powers and rights of juries, and the legal rights of the accused and his counsel, in cases of misdemeanor, and in cases of felony?

'I must in the first place, repeat the passage before cited from 1 Chitt. Crim. Law, page 409. That while the common law denied the benefit of counsel upon the general issue on indictments for felony, "in cases of mere misdemeanors, or any of fences less than felony, it does not appear that the right of the party indicted to a full defence by advocates, has ever been disputed." The distinction contended for, is a reversal of the principle of the common law and by what statute of Virginia, by what precedents, by what approved and established practice of our courts, can a distinction so anomalous be justified? In the trial of Calender for a libel, before the circuit court of the United States for the district of Virginia, in May 1800, Mr. Wirt, of counsel for the accused, contended that he had a right to argue the constitutionality of the sedition law before the jury. Mr. Nicholas, in his evidence given at the trial of Judge Chase, gives this account of what passed on that occcasion-"Mr. Wirt then addressed the court. He said he had not considered the case elaborately; that it appeared to him so clearly that the jury had the right contended for, that he did not imagine it required any great research to prove it. He then proceeded to state, that it was certainly the right of the jury, to consider of and determine both law and fact. Mr. Chase here remarked that Mr. Wirt need not give himself trouble on that point, we all know, said he, that the jury have a right to decide the law. Mr. Wirt then said, he supposed it equally clear, that the constitution is the law; yes, sir, said Mr. Chase, the supreme law. If then, said Mr. Wirt, the jury have a right to decide on the law, and if the constitution is the law, it follows syllogistically that they have a right to decide on the constitutionality of the law in question. A non sequitur, said Judge Chase. Here Mr. Wirt sat down." The opinion of Judge Chase is clearly expressed against this distinction which has been asserted between trials for misdemeanors and trials for felonies. And though he would not allow counsel to argue the constitutionality of the sedition law before the jury, he offered to hear any argument addressed to the court to prove the right of the jury, to consider and try the question of constitutionality. See 1 vol. Chase's Trial, p. 188.

'In England, there was an anomalous doctrine, touching cases of libel, acknowledged to be applicable to no other cases whatever — that, in a trial for a libel, the sole province of the jury was to find the fact of publication, and the truth of the inuendos; that the jury had no right to inquire into the guilt or innocence of the author's intentions, or into the question whether the paper prosecuted was libellous or not that a verdict of guilty, left them undecided, because these were questions of law, which it belonged to the court to decide upon the record. This doctrine has been clearly traced up to the days of Lord Chief Justice Holt. And yet, long before the declaratory act of 32 Geo. III. c. 60, by which the doctrine was exploded, it was the constant practice of the counsel for the accused in cases of libel, to argue the points, which the courts had uniformly held to be points of law, and as uniformly instructed the juries that they were points that they had no right to inquire into; and moreover, to argue before the jury, that it was their province to decide those very points. I need only to refer to Mr. Erskine's defence of the Dean of St. Asaph. I am quite sure there is not a single instance of counsel pursuing this course of argument, being interrupted by the court, or of the counsel for the crown attempting to forestall the argument, by praying an instruction from the court.

'I confess myself wholly at a loss for any reason for this distinction, which admits the right of the accused to make full defence by counsel before the jury both as to law and fact, in cases of felony; and denies the same right to a person accused of misdemeanors. There are many misdemeanors which are more heinous crimes, and punished with greater severity, than many felonies. Libel, riot, conspiracy, perjury, and subornation of perjury, bribery and corruption. Assaults with intent to maim, rob, ravish, or murder, all these are only misdemeanors, though they are punishable with fine at the discretion of a jury, and imprisonment at the discretion of the court. The keeping and exhibiting of A B C or E O tables &c. is no more than a misdemeanor; and yet it is punishable by imprisonment in the penitentiary as well as by fine. The persons employed in carrying the mail, or in the post offices, who shall purloin money from a letter, are by the laws of the United States, guilty only of a misdemeanor; yet they are punishable

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with ten years imprisonment. A distinction has sometimes been attempted between the power of the jury, and the right of the jury, to decide the law as well as the fact, in criminal cases; a distinction which my mind has never been capable of comprehending. The question is, whether the jury, as a judicial tribunal, be competent to the decision of the law? If the jury be incompetent to decide the law, it is immaterial whether they decide it right or wrong, according or contrary to the opinion of the court; their fault consists in the usurpation of a power which does not belong to them, and their opinion is a mere nullity. If they be competent to decide the law, the very definition of competency is a rightful legal power of judicature.

