Sparf v. United States

SPARE AND HANSEN v. UNITED STATES.

Syllabus. SPARF AND HANSEN UNITED STATES. TO COURT OF

ERROR CIRCUIT STATES FOR THE THE UNITED THE DISTRICT

NORTHERN OF CALIFORNIA. 613. Submitted January

No. March Decided 5, 1894. 21, 1895. persons having together of of one two accused If committed the crime of voluntary other, presence murder makes a confession in of under naturally such he would circumstances that have contradicted it if he did assent, against not the confession is admissible in evidence both. persons murder, jointly two and-tried If indicted for declarations of one other, killing tending prove made after the and in the absence of the both, guilt of against making are admissible evidence the one declarations, against but not the other. objection admissibility evidence, of such An made at the trial in the defendants, general irrelevant, ground name of both on the that it was immaterial, furnishes, incompetent, testimony admitted, if the be suf- court, ground bringing ficient conviction case of for the case to this against warrants the reversal of the of the defendant conviction whom was not admissible. imprisoned irons, person a under accusation Confession of hav- offence, capital him, ing committed a are admissible in evidence they appear voluntary, by putting if to have been and not obtained him fear, by promises. jury 1035of the Revised Statutes does not a in a Section authorize criminal guilty charged, case to find the defendant of a than less offence the one it; justifies jury, unless the evidence but it enables the case the de- guilty particular charged, fendant is not shown to crime to find necessarily guilty charged, him of a offence in the one lesser included attempt permits charged, to commit one when evidence that to be done. duty the courts of the States it- is the In United criminal cases, court, apply given by to receive the from the and to it as law subject jury to the condition verdict of neces- compounded sity determines both and fact as in the issue submitted particular to them in the case. competent as to the criminal cases the court instruct ; not, presumptions legal arising given but it from a of facts state instruction, require by peremptory guilty to find the accused any charged. charged, offenceless than that the offence nor person United accused commit- the trial in a court of the States of*a On murder, ting if there be no evidence which the the crime of properly guilty included in or less of an offence can find the defendant they cannot charged, not error to instruct them that than the one it is manslaughter, than guilty of or of offenceless return a verdict n TERM, 1894.

Opinion Court. and, guilty charged; in such the defendant was one duty charged, to return a of not it is the verdict the offence guilty. is stated The case opinion. J. and Mr: F. Fierce for in Smith error.

Mr. J. F. plaintiffs Conrad in General defendants Attorney Mr. Assistant for error. of the court. Harlan delivered the Justice

Mr. St. were indicted in error and Thomas Clair The plaintiffs the murder of Maurice for Fitzgerald upon high jointly as set vessel, of an bark on board American sea's, Hesper, St. Clair v. United mentioned the indictment forth motion of the accused it was or On 154 U. S. 134. States, was tried, tried St. Clair be dered separately. sentenced to suffer murder, punish found guilty trials order death. separate ment Subsequently tried defendants were aside, together, set was present A motion for new of murder. both were convicted a like sentence was overruled, imposed trial been having them. differ from those do not facts of this case The general, and some of the case, Clair’s questions arising St. proved of error determined were the present assignments as will here examined such that case. Only questions or did not in the other arise were presented properly -at our notice sufficient importance require as hands. second

In the night January Fitzgerald, was be- mate found and. Hesper,.was missing, to.be that- he over- lieved had been thrown body killed board. directed to St. Clair, Suspicion being Sparf, Hansen, of the. crew of the part participants Hesper, Soder- were in irons order of the:killing, put Captain and were so gren,.master vessel; during kept v. UNITED AND HANSEN STATES. SPAEF Opinion of the Court. murder from the to Tahiti, locality supposed

voyage Pacific the South the French an island belonging taken were ashore the United They States government. were island, consul at with sent, subsequently to San Francisco on the vessel Bird. others, Tropic for the trial, At the witness Captain Sodergren, govern- or not was asked whether after the 13th of Janu- ment, day — and before Tahiti which was more than one ary reáching miles from the thousand murder =—he locality alleged had conversation with the defendant Hansen about the' This been answered Fitzgerald. killing question having the witness he was affirmative, examined as fully the circumstances which the under conversation held. He said other that no one was but Han- among things present sen and himself. asked to the conversation re- Being repeat ferred to, the counsel who had been accused, by appointed the court to them, represent objected “ irrelevant, immaterial, and and incompetént, upon ground that statement made not and could not be Hansen was any n voluntary.” was defendants overruled, objection The witness then stated what Hansen had said duly excepted. to him. That that evidence tended to show Fitzger- strongly ald was murdered to a formed between St. pursuant plan Clair, and Hansen that three ; all Sparf, actively participated in the and that the crime was committed under the murder; most circumstances. revolting

Thomas and of the crew of Larsen, Green Edward two were also witnesses for the were Hesper, They government. to state what said to them Hansen voy- permitted during from Tahiti to This evidence was also San Francisco. age to and and irrelevant, immaterial, objected incompetent, further that the statement accused upon ground to have made was not But voluntary. objec- represented and tion was overruled taken. exception the conclusion of the evidence the defendants re- Upon court to certain instructions which the refused give, quested and that to its action in as well as they excepted particular, certain charge parts jury. TEEM, OCTOBEE

Opinion of the Court. 1. The as detailed Hansen, declarations by Sodergren, Larsen, were admissible evidence Green, clearly no him. There was their exclusion could ground have been reference to this the court sustained. proof, from the believed evidence that they charged either were of them Green Larsen accomplices in the of the acts should indictment, commission charged they caution, with it to a their testimony act upon great subjecting examination in the the other of all evidence, careful light their unless satis- testimony alone, to convict upon ought truth; doubt of its if Larsen reasonable fied beyond induced to or either of them or other were Green person from immunity punishment, by hope testify promises out one that it would easier with them held from any go or in case confederates, case disclosed they impli- be con- cated some else must taken into crime, one be to their sideration weight given determining be that the confes- scrutinized; should testimony, closely m of a out of court and made to sions prisoner custody persons no should be acted him, examine having authority with care and that words are often caution; received great inattention, or are malice, ignorance, misreported through misconstruction, liable to sufficient rarely extremely well on warrant conviction as account great danger fact that the witness, mistake part mind of the himself his situa- oppressed by prisoner un- tion or influenced motives of or fear make an hope true to be confession; considering weight given were defendants, confessions of the alleged made, the to consider their condition at the time were fact that had been with and were crime, charged and that the those were to determine whether custody; were confessions were whether inducements voluntary any did not offer held out to them one. The defendants by any care that a themselves court took to witnesses, as say under no with crime is testify person obligation charged in.his and that did not create own.behalf, testify neglect whatever him. any against presumption v. STATES. AND HANSEN UNITED SPARE Opinion Court. were discloses, far as-the record these confessions entirely So of reward or fear uninfluenced free and by any hope voluntary, it 574, 584, v. 110 U. S. Utah, Hopt punishment. indicate distrust of “While some of cases said: adjudged which are not it is observed certain, confessions judicial, 2 Dennison & Pearce Parke, Baron v. Regina Baldry, has Cas. that the rule 430, 445, admissibility Cr. been too and in sometimes carried its far, justice application at the and common been sacrificed sense too frequently shrine of A made, confession, voluntarily mercy. freely Such a confes is evidence most character. satisfactory Law, C. 1 Leach Cr. said sion, Eyre, B., King Warickshall, c it is because credit, highest presumed deserving therefore, it is and, to flow from the sense strongest guilt, it to which refers.’ admitted of the crime Elementary proof from that while writers of concur authority saying to careful of such must be scru nature evidence subjected a deliberate caution, and received with voluntary tiny great the most effectual proofs confession guilt among n lawand constitutes the evidence against party strongest can facts stated such con it that be given making fession.” there cannot be a for the accused insist that volun-

Counsel a a while defendant is confession, free statement, open tary and in irons under an committed accusation confined having been offence. We have not referred authority capital of a of that It is true the fact position. pris- support time a confession is at the he makes oner being custody because bears overlooked, circumstance made was whether confession was voluntarily inquiry threats or violence or made under influence extorted by in itself confinement or is not suffi- fear. But imprisonment if it confession, the exclusion of appears cient justify not obtained and was- have been putting voluntary, Wharton’s Cr. Ev. 9th ed. in fear or by promises. prisoner and authorities cited. The Sodergren’s import §§ evidence was that when Hansen a desire to manifested speak did not said he to him on the the latter subject killing, TERM, 1894. Opinion of the Court. “ to hear but it until it, wish to time came and keep But then tell truth.” this was not offering prisoner .to make a an inducement confession. Littledale, J., well in Rex v. & Court, 486, 7 Car. P. observed a man telling the truth not to tell him to be sure to confess advising any which not he See v. also really Queen thing guilty. 1R. C. said to L. C. Hansen Reeve, Nothing prior all calculated to the confession was at him fear or to put his excite he punishment by what any hope escaping telling did knew or witnessed or reference to killing.

The declarations Hansen after the as detailed killing, were Larsen, Green and also admissible evidence against because to have been made in his appear Sparf, presence and under such as would circumstances warrant the inference that he would have contradicted if he did them naturally truth. assent

But the confession declarations of Hansen to Sodergren after the were as evidence killing Fitzgerald incompetent Clair, St. Hansen, and were Sparf. against Sparf charged the murder of with What Hansen said after jointly Fitzgerald. had been deed and not on the occasion fully consummated, and in the of the witness, was killing presence only however against codefendant, clearly incompetent Sparf, it tended to connect the with latter the commission strortgly If the crime. the evidence made a case of conspiracy rule, kill is settled after the murder, conspiracy to an whether has come success or end, failure, of one admissions of narrative of conspirator by way past facts not admissible in evidence the others.” States, 144 Logan v. United U. S. ;309 Brown United States, 150 U. S. 93, 98; Criminal Car Wright’s Conspiracies, son’s ed. 217; 233. The rule is Greenleaf, same § where the applicable evidence does not show that killing was to a pursuant act conspiracy, was yet joint the defendants.

The objection question, answer to which the decla- rations of Hansen to Sodergren were given, sufficiently specific. rule is that an undoubtedly objection v. UNITED STATES. AND HANSEN

SPABF Opinion of tlie Court. be so framed as indicate

should precise point upon been held to rule. It often has, therefore, the court asked irrelevant, immaterial, that an to evidence as objection to be more is too stated, general incompetent, nothing being it if in could considered on circumstances error, any possible or relevant, be or be material, deemed could made competent. the But will not sustain the this ruling principle of the after commission declarations of made the Hansen, long ad- were and not in the murder, Sparf, presence alleged were case the latter. In no mitted as evidence state Its inadmissibil- those declarations competent against Sparf. face the as to him was It very ity apparent. appeared itself. an N. Y. which was indict- Beach, 87 People ment for the evidence the offered larceny, petit prosecution of a of the accused, statements third party, presence which related the vital which the conviction to point upon There the evidence. The turned. was a general objection made think, however, court said: “We objection general case was sufficient. It when appeared, objection the conversation shown was made, was proposed defendant between when the Hardacre, prosecutor case, as was not was no view present. possible There then afterward in which such a conversation was stood, conver- admissible. When the witness was asked to state the sation, and both court counsel objected, prosecut- have understood that it was officer must ing objection evidence. If the objection competency proposed had on was been made in evidence terms, ground could not have incompetent, sufficiency objection im- made, been necessarily objection, questioned, could nor this. Neither the court attorney plied prosecuting It have been misled point objection. with the in connection patent objection considering as to the could offered. If doubt be entertained proof any be disinclined technical we should sufficiency objection, of an a criminal benefit defendant deprive rule more exception especially the strict of a application TERM, 58 Opinion of the Court. when we can "to civil see that cases, its applicable application And in would Turner v. New injustice.” produce City of 301, 308, 109 Y. was said: “This court N. has held burgh, that when the and it is over objection evidence ruled and the evidence is received, will not be held ruling erroneous unless there be some which could not have grounds had been obviated been unless evidence specified, in its essential nature be Tozer v. N. Y. Cen incompetent.” tral 105 Railroad, & Hudson River N. Y. Alcorn v. 659; & Alton Railway, Missouri, 81; Curr v. Hund Chicago 31 Pac. McCaden v. ley, 940; Lowenstein, Rep. (Colorado) 614; Wilms, Ward v. Tennessee, Colorado, 86. ' We are that as the declarations of Hansen to Sod not, were view of the case, evidence ergren competent made objection coun against Sparf, being defendants, both should have sel excluded them representing and admitted them him, as evidence Hansen. against -Thefact that the was made in the name of both de objection did fendants not the court it as to justify both, overruling when the evidence was and could not obviously incompetent have been made and was competent against Sparf, obviously Hansen. It was not that counsel competent against necessary have made the should behalf of one defendant objection it, and then in the same formally repeated words, other defendant. If had been tried ob Sparf alone, general behalf his on. the jection would ground incompetency been definite. such an sufficiently Surely, objection from when tried with another Sparf not to be coming ought deemed ineffectual because of the circumstance coun sel, who order the court also his codefend represented ant, the name of both defendants. Each incautiously spoke entitled to make defence, his own and the could have them found one of the other. Mutual guilty acquitted Ins. v. Hillmon, 285, 293. Co. U. S. See also Com Life monwealth Robinson, Gray, the error of the court in For re- sustaining objection so far as it related to, ferred must be Sparf, judgment to him. If he as reversed were the we defendant, only might AND HANSEN v- .UNITED STATES. SPARE 59'

Opinion of the Court. other withhold any expression opinion upon questions raised But as some of those of error. questions assignments another trial arise are important may Sparf, be now with must determined reference especially we Hansen, to their examination. proceed 2. One of the of error relátes to the refusal specifications the court to certain instructions asked the defend- give and to ants, parts jury. charge The defendants asked court to instruct follows: “ In all criminal causes the defendant be found may guilty offence the of which commission included necessarily indictment, with which in that he is or the de- charged be fendant found of an to commit the may guilty attempt so offence that such be itself a charged, provided attempt offence.” an indictment Under murder, separate charging the defendant be murder, convicted may manslaughter, to commit either murder or attempt manslaughter.” “Under the indictment in this the defendants convicted of or of an murder, manslaughter, attempt murder or and if after a full commit manslaughter, all careful consideration of the evidence before be- you you lieve a reasonable doubt that the defendants beyond guilty, or of an either of assault with intent to commit manslaughter find murder or should so verdict.” you your manslaughter, These instructions were refused defendants excepted. In its other charge among things, ? There are two What, said : is murder kinds of then, only laws of the felonious homicide known to the United States. is murder and the other is There are One no manslaughter. “There is no definition of murder of murder.” by degrees We resort to the common law United States statute. for any the common murder is the unlawful that. of By killing of the with malice State, a human afore- being peace or is an ele- Malice, then, either express implied. thought, it from the other ment the offence-and discriminates crime have mentioned, of felonious homicide which I to man- wit, or malice discriminates slaughter; is, express implied, TERM, 1894. Opinion of the Court. offence of malice from the manslaughter.” Express murder one, deliberate when premeditation design, exists to kill or do to advance, harm, bodily premed-' formed from external circumstances implied being itation design in wait, such as antecedent threats, lying proof, capable schemes victim. malice is and concerted Implied law from of the deliberate and cruel act any an inference one another. The two kinds of person against committed by indicate but one state of therefore, mind, repeat, malice, the one circumstances show- in different ways, established homicide, the other inference ing premeditation that malice is inferred committed; the act is, law from without or when the kills another prov- one provocation, when is the unlawful is not Manslaughter killing ocation great. malice either without or human of a expressed implied. being it further, necessary, I do not consider gentlemen, explain has been comihitted, which homicide you if felonious there is this case , nothing are to be the proof judges from words, murder. In other it below grade to reduce under the indictment in the power are accused and tried of them defendants finding these or wit, than murder, a less crime manslaughter, guilty as I have said murder; to commit yet, an attempt all, at which 1 homicide has been committed if repeat felonious reduce n it below there is are the judges, nothing you mwrder.” the grade of further said to the

