done so, because they never intended to take from the accused or take from the jury one particle of right of which either was before possessed. So far from this, the purpose of the statutes was to throw an additional security around the accused. Before their passage, he was entited to a discharge if either the jury were in his favor, or the court sitting upon his trial. Both might decide against him, when in truth he ought to be acquitted; and to guard against such a result, the legislature have given to the accused the further security of an appellate court. Regarded in this light, the statutes are a benefit; but give to them such an effect as that imputed to them, and the condition of the accused becomes infinitely worse than it was before. He can never obtain from the jury immediate redress against an erroneous opinion of the court; but must remain in imprisonment until that opinion can be corrected by an appellate tribunal.

From what has now been said, it is believed the result is fairly deducible, that at common law the jury had a right to decide upon the whole law and fact involved in the general issue; and this right exists in full force in Virginia, as well as elsewhere in the United States.

The right of the accused to trial by jury, and the right of the jury to determine law and fact, do not rest upon a foundation of more stability than the right of the accused to be heard by counsel in his defence. The federal compact and the separate constitutions of nearly all the states, guaranty to him the right; and the only question which can ever arise must be as to the extent to which it may be exercised. The right of the jury to determine furnishes the correct criterion by which to fix the right of counsel to argue before them. The one must be coextensive with the other. If the jury may rightfully decide both the law and the fact, the accused must be permitted to offer, and they must be permitted to hear, argument as well upon the law as the fact.

When this conclusion is arrived at; when it is ascertained that the jury have a right to determine the law, and the accused a right to argue it before them, it follows as a necessary consequence that no course which the court may pursue, can prevent the exercise of the latter right any more than the former. That is to say, unless the accused do some act to waive his right. He may prefer to argue the law before the court, and may insist

on the court's opinion; and if that opinion should be unfavorable to him, he may except to it, and resort to an appellate tribunal. And in such a case he will not be permitted to argue the law before the jury, in opposition to the opinion which he himself has called for. So it was held by the General Court of Virginia in November, 1829, in Davenport's case, reported in 1 Leigh, 588.

But it was the vainest thing imaginable to give to the accused the right of arguing the law of his case before the jury, and yet put it in the power of the commonwealth's attorney and the court, to stop the argument at any moment by having an opinion pronounced upon the law. If, without waiting for the argument before the jury to be closed, the commonwealth's attorney calls for an opinion on the law, and the court give it, it will do so with a full knowledge of the consequence which may ensue. The accused may still go on with his defence before a jury of his country, and insist before them that the law is different from what the court has declared it to be. If such a course should impair the respect which ought to be entertained for the court, the effect will be produced by the act of the court in not postponing its opinion until the argument before the jury has closed.

Against this right of the accused to argue in opposition to the court's opinion, it has been said that equal right of argument is possessed by the prosecutor and by the accused; and if the accused can argue against the court's opinion, the prosecutor can do the same. The correctness of this proposition is denied throughout. The prosecutor can never argue to the jury against the court's opinion, for the obvious reason that if he were to succeed in getting a verdict opposed to that opinion, the court would set it aside. It is otherwise with the accused.

Upon the whole, it is concluded that in every criminal cause the jury which tries the general issue has a right to decide the whole law and fact involved in such issue; and this right can never be taken from them without their own consent or the consent of the accused. It is also concluded that the accused has a right to argue before the jury upon the whole law and fact involved in the issue; and this right of argument can only be lost by his own waiver of it.

The writer of this article confidently believes that if ever the question which has been examined shall again come before the

general court of Virginia, it will pronounce a decision different from the opinion heretofore expressed and set aside. But whether it should do so or not, he knows that the decision will be pronounced by judges, who, after examining the subject, (as their predecessors have ever done) come to that conclusion which they conscientiously believe to be right.

C. R.

The Commonwealth of Virginia v. William Garth.

The defendant was presented in the Circuit Court of Albemarle county, in Virginia, for a misdemeanor in gaming unlawfully with cards; and on the trial of the presentment, after the attorney for the commonwealth had applied for and obtained an opinion from the court upon the law, and the defendant had excepted to that opinion, the counsel for the defendant claimed the privilege of arguing before the jury that the law was different from what it had been declared to be by the Circuit Court or the General Court.' The Circuit Court then adjourned to the General Court, the following questions: 1. Whether counsel can legally argue against the opinion of the court in a case like the present, or in any misdemeanor case? And 2. Whether the opinion of a court ought to be asked in any case where it may be controverted before a jury?'

