S. v. Battiste, 2, Sumn. 240, 243, 244, Fed. Cas. No. 14, 545. That was 
an indictment for a capital offence, and the question was directly presented 
whether in criminal cases, especially in capital cases, the jury were the 
judges of the law as well as of the facts. He said: 'My opinion is that the 
jury are no more judges of the law in a capital or other criminal case, upon 
the plea of not guilty, than they are in every civil case tried upon the 
general issue. In each of these cases, their verdict, when general, is 
necessarilty compounded of law and of fact, and includes both. In each they 
must necessarily determine the law as well as the fact. In each they have 
the physical power to disregard rthe law, as laid down to them by the court. 
But I deny that, in any case, civil or criminal, they have the moral right 
to decide the law according to their own notions or pleasure. On the 
contrary, I hold it the most sacred constitutional right of every party 
accused of a crime that the jury should respond as to the facts, and the 
court as to the law. It is the duty of the court to instruct the jury as to 
the law, and it is the duty of the jury to follow the law as it is laid down 
by the court. This is the right of every citizen, and it is his only 
protection. If the jury were at liberty to settle the law for themselves, 
the effect would be, not only that the law itself would be most uncertain, 
from the different views which different juries might take of it, but in 
case of error there would be no remedy or redress by the injured party; for 
the court would not have any right to review the law as it had been settled 
by the jury.' 'Every person accused as a criminal has a right to be tried 
according to the law of the land, -- the fixed law of the land, and not by 
the law as a jury may understand it, or choose, from wantonness or ignorance 
of accidental mistake, to interpret it. If I thoutht that the jury were the 
proper judges of the law in criminal cases, I should hold it may duty to 
abstain from the responsibility of stating the law to them upon any such 
trial. But believing, as I do, that every citizen has a right to be tried by 
the law, and according to the law; that it is his privilege and truest 
shield against oppression and wrong, -- I feel it my duty to state my views 
fully and openly on the present occasion.'

In U. S. v. Morris, 1 Curt. 23, 51, 52, 58, Fed. Cas. No. 15, 815, the 
question, in all of its aspects, was examined by Mr. Justice Curtis with his 
accustomed care. In that case the contention was that every jury, impaneled 
in a court of the United States, was the rightful judge of the existence, 
construction, and effect of every law that was material in a criminal case, 
and could, of right, and if it did its duty must, decide finally on the 
constitutional validity of any act of congress which the trial brought in 
question. Touching the rightful powers and duties of the court and the jury 
under the constitution in criminal cases, Mr. Justice Curtis, among other 
things, said: 'The sixth article, after declaring that the constitution, 
laws, treaties of the United States shall be the supreme law of the land, 
proceeds,'And the judges, in every state, shall be bound thereby.' But was 
it not intended that the constitution, laws, and treaties of the United 
States should be the supreme law in criminal as well as in civil case? If a 
state law should make it penal for an officer of the United States to do 
what an act of congress commands him to do, was not the latter to be supreme 
over the former? And if so, and in such cases juries finally and rightfully 
determine the law, and the constitution so means when it speaks of a trial 
by jury, why was this command laid on the judges alone, who are thus mere 
advisers of the jury, and may be bound to give sound advice, but have no 
real power in the matter? It was evidently the intention of the constitution 
that all persons engaged in making, expounding, and executing the laws, not 
only under the authority of the United States, but of the several states, 
should be bound by oath or affirmation to support the constitution of the 
United States. But no such oath or affirmation is required of jurors, to 
whom it is alleged the constitution confides the power of expounding that 
instrument, and not only construing, but holding invalid, any law which may 
come in question on a criminal trial.' 'In my opinion,' the learned justice 
proceeded,'it is the duty of the court to decide every question of law 
which arises in a criminal trial. If the question touches any matter 
affecting the course of the trial, such as the competency of a witness, the 
admissibility of evidence, and the like, the jury receive no direction 
concerning it. It affects the materials out of which they are to form their 
verdict, but they have no more concern with it than they would have had if 
the question had arisen in some other trial. If the question of law enters 
into the issue, and forms part of it, the jury are to be told that the law 
is, and they are bound to consider that they are told truly; that law they 
apply to the facts, as they find them, and thus, passing both on the law and 
the fact, they, from both, frame their general verdict of guilty or not 
guilty. Such is my view of the respective duties of the different parts of 
this tribunal in the trial of criminal case, and I have not found a single 
decision of any court in England, prior to the formation of the 
constitution, which conflicts with it.' 

It was also contended that the clause in the act of congress, known as the 
Sedition Law of 1798 (1 Stat. c. 74, 3), declaring that 'the jury who shall 
try the cause shall have a right to determine the law and the fact, under 
the direction of the court, as in other cases,' in the trial of criminal 
cases, and I have decide the law contraery to the direction of the court. 
But in response to this view Mr. Justice Curtis said: 'I draw from this the 
opposite inference; for where was the necessity of this provision, if, by 
force of the constitution, juries, as such, have both the power and the 
right to determine all questions in criminal cases; and why are they to be 
directed by the court?' See, also, Montgomery v. State, 11 Ohio, 427.

But Mr. Justice Curtis considered the question from another point of view, 
and gave reasons which appear to us entirely conclusive against the 
proposition that it is for the jury, in every criminal case, to say 
authoritatively what is the law by which they are to be governed in finding 
their verdict. He said: 'There is, however, another act of congress which 
bears directly on this question. The act of the 29th of April, 1802, in 
section 6, after enacting that, in case of a division of opinion between the 
judges of the circuit court on any question, such question may be certified 
to the supreme court, proceeds: 'And shall by the said court be finally 
decided; and the decision of the supreme court and their order in the 
premises shall be remitted to the circuit court, and be there entered of 
record and have effect according to the nature of such judgment and order.' 
The residue of this section proves that criminal as well as civil cases are 
embraced in it, and under it many questions arising in criminal cases have 
been certified to and decided by the supreme court, and persons have been 
executed by reason of such decisions. Now, can it be, after a question 
arising in a criminal trial has been certified to the supreme court, and 
there, in the language of this act, finally decided, and their order 
remitted here and entered of record, that when the trial comes on the jury 
may rightfully revise and reverse this final decision? Suppose, in the 
course of this trial, the judges had divided in opinion upon the question of 
the constitutionality of the act of 1850, and that, after a final decision 
thereon by the supreme court and the receipt of its mandate here, the trial 
should come on before a jury, does the constitution of the United Ststes, 
which established that supreme court, intend that a jury may, as matter of 
right, revise and reverse that decision? And, if not, what becomes of this 
supposed right? Are the decisions of the supreme court binding on juries, 
and not the decisions of inferior courts? This will hardly be pretended; and 
if it were, how is it to be determined whether the supreme court has or has 
not, in some former case, in effect settled a particular question of law? In 
my judgment, this act of congress is in accordance with the constitution, 
and designed to effect one of its important and even necessary objects, -- a 
uniform exposition and interpretation of the law of the United States, -- by 
providing means for a final decision of any question of law, -- final as 
respects every tribunal and every part of any tribunal in the country; and, 
if so, it is not only wholly inconsistent with the alleged power of juries, 
to the extent of all questions so decided, but it tends strongly to prove 
that no such right as is claimed does or can exist.'

Again: '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 of the king's bench in Rex v. Dean of St. Asaph, 3 Term R. 
428, note, and the answers of the twelve judges to the questions propounded 
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 said by ardent 
partisans and eloquent counsel, it will be found that the great contest 
concerning what is known 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 libelous 
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 a fact. 34 Ann. 
Reg. 170; 29 Parl. Deb. Such I understand to be the effect of that famous 
declaratory law. 32 Geo. III. c. 60.... I conclude, then, that, when the 
constitution of the United States was founded, it was a settled rule of the 
common law that, in criminal as well as in civil cases, the court decided 
the law, and the jury the facts; and it cannot be doubted that this must 
have an important effect in determining what is meant by the constitution 
when it adopts a trial by jury.'

That eminent jurist, whose retirement from judicial station has never cased 
to be a matter of deep regret to the bench and bar of this country, closed 
his great opinion with an expression of a firm conviction that, under the 
constitution of the United States, juries in criminal cases have not the 
right to decide any question of law, and that, in rendering a general 
verdict, their duty and their oath require them to apply to the facts, as 
the find them, the law given to them by the court. And in so declaring he 
substantially repeated what Chief Justice Marshall had said in Burr's Case.