The court jury: the exclusive “You are credibility and in of their have a witnesses, credibility you judging into consideration their motives, feelings take prejudices, been if such have or shown by any proven revenge, from the case; believe evidence you evidence testi- or witnesses have wilfully witness knowingly any fact at liberty material fied you falsely point, such witness or wit- entirely (cid:127)to testimony disregard instructions as I have these “Gentlemen, you nesses.” given could, I all references to testimony, avoiding carefully-as to' be and out abundant misunderstood, do not wish but I HANSEN v. UNITED STATES. AND SPABF

Opinion Court. caution I further to in these you, say giving you instructions, I facts to if; accident assumed be may by so proven you must the It is not nor disregard assumption. my is purpose, to assume to my function, fact nor to any proven, suggest fact has been You are you the any exclusive proven. the No matter what mine, fgct. assumption appear of the course the trial in during or any instructions, what ruling of in one of it, these are may appear any to take you this case and and remember are consider you tribunal which the has the case and whose judgment referred law wants on the case.’’’’ time,

After had been in consultation for a re- turned into court for further instructions. The between colloquy court and the is set at in forth jurors large margin.1 “1 by your There one of us wishes to be who instructed Eorevian. points upon honor as to certain United States marine laws regard high to murder seas. you, gave gentlemen, regard instruction which I Court. upon the law which indictment based was section 5339 of the Re- Statutes, honor, you again. I will read to Tour vised which I Juror. interpretation regard like to would know laws the United regard manslaughter, whether the States as to defendants can be manslaughter, guilty guilty. or defendants found must-be found you prop read the I will section to and see that touches the Court. upon provides, among is based osition. The indictment section which ’ person every upon things, high other ‘that who commits murder seas sea, haven, river, creek, basin, any bay, any or or arm within or jurisdiction admiralty maritime of the United States out of the who, waters, particular State, any any such mali jurisdiction of stabs, strikes, wounds, any person, ‘or ciously poisons, shoots other shooting stabbing, poisoning, striking, wounding, such other sea, States, or at the United shall person on land within or without dies Hence, penalty for the described in the is the offence death.’ suffer you you given If remember the definition I have murder. indictment. it, ‘ person Every who commits you connect with these words: will sea, seas, river, any haven, or in high or in arm of murder ? words‘aiding’or‘abetting’ defined Court. the two etc. Are Juror. defined, you ‘abetting’ but I have instructed ‘aiding’ or The words you abetting, accept aiding and this should legal effect higher tribunal to correct an error there it. If have made law. I spokesman clearly us. We desire I am for two “Juror. determining our mind to our It is a the matter. barrier understand abetting. question arising amongst aiding us is as to matter. The TERM, 1894.

Opinion Court. instruction made defendants were The requests of the Revised Statutes of the United based section understand, Furthermore, thing it be one I must or the It as other. Yes; guilty. Court. under the I or not instructions guilty must be you again, you. read them to so as to I be will careful given have killing the Murder is of may understand. unlawful a human you State, express aforethought, with malice peace the of either being was, you what malice and I can to assume implied. yop. I defined or Manslaughter your killing is the minds. unlawful my to definition recall malice, express implied. or I do not being either con- without of a human necessary explain If a homicidehas it further. felonious been com- it sider defendants, you are to which be from the of either mitted grade it of proof, nothing this case to reduce murder. is below there Then, your clearly, nothing honor there understand is as I “Juror. ; manslaughter court ? No I do not wish to be so in this about Court. evidence, proper in a must be based on case a A verdict (cid:127)understood. may manslaughter be rendered. verdict for high murder, have A on seas must been crime committed Juror. case, proper may manslaughter In it a be mur- it be or can Court. ? manslaughter, properly may this case it be but in cannot man- be der itor said, committed, has a homicide been slaughter. As I have felonious n factsof say Do murder. not understand me to do reduce below the case not you gentle- manslaughter has That is for murder been committed. or testimony I given instructions have men determine from exception. got you. . We take an We have . . Mr. Smith. Juror. manslaughter or murder ? bring a for either Court. Do not mis- verdict you I I not said so. Juror. have not. understand me. have know Court. you you conclusion to come to I I cannot direct what direct from facts. only your judgment province. is to the law. A as facts May I ask the court to instruct that in cases “Mr Garter. persons being murder, charge proven tried a where facts guilty manslaughter, trial at their show that defendants are under an indictment, they may rule; guilty find him a manslaughter, but, however, if the facts guilty show that have been the defendants murder, that, case, in this tending to thfe there is no evidence establish manslaughter- n offence of crime or province already It jury. I have Mr. Smith. so Court. jury. myself instructed the I to make understood. endeavored Juror. bring capital punishment If guilty, in a ? we that is verdict Court. bring except guilty Yes. Juror. Then there is no we other verdict can proper guilty may manslaughter ? a for a verdict Court. rendered, stated; you attorney be as the district has and even this case power so; country, physical have the to do -but as one the tribunals expected governed and the law it should receive be from amongst misunderstanding been court. There has us. Now Juror. interpreted us, clearly agree it is and no doubt we can now on certain facts.” STATES'. v. UNITED AND HANSEN

SPAEF Opinion of the Court. “in causes the defendant all criminal

States, providing' offence the commission which found be guilty that with he is included in is necessarily charged of an to commit be found indictment, may guilty attempt such so That Provided, the offence charged: attempt offence.” itself separate for

The refusal defendants’ instruc- requests grant with much of the taken connection so tions, charge to the crime of referred manslaughter, observations foreman when the court jury through applied .the whether the further court instructions, present when as in its effect did, transcended authority saying, the evidence that in view of verdict the could only laW under the render would be either one of properly guilty the offence or one of of of not the offence charged guilty that if a felonious homicide had been committed ; charged by either of the were which the defendants, jury of in this case to was reduce from, proofthere nothing of and “as one of that, below the the tribu- murder; grade be nals of the a to country, governed by law, jury expected and the law it should receive the court.” from that The court below section assumed, correctly, of the Revised Statutes did not authorize a in a criminal jury case to find the defendant offence of a less than the one guilty unless the them in so evidence Con- justified charged, doing. did not invest in criminal intend to with- cases gress juries to 'the evidence arbitrarily disregard power principles of law to the case on trial. The of that only applicable object section was to enable the defendant was not case shown be crime guilty charged, particular him evidence them to do to find of lesser so, permitted guilty offence included in the one necessarily charged, offence of one commit the attempting charged. Upon careful of the evidence, we cannot scrutiny find-any ground which whatever could have reached upon jury properly the defendant Hansen was only guilty .conclusion an offence included or of one a mere charged, attempt to commit the offence A verdict of of an charged. guilty TERM,

Opinion of the Court. been in offence than the one would have less charged flagrant and in violation of all by disregard proof, true entire ab- to render a verdict. There an obligation which rest a verdict sence evidence upon guilty kind A of that assault. verdict simple .manslaughter have been the exercise would power by committed, commute the offence actually punishment from that and thus different prescribed punishment impose law. by receive as to the duty general question direct decision

the law from the is not concluded other courts of this court. But it has been often considered by determination its where and, authority, by judges high or statutory has not constitutional been controlled by specific to determine both provisions expressly empowering are to courts and law and facts, juries principle be- functions has be exercise of their guided respective court this be this should true, come established. If firmly do reasons so announce a different unless rule, impelled be over- so properly cannot cogent controlling this court, of the members looked or Some disregarded. review of the much an extended after consideration reached this the conclusion authorities, are of For court is-erroneous both and authority. upon principle and because the reason, great importance we life, human the administration of and also involves justice, under fulness than deem to state with more appropriate other circumstances would necessary grounds — deter- our will first to cases which rest judgment looking mined the courts of the United States. in this court v. a case Dall. Georgia 1, 4, Brailsford,

tried an amicable Chief Justice issue, by special jury upon “ here, is to have It not be amiss said : gen Jay reported that on rule, to remind of the tlemen, old questions you good it of law is of the on of fact it the is province questions the it must observed of the court to decide. But province that reasonable distri same which law, this by recognizes to take bution of have nevertheless jurisdiction, you right v. UNITED SPAKF AND HANSEN STATES.. Opinion of the Court. and to determine the law as to of both, yourselves

upon judge and on other this, the fact On well as every controversy. however, doubt will that re- we have no occasion, pay you for due of court; as, is to spect facts, one it is that best hand, are judges presumed juries are is, on the other the courts the best hand, that presumable are within law. But still both lawfully objects of decision.” the correctness of this your Of power report, Morris, 1 Curtis, 23, 58; Mr. Justice Curtis in United States is much for the reason that the Chief Justice doubt, expressed a civil that, in and that was civil cases, saying reported law, because, had to decide case, jury right other; each different conflict with also, parts charge at the out- Justice, the Chief according saying the.report, set that is the to decide province questions jury and in the fact and of the of law, court decide questions that had sentence succeeding informing jury law both take themselves the determination it was fact. If the province Chief Justice said the court to law, province decide questions- could not have said decide he of fact, jury questions had in a civil the right, determine Mr. Justice case,” both The whole fact. trial Curtis to be a It said, anomaly. purports issues States of certain Court of the United the Supreme out of And the Justice by telling Chief chancery. begins that the facts are all only question agreed, court were matter of whole agreed. If it is not in accord- it be I can say correctly only reported, so far as I know, ance with the other views or in accordance and is certainly country England, with the course of Court many years.” Supreme in the course Marshall

Certain observations of Chief Justice to in trial referred Burr have sometimes been sup- in a criminal case of the contention that port laid down under no the law as accept legal obligation him that trial was- incon- the court. said at But nothing in cases sistent eminent with the jurists views expressed VOX,. CLVI —5 TERM, 1894.

Opinion of the Court. In the course of an cited. opinion be relating to presently the evidence, order of Chief Justice said: merely must be decided is a fact which of war “Levying instructions on this as on The court may give general jury. before must them, jury other brought question every and law.” Burr's it as compounded, decide upon of fact is the conten- This Trial, supposed justify language in criminal case are entitled, right, tion jury to the direction of law adversely pure determine questions mind of was in the that no such But thought the court. to the from his written manifest charge Justice Chief- of the trial —the accuracy report at a stage subsequent —in been which he discussed, has never of which disputed to what con- authorities, question light treason. stituted he indicated In the course charge quite distinctly functions of court and It jury. his view respective “ to this said, he discuss proper,” question

has been thought Court, review Supreme at [Ex large Swartwout, Cranch, this 75,] although Bollman parte to leave the more be disposed court would fact committed on act of war were an overt levying whether to the wider Island explanation Blannerhassett’s them that and to instruct unless law, assemblage Island was an force, on Blannerhassett’s assemblage in a condition itwar, to make was not a military assemblage into-an and that could not construe it act war, levying which, than further testimony arrest war, might or to with that to connect offered prisoner assemblage, at that intention of those who assembled together prove as de is not to be understood however, This point, place. constitute essential will, It inquiry perhaps, cided. 2 Bur?''s 422. This Trial, wholly case.” language another with the Chief Justice recognized theory inconsistent of the law the court’s view disregard irf them. It was the case before arising any question could that the court speak with theory consistent only while the function authoritatively AND HANSEN UNITED STATES. SPARF 6T

Opinion of Court. “ further It is the as to the facts. towas Again: respond is whatever testimony of the court that there no opinion, or that the accused tends to was actually constructively prove that did con- indeed, take'place; present assemblage when “ of this Ib. The is most 439. trary apparent.” been ad- court on the order of has frequently testimony motion. If a verted to as deciding can- tpe court the two exist, contradiction between opinions war is an act com- not it. It that was said perceive levying aided of which the law and pounded fact; still ad- To that declaration the court court, must judge. heres.” Ib. 444. He concluded memorable his charge “ The these words: have now heard the opinion jury to law the court on the law of thé will that case. apply They their find not own will a verdict or guilty facts, guilty to the Ib. 445. consciences direct.” according Again, the Chief that trial ever only report published, recognized made of counsel after Justice, to certain response inquiries doubt “Without their verdict, said: returned jury as to court what intended to deliver merely legal opinion acts war not ; amounted law to an overt act of levying It whether such an act has or has not been proved. overt stated to which the would law, merely appf/y facts It their to this according whether proved. province say statement has been act evidence overt proved not.” Ib. 448. the Chief Justice plainly language that while often must of imports necessity pass upon when law,” duty, of fact and question, “compounded the law, was to evidence, given by considering apply and, to the thus court, facts applying proved; return consciences a verdict as their or not guilty guilty entitled, direct. If had were might he believed deter- whatever be the right, views might mine that themselves the law the impossible ” — he could that law have said that will apply “— as he he On the declared it to facts.” contrary, to the observed to determine that province whether the according accused was guiltjr, guilty his statement of the evidence. the law as applied TERM,

Opinion of the Court. this court has no means of what course, Of determining of Chief Justice Marshall, the views were except referring as show what he said authorized while to such publications functions. In none of his de- judicial opinions discharging Court and can there be at the Circuit found livered published in conflict with his at declarations the trial of at anything all. be observed the circumstances attend- And may Burr. him trial were such as to induce word weigh every ing elaborate written That embodied charge jury. far as it occasion, understood so related he gravity trial, is manifest from his the conduct referring to certain considerations had language following That this court dares not advanced been argument: usurp true. this court That dares not from its is most shrink power true. man not less- No is desirous himself is duty placing man situation. No is in a desirous disagreeable becoming No he let the man, subject calumny. might peculiar from him without would drain-it bitter sélf-repróach, cup pass if had no But he choice in the if case, to the bottom. there to him but a alternative dereliction of be no presented duty of those who are denominated the or the world, opprobrium as well as the he merits of his contempt indignation can which who hesitate to embrace. That country gentle- in a case the most in the zeal with men, interesting, and under advocate the conviction in particular opinions, zeal, measure should on each some side produced by too far, should be at arguments press impatient any and should deliberation fear the suspect opera- of motives to which alone can tion ascribe delibera- but, is incident to human tion, perhaps frailty nature; on the conduct court could warrant a senti- part that it would to the ment one side or deviate the othér from the line by duty law, conduct would by prescribed themselves with an be viewed of extreme by eye and would be recollected with and serious severity, long deep pp. regret,” Wilson, Mr. In Justice with whom sat Mr. IlenfielcVs stated that Iredell,,

Justice must verdict, jury, SPAKF AND HANSEN UNITED STATES.