'If any doubt shall remain on the subject of the right of juries, in all criminal cases, to decide the whole case, law as well as fact, either according or contrary to the opinion of the court, I think that doubt cannot fail to be removed by the argument of Mr. Erskine, on the motion for the new trial, in the case of the Dean of St. Asaph. It will be found in the 21 Howell's State Trials, p. 971. The argument turns on the very points we are considering; it was universally allowed to be conclusive, in regard to all cases but trials for libel, as to which there existed that peculiar doctrine before stated.

'If a person accused of misdemeanor, have an undoubted right to make a full defence by counsel before the jury, and if the jury be undoubtedly competent to decide the law, as well as the fact of the case, I really do not see how the inference can be resisted, that the counsel have a right to discuss before the jury every question of whatever nature, which the jury has a right to decide; and to me it seems, that the principle holds good in all criminal cases murder and petty larceny, the most aggravated misdemeanor punishable by forfeiture and imprisonment, and the most petty, punishable by pecuniary penalty. The difference in the degree of the punishment cannot change the nature of the trial, or restrain, either the legal power of the jury, or the right of the accused to make full defence by counsel, as to the whole case, law and fact.

'It is competent to a jury trying the general issue in a civil case, to find directly against the opinion of the court upon the law of it. At common law the jury might be attainted for such a false verdict at the suit of the party injured; but no attaint

ever lay for the crown against a jury finding a verdict of acquittal in a criminal case-this is acknowledged by Lord Mansfield, 21 How. State Trials, page 980, 2d column. According to the modern practice, in civil cases, the court corrects the error of the jury, by granting a new trial; but if a jury find a verdict of acquittal in any criminal case, there can be no new trial granted, however contrary the verdict may be to the law or to the evidence.

'It is an established rule, in all our courts of justice not to allow counsel to contest the correctness of an opinion of the court upon a point of law, given in the course of the trial of any civil case, and I think the rule perfectly correct. The court may grant a new trial, if the obstinacy or opinionativeness of the jury lead them to find against its instruction upon the law; and to allow argument to induce the jury to do a vain thing, were only to countenance the prolongation of controversy, without benefit to either party, and to the injury of both, as it necessarily increases the expense of litigation. The party against whom the judgment of the court is given, in a civil case, may appeal of right to a superior tribunal, where the judgment. will be reviewed; in no criminal case, can the accused, if the judgment of the court which tries his cause, be against him, appeal without assigning error. Besides the practice has really grown up in Virginia, and is now firmly established, for the courts, in civil cases, to abstain from giving charges to the jury, summing up the evidence, and explaining the law, after the argument of counsel is closed, and instead of such charges, which counsel have nowhere been allowed to contest, our courts give instructions in the progress of the trial, if prayed, on the points of law as they arise; and such instructions ought no more to be open to contest, than the charges to the jury, for which they

have been substituted.

'Prolix as this argument may seem, I have excluded from it, for the sake of greater brevity, many topics which I thought pertinent and just. Such as it is, it is most respectfully submitted.'

After this argument, the case remained undecided until July term, 1831, when the President (Brockenbrough) delivered the opinion of the court, that the questions in the cause not appearing to have been adjourned by the Circuit Court with the

consent of the accused, the General Court had no jurisdiction under the act of Assembly to decide upon them; and the case was therefore directed to be remanded back to the Circuit Court.

Harrison Ward v. The Commonwealth of Virginia.

Ward, the plaintiff in error, was presented in the Circuit Court of Buckingham county, in Virginia, for a misdemeanor in gaming unlawfully at cards; and on the trial of the presentment a bill of exceptions was filed which stated that after the evidence was through, the defendant by his attorney employed by the mother of the defendant who was a widow (the defendant being an infant) desired to argue the case before the jury; but the court stopped the attorney, and would not allow any argument in favor of the defendant before the jury, because there was but a single witness in the case who was not offered to be impeached, and whose evidence was clear and distinct as to the fact charged, and his testimony could not be varied by argument. If the witness was believed by the jury, the law was clear, and if the jury did not believe the witness the law was equally clear, and the defendant excepted to the refusal of the court to hear the argument of counsel.' The jury found the defendant guilty, upon which the court gave judgment against him for a fine of twenty dollars and the costs; and to that judgment the General Court awarded a writ of error.

At November term, 1827, the case came up for decision, and no counsel appearing on behalf of the plaintiff in error, the General Court was compelled to form its opinion without the benefit of argument. After stating that the only question in the case was whether the judge erred in refusing to allow the cause to be argued, the court proceeded as follows: If there be error in that refusal, it is because the party has the right to have a speech made in his cause, whether there be a point of law or contested fact in the case or not. We deem it quite clear that in every case reasonably susceptible of argument, the expediency of a discussion ought to be left to the counsel, however hopeless the judge may think the task; but it is equally clear that the time of the court ought not to be taken up in hearing speeches in cases like the present. It is rare indeed that such cases occur, but when they do, it is both the right and duty of the court, in the exercise of its superintending power over the