In U. S. v. Greathouse, 4 Sawy. 457, 464, Fed. Cas. No. 15, 254, which was 
an indictment for trason, Mr. Justice Field said: 'There prevails a very 
general, but an erroneous, opinion that in all criminal cases the jury are 
the judges as well of the law as of the fact; that is, that they have the 
right to disregard the law as laid down by the court, and to follow their 
own notions on the subject. Such is not the right of the jury.' 'It is their 
duty to take the law from the court, and apply it to the facts of the case. 
It is the province of the court, and of the court alone, to determine all 
questions of law arising in the progress of a trial; and it is the province 
of the jury to pass upon the evidence, and determine all contested questions 
of fact. The responsibility of deciding correctly as to the law rests solely 
with the court, and the responsibility of finding correctly the facts rests 
solely with the jury.'

These principles were applied by Judge Shipman in U. S. v. Riley, 5 Blatchf. 
204, Fed. Cas. No. 16.164, and by Judge Cranch, upon an extended review of 
the authorities, in Stettinius v. U. S., 5 Cranch, C. C. 573, Fed. Cas. No. 
13, 387. They were also applied by Judge Jackson, in the district of West 
Virginia, in U. S. v. Keller, 19 Fed. 633, in which case it was said that 
although an acquittal in a criminal case was final, even if the jury 
arbitrarily disregarded the instructions of the court on the law of the 
case, a jury, in order to discharge its whole duty, must take the law from 
the court and apply it to the facts of the case.

Turning, now, to cases in the state courts, we find that in Com. v. Porter, 
10 Metc. 263, 276, the supreme judicial court of Massachusetts, speaking by 
Chief Justice Shaw, delivering the unanimous judgment of the court composed 
of himself and Justices Wilde, Dewey, and Hubbard, held that it was a 
well-settled principle, lying at the foundation of jury trials, admitted and 
recognized over since jury trial had been adopted as an established and 
settled mode of proceeding in courts of justice, that it was the proper 
province and duty of judges to consider and decide all questions of law, and 
the proper province and duty of the jury to decide all questions of fact. In 
the same case, the court, observing that the safety, efficiency, and purity 
of jury trial depend upon the steady maintenanceand practical application of 
this principle, and adverting to the fact that a jury, in rendering a 
general verdict, must necessarily pass upon the whole issue, compounded of 
the law and of the fact, and thus incidentally pass on questions of law, 
said: 'It is the duty of the court to instruct the jury on all questions of 
law which appear to arise in the cause, and also upon all questions, 
pertinent to the issue, upon which either party may request the direction of 
the court upon matters of law. And it is the duty of the jury to receive the 
law from the court, and to conform their judgment and decision to such 
instructions, as far as they understand them, in applying the law to the 
facts to be found by them; and it is not within the legitimate province of 
the jury to revise, reconsider, or decide contrary to such opinion or 
direction of the court in matter of law.' Page 286.

Perhaps the fullest examination of the question upon principle, as well as 
upon authority, to be found in the decisions of any state court, was made in 
Com. v. Anthes, 5 Gray, 185, 193, 206, 208, 218, where Chief Justice Shaw, 
speaking for a majority of the court, said that the true theory and 
fundamental principle of the common law, both in its civil and criminal 
departments, was that the judges should adjudicate finally upon the whole 
question of law, and the jury upon the whole question of fact.

Considering, in the light of the authorities, the grounds upon which a 
verdict of guilty or not guilty, in a criminal case, was held, at common 
law, to be conclusive, he observed that though the jury had the power they 
had not the right to decide, that is, to adjudicate, on both law and 
evidence. He said: 'The result of these several rules and principles is 
that, in practice, the verdict of a jury, both upon the law and the fact, is 
conclusive; because, from the nature of the proceeding, there is no judicial 
power by which the conclusion of law thus brought upon the record by that 
verdict can be reversed, set aside, or inquired into. A general verdict, 
either of conviction or acquittal, does embody had declare the result of 
both the law and the fact, and there is no mode of separating them on the 
record so as to ascertain whether the jury passed their judgment on the law, 
or only on the evidence. The law authorized them to adjudicate definitively 
on the evidence; the law presumes that they acted upon correct rules of law 
given then by the judge. The verdict, therefore, stands conclusive and 
unquestionable, in point both of law and fact. In a certain limited sense, 
therefore, it may be said that the jury have a power and legal right to pass 
upon both the law and the fact. And this is sufficient to account for many 
and most of the dicta in which the proposition is stated. But it would be 
more accurate to state that it is the right of the jury to return a general 
verdict; this draws after it, as a necessary consequence, that they 
incidentally pass upon the law. But here, again, is the question, what is 
intended by 'passing upon the law'? I think it is by embracing it in their 
verdict, and thus bringing it upon the record, with their finding of the 
facts. But does it follow that they may rightfully and by authority of the 
common law, by which all are conscientiously bound to goven their conduct, 
proceed upon the same grounds and principles in the one case as the other? 
What the jury have a right to do, and what are the grounds and principles 
upon which they are in duty and conscience bound to act and govern 
themselves in the exercise of that right, are two very distinct questions. 
The latter is the one we have do deal with. Suppose they have a right to 
find a general verdict, and by that verdict to conclude the prosecutor in 
the matter of law, still it is an open and very different question whether, 
in making up that verdict and thereby embracing the law, they have the same 
right to exercise their own reason and judgment, against the statement of 
the law by the judge, to adjudicate on the law, as unquestionably they have 
on the fact. The affirmative of this proposition is maintained by the 
defendant in this case, and by others in many of the cases before us. If I 
am right in the assumption that the judge is to adjudge the law, and the 
jury the fact, only, it furnishes the answer to this question to what extent 
the jury adjudicate the law; and it is that they receive authoritative 
directions from the court, and act in conformity with them, though by their 
verdict they thus embrace the law with the fact, which they may rightfully 
adjudicate.'

Alluding to the history of this question in England, and particularly, as 
did Mr. Justice Curtis, to the controversy in Rex v. Dean of St. Asaph, 3 
Term R. 428, note, and which resulted in the passage by parliament, after 
the separation of this country from Great Britain, of the libel act (St. 32 
Geo. III.), and observing that both parties to that controversy assumed the 
force and existence of the rule as the ancient rule of the common law, the 
court said: 'The court and high prerogative party say judges answer to the 
law, and jurors to the fact; the question of guilty or not, in the peculiar 
form of a criminal prosecution for libel, after the jury have found the fact 
of publication and truth of the innuendoes, is a question of law, and 
therefore must be declared exclusively by the court. The popular party, 
assuming the same major proposition, say the question of guilty or not is 
question of fact, and can be found only by the jury. It appears to me, 
therefore, as I stated on the outset, that considering the course of the 
controversy, the earnestness and ability with which every point was 
contested, and the thorough examination of the ancient authorities, this 
concurrence of views on the point in question affords strong proof that, up 
to the period of our separation from England, the fundamental definition of 
trials by jury depended on the universal maxim, without an exception,'Ad 
quaestionem facti respondent juratores, ad quaestionem juris respondent 
judices."

The Anthes Case, it may be observed, arose under a statute enacted in 1855, 
after the decision in the Porter Case. But the court held that that statute 
did not confer upon juries, in criminal trials, the power of determining 
questions of law against the instruction of the court. And the chief justice 
said -- Justices Metcalf and Merrick concurring -- that, if the statute 
could be so interpreted as to prescribe that the jury, consistently with 
their duty, may decide the law upon their judgment contrary to the decision 
and instruction of the court before whom the trial was had, such enactment 
would be beyond the scope of legitimate legislative power, repugnant to the 
constitution, and, of course, inoperative and void. See, also, Com. v. Rock, 
10 Gray, 4, where the doctrine announced in Com. v. Anthes were reaffirmed, 
no one of the members of the court expressing a dissent.

This question was also fully considered in Montee v. Com., 3 J. J. March. 
132, 149, 151, in which case Chief Justice Robertson said: 'The circuit 
judge would be a cipher, and a criminal trial before him a farce, if he had 
no right to decide all questions of law whihc might arise in the progress of 
the case. The jury are the exclusive judges of the facts. In this particular 
they cannot be controlled, and ought not to be instructed, by the court. 
They are also, ex necessitate, the ultimate judges, in one respect, of the 
law. If they acquit, the judge cannot grant a new trial, how much soever 
they have misconceived or disregarded the law.' 'If the court had no right 
to decide on the law, error, confusion, uncertainty, and licentiousness 
would characterize the criminal trials; and the safety of the accused might 
be as much endangered as the stability of public justice would certainly 
be.' In Pierce v. State, 13 N. H. 536, 554, it was held to be inconsistent 
with the spirit of the constitution that questions of law, and, still less, 
questions of constitutional law, should be decided by the verdict of the 
jury, contrary to the instructions of the court.