Opinion of the Court. but that did not fact, decide both law and “this authorize thatli them to decide they pleased,” questions with facts, law into consideration it is the coming joint to the court-to law it to duty explain give them direction.” Wharton’s State Trials, 48, 84. This statement of the to in is sometimes referred principle support is under a to- proposition legal duty the law as declared the court in a criminal case. accept by We think it tends to show that it province duty facts of the case the law as apply given, them the court direction.”

There is in conflict with this in the lectures nothing delivered Mr. Justice lectures, Wilson. one of those re- to the duties in criminal he cases, said: On ferring of-jurors will deficiencies questions juror’s] supplied [the directions of the whose professional duty judges, whose business it is him. For, direct as we professionally seen, criminal verdicts, determine cases, generally Questions of law as well as the question of fact. question it is his exclusive to determine. With con- province fact sideration of evidence unconnected with the which he is to his attention will not be try, distracted; everything of that nature, we will be excluded the court. presume, The collected of his mind, therefore, will be powers fixed, and without the issue which he steadily interruption, upon sworn to This an issue is issue try. Wilson’s of factP Works, 386. Other found observations in these lectures, considered alone, are not so of the explicit upon functions of court but taken in respective connection jury; with all that he said, it is that clear when Mr. Jus- reasonably tice Wilson determination a a criminal spoke by jury, case, of both law'and a fact, he meant ver- only or not decided guilty guilty, necessity, every ques- dict tion before them which involved a consideration of law joint fact; that the could the directions of the jury ignore court, take the law into their own hands. The observations of Mr. Samuel Justice Chase in the case of -

John tried for Fries, treason, are sustain supposed TERM, 1894.

Opinion Court. the broad may, jury right, proposition disregard He the law as the court. did undoubtedly expounded say court, all that while it was the criminal cases, duty were, facts, the state on the to decide jury arising “ on their facts, both the law and consideration Trial, 44. But on case.” the trial, whole Chase’s App. Court the same the Circuit United States for year, of James District, C&llenderfor sedi Virginia Thompson State he Avas Trials, tious Wharton’s at the libel, appalled entitled, counsel that the learned were jury suggestion to determine constitutional of the act of validity right, under the accused Avas Wirt, indicted. Mr. Congress defendant, then, counsel said: Since, have a jury the law, to consider and since the Constitution is laiv, right the conclusion is have certainly syllogistic jury to consider the Constitution.” Ib. But Mr. Justice right declined this view. He Chase said: The accept statute the traverser Avhich is indicted enacts ‘that the who shall the cause shall to determine the Mavand try right under the direction of fact, other eases’ By I understand that a is provision given determine what the law is in the case before them; not to decide whether a statute the United States to them produced is a law or or whether it is under not, void, unconstitutional, is that is, to the Constitution of the contrary United States. I admit that the are to the stat compare ute with facts and then to decide Avhetherthe.acts proved, done the law and Avhether prohibited amount to ; offence described in the indictment. This power in order to necessarily enable them possesses, to decide on the or innocence of the accused.’ It person is one guilt thing Avhatthe law is on decide the facts another proved, different to determine that the very thing statute produced To no law. decide Avhatthe laAVis on the facts, is an admis sion that the law exists. If there be no law in the case there be no can between it and the comparison facts and it un ; to establish facts before it is necessary ascertained that there is a law to the commission of them.” punish Ib. 713. HANSEN v. UNITED AND

SPARF STATES.

Opinion of the Court. he I- “It never “as ever continued, heard, pretended,” that a time, (from before this petit jury England whence or in is common law United any our derived) part States, such If a ever exercised can ex- power. petit jury rightfully this over one statute of ercise must have power Congress, they and over other statute, and indeed right power any equal all the for no line can be no drawn, over restriction statutes; on exercise such must rest in ; discre- imposed power be admitted, tion If this once will be only. power petit jurors to the national and its laws will be superior legislature, subject control. The to their to make laws nu- power abrogate to the them. The authority evident gatory equal making will that a be, law of right juries Con- consequences will be one and not in State A another. gress operation taxes will be one State, not in obeyed impose force be unless submission. another, employed compel be held of certain acts will criminal, doing punished one and similar acts be held State, innocent, even in another. The effects of the exer- approved applauded cise of this conceived. jurors may It power petit readily that the to me now claimed has a direct ten- right appears to dissolve the Union of the United States, dency which, under divine our Providence, safety, political happiness, Ib. He concluded 714. prosperity depend.” opinion “I it of the these words: consider greatest consequence that the administration of the court and the powers justice should be distinct and kept petit jury powers separate. ‘ delivered the I have uniformly petit decide, the law well as the have a ás fact in criminal right ’ into mind cases; but never entered my there- they, had to determine fore, stat- constitutionality ute of the United States.” Ib. 718. sufficient

What Mr. Justice Chase said to show the quite mischievous that would flow from the doctrine consequences directions jury may, right, disregard the law for court, determine themselves. if, as is Eor in criminal contended, cases not bound to. take the law from the it is their .absolute deny impossible TERM,

Opinion of the Court. in a case an act entirely right Congress, depending determine, of a to State, statute their own responsi- that act or whether statute is or is not that bility, law, is, is it is or not in violation of the whether Constitution. became a Mr. Justice who member of this court Thompson, in in concurred the delivered 1823, in Kent, opinion J., 3 Johns. Croswell, v. Cas. 362, where the (1804,) People Chief divided, court was Justice Lewis equally and Judge Brockholst afterwards Justice Livingston, court, of law the court, to holding to.questions questions must But in fact the his Pierce v. jury, respond. opinion H. 536, 564, 13 N. Chief Justice State, Parker, to referring Kent’s said: Mr. opinion Croswell, Justice People Judge who concurred in that have must under Thompson, opinion, concurrence to be stood that merely points necessary of that decision or have cause, his subsequently changed I for have his views; that he authority has saying repeat ruled the law jury criminal edly And cases.” dissenting opinion Bennett in Judge v. Croteau, 14, 63, State it Vermont, (where was held that criminal could cases, decide rightfully questions fact, of both which case has been overruled, it was Vermont said: whose 34,) “Judge Thompson, judi while cial on the bench learning experience, Su of New on Court York, bench the United preme were States, extensive, thus wrote to a very friend some short ‘ his before death: I time on ruled the trial repeatedly of criminal that it cases, as well right duty to decide the court rule, other it law; questions would me, be at war with our whole appears judicial sys and introduce the tem, utmost confusion in criminal trials. It is true, of the jury may disregard instructions and in some cases there no be But it is still the remedy. of the court to law, instruct right jury ” the instructions.’ also Wharton’s obey See duty & Pr. Cr. note 3. l. § P remarks of Mr. Justice Baldwin in United States v. and Porter,1 Baldwin,

Wilson have sometimes 78, 100, 108, AND STATES. SPARE HANSEN ®. UNITED

Opinion of the Court. to as in been referred conflict with rule that duty It the law as the court. accept expounded . true that in Justice in Wilson’s Mr. quite charge case, Baldwin said that if were say prepared law was different had from what the announced, court were the exercise of their constitutional to do so. inBut he what was charge explained Porter’s case, said in Wilson’s case. After find a remarking, prisoner court’s law the guilty against as no court would a new trial be pro would granted, nounce a on a what believes to judgment prisoner against he said: This, then, will understand be what you is .meant to decide on the but your power will still by laAV; you bear in mind that it is a sound, Araluablemaxim old, very in laAV the that .court answers to of and the laAV, questions to facts. jury evinces the Avisdomof Every day’s experience this rule.” States v. 1 Bald Subsequently Shive, United win, which 510, 513, for a counter indictment passing feit note the Bank of of the United arid States, Avhenthe arose as to the to the con question right pass jury upon of of the act on which stitutionality the Congress prosecu tion was Mr. BaldAvin founded, Justice said, charge: “If once exercise this we are or without a juries power, Constitution laws, one has the same as cannot bind another, jury power you those Avho take Avhat declare constitu may you your places, tional another' declare unconstitutional to to-day may jury morroAV.” full before us received consideration Mr. by question

Justice Sumner, Story Battiste, United States 244. That Avasan indictment for a offence, capital Avas in criminal whether cases, directly presented the the the law cases, were especially capital jury judges He Avellas the facts. said: is the “My opinion íj.s the law in or other crimi are no more a capital jury not than nal the case, they plea guilty, every In each civil tried the issue. of these cases, case verdict, Avhen of Iuav necessarily compounded general, and of both. In each must fact; includes they necessarily TEEM, (cid:127)

Opinion the Court. have the fact. In each tvell as the as law determine laid down to them law, as by to disregard power physical civil or criminal, that, But I court. deny to their law to decide the moral according have the right I hold it the most On the or contrary, own notions pleasure. accused of a crime of every party constitutional right sacred and the court as to facts, to should as that the respond jury instruct the to jury of the cotirt It is the the law. duty law it follow the law and it is duty citizen, court. This is every down right laid at settle were liberty If it is his only protection. not be, effect -would only for themselves, the law views from the different most uncertain, itself would be law of error case it, take different might juries or redress injured would be no party; there remedy it had review law as court would any right accused as a crimi- been settled by jury. Every person land, to the law the nal has a to be tried according right as a law of the and not land, the fixed or it, choose, understand from wantonness ignorance If mistake, accidental it. I interpret thought of the law in criminal I should cases, were the proper judges hold abstain from the my duty responsibility stating them the law to such trial. But as I do, upon any believing, citizen has a to be tried every to the that it and truest shield law; according privilege st,ate and I feel it ; .my oppression wrong my duty and views on the occasion.” fully openly present In United States v. Curtis, 23, 52-58, Morris, ques- in all of its was examined Mr. Curtis tion, Justice aspects, with his accustomed care. In that contention was case' the States, court of the United every jury, impanelled was the and effect existence, construction, rightful judge could, of law that was material in and a criminal every if of and it did its decide on the consti- must, right, duty finally tutional of act of which the trial validity any Congress brought and duties of question. Touching rightful powers and the court under the cases,. Constitution criminal AND HANSEN v. UNITED STATES. SPARF

Opinion of the Court. said: Curtis, Mr. Justice other “The sixth among things, after that the article, Constitution, treaties laws, declaring land, States of the United shall be the law of the supreme State, ‘and be shall bound there- proceeds, judges, every But it not intended was laws, and by.’ Constitution, of treaties the United States should be law in supreme criminal as as in civil well cases? If a state law should make it officer "todo what an act United States penal him not the commands latter Congress do, over the former ? in such so, cases, And if supreme juries determine the and the Constitution finally rightfully it means when of a was this com- so trial speaks why by jury, mand laid on the are thus mere alone, who advisers of be bound to sound but have no may advice, give real matter? It was intention of power evidently the Constitution that all engaged making, expound- persons under the ing, laws, executing only authority the United States but of the should be States, several bound oath or Constitution affirmation support United But States. no such oath or affirmation is required whom is the Constitution confides jurors, alleged and not instrument; constru- power expounding only but invalid law which come in ing, holding any question on “In a criminal trial.” the learned my opinion,” justice “it is the court to decide proceeded, duty every ques- tion if trial; which arises a criminal the question' touches matter the course of the such as the trial, affecting aof witness, evidence, and competency admissibility like, no receive direction it; affects concerning the materials out of which are to form their they verdict, have no more concern with it than would have had they they had arisen some other trial. If the question issue, law enters into the and forms it, part is, to be told what the law and are bound to consider that they are told that law ; facts, truly they apply find them, both the law thus, passing fact, both, from frame verdict of or not they, guilty Such view duties of the guilty. my respective differ- TERM, 1894.

Opinion of the Court. in tribunal the trial of criminal of this I cases, ent parts decision of court in not found any single England, prior which Constitution, conflicts with it.” formation in that the clause the act contended also It was Congress, Law of c. 14, 1798, 74, the Sedition Stat. July 3, known as § “ the who shall the cause shall 597, try declaring the law and the di- fact, to determine under the have a right cases,” other rection implied ” “ decide to the direc- in other cases contrary might But in to this view the court. Mr. Justice tion of response inference; I from this the draw Curtis said: opposite of this force of the was the provision if, where necessity by such, have both the Constitution, juries, power cases; all in criminal to determine why questions ” directed the court ? to be See also are by Montgomery State, Ohio, from Curtis considered another But Mr. Justice question which reasons to us of view, appear gave entirely point that it for the conclusive proposition what is the law authoritatively criminal say every to be their verdict. He governed finding act which bears is, however, another said: There Congress The act of the 29th of on this April, directly question. of a that, case division after opin- section enacting the Circuit Court between ion question, to the Court, be certified Supreme pro- such question ‘ And court be decided. the said and shall finally ceeds, and their order in the Court decision of Supreme and be there to the Circuit Court shall be remitted premises to the nature of and have effect record entered of according The residue of this section order.’ proves such judgment it, as well as civil cases are embraced criminal have been in criminal cases under it arising many questions Court, and decided persons Supreme certified can it Now, of such decisions. executed reason have been criminal trial has been after a that, arising Court, and there, language certified Supreme and e'n- remitted here and their order decided, this act, finally STATES. HANSEN v. AND UNITED SPAEF Opinion of the Court. the trial on the that when comes record, of

tered ? this final decision and reverse revise Suppose, rightfully had divided this trial, course of judges act of the of and constitutionality the question thereon final Court after a decision and that, by Supreme the trial should come on here, of its mandate be- the receipt a does the Constitution United States, fore intend that a Court, that as established Supreme may, and reverse that decision ? And, revise if matter right, Are ? what becomes decisions not, supposed right on and Court- decisions binding juries, Supreme will This and if of inferior courts? it hardly pretended; determined whether the how is it to be were, Court Supreme former effect settled a has some not, partic- or.has this act of ular of law ? my judgment question Congress and Constitution, accordance effect with designed even —a one of its and uniform objects necessary important of the law of the United States and'interpretation exposition — for a final means decision any providing tribunal final as law; every every respects part any and if so, it is not ; tribunal incon- only country wholly with the to the extent sistent of all power juries, alleged but it tends decided, so that no strongly prove questions is claimed does can exist.” such the intense interest Again: excited, talent Considering the careful learning researches employed, consequently made, near close of the last when England, century, of libel law discussion was under in the courts and in Parlia it ment, cannot be doubted that, decision, any having least could have been weight, produced support gen eral of the law in proposition, juries judges criminal it would cases, then.have been forward. I am not brought aware that such And the decision of produced. Bench in v. The Dean Rex St. King’s T. R. Asaph, of the twelve answers questions pro the House Lords, assume as pounded by necessary postu late, what Lord so Mansfield declares in clearly terms, that, cannot decide a juries England, rightfully ques- TERM, 1894

