evidence placed before them. Any less than this number of twelve would not be a common-law jury, and not such a jury as the Constitution guarantees to accused parties, when a less number is not allowed in express terms; and the necessity of a full panel could not be waived at least in case of felony - even by consent. The infirmity in case of a trial by jury of less than twelve, by consent, would be that the tribunal would be one unknown to the law, created by mere voluntary act of the parties; and it would in effect be an attempt to submit to a species of arbitration the question whether the accused has been guilty of an offence against the State. But in those cases which formerly were not triable by jury, if the legislature provide for such a trial now, they may doubtless create for the purpose a statutory tribunal, composed of any number of persons, and no question of constitutional power or right could arise.

Many of the incidents of a common-law trial by jury are essential elements of the right. The jury must be indifferent between the prisoner and the Commonwealth; and to secure impartiality challenges are allowed, both for cause and also peremptory without assigning cause. The jury must also be summoned * from the vicinage where the crime is sup- [* 320] posed to have been committed; 2 and the accused will

1 Work v. State, 2 Ohio, N. s. 296; Cancemi v. People, 18 N. Y. 128; Brown v. State, 8 Blackf. 561; 2 Lead. Cr. Cas. 337; Hill v. People, 16 Mich. 351. And see State v. Cox, 3 Eng. 436; Murphy v. Commonwealth, 1 Met. (Ky.) 365; Tyzee v. Commonwealth, 2 Met. (Ky.) 1; State v. Mansfield, 41 Mo. 470; Brown v. State, 16 Ind. 496: Opinions of Judges, 41 N. H. 550; Lincoln v. Smith, 27 Vt. 328; Dowling's Case, 13 Miss. 664; Tillman v. Arlles, 13 Miss. 373; Vaughan v. Seade, 30 Mo. 600; Kleinechmidt v. Dunphy, 1 Montana, 118; Allen v. State, 54 Ind. 461; State v. Everett, 14 Minn. 447. In Commonwealth v. Dailey, 12 Cush. 80, it was held that, in a case of misdemeanor, the consent of the defendant that a verdict might be received from eleven jurors was binding upon

him, and the verdict was valid. In Hill v. People, 16 Mich. 356, it was decided that if one of the jurors called was an alien, the defendant did not waive the objection by failing to challenge him, if he was not aware of the disqualification; and if the court refused to set aside the verdict on affidavits showing these facts, the judgment upon it would be reversed on error. The case of State v. Quarrel, 2 Bay, 150, is contra. The case of State v. Stone, 2 Scam. 326, in which it was held competent for the court, even in a. capital case, to strike off a juryman after he was sworn, because of alienage, affords some support for Hill v. People.

2 Offences against the United States are to be tried in the district, and those against the State in the county in which they are charged to have

thus have the benefit on his trial of his own good character and standing with his neighbors, if these he has preserved; and also of such knowledge as the jury may possess of the witnesses who may give evidence against him. He will also be able with more certainty to secure the attendance of his own witnesses. The jury must unanimously concur in the verdict. This is a very old. requirement in the English common law, and it has been adhered to, notwithstanding very eminent men have assailed it as unwise and inexpedient.1 And the jurors must be left free to act in accordance with the dictates of their judgment. The final decision upon the facts is to rest with them, and interference by the court with a view to coerce them into a verdict against their convictions, is unwarrantable and irregular. A judge is not justified

been committed; but courts are generally empowered, on the application of an accused party, to order a change of venue, where for any reason a fair and impartial trial cannot be had in the locality. It has been held incompetent to order such a change of venue on the application of the prosecution. Kirk v. State, 1 Cold. 344. See also Wheeler v. State, 24 Wis. 52; Osborn v. State, 24 Ark. 629. And in another case in Tennessee it was decided that a statute which permitted offences committed near the boundary line of two counties to be tried in either was an invasion of the constitutional principle stated in the text. Armstrong v. State, 1 Cold. 338. See also State v. Denton, 6 Cold. 539. But see State v. Robinson, 14 Minn. 447.

Α

The offended party chose to have his
complaint tried summarily by a police
justice of the latter city, instead of
submitting it to a jury required to be
indifferent between the parties.
U. S. Commissioner issued a warrant
for Mr. Dana's arrest in New York
for transportation to Washington for
trial; but Judge Blatchford treated
the proceeding with little respect, and
ordered Mr. Dana's discharge. Mat-
ter of Dana, 7 Ben. D. C. 1. It
would have been a singular result of
a revolution where one of the griev-
ances complained of was the assertion
of a right to send parties abroad for
trial, if it should have been found
that an editor might be seized any-
where in the Union and transported
by a federal officer to every territory
in which his paper might find its way,
to be tried in each in succession for
offences which consisted in a single
act not actually done in any of them.