The case was before the General Court at November term, 1827; and the following opinion was then given by the court upon the first question:

"In considering this question, we are necessarily led to the examination of what constitutes the respective provinces of the judge and the jury. Almost coeval with the institution of juries, we find the rule laid down that as to matters of fact, the jury shall answer, but in matters of law, the judge shall decide; and the fitness of this rule has never been questioned. Its application alone has occasioned the controversies which have arisen in this country and in England. It is not now our purpose to settle the many difficult and delicate questions that may arise in giving effect to the proper authority of each forum. The general principles governing this distribution of power are concisely, and we think accurately stated in the following terms: "The immediate and direct right of deciding on questions of law is entrusted to the judges; in a jury, it is only incidental; and in the exercise of this incidental right, the latter are

not only placed under the superintendence of the former, but are in some degree controllable by them.' It is sufficient for our present purpose that we examine this superintending authority with reference to the question under consideration. In the progress of a trial for a misdemeanor, either the defendant or the prosecutor may require the instruction of the court to the jury on any question of law arising in the cause, whether directly affecting the issue or only collaterally operating upon it; and by particular direction of the statute, the court is required to sign and seal any bill of exceptions that may be tendered, provided the truth of the case be fairly stated. When instructions are given on incidental questions, although the cause may depend entirely on such decision, as on the admissibility of documentary evidence, or the competency of witnesses to testify, the right to discuss before the jury the legality of the exclusion or admission has never been asserted. The purely legal character of such questions leaves no pretext for re-arguing them before the jury. And can a different rule prevail, or different rights exist, when instructions are given on questions of law directly involved in the issue, and by which the facts proved to the jury are to be examined by them? We think not. 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 re-examination before the superior tribunal, and for re-consideration before the jury trying the cause. To admit this principle, as contended for by the defendant's counsel in the circuit court, would be fraught with the most serious mischief. In securing to every citizen a fair and impartial trial according to the laws of the land, an appeal is given him to the court for an interpretation of the law by which he is to be tried, and he is entitled to the operative benefit of such interpretation; but this may be lost to him, if equal rights are possessed by the prosecutor and defendant (which seems to us to be the case in this particular) and this new principle shall be interpolated into our criminal proceedings. If the superintending authority of the courts be admitted, it follows as a necessary consequence that the right now claimed cannot be conceded; they are in conflict with each other. To admit the latter is to deny the former, as to every beneficial purpose. A superintending authority cannot exist if its opera

tions may be referred to the discretion of the jury, and arguments heard by them to show that they ought to disregard it. If counsel have the right of appealing from the court to the jury, on the interpretation of the law, the right must equally exist of discussing before them the force and authority of the acts of the general assembly, whenever a colorable ground may be supposed to exist; and the wisdom and constitutionality of the legislative enactments may thus become the topics of inquiry whenever a jury is engaged in a criminal trial. That juries may take upon themselves the decision of both the law and the fact is not questioned. Happily for us the doctrine of attaint is unknown to our code; and our juries are exempt from any restraint on the honest exercise of their judgments. This power, however, equally extends to civil causes, and is unaffected by the prohibition of new trials in criminal cases, as this distinction is neither referable to the rights nor the powers of juries, but has its foundation in principles entirely unconnected with either. In neither class of cases can the jury receive evidence of the facts, which it is their peculiar province to decide, without the court's first passing upon its competency; and it would seem to follow a fortiori, that they must be protected by the superintending authority of the court from misrepresentations of the law, to which such facts are to be applied. We are aware that the principles here stated, and the reasons which we have urged, may be applied to capital cases as well as to prosecutions for misdemeanors; but in cases affecting life or liberty, we think the practice of the courts, and the considerations on which it is founded, not only warrant the course now generally pursued, of reserving instructions, except on collateral points, until the arguments to the jury are closed, but enjoins that order in conducting such trials.'

At the same term at which this opinion was pronounced, the court also gave an opinion in another case (Ward v. The Commonwealth) affirming the right of the circuit court in a misdemeanor case to stop the counsel for the accused from arguing before the jury even upon the fact where there was but a single witness who was not offered to be impeached, and whose evidence was clear and distinct as to the fact charged. But during the term, Mr. Benjamin Watkins Leigh, as amicus curiæ, moved the court to reconsider their opinions in both cases, and