Page:Harvard Law Review Volume 4.djvu/187

171 LAPV A AD FACT IN JURY TRIALS, 171 answer a question of law. That was the very ground of some of the arrangements already mentioned for removing the final question from them. Moreover, in many criminal cases their verdict could not be controlled. " It was never yet known," said Pratt, C. J.,^ in any case whatsoever, upon a criminal prosecution." In such cases the judge could not govern their action ; he could simply lay down to them the rule of law ; and this it was their duty to take from him and apply it to the fact. Now, although this might be their duty, yet since, in some cases, there was in the judge no power of control or revision, it was evident that the jury had the final power to find the law against the judge's instruction. This power, where it was uncontrollable, has been considered by some to be not distinguishable from a right; and it is not at all uncommon to describe it thus, as a right to judge of both law and fact In the first trial by jury at the bar of the Supreme Court of the United States, in 1794, Chief-Justice Jay, after remarking to the jury that fact was for the jury and law for the court, went on to say : *' You have, nevertheless, a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy." ^ But I am disposed to think that the common-law power of the jury in criminal cases does not indicate any right on their part; it is rather one of those manifold illogical and yet rational results, which the good sense of the English people brought about, in all parts of their public affairs, by way of easing up the rigor of a strict appHcation of rules. It seems, then, that whatever power over questions of law has fallen into the hands of juries, in the actual working of our legal machinery, yet it is the duty of the judges to give them the rule, and their duty, in point of theory, to follow the rule thus ascer- tained. We may probably still quote with approval Hargrave's note^ as being an accurate statement of the common law. One or two peculiar situations should be here referred to. (i.) In determining what is the law of the domestic forum, the 1 King V. Jones, 8 Mod. 201, at p. 208 (1724). 2 Georgia v. Brailsford, 3 Dallas, i. See the remarkable collection of authorities in support of this view in a note to Erving v. Cradock, Quincy's Reports, 553, 558-572, understood to have been prepared by Horace (Mr. Justice) Gray. Compare i Bishop, Grim. Proc, 3d ed., sects. 977, 983-9S8; 2 Thomp. Trials, sect. 2133; Pierce's Life of Sumner, i. 330. 8 Co. Lit. 155 b, note 5.
 * that a verdict was set aside by which the defendant was acquitted