THE AMERICAN JURIST.

NO. XII.

OCTOBER, 1831.

ART. I.-THE RIGHT OF AN ACCUSED TO ARGUMENT BY COUNSEL BEFORE THE JURY, BOTH UPON THE LAW AND THE FACT.

THIS subject has lately come under judicial investigation in the supreme criminal court of the state of Virginia. Two cases have been before that court, one of which involved the right of counsel to argue before the jury upon the law, and the other the right to argue upon the fact. In one of the cases, the question was whether, after the court had pronounced an opinion. upon the law, at the instance of the prosecutor, the counsel for the accused had a right to argue before the jury, in opposition to that opinion? And in the other case, the question was, whether the court could prevent counsel from arguing the fact before the jury, where such fact was clearly and distinctly proved by a single witness, whose testimony was unimpeached? Both of these questions were examined by a member of the Richmond bar, eminent for his talents and legal attainments; and upon the latter, the court has pronounced a final decision. The other question was not decided upon, because the case did not come before the court in such a way as to authorize it to take jurisdiction. Nevertheless, it is believed that a full report of both cases, embracing the argument in each, cannot fail to interest. the readers of the Jurist. The report of the decided case will be submitted without comment. Upon the other question, the writer of this article will add some further remarks to those of the counsel who argued it.

As a general proposition, it is not denied that it is the province of the judges to expound the law, and of the jury to ascertain the facts. But when it is admitted that the judges may advise the jury as to the law, it does not follow that the jury are bound in all things to conform to that advice, whether in their opinion it be right or wrong. On the contrary it is insisted, that though the jury should conform to the court's opinion of the law in civil cases, yet that in criminal causes they have an absolute right to follow their own opinion in opposition to that of the court, whenever the consequence of so doing will be a verdict for the accused. This right, the jury may lawfully exercise, and the court cannot lawfully control it. The court may pronounce an opinion upon the law, which, if it were followed, would be decisive of the case against the accused. And yet the jury, if they differ from the court upon the law, may find a verdict of acquittal in direct opposition to the opinion so pronounced, and their verdict will be forever binding. It is entirely beyond the power of the court, and can never be set aside. This much is incontrovertible; and so far it is admitted that the jury may decide upon the law as well as fact,' even by Hargrave, in the note wherein he draws a distinction between the immediate and direct right of the court to decide the law, and the incidental right of the jury. 3 Tho. Co. Lit. 461, n. 7. This distinction is wholly unimportant, as to the question now to be considered. It is enough that the right itself be established. It matters not whether it be termed immediate and direct, or incidental.

Upon a reference to the opinion pronounced by the General Court of Virginia, when his case first came before them, it will be perceived that while in the first part of that opinion, they approve of the ground taken by Hargrave, that the right of the jury to decide upon the law is but an incidental right, yet afterwards, in a subsequent part of the same opinion, they substantially deny that the right exists at all, and affirm it to be a mere power. The distinction between a right on the part of the jury to decide the law, and a power to make such decision must be considered exceedingly nice and refined, when it is remembered that no tribunal, whatever, has authority to determine whether the power has been properly exercised or not. Whether the jury decide the law in the exercise of a perfect right or in the exercise of an uncontrollable power, the effect of their

verdict is precisely the same. In either case, if rendered on behalf of the accused, it is acknowledged that he is forever discharged. But without saying any thing more as to the distinction itself, some of the reasoning which led to it, will now be examined. It has been argued that the court alone has the acknowledged right to decide all questions of law upon which the competency or admissibility of evidence depends; that no right has ever been asserted on behalf of the jury to decide such questions; and that different rights cannot exist. when opinions are given on questions of law involved in the issue from those which exist when opinions are given on questions which of necessity are to be determined before the jury can examine the facts. The incorrectness of this reasoning is apparent. It proceeds upon the ground of an inconsistency, when in truth there is none, between the right of the court to decide collateral matters upon which the competency or admissibility of evidence depends, and the right of the jury to decide matters directly involved in the issue. In the very nature of things, the jury can know nothing of the evidence until it be introduced before them; they are sworn to decide the cause according to the evidence so introduced; and whatever question arises preliminary to its introduction must of necessity be decided by the court. Surely it is not at all. inconsistent to affirm that the court may pass upon any question of law arising before the evidence is given to the jury, and yet that the jury may decide all questions of law arising after they have heard the evidence. The argument adverted to, if it prove any thing at all, proves too much. It would equally prove that the jury have nothing to decide in any case, either of law or fact. For it will not be denied that questions of competency are decided by the court as well upon the fact as the law. And it would be just as correct to conclude, that because the court must decide the fact upon which the competency of evidence depends, therefore the jury have no right to determine the fact involved in the issue, as it is to conclude, that because the court must decide the law upon which the competency of evidence depends, therefore the jury have no right to determine the law involved in the

issue.

