Page:History of Woman Suffrage Volume 2.djvu/746

712 In this claim of Lyon, after remaining before Congress until 1840, a bill, upon a favorable report of the Committee on the Judiciary, was passed by the House, restoring the fine with interest, by a vote of 124 to 15. This case, however, is subject to the criticism, that in it Congress undertook to do justice to a citizen suffering from an unconstitutional law which it had enacted, and thereby distinguishes it from the present application: but the case of General Jackson, so familiar to all that its facts need not be recited, covers that point. There was the remitting of a fine imposed by a judge in excess of his authority in acting without warrant of law.

Assuming, therefore, that this application is properly before us, we come to the second question of whether, by the proceedings in court, the legal rights of the petitioner have been infringed, from which she has suffered. It would not seem to be germane to this question to inquire whether or not the petitioner had the legal right to vote, because that was a question of law fully within the competency of the judge to decide, and his decision did not necessarily work a hardship to the defendant, even if mistaken in judgment. Or, in other words, it was a rightful execution of a power intrusted to him by law, from which there was no appeal to this or any other jurisdiction.

We come, therefore, to the great question in this case: whether the judge erred in withdrawing the case from the jury. Upon this question it would seem that the judge himself vacillated in the trial, because he permitted evidence to be gone into on both sides as a question of fact, tending to show whether the petitioner did or did not vote, knowing that she had no right so to do; but afterward withdrew the consideration of that evidence, upon the fact of intention or guilty knowledge, wholly from the jury, and ordered a verdict to be entered up upon his own decision, without allowing the question either to be argued or submitted to the jury, or the jury to pass upon it.

There certainly can be no graver question affecting the rights of citizens than this. The whole theory of trial by jury at common law consists in the fundamental maxim that before any conviction can be had for a crime it must be passed upon by twelve good and lawful men, the peers of the accused; and the very oath prescribed to jurors by the common law most distinctly guaranteed this right to the accused: "You shall well and truly try and true deliverance make, between the King and the prisoner at the bar, according to your evidence;" while at the common law the oath prescribed in civil cases gave a right to a judge to direct the jury in the matter of law, and to direct the verdict one way or the other, as he saw fit, the oath being substantially as follows: "You shall well and truly try the issue between party and party according to the law and the evidence given you."

Whatever changes may have been made in the practice of the States since the time of the earlier amendments to the Constitution, certain it is that at that time, after a jury had been impaneled, there was no way that the accused could be put in jeopardy of life or limb without his cause being submitted to twelve men, and their unanimous verdict passing upon the fact of his guilt or innocence. And this right your committee deem is not one lightly to be sacrificed. Burke once said