Though the question had not, until more recently, been the subject of a direct decision of the United States supreme court, it had frequently arisen in England and America. In the former country, in the case of the Dean of St. Asaph, the court alluded to the admission by both parties of an ancient rule of the common law that the law should be determined by the court and the facts by the jury ; but they differed as to what was law and what fact, it being contended on one side that the question of guilt in a libel case, after the fact of publication and truth of the innuendoes are found by the jury, was a ques tion of law, and on the other side that the guilt of the defendant was a question of fact. 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 de pended on the universal maxim, without an exception, ad qucestionem facti respondent ju ratores, ad qucestionem juris respondent ju dices." The doctrine that a jury may disregard the law as declared by the court finds its principal, original support in Bushell's case, Vaughan 135, where the question was on ha beas corpus whether jurors were liable to be fined and imprisoned for nonpayment of fine for having found a general verdict in op position to the instructions of the court. Vaughan, C. J., held that because a general verdict of necessity resolves "both law and fact complicately and not the fact by itself," it could not be proved that the jurors did not proceed upon their view of the evidence.
This line of argument is implicitly relied upon by the advocates of the extreme right of the jury, but has been rightly characteriz ed as narrow ; though conclusive in the case to which it related ; U. S. v. Morris, 1 Curt. C. C. 23, Fed. Cas. No. 15,815 ; Hallam, Const. Hist. c. 13 ; Com. v. Anthes, 5 Gray (Mass.) 185. The line of argument in the English case, taken together with the criticisms upon it, well illustrate the difficulties of the sub ject which arise necessarily in every case which is submitted to a jury upon mixed questions of law and fact. However frank ly it may be stated that the jury are bound by the views of the law delivered to them by the court, the obligation to accept those views is rather moral than susceptible of rigid practical enforcement. Early English cases supporting the doctrine that the jury are judges of the fact and not of the law are, 1 Plowd. 111; id. 233 ; 2 id. 493; 2 Stra. 766 ; Lord Hardwicke said: "The thing that governs greatly in this determination is, that the point of the 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 Eng land and to the subject, that these powers of the judge and the jury are distinct ; that the judge determine the law, and the jury the fact; and if ever they come to be confounded, it will prove the confusion and destruction of the law of England." Cas. temp. Hardwicke 23. Foster, after stating the rule that the ascertainment of all the facts is the province of the jury, says: "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." And he adds that in cases of difficulty, a special verdict is usually found, but where the law is clear, the jury, under the direction of the court as to the law, may and, if well advised, always will find a general verdict conformably to such direction ; Fost. Cr. L., 3d ed. 255. To the same effect, it has been urged, is the set tled current of English authority ; Wynne's Eunomus, Dial. ILI. §§ 53, 523; 1 Steph. Hist. Cr. L. 551; 2 Hawk. P. C. c. 22, § 21; 3 Term 428 ; 4 Bing. 195 ; 8 C. & P. 94 ; con tra, Vaughan 135; 4 B. & Ald. 145.
The question arose most frequently in Eng land in connection with prosecutions for li bel, and it was contended that Fox's Libel Act changed the common-law rule, but this was not the case. In a leading case arising under that act, it was held that it was for the judge to define the offence and then for the jury to say whether the publication un der consideration was within that definition ; 6 M. & W. 104 (see as to this case, Sparf v. U. S., 156 U. S. 97, 15 Sup. Ct. 273, 39 L. Ed. 343 ; U. S. v. Morris, 1 Curt. C. C. 55, Fed. Cas. No. 15,815); 2 Jur. 137. In the House of Lords the unanimous opinion of the judges was given by Tindal, C. J., in answer to a question whether, if a fine were received in evidence, it ought to be left to the jury to say whether it barred an action of quare vmr pedit, that "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 qucestionem juris non respondent jura tores." 4 Cl. & Fin. 445.
In state courts it has been held to be "a well-settled principle, lying at the foundation of jury trials, recognized ever since jury trial had been adopted as an es tablished and settled mode of proceeding in courts of justice, that it was the proper prov ince and duty of judges to consider and de cide all questions of law, and the proper province and duty of the jury to decide all questions of fact ;" Com. v. Anthes, 5 Gray (Mass.) 185 ; Pierce v. State, 13 N. H. 536 ; Hamilton v. People, 29 Mich. 173; • Peo ple v. Anderson, 44 Cal. 65 ; State v. Burpee, 65 Vt. 1, 34, 25 Atl. 964, 19 L. R. A. 145, 36 Am. St. Rep. 775 (overruling State v. Croteau, 23 Vt. 14, 54 Am. Dec. 90, and every case which followed it) ; Montee v. Com., 3 J. J. Marsh. (Ky.) 132. The citations include both civil and criminal cases. There undoubtedly exists a power in the jury to override the ' law as declared by the court and to make their action effective by an acquittal in a criminal case which cannot be set aside. This thought has received frequent expres sion from judges and courts of great author ity. "The unquestionable power of juries to find general verects, involving both, law and fact, furnishes the foundation for the opin ion that they are judges of the law, as well as of the facts, and gives some plausibility to that opinion. They are not, however, com pelled 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 or fact, or of ascertaining the grounds upon which their verdicts are based ;" Duffy v. People, 26 N. Y. 588 ; see also People v. Fin negan, 1 Park. Cr. Cas. (N. Y.) 147. In Penn sylvania there has been, in some cases, a very strong expression of the idea that in crim inal cases the juries are judges of the law as well as of the fact. This was very earnestly stated by Sharswood, C. J., who said that the power of the jury to judge of the law in a criminal case was one of the most valuable securities guaranteed by the bill of rights of Pennsylvania ; Kane v. Com., 89 Pa. 522, 33 Am. Rep. 787; but this unqualified statement is not sustained by the leading cases in that I state. In Com. v. Sherry, reported in Whart. Hom. (App.) 481, Rogers, J., said: "You are, it is true, judges in a criminal case, in one sense, of both law and Met ; for your ver dict, 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 pow er 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 bane. But an erA ror resulting from either a conviction or ac quittal, against the laW, can never be recti fied. In the first case, an unnecessary stigma is affixed to the character of a man who was not guilty of the offence 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 be longs to the court and the facts to the jury." Other expressions substantially to the same effect are: "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;" Gibson, C. J., in Com. v. Harman, 4 Pa. 269.