In Duffy v. People, 26 N. Y. 588, 591, Judge Selden, speaking for the court 
of appeals of New York, said: 'The unquestionable power of juries to find 
general verdicts, involving both law and fact, furnishes the foundation for 
the opinion that they are judges of the law as well as of the fact, and 
gives some plausibility to that opinion. They are not, however, compelled to 
decide legal questions; having the right to find special verdicts, giving 
the facts, and leaving the legal conclusions which result from such facts to 
the court. When they find general verdicts, I think it is their duty to be 
governed by the instructions of the court as to all legal questions involved 
in such verdicts. They have the power to do otherwise, but the exercise of 
such power cannot be regarded as rightful, although the law has provided no 
means, in criminal cases, of reviewing their decisions, whether of law of 
fact, or of ascertaining the grounds upon which their verdicts are based.' 
See, also, People v. Finnegan, 1 Parker, Cr. R. 147, 152; Safford v. People, 
Id. 474, 480.

So, in Hamilton v. People, 29 Mich. 173, 192, Mr. Justice Campbell, as the 
organ of the court, said: 'We understand the uniform practice and the 
decided weight of opinion to require that the judge give his views of the 
law to the jury as authority, and not as a matter to be submitted to their 
review.' And in People v. Anderson, 44 Cal. 65, 70: 'In this state it is so 
well settled as no longer to be open to debate that it is the duty of a 
jury, in a criminal case, to take the law from the court.' The principle was 
accurately stated by Chief Justice Ames, speaking for the supreme court of 
Rhode Island, when he said: 'The line between the duties of a court and jury 
in the trial of causes at law, both civil and criminal, is perfectly well 
defined; and the rigid observance of it is of the last importance to the 
administration of systematic justice. Whilst, on the one hand, the jury are 
the sole, ultimate judges of the facts, they are, on the other, to receive 
the law applicable to the case before them solely from the publicly given 
instructions of the court. In this way, court and jury are made responsible, 
each in its appropriate department, for the part taken by each in the trial 
and decision of causes; and in this way alone can errors of fact and errors 
of law be traced, for the purpose of correction, to their proper sources. If 
the jury can receive the law of a case on trial in any other mode than from 
the instructions of the court, given in the presence of parties and counsel, 
how are their errors of law, with any certainty, to be detected, and how, 
with any certainty, therefore, to be corrected? It is a statute right of 
parties here -- following, too, the ancient course of the common law -- to 
have the law given by the court, in their presence, to the jury, to guide 
their decision, in order that every error in matter of law may be known and 
corrected.' State v. Smith, 6 R. I. 33, 34.

In Pennsylvania, in the case of Com. v. Sherry (reported in the appendix to 
Wharton's treatise on Homicide), Judge Rogers, a jurist of high reputation, 
thus charged the jury in a capital case: 'You are, it is true, judges in a 
criminal case, in one sense, of both law and fact; for your verdict, as in 
civil cases, must pass on law and fact together. If you acquit, you 
interpose a final bar to a second prosecution, no matter how entirely your 
verdict may have been in opposition to the views expressed by the court.... 
It is important for you to keep this distinction in mind, remembering that, 
while you have the physical power, by an acquittal, to discharge a defendant 
from further prosecution, you have no moral power to do so, against the law 
laid down by the court.... For your part, your duty is to receive the law, 
for the purposes of this trial, from the court. If an error injurious to the 
prisoner occurs, it will be rectified by the revision of the court in banc. 
But an error resulting from either a conviction or acquittal, against the 
law, can never be rectified. In the first case, an unnecessary stigma is 
affixed to the character of a man who was not guilty of the offense with 
which he is charged. In the second case, a serious injury is effected by the 
arbitrary and irremediable discharge of a guilty man. You will see from 
these considerations the great importance of the preservation, in criminal 
as well as in civil cases, of the maxim that the law belongs to the court, 
and the facts to the jury.' About the same time, Judge Sergeant charged a 
jury: 'The point, if you believe the evidence on both sides, is one of law, 
on which it is your duty to receive the instructions of the court. If you 
believe the evidence in the whole case, you must find the defendant guilty.' 
Com. v. Van Sickle, Brightly (Pa.) 73. To the same effect, substantially, 
was the language of Chief Justice Gibson, who, when closing a charge in a 
capital case, said,'If the evidence on these points fail the prisoner, the 
conclusion of his guilt will be irresistible, and it will be your duty to 
draw it.' Com. v. Harman, 4 Pa. St. 269. In a more recent case (Kane v. 
Com., 89 Pa. St. 522), Sharswood, C. J., said that the power of the jury to 
judge of the law in a criminal case was one of the most valuable securities 
guarantied by the bill of rights of Pennsylvania. But in a later case, 
Nicholson v. Com., 96 Pa. St. 505, it was said: 'The court had an undoubted 
right to instruct the jury as to the law, and to warn them as they did 
against finding contrary to it. This is very different from telling them 
that they must find the defendant guilty, which is what is meant by a 
binding instruction in criminal cases.' In Com. v. McManus, 143 Pa. St. 64, 
85, 21 Atl. 1018, and 22 Atl. 761, it was adjudged that the statement by the 
court was the best evidence of the law within the reach of the jury, and 
that the jury should be guided by what the court said as to the law. And 
this view the court, speaking by Chief Justice Paxson, said was in harmony 
with Kane v. Com.

The question has recently been examined by the supreme court of Vermont, and 
after an elaborate review of the authorities, English and American, that 
court, by a unanimous judgment, -- overruling State v. Croteau, 23 Vt. 14, 
and all the previous cases which had followed that case, -- said: 'We are 
thus led to the conclusion that the doctrine that jurors are the judges of 
the law in criminal cases is untenable; that it is contrary to the 
fundamental maxims of the common law from which it is claimed to take its 
origin; contrary to the uniform practice and decisions of the courts of 
Great Britain, where our jury system had its beginning, and where it 
matured; contrary to the great weight of authority in this country; contrary 
to the spirit and meaning of the constitution of the United States; 
repugnant to the constitution of this state; repugnant to our statute 
relative to the reservation of questions of law in criminal cases, and 
passing the same to the supreme court for final decision.' State v. Burpee, 
65 Vt. 1, 34, 25 Atl. 964.

These principles are supported by a very large number of adjudications, as 
will be seen by an examination of the cases cited in margin.2

To the same purport are the text writers. 'In theory, therefore,' says 
Judge Cooley,'the rule of law would seem to be that it is the duty of the 
jury to receive and follow the law as delivered to them by the court; and 
such is the clear weight of authority.' Const. Lim. 323, 324. Greenleaf, in 
his treattise on the Law of Evidence, says: 'In trials by jury, it is the 
province of the presiding judge to determine all questions on the 
admissibility of evidence to the jury, as well as to instruct them in the 
rules of law by which it is to be weighed. Whether there be any evidence or 
not is a question for the judge; whether it is sufficient evidence is a 
question for the jury.' 'Where the question is mixed, consisting of law and 
fact, so intimately blended as not to be easily susceptible of separate 
decision, it is submitted to the jury, who are first instructed by the judge 
in the principles and rules of law by which they are to be governed in 
finding a verdict, and these instructions they are bound to follow.' Volume 
1, 49. Starkie, in his treatise on Evidence, observes,'Where the jury find 
a general verdict they are bound to apply the law as delivered by the court, 
in criminal as well as civil cases.' Page 816. So, in Phillips on Evidence: 
'They [the jury] are not in general, either in civil or criminal cases, 
judges of the law. They are bound to find the law as it is propounded to 
them by the court. They may, indeed, find a general verdict, including both 
law and fact; but if, in such verdict, they find the law contrary to the 
instructions of the court, they thereby violate their oath.' 4 Cowen & 
Hill's Notes (3d Ed.) p. 2. See, also, 1 Tayl. Ev. 21-24; 1 Best, Ev. 
(Morgan's Ed.) 82.

