Are Juries the Judges of the Law in Any Case? "Although juries have undoubtedly the power in such cases to take the law into their own hands, and so, it may be, defeat the ends of justice, or do what they believe to be substantial justice, they do so at a sacrifice of conscience and duty." After showing that juries became unpop ular and finally fell into disuse on the Con tinent for this very reason, Mr. Forsythe then goes on to state that the case was different in England. The jury was origin ally called upon to aid the court with infor mation of the facts to which the court would properly apply the law, each keeping with in its proper province. And to this nisi course of procedure is attributed the vigorous condition of the English jury system to-day, while the old jury system of the Continent has either been abolished or fallen into decay. In the Dean of St. Asaph, supra, a case de termined in 1789 upon an indictment for libel, where by the form of pleading the two questions of law and fact are blended together.Lord Mansfield says : "The distinction is preserved by the honesty of the jury. The constitution trusts that under the direction of a judge they will not usurp a jurisdiction which is not in their province. They do not know, and are not presumed to know, the law; they are not sworn to decide the law; they are not required to decide the law." And this would lead to uncertainty in the administration of the law which would pro duce ' a miserable condition among indi viduals, dangerous to society and altogether subversive of a pure administration of the law,' according to this great authority. In Rex v. Burdett (4 Barn. & Aid. 131,6 Eng. Com. Law, 420), the opinion is given that " the judge is the judge of the law in libel as in all other cases." (See also Regina v. Parish, 8 Car. & P. 94, 34 Eng. Com. Law 628; Parmiter v. Coupland, 6 Mees. & W. 105; Levi v. Milm, 4 Bing. 195, Contra De Solme on the English Constitution). Again, what force is there in giving to a
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judge the power to direct a verdict of acquit tal,— and may also set aside a verdict of this same jury which judges of the law as well as the facts, where in his opinion the evidence would not justify any other disposition of the case, and, at the same time, claim the right to interpret and apply the law is vested in the jury? This is manifestly absurd. And yet this absurdity is found to exist in some of the States of America and did exist in the practice of the State of Vermont previous to the decision in the case of State v. Burpee, supra. As before suggested this practice in effect makes jurors paramount judges of the law only in case they acquit. In that case the judge, of course, has no power to inter fere and the prisoner can not again be put in peril for the same offense. This verdict of acquittal is in no sense final because of any authority in the jury to interpret and apply the law, but, because of the rule, well known in criminal jurisprudence, that no man is to be placed in jeopardy a second time for an offense of which he has once been found not guilty. Besides, the common law oath to jurors indicates pretty clearly that they are not to be the judges of what the law is, but that they are to take that as law which is given to them in open court by the presiding judge. Mr. Justice Campbell of the Michi gan Supreme Court, in the case of Hamilton v. People,1 says, "A jury system without a presiding judge who is something more than a puppet is not the jury system which we have inherited." Campbell in this same case says further : " It is necessary for public and private safety that the law shall be known and certain, and shall not depend on each jury that tries a cause." But it shall be interpreted by a professional interpreter and applied to the facts through the medium of a jury composed of men usually of simple habits and ordinary minds. There is reason in this separation of the functions of judge and jury. ' 29 Mich. 191.