The case of Dana, recently decided by Judge Blatchford, U. S. District Judge for the southern district of New York, is of interest in this connection. The "New York Sun," of 1 For the origin of this principle, which Mr. Charles A. Dana was edi- see Forsyth, Trial by Jury, c. 11. tor-in-chief, published an article re- The requirement of unanimity does flecting upon the public conduct of not prevail in Scotland, or on the an official at Washington. This Continent. Among the eminent men article was claimed to be a libel. who have not approved it may be The actual offence, if any, was com- mentioned Locke and Jeremy Benmitted in New York; but a technical tham. See Forsyth, supra; Lieber, publication also took place in Wash- Civil Liberty and Self-Government, ington, by the sale of papers there. c. 20.

in expressing his conviction to the jury that the defendant is guilty upon the evidence adduced.1 Still less would he be justified in refusing to receive and record the verdict of the jury, because of its being, in his opinion, rendered in favor of the prisoner when it ought not to have been.

* He discharges his duty of giving instructions to the [* 321] jury when he informs them what in his view the law is

which is applicable to the case before them, and what is essential to constitute the offence charged; and the jury should be left free and unbiassed by his opinion to determine for themselves whether the facts in evidence are such as, in the light of the instructions of the judge, make out beyond any reasonable doubt that the accused party is guilty as alleged.2

1 A judge who urges his opinion upon the facts to the jury decides the cause, while avoiding the responsibility. How often would a jury be found bold enough to declare their opinion in opposition to that of the judge upon the bench, whose words would fall upon their ears with all the weight which experience, learning, and commanding position must always carry with them? What lawyer would care to sum up his case, if he knew that the judge, whose words would be so much more influential, was to declare in his favor, or would be bold enough to argue the facts to the jury, if he knew the judge was to declare against him? Blackstone has justly remarked that "in settling and adjusting a question of fact, where in trusted to any single magistrate, partiality and injustice have an ample field to range in; either by boldly asserting that to be proved which is not so, or by more artfully distinguishing away the remainder. 3 Bl. Com. 380. These are evils which jury trial is designed to prevent; but the effort must be vain if the judge is to control by his opinion where the law has given him no power to command. In Lord Campbell's Lives of the Chancellors, c. 181, the author justly condemns the practice with

6

some judges in libel cases, of expressing to the jury their belief in the defendant's guilt. On the trial of parties, charged with a libel on the Empress of Russia, Lord Kenyon, sneering at the late Libel Act, said: "I am bound by my oath to declare my own opinion, and I should forget my duty were I not to say to you that it is a gross libel." Upon this Lord Campbell remarks: "Mr. Fox's act only requires the judges to give their opinion on matters of law in libel cases as in other cases. But did any judge ever say, Gentlemen, I am of opinion that this is a wilful, malicious, and atrocious murder?' For a considerable time after the act passed, against the unanimous opposition of the judges, they almost all spitefully followed this course. I myself heard one judge say: As the legislature requires me to give my own opinion in the present case, I am of opinion that this is a diabolically atrocious libel.'" Upon this subject, see McGuffie v. State, 17 Geo. 497; State v. McGinnis, 5 Nev. 337; Pittock v. O'Niell, 63 Penn. St. 253; s. c. 3 Am. Rep. 544.

2 The independence of the jury, with respect to the matters of fact in issue before them, was settled by Penn's Case, 6 Howell's State Trials,

How far the jury are to judge of the law as well as of the facts, is a question, a discussion of which we do not propose to enter upon. If it be their choice to do so, they may return specially what facts they find established by the evidence, and allow the court to apply the law to those facts, and thereby to determine whether the party is guilty or not. But they are not obliged in any case to find a special verdict; they have a right to apply for themselves the law to the facts, and to express their own opinion, upon the whole evidence, of the defendant's guilt. Where a general verdict is thus given, the jury necessarily determine in their own mind what the law of the case is; and if their determination is favorable to the prisoner, no mode is known to the law in which it can be reviewed or reversed. A writ of error does not lie on behalf of the Commonwealth to reverse an ac

quittal, unless expressly given by statute;2 nor can a new [* 322] * trial be granted in such a case; but neither a writ of

951, and by Bushel's Case, which grew out of it, and is reported in Vaughan's Reports, 135. A very full account of these cases is also found in Forsyth on Trial by Jury, 397. See Bushel's Case also in Broom's Const. Law, 120, and the valuable note thereto. Bushel was foreman of the jury which refused to find a verdict of guilty at the dictation of the court, and he was punished as for contempt of court for his refusal, but was released on habeas corpus.