Opinion- of the Court. over was said ardent what tion of law. Passing partisans will it be found that the counsel, contest, great eloquent known Mr. Fox’s Bill, Libel was carried what is concerning different its friends; ground leading upon quite are not which, while admits to decide ground the libellous intent matter of denies that law; mixed with the fact under that, is so asserts 170; it as a fact. 34 An. for. the find it is Beg. issue, in the Lords. Such I understand to be His. Debates 29 Pari. famous law. 32 Geo. c. 60. of that declaratory effect . that when the Constitution then, . . 1 conclude, a founded, it was settled rule of the States United in criminal as well as civil the court cases, law common that, it the the and cannot be facts; the and law, decided jury in have an effect that this must determin- doubted important when, the trial is meant Constitution a what ing adopts by jury.” retirement from

That eminent whose station jurist, judicial a to bench has to be matter of the deep regret never.ceased with an and bar of this closed his country, great opinion the of a firm conviction under Constitution that, expression in criminal cases have States, United juries right to that, decide and a any question rendering general their and their .to oath them verdict, duty require apply find them court. them, the law to faicts, given And in so he what Chief substantially declaring repeated Justice Marshall had said Burr’s case. v. United States Greathouse, Sawyer,

was an indictment for Mr. said: There treason, Justice Field in all an prevails very erroneous, general, criminal cases of the law as well the fact —that is, disregard right law as laid down their own notions and follow court, on the “It is Such not the subject. jury.” it to the take the law court duty from the and apply facts of the It and is the of the court, case. province the court of law alone, determine all arising questions and it trial; progress province SPARE AND HANSEN v. UNITED STATES.

Opinion of the Court. the evidence and all determine contested pass upon questions of fact. The as to the law responsibility correctly deciding with the rests solely responsibility finding the facts rests with the correctly solely jury.” These were principles applied by United Judge Shipman 5 Blatchford, States v. Riley, Cranch, Judge an extended review of the authorities, Stettinius v. United States, Cranch C. C. were also 573. They applied by Judge Jackson, District of West in United States v. Virginia, that, 19 Fed. Keller, in which case it'was Rep. 633, said in a criminal case was even although acquittal final, the instructions' of the court on jury arbitrarily disregarded the law of the order to its whole discharge must take the from the court duty, apply facts of the case. courts, now to cases the state find we that in

Turning 10 Met. Porter, 263, 276, Su Commonwealth (Mass.) Judicial Massachusetts, Court of Chief preme speaking by Justice Shaw unanimous court delivering judgment of himself Justices Wilde, Hubbard, composed Dewey, at it was a well-settled held that founda principle, lying admitted and ever tion of since trials, recognized as an had been established settled mode trial adopted it of that was the courts justice, proper province proceeding all law, and decide of and of to consider questions duty judges of the to and decide all and the duty jury proper province the court, case, of fact. In same that observing questions trial of depend purity jury upon safety, efficiency, of this maintenance and application principle, steady practical a fact that rendering to jury, general the. adverting n verdict, issue, the whole com upon necessarily pass must of the and thus fact, of the law and incidentally pounded of the court on It is to of said: law, duty pass questions of law which to arise instruct the on all appear jury questions to the and also all cause, questions, pertinent upon the direction of which either issue, may request upon party And it is the of the the court of law. duty matters jury upon to conform to their receive the- law from the court, judg 1894. TERM, Opinion the Court. of as far as under instructions, snob they merit and decision be found law facts them, stand applying of the it not within the province and is legitimate them; or decide such or reconsider, contrary to revise, of law.” court in matter p. of the direction fullest examination question upon prin Perhaps to be found the decisions well as authority, upon ciple, Anthes, in Commonwealth was made court, state Shaw, Chief Justice 208, 218, speaking where Gray, and funda the true said that theory majority in its civil and law, common both mental principle should was, adjudicate criminal departments, and the law, upon whole question finally, upon-the fact. the whole authorities, grounds upon light

Considering, verdict, in a or criminal which a guilty guilty, be he observed that conclusive, common held, though at decide, have had not the power on He said: “The is, to both law evidence. adjudicate is, that, rules result of these several and principles practice, and the is con- fact, of a both the law the verdict upon from the nature of the there because, clusive ; proceeding, no which the conclusion law thus power'by brought judicial record that verdict can be set or reversed, aside, upon A verdict, into. either conviction ac- inquired and declare the result both the does embody quittal, there is no mode them the fact, separating record so as to ascertain whether the jury passed judg- ment on the law on the evidence. The law authorized only them to on the the law evidence(cid:127), adjudicate pre- definitively acted them correct rules of law sumes given the verdict therefore stands conclusive judge; both of law and fact. a certain point unquestionable, limited said that sense, therefore, and a both the law and 'the power legal right pass this is sufficient to account for and most fact. And many in which the But the dicta stated. would be proposition more that it to return accurate to is state, right v. UNITED AND HANSEN

SPARF STATES. Opinion of the Court. this draws after as a verdict; it, conse- general necessary that incidentally law. But they pass upon here

quence, ‘ what is intended by again question, passing upon ’ I think it is it in law % by verdict, and embracing thus record, with their of the facts. bringing finding But it- does follow and they may rightfully by authority all law, the common which are by bound to conscientiously their conduct, the same and govern proceed upon grounds in the one case as the other ? What the have principles and what do, are right grounds principles upon which and conscience bound to act they duty, and gov- ern themselves exercise are two right, very dis- tinct The latter is the one we have to deal questions. with. have a to find Suppose they right verdict, and by that verdict to conclude the in the matter of prosecutor law, still it is an different very whether, mak- open question, that verdict and ing law, thereby have up embracing they -same exercise their own reason right judgment, the statement the law the judge, adjudicate on fact. The they unquestionably this affirmative of maintained the defendant proposition in this others in cases before If us. many I am is to assumption adjudge law and the the fact it furnishes the answer to this only, to what extent the the law; and it question, jury adjudicate is, that receive authoritative directions froin the them, and act with their verdict though conformity thus the law with the fact; embrace they may rightfully adjudicate.” to the

Alluding history question England, par did Mr. to the Curtis, Justice ticularly, controversy King v. Dean 3 T. R. and which St. resulted in the Asaph, of by Parliament, after the of this separation passage country Act, from Britain, Great Libel G. observing that both to that assumed the force and parties controversy rule existence the rule as the ancient common law, the court said: court and prerogative high party say, fact; answer to the law and jurors VOL. CLVI 6— TERM,

Opinion of the Court. form of a criminal not, the peculiar of prosecution guilty the found the fact of publication after libel, a of therefore innuendoes, question truth court. The the must be declared exclusively by popular party, the of the same say, major proposition,. question assuming fact, a and can be not is found only by question guilty I stated the out- me, therefore, It on the appears jury. the course the earnest- set, controversy, considering with which was and the contested, ness and ability every point authorities, examination of the ancient this concur- thorough n on the affords rence of views question proof point strong from of our that, period separation England, up definition of trials the uni- fundamental by jury depended without an re- maxim, ad versal exception, qucestionemfacti qucestionemjuris respondentjudices.” .ad spondent juratores, be arose under a statute observed, The Anthes may after the decision in the Porter But enacted in case. did confer the court held that statute upon juries, of law trials, criminal power determining questions And Chief the instructions of the court. Justice — — Merrick that if the said Metcalf and Justices concurring so could be as to statute prescribe interpreted with their decide the consistently duty, court the decision and instruction contrary judgment the trial such enactment would be had, before whom power, beyond scope legitimate legislative repugnant and void. See Constitution, and, course, inoperative v. where doctrines Rock, also Commonwealth Gray, v. Anthes were no reaffirmed, announced Commonwealth members the court one of the dissent. expressing Avas considered in v. This also Montee Com fully 3 J. in which case Chief J. Marsh. monwealth, 149, 151, Bobertson said: “The Circuit would.be Justice Judge him a he had no and a criminal trial before if farce, cypher, decide all of law arise right questions might case. of the. exclusive progress In this be cannot controlled, particular they facts. be instructed ess not to court. are, also, They ought AND HANSEN v. SPARE UNITED STATES. n

Opinion of the Court. ultimate one necessitate, respect, law; judges, cannot new how trial, much they acquit, grant have misconceived or soever the law.” disregarded If had no to decide on law, error, court confusion, and licentiousness would characterize uncertainty, criminal trials; accused be as much safety en might as the would be.” stability public justice certainly dangered State, 13 N. H. 536, 554, was held Pierce incon the sistent with the of Constitution that of spirit questions and still of less, law, constitutional should law, be questions verdict of decided the the to the jury, instructions contrary of court. the 26 N. 588, 592, v. Y. Duffy People, Judge Selden, for the Court of of New said: Appeals York, “The

speaking of to find verdicts, involv power juries general unquestionable both law and furnishes the fact, foundation for the ing opinion the are of as as of -the law, well and facts, judges some to that are gives plausibility opinion. not, how They to decide ever, the to compelled legal questions, having right verdicts, (cid:127)find the and facts, special giving leaving legal result from such to conclusions, facts, the court. When find think I their verdicts, to be d'uty gov erned the instructions of the court toas all questions legal involved such verdicts.' to do They other power wise, but the exercise of such cannot be power as regarded the law has no rightful, although means, criminal provided of their cases, decisions whether of law or reviewing fact, of which their verdicts ascertaining grounds upon are based.” See also v. 1 Parker’s Cr. Cas. People Finnegan, 152; v. 1 Cr. Parker’s Cas. 480. People, Safford v. So Hamilton Mr. People, Justice 173, 192, Michigan, as the said : court, We Campbell, organ understand uniform and the decided of practice weight views of the law to the require as give jury a matter to be submitted to their authority, review.” And in Anderson, California, “In People 70: it is State so settled no well to be longer debate, open is the of a a criminal duty case to take the law from court.” TERM,

Opinion of the Court. Ames, stated Justice. accurately The by Chief principle for the Court of Rhode -when he Island, Supreme speaking line between the duties of a court and said: both law, criminal, at civil well perfectly trial causes observance it is the last defined; rigid import- systematic Whilst, ance to the administration justice. sole ultimate one hand, to receive the law are, other, on the facts, they applicable from the them instruc- case before solely publicly given court and are made re- court. In this way tions each for its part appropriate department, sponsible, in this causes, each in the trial and decision taken by can of fact and errors of law be traced, alone errors way their correction, sources. If the jury proper purpose law a on trial in other mode than case any receive can of the court the instructions given from presence of law, their errors with cer- how are counsel, any parties how, therefore, with detected, certainty, to be tainty, here, % It is a follow- statute parties corrected of the common to have the ancient course too, ing, presence, guide given in in error matter of order that decision, may every 6 R. I. Smith, 33, and corrected.” State v. be known' in the case of Commonwealth v. Sherry, In Pennsylvania, 481, to Wharton on Homicide, pp. Appendix (reported thus a jurist reputation, charged Judge Rogers, high 482) in a true, it is crim- are, a case: “You capital verdict, for fact; one both law case, sense, your inal and fact If in civil must on law cases, you as pass together. no a final bar to interpose a second you acquit, prosecution, how matter verdict have been in entirely your opposition . views . It to court. . is expressed by important that, this distinction in mind, for keep remembering you have dis- while an you physical power, acquittal, by no a defendant from further charge prosecution, you do so the court. moral the law laid down bv power against law, . . . For is to your part, your receive duty of this from the trial, court. If an error purposes injurious v. UNITED AND HANSEN STATES. SPARE Opinion Court. it will be rectified occurs, revision of the by prisoner But an error from

court banc. either a convic resulting can tion or never be rectified. In law, against acquittal, case, is affixed to the character unnecessary stigma first man who was not of the offence with of a which he is guilty In the a serious case, second is effected charged. injury and irremediable of a man. discharge arbitrary guilty will You see from these considerations the great importance criminal as well civil preservation, cases, maxim that the law to the court and the facts to the belongs the same time About a : jury.” Judge Sergeant charged jury “ The believe the evidence on both is one point, you sides, on which it is law, receive the instructions of your duty the court. If believe evidence in the whole you case, you find must the defendant Commonwealthv. guilty.”’ Vansickle, To the 69, 73, 75. samé effect Brightly, (Penn.,) substantially was the of Chief Justice Gibson, who, language when closing in a If case, said: the evidence on charge these capital fail the the conclusion of his will be prisoner, irre points guilt and it will be to draw it.” sistible, Commonwealth your duty 4 Penn. St. 269. Harman, In more recent Kane v. case, J., Penn. St. Commonwealth, Sharswood, C. said that of the law in a power criminal case was one the most valuable securities the bill guaranteed by But in a later Nicholson v. rights Pennsylvania. Commonwealth, St. 503, 96 Penn. it was said: “The court had an undoubted to instruct the as to the to warn them as did to it. finding contrary This different from them that very must find telling the de fendant which what is meant guilty, instruc binding tion criminál cases.” Commonwealth v. McManus, 143 Penn. St. 64, it was that the statement the court adjudged was the best evidence of the.law within the reach of the jury, and should be what the court said guided by to the law. And this view the Chief Justice speaking Paxson, said inwas with Kane v. Commonwealth. harmony has been examined thé recently Supreme Court of Yermont, after elaborate review of the TERM, 1894.