It will not be going too far to say, that the right of the jury in a criminal cause, to determine the whole matter involved in the general issue of guilty or not guilty, both law and fact, is constantly practised upon, throughout our land. It is incorporated

into the systems of government which have been adopted in a large number of the states, and cannot, with propriety, be departed from in those states, while their systems remain unchanged. True, the general proposition is not laid down in positive terms, that in all criminal causes, the jury have a right to determine both the law and the fact; and this for the plain reason that the general proposition was uncontroverted. But the proposition is applied particularly to that class of cases which in England were once regarded as exceptions to the general rule, and by consequence embraces others. The declaration of rights adopted in Maine provides that 'in all indictments for libels, the jury, after having received the direction of the court, shall have a right to determine, at their discretion, the law and the fact.' The constitutions of Pennsylvania, Kentucky, Tennessee, Ohio, Indiana, and Illinois, declare that in all indictments for libels, the jury shall have a right to determine the law and the facts, under the direction of the court, as in other cases. A similar provision exists in the constitution of Delaware, with this difference, that it omits the words under the direction of the court.' And in Connecticut, Mississippi, Alabama, and Missouri, there is an omission of the words, as in other cases.' The constitution of New York is yet more unqualified. In the article treating of prosecutions for libels, the provision in regard to the jury is simply that they 'shall have the right to determine the law and the fact.'

These constitutional provisions speak a language which is not to be misunderstood. They repudiate the idea that any peculiar doctrine is applicable to prosecutions for libel; and they acknowledge the rule that in these as in all other criminal causes, the jury are the judges of the law and the fact. In the states wherein no such specific provisions have been ingrafted in their constitutions, it is believed, notwithstanding, that the principle is regarded as a fundamental one. In every state, the trial by jury is secured; and with that is adopted the common law right which the jury have to acquit the accused, and thus decide finally upon the law and the fact.

But whatever the prevailing opinion may be in the other states, certainly the general impression in Virginia has been in accordance with the views here expressed. At least it was so before the case originated which is now under examination; and the impression was common alike to bench and bar. In Dana's case, 5 Munf. 363, a question was presented to the Court of

Appeals, (the supreme civil court) which in one aspect was likely to go before the General Court, (an inferior civil court, but the supreme criminal tribunal ;) and Judge Roane, in remarking upon the effect which the decision of the Court of Appeals might have upon the criminal tribunal, expressed himself thus: "The General Court would probably decide that the decision of this court was not obligatory upon it, because it would hold itself supreme in its criminal jurisdiction; but, at any rate, the jury,' in that court would pass upon the whole case, including law and fact, the decision of this court not excepted.' In Baker v. Preston, Gilm. 313, Judge White said, when the commonwealth arraigns a citizen for a crime, she submits the case both on the law and the facts to a jury;' and he added, that on a civil case the law was not submitted to a jury, but they passed judgment on all the facts. These it is true are only dicta; but they are the dicta of judges who were generally regarded in their day as the ablest men upon the benches on which they respectively sat, and who were as well acquainted with the course of proceeding in criminal causes, as any judges in the commonwealth. One of them was for many years the president of the supreme criminal court. It does not appear to have entered into the mind of either that the proposition that the jury are the judges of law and fact was susceptible of doubt. Each of them treated it as

a received and acknowledged rule.

A few remarks now as to the effect of the statutes of Virginia which allow the prisoner to except to an opinion given upon the trial, and authorize an appellate court to award a writ of error to the judgment, and reverse it, if it be erroneous. The court say,

'it never could have been within the mind of the law-makers, that after a solemn adjudication by the court and that decision made matter of record, the same question should be open to reexamination before the superior tribunal, and for reconsideration before the jury trying the cause.' If before these statutes, the jury had a right to decide the law, and the accused had a right. to their decision, it would seem to be rather a strained construction in a criminal cause to take away that right by implication such as this. If the framers of these statutes intended that the jury should follow implicitly the opinion of the court upon the law, why have they not said so, and given to the court power to set aside a verdict opposed to its opinion? They have not