1 66 As the main object of the institution of the trial by a jury is to guard accused persons against all decisions whatsoever by men intrusted with any permanent official authority, it is not only a settled principle that the opinion which the judge delivers has no weight but such as the jury choose to give it, but their verdict must besides [unless they see fit to return a special finding] comprehend the whole matter in trial, and decide as well upon the fact as upon the point of law which may arise out of it; in other words, they must pronounce both on the commission of a certain fact, and on the reason which

3

makes such fact to be contrary to law." DeLolme on the Constitution of England, c. 13. In January, 1735, Zenger, the publisher of Zenger's Journal in New York, was informed against for a libel on the governor and other officers of the king in the province. He was defended by Hamilton, a Quaker lawyer from Philadelphia, who relied upon the truth as a defence. The court excluded evidence of the truth as constituting no defence, but Hamilton appealed to the jury as the judges of the law, and secured an acquittal. Street's Council of Revision, 71.

2 See State v. Reynolds, 4 Hayw. 110; United States V. More, 3 Cranch, 174; People v. Dill, 1 Scam. 257; People v. Royal, 1 Scam. 557; Commonwealth v. Cummings, 3 Cush. 212; People v. Corning, 2 N. Y. 9; State v. Kemp, 17 Wis. 669. A constitutional provision, saving "to the defendant the right of appeal" in criminal cases, does not, by implication, preclude the legislature from giving to the prosecution the same right. State v. Tait, 22 Iowa, 143.

People v. Comstock, 8 Wend.

error nor a motion for a new trial could reach an erroneous determination by the jury, because, as they do not give reasons for their verdict, the precise grounds for it can never be legally known, and it is always presumable that it was given in favor of the accused because the evidence was not sufficient in degree or satisfactory in character; and no one is at liberty to allege or suppose that they have disregarded the law.

Nevertheless, as it is the duty of the court to charge the jury upon the law applicable to the case, it is still an important question whether it is the duty of the jury to receive and act upon the law as given to them by the court, or whether, on the other hand, his opinion is advisory only, so that they are at liberty either to follow it if it accords with their own convictions, or to disregard it if it does not.

In one class of cases, that is to say, in criminal prosecutions. for libels, it is now very generally provided by the State constitutions, or by statute, that the jury shall determine the law and the facts. How great a change is made in the common

549; State v. Brown, 16 Conn. 54;
State v. Kanouse, 1 Spencer, 115;
State v. Burns, 3 Tex. 118; State v.
Taylor, 1 Hawks, 462.

1 See Constitutions of Alabama, Connecticut, California, Delaware, Georgia, Kentucky, Maine, Michigan, Missouri, Nebraska, New York, Pennsylvania, South Carolina, Tennessee, and Texas. That of Maryland makes the jury judges of the law in all criminal cases; and the same rule is established by constitution or statute in some other States. In Holder v. State, 5 Geo. 444, the following view was taken of such a statute: Our penal code declares, On every trial of a crime or offence contained in this code, or for any crime or offence, the jury shall be judges of the law and the fact, and shall in every case give a general verdict of guilty or not guilty, and on the acquittal of any defendant or prisoner, no new trial shall on any account be granted by the court.' Juries were, at common law, in some sense judges of the law. Having the

right of rendering a general verdict, that right involved a judgment on the law as well as the facts, yet not such a judgment as necessarily to control the court. The early commentators on the common law, notwithstanding they concede this right, yet hold that it is the duty of the jury to receive the law from the court. Thus Blackstone equivocally writes: And such public or open verdict may be either general, guilty or not guilty, or special, setting forth all the circumstances of the case, and praying the judgment of the court whether, for instance, on the facts stated, it be murder or manslaughter, or no crime at all. This is where they doubt the matter of law, and therefore choose to leave it to the determination of the court, though they have an unquestionable right of determining upon all the circumstances, and of finding a general verdict if they think proper so to hazard a breach of their oath,' &c. 4 Bl. Com. 361; Co. Lit. 228 a; 2 Hale, P. C. 313. Our legislature have left no doubt about this matter. The juries in