In 1 Cr. Law Mag. 51, will be found a valuable note to the case of Kane v. 
Com., prepared by Mr. Wharton, in which the authorities are fully examined, 
and in which he says: 'It would be absurd to say that the determination of 
the law belongs to the jury, not court, if the court has power to set aside 
that which the jury determines. We must hold, to enable us to avoid the 
inconsistency, that, subject to the qualification that all acquittals are 
final, the law in criminal cases is to be determined by the court. In this 
way we have our liberties and rights determined, not by an irresponsible, 
but by a responsible, tribunal; not by a tribunal ignorant of the law, but 
by a tribunal trained to and disciplined by the law; not by an irreversible 
tribunal, but by a reversible tribunal; not by a tribunal which makes its 
own law, but by a tribunal that obeys the law as made. In this way we 
maintain two fundamental maxims. The first is that, while to facts answer 
juries, to the law answers the court. The second, which is still more 
important, is 'Nullum crimen, nulla poena, sine lege.' Unless there be a 
violation of law preannounced, and this by a constant and responsible 
tribunal, there is no crime, and can be no punishment.' 1 Cr. Law Mag. 56. 
The same author, in his treatise on Pleading and Practice, concludes his 
examination of the question in these words: 'The conclusion we must 
therefore accept is that the jury are no more judges of law in criminal than 
in civil cases, with the qualification that, owing to the peculiar doctrine 
of autrefois acquit, a criminal acquitted cannot be overhauled by the court. 
In the federal courts such is now the established rule.' Sections 809, 810.

Forsyth, in his History of Trial by Jury, -- a work of merit, -- discusses 
the doctrine advanced by some that the jury were 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 criminal as well as in 
civil cases. He says: 'It is impossible to uphold the doctrine. It is 
founded on a confusion between the ideas of power and right.' 'Indeed, it is 
difficult to understand how any one acquainted with the principles and 
settled practice of the English law can assert that it sanctions the 
doctrine which is here combated.' Again: 'The distinction between the 
province of the judge and that of the jury is, in the English law, clearly 
defined, and observed with jealous accuracy. The jury must in all cases 
determine the value and effect of evidence which is submitted to them. They 
must decide what degree of credit is to be given to a witness, and hold the 
balance between conflicting probabilities. The law throws upon them the 
whole responsibility of ascertaining facts in dispute, and the judge does 
not attempt to interfere with the exercise of their unfettered discretion in 
this respect. But, on the other hand, the judge has his peculiar duty in the 
conduct of a trial. He must determine whether the kind of evidence offered 
is such as ought or ought not to be submitted to the jury, and what 
liabilities it imposes. When any questions of law arise, he alone determines 
them, and their consideration is absolutely withdrawn from the jury, who 
must in such cases follow the direction of the judge; or if they perversely 
refuse to do so, their verdict (in civil cases) will be set aside, and a new 
trial granted.' Pages 235, 236 (Morgan's Ed.).

Worthington, in his Inquiry into Power of Juries, an English work Published 
in 1825, and often cited in the adjudged cases, says: 'Were they [ the jury] 
permitted to decide the law, the principles of justice would be subverted; 
the law would become as variable as the prejudices, the inclinations, and 
the passions of men. If they could legally decide upon questions of law, 
their decision must, of necessity, be final and conclusive, which would 
involve an absurdity in all judicial proceedings, and would be contradictory 
to the fundamental principles of our jurisprudence.' 'The jury, when called 
upon to decide facts which are complicated with law, are therefore 
constitutionally, and must be, from the nature and intention of the 
institution, bound to seek and to obey the direction of the judge with 
respect to the law. It becomes their duty to apply to the law thus explained 
to them the facts (which it is their exclusive province to find), and thus 
they deliver a verdict compounded of law and fact, but they do not determine 
or decide upon the law in any case.' Pages 193, 194.

Judge Thompson, in his work on Trials (sections 1016, 1017), thus states the 
principles: 'The judge decides questions of law; the jury, questions of 
fact.' So, in Proff. Jury, 375: 'The preponderance of judicial authority in 
this country is in favor of the doctrine that the jury should take the law 
from the court, and apply it to the evidence under its direction.'

The language of some judges and statesmen in the early history of the 
country, implying that the jury were entitled to disregard the law as 
expounded by the court, is perhaps to be explained by the fact that 'in many 
of the states the arbitrary temper of the colonial judges, holding office 
directly from the crown, had made the independence of the jury, in law as 
well as in fact, of much popular importance.' Whart. Cr. Pl. (8th Ed.) 806; 
Williams v. State, 32 Miss. 389, 396.

Notwithstanding the declarations of eminent jurists and of numerous courts, 
as disclosed in the authorities cited, it is sometimes confindently asserted 
that they all erred when adjudging that the rule at common law was that the 
jury, in criminal cases, could not properly disregard the law as given by 
the court. We are of opinion that the law in England at the date of our 
separation from that country was as declared in the authorities we have 
cited. The contrary view rests, as we think, in large part, upon expressions 
of certain judges and writers, enforcing the principle that when the 
question is compounded of law and fact a general verdict, ex necessitate, 
disposes of the case in hand, both as to law and fact. That is what Lord 
Somers meant when he said in his essay on 'The Security of Englishmen's 
Lives, or the Trust, Power, and Duty of the Grand Juries of England,' that 
jurors only 'are the judges from whose sentence the indicted are to expect 
life or death,' and that,'by finding guilty or not guilty, they do 
complicately resolve both law and fact.' In the speeches of many statesmen 
and in the utterances of many jurists will be found the general observation 
that when law and fact are 'blended' their combined consideration is for the 
jury, and a verdict of guilty or not guilty will determine both for the 
particular case in hand. But this falls far short of the contention that 
jury, in applying the law to the facts, may rightfully refuse to act upon 
the principles of law announced by the court.

It is to be observed that those who have maintained the broad position that 
a jury may, of right, disregard the law as declared by the court, cite the 
judgment of Chief Justice Vaughan in Bushell's Case, Vaughan, 135. In that 
case the accused were acquitted by a general verdict, in opposition, as it 
was charged, to the directions of the court. And the question presented upon 
habeas corpus was whether, for so doing, they were subject to be fined, and 
committed to prison until the fine was paid. Upon a careful examination of 
the elaborate opinion in that case, it will become clear that the 
fundamental proposition decided was that in view of the different functions 
of court and jury, and because a general verdict, of necessity, resolves 
'both law and fact complicately, and not the fact by itself,' it could 
never be proved, where the case went to the jury upon both law and facts, 
that the jurors did not proceed upon their view of the evidence. Chief 
Justice Vaughan said that the words in the warrant,'that the jury did 
acquit against the direction of the court in matter of law, literally taken, 
and de plano, are insignificant, and not intelligible, for no issue can be 
joined of matter in law; no jury can be charged with the trial of matter in 
law barely; no evidence ever was or can be given to a jury of what is law or 
not, nor no such oath can be given to or taken by a jury, to try matter in 
law, nor no attaint can lie for such a false oath.' Id. 143. Touching the 
distinction between the oath of a witness and that of a juror, he said: 'A 
witness swears but to what hath fallen under his senses. But a juryman 
swears to what he can infer and conclude from the testimony of such 
witnesses, by the act and force of his own understanding, to be the fact 
inquired after, which differs nothing in the reason, though much in the 
punishment, from what a judge, out of various cases considered by him infers 
to be law in the question before him.' Id. 139, 142.

In referring to the opinion in Bushell's Case, Mr. Justice Curtis well 
observed that it would be found that Chief Justice Vaughan 'confines himself 
to a narrow, though, for the case, a conclusive, line of argument, -- 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 builty 
of any legal misdemeanor in returning a verdict, though apparently against 
the direction of the court in matter of law.' And this is the view of the 
opinion in Bushell's Case, expressed by Hallam in his Constitutional History 
of England (chapter 13).