86 Opinion of the Court. a unani- authorities, American, English mous State v. 23 Croteau, Vermont, judgment -overruling — and all the cases which that case 14, had followed previous — said: “Ve are thus led to the conclusion doctrine are the un-' the law criminal cases is jurors that it is tenable; fundamental maxims contrary the common law from which it is claimed to its take origin; to the uniform and decisions of the courts contrary practice where our had Britain, of Great its jury system beginning, to the matured; where contrary and. great weight mean- this authority contrary spirit country; States; the Constitution United repugnant ing rela- State; the constitution to our statute repugnant cases tive to the reservation of of law in criminal questions the same to the for final Court passing Supreme decision.” 1, v. 65 34. Vermont, State Burpee, These number of very principles supported by large as will be seen an examination of the adjudications, cases cited margin.1 are the To the same text writers. “In theory, purport “ the seem

therefore,” rule of law would Cooley, says Judge that it is the to receive and follow the be, duty the. law as delivered to them the is the clear court; such Greenleaf, Lim. 324. 323, Const. authority.” weight Law of “In Evidence, his treatise trials says: by jury, to determine all province presiding judge ques- 1 215; Commonwealth, 564; People Wright, Brown v. 93 Cal. v. Va. 87 Jeandell, Madden, Barry, People 41; 521; People State 90 Cal. v. v. v. 76 Cal. Maine, 328; Wright, 475; v. Van State Commonwealth (Del.) v. 53 5 Harr. State, State, Ohio, 427; Tuyl, Montgomery 1; Adams (Ky.) 1 Met. v. 11 v. State, State, 412; 131, 167; Robbins v. v. Williams 29 Ohio St. 8 St. Ohio 372; State, State, 360, 396; 66 Pleasant Robinson v. 13 Ark. v. 32 Miss. State, State, 140; 695; 517; Hunt v. State Brown v. 40 81 Geo. Geo. Geo. 87; Nels State, State, 280; Myers Drawdy, 2 33 (S. C.) 14 v. Tex. v. v. Rich. Jones, State, 607; Hardy 525; 391; State v. 64 Mo. v. 7 Mo. State Tex. v. Neuman, Elwood, McLain, People v. 894; 189: State 73 C. v. 104 N. C. N. Johnson, Ford, 904; 98; 37 La. Ann. State State Mich. v. 30 La. Ann. v. Co., Railway Rail 443, 465; 297; Fisher Union Pacific v. Penn. St. Hutchinson, Kansas, way AND HANSEN v. UNITED STATES.

SPARE 87

Opinion of the Court. to the as well as on the of evidence tions jury, admissibility which it is to be law, them the rules of instruct by to. n not is there be evidence or a Whether ques- weighed. it evidence is a for the whether is sufficient tion judge; ques “ for the Where the is mixed, tion jury.” question consisting not to be sus of law and so blended as fact, easily intimately to the who is submitted decision, separate jury, ceptible are'first instructed rules by principles verdict, a law, are to by they finding governed and these are bound to follow.” Vol. instructions they “ Where 49. his treatise on observes: Starkie, Evidence, § find a are bound to verdict general apply well as civil as delivered criminal as law by cases.” 816. So in on Evidence: They p. Phillips [the cases, are not in or criminal either civil jury] general, find the law as the law. are bound to They find a indeed, to them the court. propounded by They may, but such fact; if, both law verdict, including find the law instructions verdict, contrary Vol. Hill & Cow violate their oath.” court, they thereby Ev. 21 to 2, 1501. on See also Notes, en’s part Taylor §§ Ev. 1 Best’s ed. 82. 24; Morgan’s § note a valuable 51 will be found

In Crim. Law Mag. Wharton, Mr. case of Kane v. Commonwealth,, by prepared he and in which examined, are in which the authorities fully determination It -would be absurd to say says: has if the court not court, power law belongs hold, We must determines. which the to set aside that that, us the inconsistency, subject to enable to avoid in criminal final, that all acquittals qualification we In this way the court. cases is to be determined by an not determined, oúr by irresponsible, liberties rights tribunal not ignorant tribunal; but by by responsible, by trained to disciplined but a tribunal by tri a reversible but tribunal, irreversible law; by own law, its which makes bunal not a tribunal ; main we In this as made. way tribunal that the law obeys that while is, The first tain fundamental maxims. two TERM, 1894. Opinion the Court. court. The second, the law answers the answer facts juries, £ is nullwm nulla crimen, more still poena, which is important, violation of law there be a Unless preannounced, sine lege? there no tribunal, a constant responsible 1 Orim. Law be no and can Mag. crime, punishment.” and Practice, in his treatise same author, Pleadings in these words: examination of concludes “ must, therefore, is, we conclusion accept The than in law in criminal civil with cases, of are no more judges doctrine of autre to the peculiar owing qualification be overhauled cannot a criminal acquitted acquit, fois such is now the established In the Federal courts court. rule.” 810. 809, §§ — merit a work of in his Trial History by Jury Forsyth, — doctrine some that the discusses the advanced were all where no have been on cases, entitled in pleas put special verdict their own record, according give in criminal well as in civil cases. He law, views of “ It the doctrine. is founded It is uphold says: impossible the ideas of and In between right?’ a confusion power one difficult to understand how it is deed, acquainted law and settled English with practice principles is here com sanctions doctrine which can assert ££ The distinction between the bated.” province Again: that of the is, law, clearly English judge must with and observed defined, accuracy. jealous and effect of evidence which in all cases determine value them. must decide what credit is submitted to They degree and hold balance between con witness, to be to a given them the whole The law throws upon flicting probabilities. dispute, responsibility ascertaining judge facts of their to interfere with the exercise un does attempt in this on the other But, hand, fettered discretion respect. conduct of trial. has his He duty peculiar judge the kind of offered is such must determine whether evidence not to be submitted to the what jury, ought ought When he arise, liabilities any questions imposes. and their consideration is them, alone determines absolutely STATES. v. UNITED AND HANSEN SPARE Opinion Court. inmust such cases follow the from the who jury,

withdrawn so, refuse to or if do perversely direction judge; they will be set and a new trial aside, civil (in verdict their cases) 282; ed. ed. 261, 262, London Morgan’s pp. granted.” pp. in his into an Juries, the Power Inquiry

Worthington, cited in the ad- often work published English to decide Were cases, jury] permitted says: judged [the ; the law law, the would be subverted principles justice the inclinations as variable as the would become prejudices, could decide men. If passions legally be final and must of decision necessity questions which would in all conclusive, involve absurdity judicial to the fundamental would contradictory proceedings, when called of our “The jurisprudence.” principles facts with law, to decide which are complicated the nature and and must from be, therefore constitutionally, bound to seek institution, obey intention It becomes with to the law. direction of respect to them the thus the law their duty apply explained and thus it is exclusive facts, province find,) (which fact; of they deliver a verdict law compounded they case.” the in do not or decide pp. determine law 193, thus 1016,'1017, in work on Trials, his Judge Thompson, §§ of law; the The decides

states questions principles: in on Trial So Proffat Jury, of fact.” jury questions in this of authority “The 375: judicial preponderance § should take is in favor of the doctrine country its under the evidence from the court and law apply direction.” in the early of some statesmen judges language were entitled that country,

history implying is, court, perhaps, the law as to disregard expounded the States in of that to be fact many explained by office directly holding colonial arbitrary temper judges, in had from the made Crown, independence "Whar- law as well in fact much as popular importance.” TERM, 1894. Opinion of the Court. 8th ed. Williams v. 806; State, & Pr. Pl. ton’s Cr. § 389, 396. Mississippi, of eminent declarations and of jurists

Notwithstanding disclosed authorities it is courts, cited, as numerous that all erred when ad- asserted confidently sometimes at common law was that the in the rule judging not law as cases could disregard properly given criminal that the law in at are of We the court. England from that was as declared our country date separation view cited. The as rests, we have contrary in the authorities of certain judges think, upon expressions we large part that when the is the principle, writers enforcing verdict, ex necessitate, law fact, general compounded of both to law fact. That hand, case as disposes when he said Somers meant what Lord essay or the Lives, Trust, Power, Security “The Englishmen’s Grand Juries England,” jurors only and Duty who§e the indicted sentence are to from “are and that death,” “by life finding guilty expect both law and resolve fact.” do complicately guilty, statesmen and the utterances of of many the speeches found the observation that when will be many jurists “blended” their combined fact are consideration law or not will deter- and verdict guilty guilty jury, case hand. But this falls far for the mine both particular the law to the contention applying short to act facts, refuse may rightfully principles the court. announced be observed that those who maintained the It is to the law that a broad jury may, right, disregard position, cite the Justice of Chief declared by judgment that case the in Bushell's 135. In case, Vaughan, Vaughan verdibt were accused acquitted by general opposition, court. And the directions of the it was charged, ques for so was, whether, habeas tion doing, corpus presented n to be fined and committed to until were subject prison a careful elab fine was examination Upon paid. in that funda- will become clear that the case, orate opinion SPAEF AND HANSEN v. UNITED STATES.

Opinion Court. mental decided was view that, proposition different functions of court and a because verdict general “ resolves both fact law and necessity complicately, not itself,” the fact it could never be where the case proved, went to the both law facts, that jury upon did jurors view evidence. Chief proceed Justice said that in the words “that warrant, Yaughan did the direction of the court in matter against acquit law, taken, and de and not literally piano, intelli- insignificant issue can for no of matter in law, no gible; joined cam, with the he trial matter in law no charged evi- harely, ever or can dence was he a what given not; nor no such oath can he taken a given hy jury, try matter in nor no attaint can for .lie such false oath.” law; 143. the distinction between the oath Yaughan, Touching cf a witness and that of a he A said: witness swears juror, but to what . . . hath fallen under his senses. But a swears to what he can infer and conclude from the juryman the act and force of witnesses, his own such testimony to be the fact after, differs inquired understanding, in the reason, much from punishment, though nothing what a out oEvarious considered cases by him, infers judge, him.” 142. to be law the before p. case, Mr. Bushell's- Justice opinion referring found it would be

Curtis well observed that Chief himself to a narrow Justice confines though, Yaughan case, line of issue conclusive argument, it can never be as well as fact proved embracing on which the fact believed depended, testimony so and in reference to which the direction given, to be misdemeanor re cannot be shown legal guilty the direction of verdict, turning though apparently And the view of in matter of law.” this is court in his Hallara Constitu in Bushell's case expressed tional c. History England, Judicial

A criticism was made similar Supreme Chief case of Anthes. Justice Court of Massachusetts involved in Bushell's after Shaw, stating principles TERM, 1894 Opinion the Court. that from the views of : It be remarked improved said two hundred trials, the years the nature of during decision of Justice the the Chief since Vaughan, have elapsed for more in is now no danger punishment, giving juror a is fact, in matter of than for- judge (cid:127)erroneous judgment law. in matter of But his an erroneous judgment giving the within his appropri- statement clearly judge, implies and understand- to the force his reason is act by ate sphere, all and of his aid and, ap- knowledge ing, by direct all to means, adjudge questions propriate in manner the the force like by thereon; jury, all the com- of their reason and acting upon understanding, reason, draw evidence, to evidence weigh petent embraced fact inferences, adjudge not the these ‘In cases judge, issue. jury, Again: fact dis- Therefore, find is. resolve and what always, lawful creet and direction assistance judge’s is upon supposition, positive hypothetical If find fact coercion, to you thus, namely: (leaving then find but them what to to for the find,) you plaintiff; then it find the fact is for the thus, defendant.’ you 144” “It is Chief Shaw felt strange,” Justice Vaughan, to “that J.-, constrained C. authority say, Vaughan, this case be as it cited, should has a been, prove law and verdict, finding general fact, juror embracing' issue, sworn must find his verdict being try own conviction and conscience, relying, support words C. J.: .the proposition, upon following Vaughan, cannot ‘Aman see another’s nor another’s hear eye, no can ear; more a man decide and infer the be thing another’s resolved understanding reasoning.’ Vaughan, Had these been 148.” words to the whole issue applied in a verdict, as would from embraced be implied manner of to them, would have countenanced referring are used ; illustrate the expressly proposition be cannot give position, required implicitly verdict “I dictates refer,” and-authority judge. Chief Justice Shaw one other continued, passage, “only.to v. UNITED AND

SPARF HANSEN STATES. Opinion of the Court. which serves as whole key He judgment. says: ‘That our ad books, decantatum non qumstionem facti ad non respondent qucestionemlegis judices, respondent jura- if it tores, taken, is true, demanded, be What literally ? the fact cannot if it answer; asked, What the law in the case ? the cannot answer it.' jury Vaughan, 149.” All this tends to that the show in the leading thought of Chief Justice that was while the opinion Vaughan jury cannot the lajv, answer as to nor the as to fact, court a of law of verdict, fact, and compounded necessity determines both as the case on trial.

In Townsend's an office taken virtue of a writ of and decided in the sixteenth mandamus, the court century, “For the office of other in said: twelve men is no than to of matters of and not to what' fact, is, the law quire adjudge for that is the office of the and of and if not find the matter at and further that of fact they large, say in truth the law is not so, so, the law is where thereupon the matter of and not fact, shall adjudge according judges 1 Plowed. 114. 111, of the to the conclusion jury.” according a also civil case: 223, 231, v. Plowd. In Willion Berkley, tried twelve men, shall be traversed, fact Matters of being it would be to here, a traverse if the should take plaintiff law of whereof a matter make twelve illiterate men try their office to matters of It not try no is have knowledge. at the of for fact; matters of beginning law, try only fact should be tried matters of law w7asordained that our matter arises, where of the twelve men country law, purpose twelve matters law bj7 judges Bench, who, six King’s here, were six there certain a assemble law, used to together matters So that law was therein. discuss what in order to place, to make twelve be it would taken, if a be here traverse should are not that whereof men of country try ignorant See also to them try.” does not and which judges, belong 496. 493, London, 2 Plowd. Grendon v. Bishop of unani- J.,C. delivering As Raymond, early in a Bench the King’s mous of the twelve judges TERM, 1894. Opinion of the Court. that the murder, fact, said are case judges only law. v. 2 Str. court Oneby, Rex as to the functions of The force language judge weakened the fact that the case was materially verdict, a for it was before judges upon special expressly were of the fact. that declared jurors judges only after case determined, a few years Within Oneby’s which was a criminal infoi’ the case Poole, King Lord in the nature before mation yoarranto, came quo a new trial that motion-ifor Hardwicke. passing upon whom there be no famous than could authority higher judge, law of what the settled said: as to Avas thing England, this determination is, point governs greatly be determined law not to by juries; power by juries fact matters of and it is law to determine great only: to the law of and to the est subject, England consequence and the distinct; these the judge kept poAvers fact; determine it will confusion confounded, ever come to prove they Hard the la of w of Cas. and destruction Temp. England.” 28. wicke, 27, 23, Foster, under Mr. the here examination

Upon question in Marshall refers whose Chief Justice work frequently delivered in the first or in charge says, Burr’s Avhich the edition of his work, 1762, appeared again third “In case Avhere edition, every 1792.: appeared turneth homicide was the the whether the point or committed under circumstances Avilfully maliciously, or of fact, viz., the matter justifying, excusing, alleviating excuse, the or whether alleged by way justification, facts of is the proper only province are true, alleviation facts, But of the truth of Avhether, upon supposition jury. be sub- homicide must excused, such or alleviated justified, construction mitted to the of court; judgment found facts stated and jury law putteth upon agreed, cases, other is all prov- this, proper undoubtedly of and real is ince the court. In cases of doubt difficulty to the and circum- recommended to state facts commonly v. UNITED HANSEN STATES. AND SPARF Opinion Court. of tlie is But- where verdict. clear, in a stances special the court in the direction of matters under point jury, determination, to their and, still left may, fact being will find a conform- verdict, advised, always are well 3d Law, 255, 256, Foster’s Crown ed. direction.” to such ably 3 T. R. Withers, 428; (Lord Kenyon,) See also King Hawkins’ c. M. P. C. Juries, 2; 22, Title Bacon’s Abridg. Trials Duncomb, Pais, (Dublin, 21; per 1793,) pp. § the Law and Eunomus, Concerning Dialogues Wynne’s a work of considerable reputation, Constitution England, about the time been first edition published having “ is thus stated: All our Constitution, principle adoption or have to have said subject I say upon juries that ‘ must maxim, to this established answer juries agreeable of law.’ of fact and This judges questions questions maxim Constitution.” the fundamental acknowledged by true that It is undoubtedly judges, only thq is it not within the spirit equally fact; judges have the maxim only competent cognizance have, it be contended that law ? Can reality, Constitution ever Or, law? knowledge adequate — ‘but the law and the fact “Well should?” designed ’ —(cid:127) then it is are often province complicated judge such to tell the them; supposing distinguish jury, law is such circumstances. done, facts were what the such direction; This is an unbiassed keeps province are left the facts distinct; altogether but arises from fact, and the law does control of law and but the fact, it.” verdict is Every compounded in their nature.” law and fact are distinct Wynne’s always 528 III, 523, 527, ; 5th ed. Eunomus, pp. Dialogue § 142, 144. 2, 3d ed. Vol. 1809, pp. n of on the in work History Mr. his Stephens, great of in Criminal Law of discussing powers juries England, “ for defence to in of the counsel : The France, says right instance, law, whether as, on of address jury questions in of the features in a duel is is one which-the meurtre, killing TERM, 1894. Opinion of the Court. in of France from administration justice differs essentially in In administration justice England. England judge’s in all to direct matters of law, is jury any argu duty be counsel must addressed to him ments of subject n andnot This is not well estab only perfectly jury. but it as a fact in law, is lished as matter acquiesced it Vol. 551. whom all concerns.” p. 4Milne, is Levi v.

