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 re servation of questions of law in criminal cases, and passing the same to the Supreme Court for final decision; and as was said by Walton, Judge in State v. Wright supra (53 Me. 328), "contrary to reason and fit ness in withdrawing the interpretation of the laws from those who make it the business and the study of their lives to understand them, and committing it to a class of men, who, being drawn from non-professional life, for occasional and temporary service only, possess no such qualification, and whose decision would be certain to be conflicting, in all doubtful cases, and would therefore lead to endless confusion and perpetual un certainty." This strong language in condemnation of a practice for years upheld by the same court in equally strong argument must fur nish food for a good deal of reflection. Coke, in his First Institute, says, " reason is the life of the law," and that " the common law itself is nothing else but reason." Now if, as argued by the court in the case above, the jury never enjoyed the right to inter pret the law, in these cases, under the old common law, what a commentary on Coke's assertion we have in the completion of the reasoning of the court, which at one time held, " there is no qualification of the right of a jury in a criminal cause to disregard the law as given them by the court, and adopt their own theory; and they may, in the ex ercise of this power, with the same propriety adopt a rule of law more prejudicial to the respondent as well as one less prejudicial." ' Such a condition of things is apt to lend zest to the claim that " The law is a sort of hocus-pocus science that smiles in your face while it picks your pocket; and the glorious
uncertainy of it is of mair use to the profes sors than the justice of it." It can hardly be said that the great Coke was entirely clear on this question of jury province. In his commentary on Littleton he says: "Although the juries, if they will take upon them the knowledge of the law, may give a general verdict, yet it is danger ous for them so to do, for, if they do mistake the law, they runne into the danger of an attaint." l This by no means admits the right, and may be said to substantially deny such right. If " the law is the perfection of reason," and juries are permitted " to take upon themselves the knowledge of the law" which is covered in " a general verdict," then their finding would be the law, and they could "run no danger of attaint." Juries may disregard the direction of the court as to what the law is, to be applied to a given set of facts before them, even where the practice is settled and constitutional or statutory provisions make it obligatory on the jury to take the law from the court. Just so they may totally disregard the common law oath which they take to decide according to the evidence, and the law as given to them by the judge. You can not control the conscience or whim of jurors. But this is the power of might. It is the usurpation of a function in the administra tion of the law, not upheld by any moral or legal right. A maxim growing out of the early confusion of these functions puts the rule thus : " ad questionem facti non respon dent judices; ad questionem juris non res pondent juratores,"— an invaluable principle of jurisprudence which has done much to uphold the dignity and efficiency of our sys tem of jurisprudence. Mr. Forsythe, in his admirable work on Trial by Jury, in a discussion of the subject says : " It is impossible to uphold the doc trine. It is founded on a confusion between the ideas of power and right.
1 State v. Myer (Vt.), 2 N. Eng. Reptr. 209.
1 Coke, Sitt. 228 (a).