A similar criticism was made by the supreme judicial court of Massachusetts 
in the Case of Anthes. Chief Justice Shaw, after stating the principles 
involved in Bushell's Case, said: 'It may be remarked that from the improved 
views of the nature of jury trials, during the two hundred years which have 
elapsed since the decision of Chief Justice Vaughan, the juror is now in no 
more danger of punishment for giving an erroneous judgment in matter of fact 
than a judgeis for giving an erroneous judgment in matter of law. But his 
statement clearly implies that the judge, within his appropriate sphere, is 
to act by the force of his reason and understanding, and, by the aid of his 
knowledge of the law and all appropriate means, to adjudge all questions of 
law, and direct the jury thereon; and in like manner the jury, by the force 
of their reason and understanding, acting upon all the competent evidence in 
the case, to reason, weigh evidence, draw inferences, and adjudge the 
question of fact embraced in the issue. Again: 'In these cases the jury, and 
not the judge, resolve and find what the fact is. Therefore, always, in 
discreet and lawful assistance of the jury, the judge's direction is 
hypothetical and upon supposition, and not positive, upon coercion, namely: 
'If you find the fact thus [leaving it to them what to find], then you are 
to find for the plaintiff; but, if you find the fact thus, then it is for 
the defendant.' Vaughan, 144." 'It is strange,' Chief Justice Shaw felt 
constrained to say,'that the authority of Vaughan, C. J., in this case, 
should be cited, as it has been, to prove that a juror, in finding a general 
verdict, embracing law and fact, being sworn to try the issue, must find his 
verdict upon his own conviction and conscience, relying, in support of the 
proposition, upon the following words of Vaughan, C. J.: 'A man cannot see 
by another's eye, nor hear by another's ear. No more can a man decide and 
infer the thing to be resolved by another's understanding or reasoning.' Id. 
148.' Had these words been applied to the whole issue embraced in a general 
verdict, as would be implied from the manner of referring to them, they 
would have countenanced the proposition; but they are used expressly to 
illustrate the position that the jury cannot be required implicitly to give 
a verdict by the dictates and authority of the judge. 'I refer,' Chief 
Justice Shaw continued,'only to one other passage, which serves as a key to 
the whole judgment. He says: 'That decantatum in our books,'Ad quaestionem 
facti non respondent judices, ad quaestionem legis non respondent juratores, 
' literally taken, is true, for if it be demanded, what is the fact? the 
judge cannot answer; if be asked, what is the law in the case? the jury 
cannot answer it.' Id. 149.' All this tends to show that the leading thought 
in the opinion of Chief Justice Vaughan was that while the jury cannot 
answer as to the law, nor the court as to the fact, a general verdict, 
compounded of law and fact, of necessity determines both as to the case on 
trial.

In Townsend's Case, an office taken by virtue of a writ of mandamus, and 
decided in the sixteenth century, the court said: 'For the office of twelve 
men is no other than to inquire of matters of fact, and not to adjudge what 
the law is, for that is the office of the court, and not of the jury; and if 
they find the matter of fact at large, and further say that thereupon the 
law is so, where in truth the law is not so, the judges shall adjudge 
according to the matter of fact, and not according to the conclusion of the 
jury.' 1 Plow. 110, 114. In Willion v. Berkley, Id. 222, 230, also a civil 
case: 'Matters of fact, being traverse, shall be tried by twelve men; and, 
if the plaintiff should take a traverse here, it would be to make twelve 
illiterate men try a matter of law, whereof they have no knowledge. It is 
not their office to try matters of law, but only to try matters of fact; for 
at the beginning of our law it was ordained that matters of fact should be 
tried by twelve men of the country 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.' See, also, Grendon v. Bishop of 
Lincoln, 2 Plow. 493, 496.

As early as 1727, Raymond, C. J., delivering the unanimous opinion of the 
twelve judges of the King's bench in a case of murder, said that the jury 
are judges only of the fact, and the court of the law. 2 Strange, 766, 773. 
The force of this language as to the functions of judge and jury is not 
materially weakened by the fact that the case was before the judges upon a 
special verdict, for it was expressly declared that jurors were judges only 
of the fact.

Within a few years after Oneby's Case, 2 Strange, 766, was determined, in 
1734, the case of King v. Poole, which was a criminal information in the 
nature of a quo warranto, came before Lord Hardwicke. In passing upon a 
motion for a new trial, that famous judge -- than whom there could be no 
higher authority as to what was the settled law of England -- said: 'The 
thing that governs greatly in this determination is that the point of law is 
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 the jury are 
kept distinct; that the judge determines the law, and the jury the fact; 
and, if ever they come to be confounded, founded, it will prove the 
confusion and destruction of the law of England.' Cas. t. Hardw. 27.

Upon the question here under examination, Mr. Foster, to whose work Chief 
Justice Marshall frequently refers in his opinion or charge delivered in 
Burr's Case, says, in the first edition of his work, which appeared in 1762, 
and again in the third edition, which appeared in 1792: 'In every case where 
the point turneth upon the question whether the homicide was committed 
willfully and maliciously, or under circumstances justifying, excusing, or 
alleviating the matter of fact, viz. whether the facts alleged by way of 
justification, excuse, or alleviation are true, is the proper and only 
province of the jury. But whether, upon a supposition of the truth of facts, 
such homicide be justified, excused, or alleviated, must be submitted to the 
judgment of the court; for the construction the law putteth upon facts 
stated and agreed, or found by a jury, is in this, as in all other cases, 
undoubtedly the proper province of the court. In cases of doubt and real 
difficulty, it is commonly recommended to the jury to state facts and 
circumstances in a special verdict. But where the law is clear the jury, 
under the direction of the court in point of law, matters of fact being 
still left to their determination, may, and, if they are well advised, 
always will, find a general verdict conformably to such direction.' Fost. 
Cr. Law (3d Ed.) 255, 256. See, also, Rex v. Withers (Lord Kenyon) 3 Term 
R. 428; Bac. Abr. tit. 'Juries,' M 2; 2 Hawk. P. C. c. 22, 21; 1 Duncomb, 
Trials per Pais (Dublin, 1793) pp. 229, 231.

In Wynne's Eunomus, or Dialogues Concerning the Law and Constitution of 
England, a work of considerable reputation, the first edition having been 
published about the time of the adoption of our constitution, the principle 
is thus stated: 'All that I have said or have to say upon the subject of 
juries is agreeable to the established maxim that 'juries must answer to 
questions of fact, and judges to questions of law.' This is the fundamental 
maxim acknowledged by the constitution.' 'It is undoubtedly true that the 
jury are judges -- the only judges -- of the fact. Is it not equally within 
the spirit of the maxim that judges only have the competent cognizance of 
the law? Can it be contended that the jury have in reality an adequate 
knowledge of law? Or that the constitution ever designed they should?' 'Well 
-- 'but the law and the fact are often complicated' -- then it is the 
province of the judge to distinguish them; to tell the jury that, supposing 
such and such facts were done, what the law is in such circumstances. This 
is an unbiased direction; this keeps the province of judge and jury 
distinct; the facts are left altogether to the jury, and the law does not 
control the fact, but arises from it.' 'Every verdict is compounded of law 
and fact, but the law and fact are always distinct in their nature.' Wynne, 
Eunomus, Dialogue 3 (5th Ed. 1822) 53, pp. 523, 527, 528.

Mr. Stephens, in his great work on the History of the Criminal Law of 
England, in discussing the powers of juries in France, says: 'The right of 
the counsel for the defense to address the jury on questions of law, as, for 
instance, whether killing in a duel is meurtre, is one of the features in 
which the administration of justice in France differs essentially from the 
administration of justice in England. In England the judge's duty is to 
direct the jury in all matters of law, and any arguments of counsel upon the 
subject must be addressed to him, and not to the jury. This is not only 
perfectly well established as matter of law, but it is as a fact acquiesced 
in by all whom it concerns.' Volume 1, p. 551.

To the same effect is Levi v. Milne, 4 Bing. 196, reported as Levy v. Milne, 
12 Moore, 418, and decided in 1827. That was an action of libel. Mr. 
Sergeant Wilde, a counsel in the case, contended that in cases of libel the 
jury are judges of the law as well as of the fact. But Lord Chief Justice 
Best said: 'If the jury were to be made judges of the law as well as of 
fact, parties would be always liable to suffer from an arbitrary decision. 
In the present case the jury have made themselves judges of the law, and 
have found against it.' 'My Brother Wilde has stated that in cases of libel 
the jury are judges of the law as well as of fact, but I beg to deny that. 
Juries are not judges of the law, or, at any rate, not in civil actions. The 
authority on which the learned sergeant has probably grounded his 
supposition is 32 Geo. III. c. 60, which was the famous bill brought in by 
Mr. Fox, or, more properly, by Lord Erskine. But whoever reads that act will 
see that it does not apply to civil actions; it applies only to criminal 
cases. There is nothing in it that in any way touches civil actions, and the 
jury, with respect to them, stand in the same situation as they ever have 
done. I mean, however, to protest against juries, even in criminal cases, 
becoming judges of the law. The act only says that they may find a general 
verdict. Has a jury then a right to act against the opinion of the judge, 
and to return a verdict on their own construction of the law? I am clearly 
of opinion that they have not.' The report by Moore of this opinion is not 
as full as the report in Bingham, but the two reports do not differ in any 
material respect.

But a later decision was that by Lord Abinger, C. B., in 1837, in Reg. v. 
Parish, 8 Car. & P. 94. That was an indictment for offering, disposing of, 
and putting off a forged bill of enchange. In the course of his argument to 
the jury, the counsel for the accused read the observations of Mr. Justice 
Coleridge in a certain case as sustaining his view of the law. He was 
interrupted by the judge, who said: 'I cannot allow you to read cases to the 
jury. It is the duty of the jury to take the law from the judge. It no doubt 
often happens that, in an address to the jury, counsel cite cases, but then 
it is considered that that part of the speech of the counsel is addressed to 
the judge. That cannot be so here, as you very properly in the first 
instance referred me to the case, and you have my opinion upon it; you can 
therefore make no further legitimate use of the case, and the only effect of 
reading it would be it discuss propositions of law with the jury, with which 
they have nothing to do, and which they ought to take from me.'