To the same effect Bing. reported B. and decided in Milne, v. 12 J. Moore, as Levy libel. an Mr. a counsel Wilde, That was action Sergeant in libel the that cases of are in the contended case, jury judges Lord Best as of fact. But Chief Justice as well were to made of the law as well If the be judges said: liable to an would suffer from fact, as of always parties have made decision. present arbitrary and have found it.” themselves law, judges against Wilde has stated that cáses of libel the brother My the law as well as of I fact; deny beg judges at not in are not rate Juries that. judges .any which the learned authority civil actions. Sergeant 3, c. 60, is the 32d G. has probably grounded supposition Mr. more Fox, famous bill or, was the brought will Erskine. But that act Lord whoever reads properly, — that does not civil actions see apply only applies touches cases. There in it that criminal way nothing any with stand them, civil actions, respect however, ever I situation have done. mean, same they evenin criminal cases, against juries, becoming protest act the law: find only says then a Has to act verdict. opinion construc and to return a on their own verdict judge, am not.” the law? I tion clearly opinion full as Moore The report by but the do not differ two report Bingham, reports material respect. Baron,

But a later decision Lord Chief Abinger, 94. That was & P. Parish, Carr. 1837, Regina off a indictment for of, forged offering, disposing putting STATES.' v. UNITED AND HANSEN SPAEF Opinion the Court. to.the his In the course argument jury bill of exchange. of Mr. Jus- the observations for the accused read the counsel view in a certain case as tice sustaining Coleridge who : I cannot said the law. He interrupted by judge, It read cases duty allow to to you jmy. often It doubt the law no happens to take judge. from but then cases; in an counsel cite address that, jury, the counsel is ad- that that is considered speech part as here, to That cannot be so you vexy dressed the judge. and case, referred to in the first instance me you properly further therefore make no can it; have you my opinion effect use reading only legitimate n would with of law with the be discuss to propositions take which to do, ought to nothing me.” from & W. The 6 M. case of Parmiter v. Coupland, is not without value as libel, which was an action for from Bill, to that Fox’s' Libel so far show changing tending re cases, criminal only rule, as applicable generally be to same prosecutions practice pursued quired In the course of the criminal cases. libel as other argu criminal cases, said: “In counsel, Parke, B., ment of find to whether crime, is to define made it Mr. Fox’s act has committed that offence. party been otherwise in cases libel, same practice having for a time But been the course it has long before.” Again: of a in other cases criminal libel, in cases of for a judge, then to nature, offence, first legal give definition of whether the leave it to the necessary say facts to their p satisfaction constitute that are proved offence libel of a criminal that, whether the is the prosecution, subject or lawful without or civil action. A publication, justification another, excuse, which is calculated injure reputation is a libel. hatred, ridicule', him contempt, by exposing Whether subject inquiry, particular publication, that effect, of that character, would likely produce their is a which a is to exercise judgment, question pronounce opinion, judge, of fact. VOL. CLYI —7 TERM,

9S Opinion of the Court. to them in as matter advice deciding question, might his own as to the nature of the have given publication, bound but was not to do so as a matter of law. Mr. Fox’s a Libel Bill was for libel act, declaratory put prosecution on the other Alderson, same criminal cases.” B., footing “ said that defined what concurring, judge ought —-having —a libel to refer to the the consideration of the jury partic ular whether within that definition or publication, not.” falling is,

It a mistake therefore, Libel suppose English Act law common rule changed any degree general i.n criminal as to the court cases, to decide the law, of the the law thus duty apply given facts, to the condition, from the subject inseparable jury sys tem, verdict of jury by determined general necessity in the case both law and fact as particular compounded “ issue submitted to them. That act the court provides before whom such indictment or information shall be judge, tried, shall, to their or discretion, his their or according give and directions to the on the matter in issue opinion between the and the in like manner as in defendant, King criminal other cases.” “This seems,” Mr. Justice Curtis well “ said, the clearest that, this all carry implication other criminal cases, the be directed jury may judge; and that, while the statute was to declare that object there was other matter besides publication of fact innuendoes to be decided it was not intended to interfere with the to decide all proper province judge matters of law.” 1 with Curtis, 55. And accords views Lord in Reevesv. Jur. expressed by Templar, Abinger 13 138. He said : had arisen Before that statute a practice was libel, libel or no considering always question, the intention independent meaning That error; now, statute corrected the publishing. party if the intention of the libel, does not body appear of circumstances are to be left to the from which variety to infer court it; it was never to take from the intended se libel whether certain words power deciding per lous or-not.”

SPARF AND HANSEN v.. UNITED STATES.

Opinion of the Court. rule that do not jurors respond questions illustrated in Meath v. Cl. Winchester, Bishop Marquis & Tindal, Fin. where Lord deliver- 445, 557, Chief Justice the unanimous "With said: ing respect judges, to the second above to us, viz., question lastly proposed whether the fine were received in evidence it to be ought left to the whether it barred action of .jury say quare we all think that the effect of such fine a bar vmpedit, legal to the action is a matter of law quare vmpedit merely, and, a matter of fact; any way consequently, who tried the cause should state to the whether in point the fine had that effect, of law or what other effect on the and acknowl- litigant parties, rights ad non edged principle qucestionemjuris respondent juratoresP n although stated, contention of the accused is that Briefly there not have been evidence whatever to support — verdict of offence less than the one guilty charged — and such case here as mat- yet, charge jury, ter of that the evidence in the case did not law, authorize any verdict one of or one of not of the except guilty guilty par- ticular offence was an with interference charged, legiti- mate functions, and, therefore, with constitutional right the accused to be tried aby jury.

The error on behalf of the inis accused, argument, rule as to the functions of court making respective to a case in which there is some jury, applicable equally substantial evidence to asserted, support particular right and a case which there an entire absence evidence to establish such In the former class of cases court right. not, without the constitutional of trial may impairing right do what, the latter often cases, do without at jury, may all the constitutional functions of the entrenching upon jury, law makes it the a return verdict duty jury fhe according evidence case before them. particular But if there are no facts evidence the issue to bearing upon be determined, it is the of the when so especially duty to instruct them to the Out of that requested, arising ,of state So, case. there some evidence bearing upon, TERM, 1894. 100 Opinion of the Court. not, in it is so cause, law, but meagre issue particular the court it, in favor a verdict party producing to justify declares to the Pleas when it so jury. line of is in the duty Dana, Montclair v. U. S. Wall. 107 116, 121; 22 Fant, ants v. Railroad, 478, & Ohio U. S. v. Baltimore 162; Randall Paul U. S. 615, & St. Railway, v. Chicago 482; Schofield Hubbard, 419; U. S. Meehan v. 415, Marshall 619; Valentine, 145 U. S. true, nature; it is a civil were, cited

The cases just few with are, applica- announce exceptions, the rules they true test for determin- indicate the causes, criminal ble to Who can of court and functions jury. the respective ing in a has the even the court that doubt, instance, capi- of law to return a verdict as matter tal case to instruct evidence adduced by on the prosecution. of acquittal of crimi- of the established it be in view said, principles Could entrenched such an instruction province nal whether from the evidence determine of the offence or not charged, accused was guilty guilty Under in the one included lesser offence charged? of some in an instruction cer- outlined facts, state of jury, given not the court tell the arise. tain may May legal presumptions those and should not the are, what presumptions If the told court excludes evi- truly? assume and instructs them to dence hearing given it not their instruc- duty obey altogether, disregard be their view the of such tion, whatever admissibility Smith v. United 151 U. States, evidence? Famous S. which was an indictment for the in the Indian murder, “ a white man and of one not an Indian,” Gentry, Territory, “That a Indian, : was white and not an we said Gentry man, a fact which the was bound to establish, was government defend- if failed introduce evidence any upon point, entitled Without ant was to an instruction to that effect. as to the correctness any opinion legal propo- expressing in this we no testi- sitions embodied think there was charge, which authorized the to the court submit mony whether a not an Indian. Gentry white man and was STATES. AND v. UNITED HANSEN SPARE Opinion of the Court. went to the jurisdiction objection have been drawn from inference could other reasonable

no than that was an defendant Indian, the evidence was G-entry — to an Pleasants law, as matter of entitled, citing acquittal” 116; v. Fant, Clark, 22 Wall. Commissioners County v. So, U. S. Hubbard, Marshall U. S. to the for the court to competent, say all evidence show account the absence that on tending could not, the defendants were guilty manslaughter, a of that with return verdict crime. law, consistently guilty ' rule than that indicated the above observa- other Any in the administra- tions would confusion bring uncertainty Indeed, criminal if a tion of the law. jury may rightfully and de- the direction the court matter disregard termine themselves what the law is case particular it is difficult to them, before perceive legal ground court which a can be aside verdict conviction set If it function of the decide law. be the being against — if function of the court be the law as well as the facts — the court interfere as to the law should only advisory why what it deems an for the of the accused protection matter of law. error if the would be in alike

Public and peril, private safety in criminal cases may, be established juries principle the court to them the law as expounded right, disregard Under such a law untó themselves. system, and become be to would function of the preside keep principal would determine in the law, order while untrained jurymen, to such 'or according life, liberty, property questions affecting were applicable their judgment legal principles because, If speaking, case tried. generally particular being inno- to determine'the guilt it is the function of the jury of the truth or evidence, cence of the accused according be held court should of which are to weight judge, there respect bound to instruct them point what or to forbear whatever, stating was no evidence would be that the en- facts, the result state of upon given forcement of the criminals protection law against TERM, 1894. Opinion the of Court. would de- citizens prosecutions, groundless unjust uncontrolled fixed, any settled, juries pend entirely upon in it be true that And if criminal jurors legal principles. law to take the from the case are under no legal obligation what the for themselves law it is, determine court, may accused that the results counsel.for may, right, necessarily contend that of both court what the jury, presence to the case in to be the law hand is court declares applicable of his contention, read to the law, and, not support cases and the views of element- reports adjudged in some where writers. jurisdictions, Undoubtedly, juries ary virtue constitutional or criminal cases right, to decide both law and facts their statutory upon provisions, is, law to as what the and as what the facts own judgment of counsel to read and be discuss are, privilege may adT And in before the a few cases jury. jurisdictions, judged held that the court alone as law, is to the responds allowed in deference to that is But usage. practice long upon not the matter is controlled con- where by express principle, it cannot be stitutional statutory provisions, regarded before counsel law de- dispute right — Under the the court. view it be held clared by contrary not all decide court may authoritatively questions — in criminal cases the result will be that when a arising is new trial in a criminal case even ordered, return trial, such a verdict based upon jury, upon that court what this has be law assumption adjudged law. We cannot our sanction will give any .rule must hold lead such a result. We doctrine firmly in the courts of United States'it duty juries take the law from criminal cases the court and apply facts as find them law to the to be from the evidence. court rests the the law; of declaring Upon responsibility the law so declared responsibility applying as- to the facts believe they, conscience, them to be. courts, other system, Under established although. would, the to declare order every practical purpose our from eliminated as instrumen- system government HANSEN v. UNITED STATES. SPARE AND

Opinion of Court. and of devised for talities society protection equally our in their essential When that occurs individuals rights. will cease a of and be- laws, to be government government of law is the come a men. government Liberty regulated of our institutions. underlying principle in a case that the defendant To instruct criminal that cannot be convicted of a crime less than charged, properly to refuse to instruct them in to the lesser offences or respect be included the one circumstances, that under some might, — which there no evidence whatever so charged being could be returned one of verdict any properly except guilty — is not or one of not offence charged guilty particular under error; for the or instruct, instructing refusing or named, circumstances rests presump- upon legal principles for the tions which it is the of the court to declare province In the the court is as case jury. supposed guidance in the as it is when functions, exercise its clearly legitimate or that offered is not evidence competent, ruling particular out and not be that once shall be stricken evidence admitted when it withdraws from the considered or that all of confessions the accused ground proof such not 'been made confessions, freely voluntarily, having under the ac- inadmissible the law as evidence cused. of author

