Page:History of Woman Suffrage Volume 2.djvu/742

708

himself if the prisoner's fate depended upon his directions; unhappy also for the prisoner, for, if the Judge's opinion must rule the verdict, the trial by jury would be useless. Yet, in many instances where contrary to evidence the jury have found the prisoner guilty, their verdict hath been mercifully set aside and a new trial granted by the court of King's Bench; for in such case, as hath been said, it can not be set right by attaint. But there hath been yet no instance of granting a new trial where the prisoner was acquitted upon the first.

In Wilson's Lectures, Vol. II., p. 72, the same doctrine is declared and illustrated; and he says:

In Forsyth's Jury Trials, after an examination of the subject, it is said, p. 265:

The authorities quoted from conclusively show that at the time the Constitution was adopted, and for nearly a quarter of a century afterward, juries were understood and declared to possess the right to pass upon questions of law as well as fact in all criminal cases; and this is all that need be shown to bring this right within the protection of the Constitution.

The first case it is believed in which the contrary doctrine received favor in any American court was in the case of the United States vs. Battiste, 2 Sum., 240, decided in 1835. Mr. Justice Story, in that case, said:

In Commonwealth vs. Porter, 10 Met., decided in 1845, the Supreme Court of Massachusetts followed the decision in Battiste's case, and held that the jury are under a moral obligation to decide the case as instructed by the court, and the court sum up the subject as follows:

The opinion in this case was delivered by Chief-Justice Shaw, and is rather a discussion of what is a convenient distribution of powers between the court and jury than an examination into the actual state of the law; and he neither cites nor refers to a single authority from the beginning to the end of the opinion. Again, the conclusions arrived at by the opinion admit the power of the jury to decide questions of law; and