The case of Parmiter v. Coupeland, 6 Mees. & W. 104, 106, 108, which was an 
action for libel, is not without value, as tending to show that Fox's libel 
bill, so far from changing the rule, as generally applicable in criminal 
cases, only required the same practice to be pursued in prosecutions for 
libel as in other criminal cases. In the course of the argument of counsel, 
Parke, B., said: 'In criminal cases the judge is to define the crime, and 
the jury are to find whether the party has committed that offense. Mr. Fox's 
act made it the same in cases of libel, the practice having been otherwise 
before.' Again: 'But it has been the course for a long time for a judge, in 
cases of libel, as in other cases of a criminal nature, first to give a 
legal definition of the offense, and then to 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 civil action. A publication, without justification or lawful 
excuse, which is calculated to injure the reputation of another, by exposing 
him to hatred, contempt, or ridicule, is a libel. Whether the particular 
publication, the subject of inquiry, is of that character, and would be 
likely to produce that effect, is a question upon which a jury is to 
exercise their judgment, and pronounce their opinion, as a question of fact. 
The judge, as a matter of advice to them in deciding that question, might 
have given his own opinion as to the nature of the publication, but was not 
bound to do so as a matter of law. Mr. Fox's libel bill was a declaratory 
act, and put prosecution for libel on the same footing as other criminal 
cases.' Alderson, B., concurring, said that the judge 'ought, having defined 
what is a libel, to refer to the jury the consideration of the particular 
publication, whether falling within that definition or not.'

It is therefore a mistake to suppose that the English libel act changed in 
any degree the general common-law rule in criminal cases, as to the right of 
the court to decide the law, and the duty of the jury to apply the law thus 
given to the facts, subject to the condition, inseparable from the jury 
system, that the jury, by a general verdict, of necessity determined in the 
particular case both law and fact, as compounded in the issue submitted to 
them. That act provides that '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,' Mr. Justice Curtis well said,'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.' U. S. v. 
Morris, 1 Curt. 55, Fed. Cas. No. 15, 815. And this accords with the views 
expressed by Lord Abinger in Reeves v. Templar, 2 Jur. 137. He said: 'Before 
that statute a practice had arisen of considering that the question, libel 
or no libel, was always for the court, independent of the intention and 
meaning of the party publishing. That statute corrected the error, and now, 
if the intention does not appear on the body of the libel, a variety of 
circumstances are to be left to the jury from which to infer it; but it was 
never intended to take from the court the power of deciding whether certain 
words are, per se, libelous or not.' The rule that jurors do not respond to 
questions of law was illustrated in Bishop of Meath v. Marquis of 
Winchester, 4 Clark & F. 445, 556, 557, where Lord Chief Justice Tindal, 
delivering the unanimous opinion of the judges, said: 'With respect to the 
second question lastly above proposed to us, viz. whether, if the fine were 
received in evidence it ought to be left to the jury to say whether it 
barred the action of quare impedit, we all think that the legal effect of 
such fine as a bar to the action of quare impedit is a matter of law merely, 
and not in any way a matter of fact; and, consequently, the judge who tried 
the cause should state to the jury whether, in point of law, the fine had 
that effect, or what other effect, on the rights of the litigant parties, 
upon the general and acknowledged principle 'ad quaestionem juris non 
respondent juratores." 

Briefly stated, the contention of the accused is that, although there may 
not have been any evidence whatever to support a verdict of guilty of an 
offense less than the one charged, -- and such was the case here, -- yet, to 
charge the jury, as matter of law, that the evidence in the case did not 
authorize any verdict except one of guilty or one of not guilty of the 
particular offense charged, was an interference with their legitimate 
functions, and therefore with the constitutional right of the accused to be 
tried by a jury.

The error in the argument on behalf of the accused is in making the general 
rule as to the respective functions of court and jury applicable equally to 
a case in which there is some substantial evidence to support the particular 
right asserted and a case in which there is an entire absence of evidence to 
establish such right. In the former class of cases the court may not, 
without impairing the constitutional right of trial by jury, do what, in the 
latter cases, it may often do without at all intrenching upon the 
constitutional functions of the jury. The law makes it the duty of the jury 
to return a verdict according to the evidence in the particular case before 
them. But, if there are no facts in evidence bearing upon the issue to be 
determined, it is the duty of the court, especially when so requested, to 
instruct them as to the law arising out of that state of case. So, if there 
be some evidence bearing upon a particular issue in a cause, but it is so 
meager as not, in law, to justify a verdict in favor of the party producing 
it, the court is in the line of duty when it so declares to the jury. 
Pleasants v. Fant. 22 Wall. 116, 121; Montclair v. Dana, 107 U.S. 162, 2 
Sup. Ct. 403; Randall v. Railroad Co., 109 U.S. 478, 482, 3 S. Sup. Ct. 322; 
Schofield v. Railway Co., 114 U.S. 615, 619, 5 S. Sup. Ct. 1125; Marshall v. 
Hubbard, 117 U.S. 415, 419, 6 S. Sup. Ct. 806; Meehan v. Valentine, 145 U.S. 
611, 625, 12 S. Sup. Ct. 972.

The cases just cited were, it is true, of a civil nature; but the rules they 
announce are, with few exceptions, applicable to criminal causes, and 
indicate the true test for determining the respective functions of court and 
jury. Who can doubt, for instance, that the court has the right, even in a 
capital case, to instruct the jury as matter of law to return a verdict of 
acquittal on the evidence adduced by the prosecution? Could it be said, in 
view of the established principles of criminal law, that such an instruction 
intrenched upon the province of the jury to determine from the evidence 
whether the accused was guilty or not guilty of the offense charaged, or of 
some lesser offense included in the one charged? Under a given state of 
facts, outlined in an instruction to the jury, certain legal presumptions 
may arise. May not the court tell the jury what those presumptions are, and 
should not the jury assume that they are told truly? If the court excludes 
evidence given in the hearing of the jury, and instructs them to disregard 
it altogether, is it not their duty to obey that instruction, whatever may 
be their view of the admissibilty of such evidence? In Smith v. U. S., 151 
U.S. 50, 55, 14 S. Sup. Ct. 234, which was an indictment for the murder, in 
the Indian Territory, of one Gentry,'a white man, and not an Indian,' we 
said: 'That Gentry was a white man, and not an Indian, was a fact which the 
government was bound to establish, and, if it failed to introduce any 
evidence upon that point, defendant was entitled to an instruction to that 
effect. Without expressing any opinion as to the correctness of the legal 
propositions embodied in this charge, we think there was no testimony which 
authorized the court to submit to the jury the question whether Gentry was a 
white man and not an Indian. The objection went to the jurisdiction of the 
court, and, if no other reasonable inference could have been drawn from the 
evidence that Gentry was an Indian, defendant, was entitled, as matter of 
law, to an acquittal,' -- citing Pleasants v. Fant, 22 Wall. 116; 
Commissioners v. Clark. 94 U.S. 278; and Marshall v. Hubbard, 117 U.S. 415, 
6 Sup. Ct. 806. So, in this case, it was competent for the court to say to 
the jury that, on account of the absence of all evidence tending to show 
that the defendants were guilty of manslaughter, they could not, 
consistently with law, return a verdict of guilty of that crime.

Any other rule than that indicated in the above observations would bring 
confusion and uncertainty in the administration of the criminal law. Indeed, 
if a jury may rightfully disregard the direction of the court in matter of 
law, and determine for themselves what the law is in the particular case 
before them, it is difficult to perceive any legal ground upon which a 
verdict of conviction can be set aside by the court as being against law. If 
it be the function of the jury to decide the law as well the facts, -- if 
the function of the court be only advisory as to the law, -- why should the 
court interfere for the protection of the accused against what it deems an 
error of the jury in matter of law?