These views are a sustained great weight very California, 41, v. 90 Barry, ity country. People with intent which was a for an’ assault criminal prosecution twice before con to commit been the accused robbery, having to refuse to not to be error victed it was h'eld petit larceny, him find instruct that under they might charge to show tended because “the evidence assault, guilty simple no offence at he was crime charged guilty not 9, 11,” asked was and, therefore, “the instruction applicable California, 93 McNutt, facts of the casein v. People assault with deadly offence being charged that an instruc and with commit murder, intent weapon could tion that of a assault convict simple jury might he under the evidence have been because refused, properly TEEM, 1894. OCTOBEE Opinion of the Court. anof offence more serious than was either as guilty simple ” not v. or he was Clark sault guilty; Commonwealth, St. case omission an in murder, Penn. on the struction manslaughter, .law voluntary to find was it, error, because the power “there murder, murder deliberate was no evidence milder form be reduced to a on which could homicide;” Missouri, Lane, 319, 324, in State was an indict in the first that “if ment for murder the evidence degree, murder in first out case of makes degree, applies kind and no the court other, would commit killing, error its instructions to offence and re no confining either as to to instruct murder second fusing degree of its in various when an any degrees,” manslaughter “ is less of offence, there is struction given grade which to the it,” base no evidence should upon judgment in error; State, be reversed for v. 27 Texas 415, McCoy App. murder of the the first that the refusal being degree, charge law of murder in second to the was not charge degree that if error, for the reason the defendant was “criminally for the at all of the offence homicide, grade responsible ” not short of is murder of first in under facts degree; 111 N. murder v. a that as 683, case, State C. McKinney, no there was either side to man show testimony tending that there element of was no slaughter, charge manslaughter and that was case, in the defendant murder or guilty all, at as the find the not facts, guilty anything jury should in accordance with the was strictly testimony prece in v. ; Musick, 260, 270, State 101 where the Missouri, dents was an with assault malice aforethought, charge punishable in the an confinement instruction to penitentiary, looking a lower a conviction for included offence grade charged, in v. where there was evidence State it; was justifying proper 332, 330, Iowa, defendant, 76 that the so charged Casford, he could be indictment that convicted an assault an rape, not or an assault was commit rape, battery, prejudiced the court to could be omission of instruct that he oí no there evidence to au- assault, convicted simple being v. AND HANSEN UNITED STATES. SPAKF 105 Opinion of the Court. latter offence; for the Jones 52 State, thorize a verdict v. case, that it was not 345, murder error to refuse to Arkansas, of .offence, a lower there no evi grade being charge than murder in the dence of crime less first any degree,” therefore “murder in the first being guilty defendant Commonwealth, or McClevnard v. innocent;” degree, (Ken and in 148, 12 S. W. O'Brien v. Commonwealth, tucky,) Rep. cases, murder that an instruction to man Kentucky, unless need not be there evidence slaughter given, justify v. a case Kansas, 572, of murder of the it; State Estep, was no that there first to show testimony tending degree, was first, the'defendant either the guilty manslaughter fourth as to instructions those second, degrees, degrees ; should not have been in Robinson State, given a case of assault with intent to murder, Georgia, instruct the refusal to the defendant could have been found of assault assault, was not guilty battery, for there evidence to error, nothing justify court in so instructing jury.” with

We have said few -which that, rules ob- exceptions, tain in civil cases relation of the court to authority all instruct the of law matters arising upon to be in the trial tried, of criminal issues cases. applicable The of those most is that it com- important exceptions in a criminal instruct petent find accused offence peremptorily guilty charged or of criminal less than that offence charged. grounds which this were well rests stated exception by Judge Mr. in Justice Miller United States v. McCrary, concurring, 505. It there was In a Taylor, said: civil McCrary, 500, the verdict, the court set aside whether case, it be for the. the that it defendant, plaintiff upon ground contrary court; law as the a criminal if the case; ver- given by the dict of court no is one has to set acquittal, power aside. It would be a for a court to useless form submit a civil case of law to the consideration of a only involving questions jury, if found, where the verdict, when accordance with the of the would set aside. court’s view The same result TEEM, 1894. OCTOBEE Opinion of the Court. find an instruction advance given accomplished by the law. with the court’s of in accordance verdict opinion A verdict of cannot be criminal cases. But not so acquittal if the court can’ a verdict of therefore, direct aside; set that which it to do it can do has no indirectly power guilty, directly.” did of that the-court below not err

Ve are say- that could not with the law to the jury consistently ing man- the evidence find the defendants from arising guilty offence less than the one that charged; slaughter were not of the offence the defendants guilty charged, was to return a verdict of not No duty jury guilty. was that of the instruction jury given questioned right whether the witnesses were to be believed nor or-not, determine the defendant or not of the whether was offence guilty guilty the court On the was careful to contrary, say charged. the exclusive of the and that were facts, — were to determine facts applying principles court —-whether the announced evidence estab- of the or innocence defendants of lished charge guilt out the indictment. set conducted that it was

The trial was thus theory of the court to law and that expound duty declared to the facts as ascertained the law thus apply them. of court functions separation chief as well as value, is found the safety, cannot be confounded or Those functions disregarded system. as well as without stability public endangering justice, rights. security private personal main reason for a ordinarily assigned recognition law into a criminal to take the of the court hands, their own the directions disregard the citizen in matters of is that the lav.7, safety liberty will be more secured. That view thereby certainly urged if he conceived Mr. Justice Curtis. After stating founded, the reason to be well he would pause long assigned before he said claimed, existence the power denying that, him deal of reflection had convinced a good v. UNITED STATES. AND HANSEN

SPAEF Brown, Opinion: Brewer, JJ. Dissenting lie observed, was the other “as way. wisely argument as the of the United States are obliged long express when, for their them reasons give opinions publicly, in the usual and to stand for mode, called responsible court of them, but to a only opinion, impeach public ment, I can little laws very apprehend danger being other I hand, wrested to on the do But, injustice. purposes consider duty power corresponding to declare is one of safe law, authoritatively highest of the citizen. The sole end of courts is to justice guards without enforce laws uniformly impartially, respect To enforce or times or men. persons opinions popu laws is a lar But when cause cause; easy. just unpopular to be when some enforced, locality, unpopular there then the administration of comes the strain upon justice; few men would as to hesitate where that unprejudiced strain would be borne.” States v. most firmly Morris, United 1 Curtis, 63. 23, 62,

The referred are the ones that need above questions only be considered on of error. this writ

Mr. the decision of this participated Justice Jackson case and concurs in the views herein expressed. the Circuit Court is as to judgment Hansen, affirmed but is with reversed as to directions new tidal Sparf, as to him. with whom concurred Mr.

Mr. Justice Brewer, Justice Brown, dissenting.

I concur in the court views expressed as to the of court and and in functions separate Hansen but I do not ; affirmance concur judgment the trial court erred evidence of holding admitting or in confessions, of reversal as Sparf. judgment The facts There was a stated these: briefly single indictment with the the defendants crime of charging jointly trial, murder. There case on a case which was a single two one side and the government-was defendants party TERM, Brewer, Brown, Opinion: two defendants were the other. These the repre- party witnesses the Three testified to con- sented same counsel. by each for defendants to objected fessions of Counsel Hansen. inwere the same form. These these confessions. objections and not for defendants to be the jointly, They purported the confessions were Two of given each. separately is them it not and the admitting pre- Sparf, presence error. One was made in the was tended that there any the court erred in over- it is held that absence of and Sparf, it. The was testi- the to objection objection ruling and immaterial, “irrelevant, offered was incompetent, mony made that statement Hansen and the by upon ground be It noticed that and could not be will voluntary.” was not the and was both general this objection special; special the arrest attention of that which would naturally ground, not that the confession was This voluntary. being is admitted was not well If it taken. (cid:127)ground objection it error was objection- there was any overruling and irrelevant, immaterial, was incompe- testimony material, was But it conceded that this confession tent. is admitted in evidence relevant, competent, properly heard trial then on the properly by single pending, is that when the court The real burden complaint jury. it have admitted the instructed the testimony ought it was and not Hansen, evidence only against against fairness common not attention But ought Sparf. and a difference, to have been called the court ruling that difference? Cannot a had parties present joint upon ? and rest their case such objection testimony objection a matter not Is court to consider which is duty attention, which it is not its make asked called ruling Is not the of the- court to be to make? duty impartial defendant, and decide -and between government which it its each Is the questions party presents? simply either over interests of and to to watch party, put duty mouth, of an he counsel which does objection into mind such a doctrine is and dan- To both novel my make? do not I confession proposition gerous. STATES. AND HANSEN v. UNITED SPARF Brewer, Brown, Opinion: one of two defendants the absence of other made as the one to be considered only against making I had and admit that been made it, objection separate would the court have been called sus- formally Sparf tain that such such instruct objection, testimony was to considered them Hansen. If only had been asked, instruction is the atten- proper way, tion of the court would been directed to' the matter, an adverse would have error ruling rightly presented which now relied But I not refer to the oft- need upon. decisions of this court that there is no error repeated failing an instruction it be which is. not unless one asked, give those a statute terms the court to give, requires there is no Lee such statute. Lewis v. pretence County, 66 Alabama, 489, was decided in with the accordance views I have The court that case expressed. say: “The witness to Frazier’s his conversation .testimony, with the defendant Lewis, the condition his ac- regarding counts as was treasurer, admitted evidence. county properly him, It was as an admission could good certainly against the sureties, be excluded because not admissible against who were his codefendants action. on practice is well settled in this that State, point only remedy of a in such a codefendant, case, is to from request charge the court to the of the evidence, jury, limiting operation influence, so as to its confine to defendant only against whom is admissible.”

So in a28, State v. N. C. similar Brite, ruling made, the court : saying

“The defendant’s honor first his allowed exception to introduce witnesses codefendant, Culpepper, prove declarations which tended to while exonerate (Brite’s) jail, Culpepper.”

“While either these declarations are not evidence, him, acta, as to res inter alios against Culpepper, being, made cross-examination, one by oath, not under subject Brite, and it no yet admissible makes clearly against difference whether were called forth State, TERM, 1894. Shiras, Gray,

Dissenting Opinion: the sanction or rather with without objection, Culpepper, the State.” doc down a contrary find no case laying

I have been able each U. S. Hillmon, Ins. Co. trine. In Mutual Life for itself objection, defendant presented separately made to avail itself ruling each, therefore, had to be be found think this will Indeed, I the. court. court while the that, prop has been held first case in which it case, of a the trial to the allowed erly testimony go to call the it failed because has been reversed judgment of that evidence upon attention bearing court so never asked different when such parties parties instruct the jury. concurs in Mr. Justice Brown

I am authorized to say these views.

Mr. with concurred Mr. whom Justice Gray, Justice Shiras, dissenting. much of the

Mr. Justice Shiras and concur so myself a new trial to of the court as awards majority one of the admission evidence reason defendants, by him made in his absence other. of confessions from the and from the But greater part opinion, affirmance other we are defendant, conviction of the in- because, our dissent, compelled judgment, of or to the was not life death prisoners, volving the Con- submitted to the as decision of required stitution and laws of the States. United

The Hansen, two and Hans defendants,-.Herman Sparf with on board Thomas seamen together Clair, St. brig vessel, murder of American were indicted Hesper, Maurice mate, seas, on the second high Fitzgerald, and him ivith 13, 1893, January weapon by striking him overboard and throwing drowuing'him. and and sentenced,

St. Clair was tried, convicted separately at the term. conviction was affirmed this court last 154 U. S. 134. STATES. «.

SPARE AND HANSEN UNITED Ill Shiras, Opinion: Gray, no At and there was direct the trial of testi- Hansen, Sparf of or or to the assault any killing, any mony eye-witness evidence at ten o’clock the even- that, There was affray. mate was at the wheel, the second ing day question, Clair, of the starboard St. watch, consisting charge seaman; that, Hansen and another and when the Sparf, watch Avas at mate could not second changed midnight, as deck, and was much on the as well found, there blood and a Avooden The rest broomstick bloody bludgeon. the evidence of other seamen to acts consisted testimony Clair, statements of defendant of St. before and each after the mate, second tending prove disappearance kill confessions of him; conspiracy subsequent Hansen, to show that the was tending killing premeditated. in his judge, jury, gave following -charge “ instructions: based section The indictment is the Revised other Statutes, among things, provides, who murder’ commits ‘every person ‘upon high- river, or arm of seas, haven, creek, or sea, any any or within basin, maritime bay, admiralty jurisdic- tion of the United and out of the States, jurisdiction State, or such who Avaters any particular upon any stabs, wounds, or shoots at maliciously strikes, poisons, any other of which person, stabbing, striking, wounding, poison- or other on land at ing, dies, either such shooting person sea, within or without the United shall suffer death.’” States, n “Murder is the unlawful of a human killing being State, with peace malice aforethought, express malice” defined implied.” as “deliberate “Express pre- meditation and formed in to kill or advance to do design, harm, bodily premeditation design being implied from external such circumstances capable proof, lying in Avait, antecedent and concerted threats, schemes against ” ” a victim; malice an inference implied law from act deliberate and cruel committed one “that malice is person another,” is, inferred Avhen one kills another Avithout or Avhen the provocation, provoca- tion is is the unlawful great.” “.Manslaughter killing TERM, 1894 Opinion: Shiras, Gray, or either malice, without a human expressed implied. being, to explain I do not consider necessary, gentlemen, committed, has been if a felonious homicide further; for, noth- from the there is are to be judges proof, you of murder.” below to reduce it case grade ing this or abet- murder, at a aiding willingly Every person present be indicted murder, and is guilty ting perpetration, its. “ It is.not first my and convicted degree.” as principal fact to assume function, any nor is it my purpose, has fact been proven. nor to you suggest proven; facts.” are the exclusive You to instruct The defendants judge requested con- bemay case defendants “under the indictment this to commit an or or of murder, attempt victed manslaughter, and careful con- a full if, murder after or manslaughter; believe of all the evidence before beyond sideration you, you either of are doubt that defendants guilty reasonable murder commit an intent to or of assault with manslaughter, The so find verdict.” should judge you your manslaughter, refused and the defendants instruction, excepted to-give, the refusal. re- time,

The after on the case for some deliberating turned into whether had asked being agreed verdict, the foreman said that one of the wished upon jurors to be instructed certain the laws under points to murder United States as seas. One of high know; that he then said would like jurors regard laws the United States regard interpretation as to whether the defendants can be found manslaughter, or that the defendants must be found manslaughter, guilty “ of the whole offence evidently murder,” guilty,” meaning indictment. The read sec- then charged judge again 5339 of the Revised Statutes. The asked: Are tion juror two words “ defined?” ‘aiding’ or‘abetting’ ‘ ’ ’' ‘ The words defined. replied: . aiding abetting have,.instructed I But effect of you legal aiding- and this should If I made as law. you abetting, accept is a error, there tribunal it.” The to correct higher juror AND HANSEN v. UNITED STATES. SPABF Sliiras, Opinion:

Dissenting Gray, JJ. “I am the for two of us. ¥e said: desire to spokesman understand the a matter. It is barrier our mind clearly our matter. The determining question arising amongst as to and us is I Furthermore, as aiding understand, abetting. it one must be or the other. must It be either thing or guilty The not “Yes; under the instruc- guilty.” judge replied: I have The after given you.” then, tions. judge repeating definitions, as before of murder and of general given, man- “ If a felonious said: has homicide been committed slaughter, defendants, either of which are to be you from the there is in this case reduce it proof, nothing below ” murder; and, answer to further grade questions this and and repeated again said: In a juror, again, it case, be murder, or be may proper may manslaughter; but in this case it cannot be The properly manslaughter.” . defendants to these instructions. And excepted finally, answer to the direct “Then there is juror’s no other question, ” in, verdict we- can ? the not bring except guilty guilty said: “In case, a verdict for judge proper manslaughter be as the district has rendered, and even stated; attorney (cid:127)in have the to do so; case you but, one physical power of the tribunals of the to be country, expected gov- the law erned and it should receive from the court.” by' The then been a said: There has juror misunderstanding us. Now amongst us, and no clearly interpreted can doubt we now on- certain facts.” agree Thereupon verdict of of murder was returned both defend- guilty ants, death, were sentenced to and sued out this writ they of error.

