"The court had an undoubted right to in struct 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 instruc tion in criminal cases ;" Nicholson v. Com., 96 Pa. 503. In Com. v. McManus, 143 Pa. 64, 21 Atl. 1018, 22 Atl. 761, 14 L. R. A. 89, it was held "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, Paxson, C. J., speaking for the court, declared to be in harmony with the case in which is found the expression of Sharswood, C. J., supra.
In this case Mr. Justice Mitchell filed a vigorous concurring opinion in which he says: "Upon one point I would go further and put an end once for all to a doctrine that I regard as unsound in every point of view, historical, logical, or technical. . . . The jury are not judges of the law in any case, civil or criminal ; neither at common law, nor under the constitution of Pennsylvania, is the determination of the law any part of their duty or their right. The notion is of mod ern growth and arises undoubtedly from a perversion of the history and results of the right to return a general verdict, especially in libel cases, which ended in Fox's Bill." He then considers the question historically, and on the authorities, and says that there is not a single respectable English authority for the doctrine, and that, against a "solid pha lanx" of American authorities, there is but a single authority in its favor (State v. Cro teau, 23 Vt. 14, 54 Am. Dec. 90), which was by a divided bench (and which has been since overruled ; State v. Burpee, 65 Vt. 1, 25 Atl. 964, 19 L. R. A. 145, 36 Am. St. Rep. 775, su pra). He concludes that "the jury were never judges of the law in any case, civil or crim inal, except as involved in the mixed deter mination of law and fact by a general ver dict." In an annotation of the case in State v. Burpee, 65 Vt. 1, 25 Atl. 964, 19 L. R. A. 145, 36 Am. St. Rep. 775, which 'overruled what is here characterized as practically the only authority in support of the doctrine, it is said: "The ghost of the doctrine that ju ries in criminal cases are to judge of the law as well as the facts would seem to be ef fectually laid by the above decision. . . . That solitary authority (State v. Croteau, 23 Vt. 14, 54 Am. Dec. 90), which has often been attacked and discredited, is now by the case above reported completely overruled." In the federal courts, prior to the direct decision of the supreme court already refer red to, the question had been frequently ex amined. The most elaborate discussion of the subject was by Mr. Justice Curtis, whose opinion is very much relied upon by the su preme court. His conclusion was "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." U. S. v. Morris, 1 Curt. C. C. 23, Fed. Cas. No. 15,815. Mr. Jus tice Field said (charging a jury) in U. S. v. Greathouse, 4 Sawy. 457, Fed. Cas. No. 15, 254: "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 ev idence and determine all contested questions of fact. The responsibility of deciding cor rectly as to the law rests solely with the court, and the responsibility of finding cor rectly the facts rests solely with the jury." To the same effect are U. S. v. Battiste, 2 Sumn. 240, Fed. Cas. No. 14,545 ; U. S. v. Riley, 5 Blatchf. 204, led. Cas. No. 16,164 ; Stettinius v. U. S., 5 Cra. C. C. 573, Fed. Cas. No. 13,387 ; U. S. v. Keller, 19 Fed. 633.
The authorities which have been sometimes relied upon to support the contrary view are Georgia v. Brailsford, 3 Dall. (U. S.) 1, 1 L. Ed. 483; 1 Burr's Trial 470 ; 2 id. 422 ; Whart. St. Tr. 48, 84 ; Chase's Trial App. 44. These authorities received a very critical ex amination both by Mr. Justice Curtis in U. S. v. Morris, 1 Curt. C. C. 23, Fed. Cas. No. 15,815, and by Mr. Justice Harlan, who de livered the opinion of the court in Sparf v.
U. S., 156 U. S. 51, 15 Sup. Ct. 273, 39 L. Ed. 343 ; and in the dissenting opinion of Mr. Jus tice Gray (and except by the latter) they were not considered, when properly read, as sustaining the view in support of which they are usually cited. The opinion of Mr. Jus tice Harlan, last referred to, contains a full discussion of the subject, and in it will be found most of the authorities herein cited. It was held that where there was no evidence upon which the jury could properly find the defendant guilty of an offence included in it less than the one charged, it is not error to instruct them that they cannot return the verdict of any lesser offence. In support of the rule laid down in this decision, see also Cooley, Const. Lim. 323 ; 1 Greenl. Ev. § 49 ; Thomp. Tv. § 1016 ; and the valuable note by Dr. Wharton in 1 Cr. L. Mag. 51. By way of explanation of some of the expressions so much relied upon in support of a contrary view, Mr. Justice Harlan in his opinion re ferred to, supra, says: "The language of some judges and statesmen in the early his tory of the country, implying that the jury were entitled to disregard the law as ex pounded by the court, is, perhaps, to be ex plained 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 im portance.' Whart. Cr. Pl. & Pr., 8th ed. § 806 ; Williams v. State, 32 Miss. 389, 396, 66 Am. Dec. 615." The argument for the right of the jury to decide the law in criminal cases has been most recently fully presented in the dissent ing opinion of Mr. Justice Gray, with whom concurred Mr. Justice Sliiras, in Sparf v. U. S., supra. In this opinion, from a long and careful examination of the authorities, the conclusion is thus stated: "It is our deep and settled conviction, confirmed by a re examination of the authorities under the re sponsibility of taking part in the considera tion and decthion of the capital case now before the court, that the jury, upon the gen eral issue of guilty or not guilty in a crim inal case, have the right, as well as the pow er, to decide, according to their own judg ment and consciences, all questions, whether of law or of fact, involved in that issue." It may be noted that of three cases cited in this opinion as containing the ablest discussion of the subject on both sides, and taking the same view as that advocated by Mr. Justice Gray, two opinions, those of Chancellor Kent and Mr. Justice Thomas in favor of the right, were also dissenting opinions and that of Judge Hall, of Vermont, on the other side, the only one of the three which was an au thority, has lately been overruled, as stated supra. The English authorities are very ful ly discussed, and much attention is given to cases which are claimed as authorities in favor of the views presented which have al ready been cited, supra, and of which those who argue against the right of the jury to decide the law, question either the author ity or the application. The contention of this dissenting opinion is that the result of the English authorities is in favor of the ulti mate right of the jury to decide the law, not withstanding the instructions of the court, and that the earlier American authorities are to the same effect. It is admitted that in the later American cases, "the general tendency of decision in this country has been against the right of the jury, as well as in the courts of the several states, including many states where the right was once established, as in the circuit courts of the United States. The current has been so strong that in Massachu setts, where counsel are admitted to have the right to argue the law to the jury, it has yet been held that the jury have no right to de cide it, and it has also been held,' by a ma jority of the court, that the legislature could not constitutionally confer upon the jury the right to determine, against the instructions of the court, questions of law involved in the general issue in criminal cases ; and in Geor gia and in Louisiana, a general provision in the constitution of the state, declaring that `in criminal cases the jury shall be judges of the law and fact,' has been held not to au thorize them to decide the law against the instructions of the court. . . . But, upon the question of the true meaning and effect of the constitution of the United States in this respect, opinions expressed more than a gen eration after the adoption of the constitution have far less weight than the almost unani mous voice of earlier and nearly contempo raneous judicial declarations and practical usage." Sparf v. U. S., 156 U. S. 51, 168, 15 Sup. Ct. 273, 39 L. Ed. 343.