Public and private safety alike would be in peril if the principle be 
established that juries in criminal cases may, of right, disregard the law 
as expounded to them by the court, and become a law unto themselves. Under 
such a system, the principal function of the judge would be to preside and 
keep order while jurymen, untrained in the law, would determine questions 
affecting life, liberty, or property according to such legal principles as, 
in their judgment, were applicable to the particular case being tried. If 
because, generally speaking, it is the function of the jury to determine the 
guilt or innocence of the accused according to the evidence, of the truth or 
weight of which they are to judge, the court should be held bound to 
instruct them upon a point in respect to which there was no evidence 
whatever, or to forbear stating what the law is upon a given state of facts, 
the result would be that the enforcement of the law against criminals, and 
the protection of citizens against unjust and groundless prosecutions, would 
depend entirely upon juries uncontrolled by any settled, fixed, legal 
principles. And if it be true that a jury in a criminal case are under no 
legal obligation to take the law from the court, and may determine for 
themselves what the law is, it necessarily results that counsel for the 
accused may, of right, in the presence of both court and jury, contend that 
what the court declares to be the law applicable to the case in hand is not 
the law, and, in support of his contention, read to the jury the reports of 
adjudged cases, and the views of elementary writers. Undoubtedly, in some 
jurisdictions, where juries in criminal cases have the right, in virtue of 
constitutional or statutory provisions, to decide both law and facts upon 
their own judgment as to what the law is and as to what the facts are, it 
may be the privilege of counsel to read and discuss adjudged cases before 
the jury. And in a few jurisdictions, in which it is held that the court 
alone responds as to the law, that practice is allowed in deference to long 
usage. But upon principle, where the matter is not controlled by express 
constitutional or statutory provisions, it cannot be regarded as the right 
of counsel to dispute before the jury the law as declared by the court. 
Under the contrary view -- if it be held that the court may not 
authoritatively decide all questions of law arising in criminal cases -- the 
result will be that when a new trial in a criminal case is ordered, even by 
this court, the jury, upon such trial, may of right return a verdict based 
upon the assumption that what this court has adjudged to be law is not law. 
We cannot give our sanction to any rule that will lead to such a result. We 
must hold firmly to the doctrine that in the courts of the United States it 
is the duty of juries in criminal cases to take the law from the court, and 
apply that law to the facts as they find them to be from the evidence. Upon 
the court rests the responsibility of declaring the law; upon the jury, the 
responsibility of applying the law so declared to the facts as they, upon 
their conscience, believe them to be. Under any other system, the courts, 
although established in order to declare the law, would for every practical 
purpose be eliminated from our system of government as instrumentalities 
devised for the protection equally of society and of individuals in their 
essential rights. When that occurs our government will cease to be a 
government of laws, and become a government of men. Liberty regulated by law 
is the underlying principle of our institutions.

To instruct the jury in a criminal case that the defendant cannot properly 
be convicted of a crime less than that charged, or to refuse to instruct 
them in respect to the lesser offenses that might, under some circumstances, 
be included in the one so charged -- there being no evidence whatever upon 
which any verdict could be properly returned except one of guilty or one of 
not guilty of the particular offense charged -- is not error; for the 
instructing or refusing to instruct, under the circumstances named, rests 
upon legal principles or presumptions which it is the province of the court 
to declare for the guidance of the jury. In the case supposed the court is 
as clearly in the exercise of its legitimate functions as it is when ruling 
that particular evidence offered is not competent, or that evidence once 
admitted shall be stricken out and not be considered by the jury, or when it 
withdraws from the jury all proof of confessions by the accused upon the 
ground that such confessions, not having been made freely and voluntarily, 
are inadmissible under the law as evidence against the accused.

These views are sustained by a very great weight of authority in this 
country. In People v. Barry, 90 Cal. 41, 27 Pac. 62 (which was a criminal 
prosecution for an assault with intent to commit robbery, the accused having 
been twice before convicted of petit larceny), it was held not to be error 
to refuse to instruct the jury that under the charge they might find him 
guilty of simple assault, because 'the evidence tended to show that he was 
guilty of the crime charged or of no offense at all,' and therefore 'the 
instruction asked was not applicable to the facts of the case'; in People v. 
McNutt, 93 Cal. 658, 29 Pac. 243 (the offense charged being an assault with 
a deadly weapon and with intent to commit murder), that an instruction that 
the jury might convict of a simple assault could have been properly refused, 
because,'under the evidence, he was either guilty of an offense more 
serious than simple assault, or he was not guilty'; in Clark v. Com., 123 
Pa. St. 81, 16 Atl. 795 (a case of murder), that the omission of an 
instruction on the law of voluntary manslaughter, and the power of the jury 
to find it, was not error, because the murder was deliberate murder, and 
'there was no evidence on which it could be reduced to a milder form of 
homicide'; in State v. Lane, 64 Mo. 319, 324 (which was an indictment for 
murder in the first degree), that,'if the evidence makes out a case of 
murder in the first degree, and applies to that kind of killing, and no 
other, the court would commit no error in confining its instructions to that 
offense, and refusing to instruct either as to murder in the second degree 
or manslaughter in any of its various degrees,' and when an instruction 'is 
given for any less grade of offense, and there is no evidence upon which to 
base it,' the judgment should be reversed for error; in McCoy v. State, 27 
Tex. App. 415, 11 S. W. 454 (the charge being murder of the first degree), 
that the refusal to charge the law of murder in the second degree was not 
error, for the reason that, if the defendant was 'criminally responsible at 
all for the homicide, the grade of the offense under the facts is not short 
of murder of the first degree'; in State v. McKinney, 111 N. C. 683, 16 S. 
E. 235 (a murder case), that, as there was no testimony on either side 
tending to show manslaughter, a charge that there was no element of 
manslaughter in the case, and that the defendant was guilty of murder or not 
guilty of anything at all, as the jury should find the facts, was strictly 
in accordance with the testimony and the precedents; in State v. Musick, 101 
Mo. 261, 270, 14 S. W. 212 (where the charge was an assault with malice 
aforethought, punishable by confinement in the penitentiary), that an 
instruction looking to a conviction for a lower grade, included in the 
offense charged, was proper where there was evidence justifying it; in State 
v. Casford, 76 Iowa, 332, 41 N. W. 32, that the defendant, so charged in an 
indictment that he could be convicted of rape, an assault to commit rape, or 
an assault and battery, was not prejudiced by the omission of the court to 
instruct the jury that he would be convicted of a simple assault, there 
being no evidence to authorize a verdict for the latter offense; in Jones v. 
State, 52 Ark. 346, 12 S. W. 704 (a murder case), that it was not error to 
refuse to charge as to a lower grade of offense, there being 'no evidence of 
any crime less than murder in the first degree,' and the defendant being, 
therefore, guilty of 'murder in the first degree, or innocent'; in 
McClernand v. Com. (Ky.) 12 S. W. 148, and in O'Brien v. Com., 89 Ky. 354, 
12 S. W. 471 (murder cases), that an instruction as to manslaughter need 
not be given, unless there is evidence to justify it; in State v. Estep, 44 
Kan. 575, 24 Pac. 986 (a case of murder of the first degree), that there was 
no testimony tending to show that the dependant was guilty of manslaughter 
in either the first, second, or fourth degree, instructions as to those 
degrees should not have been given; and in Robinson v. State, 84 Ga. 674, 11 
S. E. 544 (a case of assault with intent to murder), that the refusal to 
instruct the jury that the defendant could have been found guilty of an 
assault, or of assault and battery, was not error,'for there was nothing in 
the evidence to justify the court in so instructing the jury.'

We have said that, with few exceptions, the rules which obtain in civil 
cases in relation to the authority of the court to instruct the jury upon 
all matters of law arising upon the issues to be tried, are applicable in 
the trial of criminal cases. The most important of those exceptions is that 
it is not competent for the court, in a criminal case, to instruct the jury 
peremptorily to find the accused guilty of the offense charged, or of any 
criminal offense less than that charged. The grounds upon which this 
exception rests were well stated by Judge McCrary, Mr. Justice Miller 
concurring, in U. S. v. Taylor, 3 McCrary, 500, 505, 11 Fed. 470. It was 
there said: 'In a civil case, the court may set aside the verdict, whether 
it be for the plaintiff or defendant, upon the ground that it is contrary to 
the law as given by the court; but in a criminal case, if the verdict is one 
of acquittal, the court has no power to set it aside. It would be a useless 
form for a court to submit a civil case, involving only questions of law, to 
the consideration of a jury, where the verdict, when found, if not in 
accordance with the court's view of the law, would be set aside. The same 
result is accomplished by an instruction given in advance to find a verdict 
in accordance with the court's opinion of the law. But not so in criminal 
cases. A verdict of acquittal cannot be set aside; and therefore, if the 
court can direct a verdict of guilty, it can do indirectly that which it has 
on power to do directly.'

We are of opinion that the court below did not err in saying to the jury 
that they could not, consistently with the law arising from the evidence, 
find the defendants guilty of manslaughter, or of any offense less than the 
one charged; that if the defendants were not guilty of the offense charged, 
the duty of the jury was to return a verdict of not guilty. No instruction 
was given that questioned the right of the jury to determine whether the 
witnesses were to be believed or not, nor whether the defendant was guilty 
or not guilty of the offense charged. On the contrary, the court was careful 
to say that the jury were the exclusive judges of the facts, and that they 
were to determine -- applying to the facts the principles of law announced 
by the court -- whether the evidence established the guilt or innocence of 
the defendants of the charge set out in the indictment.

The trial was thus conducted upon the theory that it was the duty of the 
court to expound the law, and that of the jury to apply the law as thus 
declared to the facts as ascertained by them. In this separation of the 
functions of court and jury is found the chief value, as well as safety, of 
the jury system. Those functions cannot be confounded or disregarded without 
endangering the stability of public justice, as well as the security of 
private and personal rights.

The main reason ordinarily assigned for a recognition of the right of the 
jury, in a criminal case, to take the law into their own hands, and to 
disregard the directions of the court in matters of law, is that the safety 
and liberty of the citizen will be thereby more certainly secured. That view 
was urged upon Mr. Justice Curtis. After stating that, if he conceived the 
reason assigned to be well founded, he would pause long before denying the 
existence of the power claimed, he said that a good deal of reflection had 
convinced him that the argument was the other way. He wisely observed that: 
'As long as the judges of the United States are obliged to express their 
opinions publicly, to give their reasons for them when called upon in the 
usual mode, and to stand responsible for them, not only to public opinion, 
but to a court of impeachment, I can apprehend very little danger of the 
laws being wrested to purposes of injustice. But, on the other hand, I do 
consider that this power and corresponding duty of the court authoritatively 
to declare the law is one of the highest safeguards of the citizen. The sole 
end of courts of justice is to enforce the laws uniformly and impartially, 
without respect of persons or times or the opinions of men. To enforce 
popular laws is easy. But when an unpopular cause is a just cause; when a 
law, unpopular in some locality, is to be enforced, -- there then comes the 
strain upon the administration of justice; and few unprejudiced men would 
hesitate as to where that strain would be most firmly borne.' U. S. v. 
Morris, 1 Curt. 62, 63, Fed. Cas. No. 15, 815.

The questions above referred to are the only ones that need be considered on 
this writ of error.

Mr. Justice JACKSON participated in the decision of this case, and concurs 
in the views herein expressed.

The judgment of the circuit court is affirmed as to Hansen, but is reversed 
as to Sparf, with directions for a new trial as to him.

(Jan. 14, 1895.)


Footnotes

1. Foreman: There is one of us who wishes to be instructed by your honor as 
to certain points upon the question of United States marine laws in regard 
to murder on the high seas.

Court: The instruction which I gave you, gentlemen, in regard to the law 
upon which the indictment was based, was section 5339 of the Revised 
Statutes, which I will read to you again. Juror: Your honor, I would like to 
know in regard to the interpretation of the laws of the United States in 
regard to manslaughter, as to whether the defendants can be found guilty of 
manslaughter, or that the defendants must be found guilty.

Court: I will read the section to you, and see if that touches the 
proposition. The indictment is based upon section 5339, which provides, 
among other things,'that every' person who commits murder upon the high 
seas, or in any arm of the sea, or in any river, haven, creek, basin, or bay 
within the admiralty and maritime jurisdiction of the United States, and out 
of the jurisdiction of any particular state, or who, upon any such waters, 
maliciously strikes, stabs, wounds, poisons,'or shoots any other person, of 
which striking, stabbing, wounding, poisoning, or shooting such other person 
dies on land or at sea, within or without the United States, shall suffer 
death.' Hence that is the penalty for the offense described in the 
indictment. I have given you the definition of 'murder.' If you remember it, 
you will connect it with these words: 'Every person who commits murder upon 
the high seas, or in any arm of the sea, or in any river, haven,' etc. 
Juror: Are the two words 'aiding' or 'abeting' defined? Court: The words 
'aiding' or 'abetting' are not defined, but I have instructed you as to the 
legal effect of aiding and abetting, and this you should accept as law. If I 
have made an error, there is a higher tribunal to correct it.

Juror: I am the spokesman for two of us. We desire to clearly understand the 
matter. It is a barrier in our mind to our determining the matter. The 
question arising amongst us is to aiding and abetting.

FJ: Furthermore, as I understand, it must be one thing or the other. It must 
be guilty or not guilty. Court: Yes; under the instructions I have given 
you. I will read them to you again, so as to be careful, and that you may 
understand. Murder is the unlawful killing of a human being in the peace of 
the state, with malice aforethought, either express or implied. I defined to 
you what malice was, and I assume you can recall my definition to your 
minds. Manslaughter is the unlawful killing of a human being without malice, 
either express or implied. I do not consider it necessary to explain it 
further. If a felonious homicide has been committed by either of the 
defendants, of which you are to be the judges from the proof, there is 
nothing in this case to reduce it below the grade of murder.

Juror: Then, as I understand your honor clearly, there is nothing about 
manslaughter in this court? Court: No; I do not wish to be so understood. A 
verdict must be based on evidence, and in a proper case a verdict for 
manslaughter may be rendered.

Juror: A crim committed on the high seas must have been murder, or can it be 
manslaughter? Court: In a proper case, it may be murder, or it may be 
manslaughter; but in this case it cannot be properly manslaughter. As I have 
said, if a felonious homicide has been committed, the facts of the case do 
not reduce it below murder. Do not understand me to say that manslaughter or 
murder has ben committed. That is for you gentlemen to determine, from the 
testimony and the instructions I have given you.... Mr. Smith: We take an 
exception. Juror: We have got to bring a verdict for either manslaughter or 
murder? Court: Do not misunderstand me. I have not said so. Juror: I know 
you have not. Court: I cannot direct you what conclusion to come to from the 
facts. I direct you only as to the law. A judgment on the facts is your 
province.

Mr. Garter: Any I ask the court to instruct this jury that in cases where 
persons are being upon a charge of murder, and the facts proven at their 
trial show that the defendants are guilty of manslaughter, under an 
indictment, they may find him guilty of manslaughter, as a general rule; 
but, however, if the facts show that the defendants have been guilty of 
murder; and that, in this case, there is no evidence tending to establish 
the crime or offense of manslaughter --

Mr. Smith: It is the province of the jury. Court: I have already so 
instructed the jury. I have endeavored to make mayself understood. Juror: If 
we bring in a verdict of guilty, that is capital punishment? Court: Yes. 
Juror: Then there is no other verdict we can bring in except guilty or not 
guilty? Court: In a proper case, a verdict for manslaughter may be rendered, 
as the district attorney has stated, and even in this case you have the 
physical power to do so; but, as one of the tribunals of the country, a jury 
is expected to be governed by law, and the law it should receive from the 
court. Juror: There has been a misunderstanding amongst us. Now it is 
clearly interpreted to us, and no doubt we can now agree on certain facts.

2. People v. Wright, 93 Cal. 564, 29 Pac. 240; Brown v. Com., 87 Va. 215, 12 
S. E. 472; People v. Barry, 90 Cal. 41, 27 Pac. 62; People v. Madden, 76 
Cal. 521, 18 Pac. 402; State v. Jeandell, 5 Har. (Del.) 475; State v. 
Wright, 53 Me. 328; Com. v. Van Tuyl, 1 Metc. (Ky.) 1; Montgomery v. State, 
11 Ohio, 427; Adams v. State, 29 Ohio St. 412; Robbins v. State, 8 Ohio St. 
131, 167; Williams v. State, 32 Miss. 389, 396; Pleasant v. State, 13 Ark. 
360, 372; Robinson v. State, 66 Ga. 517; Brown v. State, 40 Ga. 689, 695; 
Hunt v. State (Ga.) 7 S. E. 142; State v. Drawdy, 14 Rich. Law, 87; Nels v. 
Republic, 2 Tex. 280; Myers v. State, 33 Tex. 525; State v. Jones, 64 Mo. 
391; Hardy v. State, 7 Mo. 607; State v. Elwood, 73 N. C. 189; State v. 
McLain, 104 N. C. 894, 10 S. E. 518; People v. Neumann, 85 Mich. 98, 48 N. 
W. 290; State v. Johnson, 30 La. Ann. pt. 1, p. 904; State v. Ford, 37 La. 
Ann. 443, 465; Fisher v. Railway Co., 131 Pa. St. 292, 297, 18 Atl. 1016; 
Railway Co. v. Hutchinson, 40 Kan. 51, 19 Pac. 312.