The were bound to they by instructing judge, court, the law as to them the denied their accept given right that, decide the And them law. a feloni- by instructing ous the defendants was thei’e-was noth- proved, homicide by in the to reduce it below the case .ing murder, grade find it could not they properly manslaughter, to them to submit the defend- whether declining ants were he denied only, manslaughter guilty to decide the fact. between the colloquy

VOL. CLYl 8— TERM, Shiras, Opinion: Gray, came when for further instructions, (cid:127)jurors, clearly after that the shows were in case, deliberating upon crime which the defendants doubt whether had committed that it murder or was reason manslaughter; solely by these returned a verdict instructions judge, crime. higher It is our and settled a reex- conviction, confirmed deep authorities amination of the under of taking responsibility decision of the case now consideration part capital before issue jury, upon guilty criminal in a have the as well as guilty right, decide, to their own and to power, according judgment all whether law or of involved fact, of consciences, questions, in that issue. in

The of the of the to decide the law right question has been of and cases earnest criminal subject repeated in and and America, eminent controversy England jurists in their In have differed conclusions this question. . views have been and set country, fully opposing strongly Kent of forth in favor Chancellor by jury, right and Chief Justice Lewis v. it, Croswell, by People against 337; and 3 Johns. Hall favor of the Cas. by Judge right, it, in Vermont, Bennett State 23 Croteau, by Judge against and and Mr. Chief Justice Shaw 14; by by right, its Anthes, Justice Thomas Commonwealth v. favor, 185. Gray, under the Constitution question right the United cannot be or dis- States satisfactorily usefully without the authorities which

cussed examining stating of the Con- bear effect scope provisions this stitution regarding subject. pursuing inquiry, will be first, authorities; convenient consider, English the authorities the several Colonies and States secondly, authorities under the national America; lastly, gov- ernment of the United States. Charta, no could taken or

By Magna person imprisoned, his freehold customs, or or of his liberties or free deprived unless the lawful of his or the law of by judgment peers, AND SPARF HANSEN v. UNITED STATES. Sliiras, Opinión: Gray, — suonm, nisi vel

land per legalejudicium legem parium per at the law the time of terrai. England, Accordingly, and settlement of this the discovery country Englishmen, a (not member the House of indicted subject every Lords) treason, murder other had the felony, plead issue of not be tried guilty, thereupon general and, if the verdict of him, was jury; they acquitted acquittal conclusive, of both the law and the favor, fact involved in the issue. The criminal civil, might indeed, verdict refer special facts, finding reciting of law to the court; not bound were they pure not be civil so, could do even in a action. compelled the statute Westm. Edw. c. “it (13 By I,) ordained, to take justices assizes shall not assigned the- whether it be disseisin or jurors say precisely compel so that do shew the truth of the not, fact, and they require aid but if of their own head will justices; say, is not disseisin, is or verdict shall be admitted at 1 Statutes of the statute, their own 86. That Realm, peril.” us, as Lord Coke tells the common law; declaratory its enactment before some directed justices juries return thus them to the verdicts, subjecting peril an attaint mistook the law. Inst.

Littleton, of civil in which the actions speaking jury, upon issue, a return verdict, pleaded, might general special says “ if will take them the of the law they upon knowledge matter, verdict as is they may upon give generally, in their Lit. 368. And Lord put charge.” accordingly § if Coke will take them says: “Although jury, they upon Littleton here (as the law, saith) knowledge may give a verdict, for them so do, general yet dangerous if do mistake the run into the law, of an they they danger attaint; find the verdict is the safest therefore special where the case is doubtful.” Lit. b. Co. 227

Lord Coke elsewhere that “the if says jury ought, they not find will find the ‘at their matter, accord special peril’ a, law.” 4 52 case, 53 b. And ing Rawlyns's Lord Rep. Chief Justice Hobart it will be hard to says: Legally quit TERM, 1894. Shiras,

Dissenting Opinion: Gray, either common law, finds a to take whereof all men were law, knowledge, several statute evidence verdict is be whether any given, whereupon man informed no not,” to them or be and'“though given in that case.” v. the law was Needler Bishop them what Hob. 227. Winchester, into which of, above The spoken peril danger, law, themselves the knowledge ran upon by taking the law involved verdict a to decide undertaking by of an was to them, fact submitted peril issue and them set aside their verdict which attaint, might was the trial the attaint, selves punished. Upon however, it was only a by twenty-four; not and not a verdict of the second jury, by judgment if and, aside; be set the first verdict could court only, and conclusive. final the second verdict was so aside, not set Attaint, A. Com. Ab., a, b; Dig., 294 Vin. (6); Co. Lit. criminal case. Attaint, a no attaint B. Moreover, lay V 146; King Shipley, Bus hell’s aughan, Doug. YII, Bacon, Henry

Lord History (originally and afterwards translated written published English, himself or under his speaking Latin' into supervision;) of his held in the eleventh says: year reign, the Parliament that, also made which Parliament gave This good verdict a false between attaint party party, — the Latin, kind of irremediable evangile, .before ante illud vocantur, veveclicta quae quae adida j juratorum, irrevoca instar erant, evangelii atque plane cujusdam, tempus as well because extends not causes bilia. It capital; in them, as because at the suit, the most are for King’s part be followed there indictment, course passeth .of double and so twelve triers, indictors but four and was not the But it seemeth that men, twenty. — reason; for this not in the ubi reason holdeth only appeal is, causa gravata capitalis parte peragitur. [That See murder, heir of the deceased. brought appeal 230, & St. Louis 152 U. S. Louisville Railroad v. Clarke, HANSEN v. UNITED AND STATES. SPARE1 Opinion: Shiras, Gray, But the lest it tend reason should was, great 239.] — death oases of life and discouragement jurors neforte — atores causis se event if timidixis jur cajoitalibxis ger they should be .where the suit favour of subject penalty, life maketh them.” 6 Bacon’s Works, against (ed. 5, 7, 1858,) 161; Bacon’s Works, 9 Id. 483. (ed. 1803,) 117;

Lord Bacon was mistaken that the attaint was assuming introduced the St. of 11 Hen. c. for it at VII, existed 24; common law in writs of assize, had been regulated extended to other civil actions earlier statutes. by many 2 Inst. 130, 237, 427; lib. Finch, Law, c.4, But the mistake does not diminish the force Lord Bacon’s that, statements wherever an attaint did not lie, judgment called was verdict, considered as kind commonly ” and that the did gospel; reasons attaint not lie why in a case capital two were, indictors only-that juries, and the triers, had passed upon chiefly that in cases of life and should juries, not be death, discouraged, act tó timidly, suit by being subjected penalty they decided in favor of life. in his Milton,

John Defence of after People England, in his courts and his speaking King’s power through adds: all the is rather the judges, Nay, ordinary power controversies determine all themselves who people’s, by juries it is twelve men. And hence that when a malefactor is at asked How will be tried he? answers you arraignmetit, and custom, to law God and coun- By always my according or the 8 Mil- not God and the try King, King’s deputy.” ; 199. The idea ton’s is as old as Works, ed.) (Pickering’s Bracton. Bract. 119. to instruct

In some II, Charles judges.undertook reign and to take the law from must juries a verdict in favor them if returned accused punish the. But, instructions. as often application against judge’s made to were authority, punishments judicial higher aside, set vindicated. juries rights indictment trial of an three Quakers conventicle, for an unlawful other Wagstaffe TERM, 1894. Opinion: Shiras,

Dissenting Gray, JJ.' for fined Chief Justice were jurors Kelyng acquitting “ full and the direction the evidence, court against ” — said court and declared matter openly given evidentiam, et contra directionem curiae in contra plenam in dicta curia datam et materia ibidem declaratam. legis, aperte for this stated in his own reasons note of (as His manuscript in the not edition of his included first the reports, pub- “ and Lord Holt were others lished 1708) they may make that a wilful cannot an act of Parliament or know of no law of effect are accountable and England they ” “ for and that in criminal cases the court it; punishable will ; who verdict to their evidence fine a jury give contrary I reason take that otherwise a (as and the it) headstrong jury all course of for no attaint lieth overthrow justice, might and also one verdict is causes, criminal and peremptory, cannot and trial criminal therefore causes, new granted wilful such fine and always punished judges juries and them to their behaviour.” binding good imprisonment, the end of his memorandum : Note, at this But report not as to now law.” Quakers, whole case J. jury, fining And then 69-75. Lord Chief tells Hale, Baron, Kel. (3d ed.) committed, us were jurors thereupon brought in the Bench, Court of Common and all their habeas corpus were assembled to consider of the the judges England of this fine, imprisonment thereupon;” legality were for fol- discharged imprisonment, jurors reasons: lowing all dis- (one

“It agreed by judges only of.England that this fine was set for not jury, senting) legally it was fact; are matters of they although that it directionem fine, was contra curiae inserted it was mended for matter, materia legis, impossi- till the could matter matter of law come ble question, and of settled stated and fact were agreed by matter of fact were the only competent such judges. swear the fact the witnesses And perchance although might satisfaction yet judges, witnesses, the truth well credibility v. UNITED STATES. AND HANSEN SPAEF SMras, Opinion: Gray, know of their own somewhat fact; possibly they might untrue, sworn was that what was possibly knowledge, be such as could not the witnesses to know they might that must conscience of believe, and is the pro- And to or not nounce the say guilty guilty. prisoner be to the case that could it were the most truth, unhappy take him the if he at must guilt judge, peril if the must innocence of the judge’s opinion prisoner; would be the trial useless.” rule the matter of fact, by jury 2 Hale C. P. at a trial the

Lord is that, Hale’s meaning apparent are the of the issue of fact of not judges guilty, plea the conscience thereby presented, or not that, must guilty; pronounce prisoner guilty are in unless the facts no matter of law can come idle found in a were verdict, first say by special direction or that a verdict was judge’s against if in and that matter of law; opinion judge’s of fact submitted to matter of law must rule issue n jury, be useless. trial would by jury case, out Bushell's are more reasons brought fully treatise, of Lord Hale’s in the text mentioned William Penn and that was written. doubtless decided after and tided for a indicted similar William Mead been having the instructions of the court, offence, against acquitted tried them were fined who Bushell and the other jurors was London, Bushell Sir John Becorder Howell, for his terms, fine, committed in like not paying prison, case, Penn c&Mead’s out a and sued writ habeas corpus. 135; 6 State Bushell’s 951; Vaughan, Trials, Howell’s Jones, 1 T. 999; Freeman, 1; 6 Trials, S. C. Howell’s State 13. At thereon, King’s serjeant, the hearing Scroggs, “ of fact that matters only, It is

argued: granted, is mixed with fact are to when the matter ; judges are to be fact, and matter of they law is to law, guide for inconvenience, no the court. The at guided by jury are matter; will but if find the they please special they may TEEM, OCTOBEE 1894. 120 Opinion: Gray, Sidras, 33. know them mistake, take do are Freeman, punishable.”

But was from Bushell reasons discharged imprisonment, Sir in the delivered John stated Chief judgment Yaughan, after a Pleas, of the Common conference of all the Justice Lord and with Hale, the concur including England, all Chief Justice rence of Kelyng. 145; except Vaughan, Holt, Lord Groenwelt v. Ld. Freeman, 5; Burwell, 454, 470. Raym.

In that Chief- himself, great judgment, reported Justice discussed the two parts Yaughan separately “ full and first, that the mani- return; acquittal against ” and, second, fest that it was the direction evidence; law.” in. matter of of the court It was first that he observed that discussing part, and evidence of dif- witness, the verdict very truth and falsehood of them. A witness ferent things, he hath heard or but to what or more seen; swears generally to what hath fallen under senses. But juryman largely, what can infer and conclude from he testimony swears the act witnesses, and force of such his-understanding, of. be the fact differs after, nothing inquired much in the from what a reason, judge, though punishment, in to be law him, out-of various cases considered infers the him.” the before Yaughan, he return, After of proceeds disposing part “We viz. return, 'follows: come now the next part those the direction indicted, That the acquitted against jury of law, them court in matter declared to the and openly given of in court. “ the direction words, did jury against acquit, vn and de law, taken, piano, court matter literally of can be and not no for issue joined insignificant intelligible; with trial of matter no can be law, charged jury be, in law or can was, matter no evidence ever given barely, a can be what is or no such oath law, not; nor given jury nor or a no attaint to, taken by, law; matter jury try can for such false oath. lie AND HANSEN v. UNITED STATES.

SPARF Shiras, Opinion: Gray, must take off and words, we this vail colour of Therefore and in truth are which make shew being something, nothing. words, of these direc- If the against meaning finding be, matter that if hav- the court in law, tion judge, heard the court he knows no evidence (for other) given ing the law is evidence, shall tell for the jury, upon plain- or for the and are under the of fine tiff, defendant, you pain find then the and accordingly, ought imprisonment jury is to do: man sees that but a trouble- so the jury duty Every of no some use delay, great charge, determining them therefore trials be better wrong, than which were new-found continued; abolished strange so for hundreds a trial celebrated conclusion, after many of years. if shall his own evidence,

“For from judge, so is, trial what fact first resolve any upon judgment then what is, shall resolve fact, knowing to find what either neces- order jury accordingly, penally can be or to continue or convenient use fancied juries, sary them all? trials at trials to follow such if the be-not in-all

“But obliged sort trials directions, some (as, given, only matters indictments or for criminal instance, trials not in be, all, then the will why consequence though appeals) no material in criminal trials, (as use) ought yet were the mis- abolished, be either omitted greater in civil them trials. than to abolish chief to people, should, manner, other “And how the according find direction of used, of trials to the course in matter of is court really conceptible.” Yaughan, 143, 144. when find then “This

He observes: ordinary, ask, will defendant, for the unexpectedly plaintiff a fact in How do find such you particular? defendant,

answer he will then it for the though say, rec- they or e and contrario, find thereupon plaintiff, not the and in cases, And these jury, verdict. tify TERM, 1894. Opinion: Gray, Shiras, JJ. and find what resolve the fact is. Therefore judge, always, in and lawful assistance of the discreet direc- judge’s tion is and not upon hypothetical, supposition, positive viz.: If find coercion, fact you thus upon (leaving then are find to them what for the find) you plaintiff; find the fact then it but if is for thus', the defendant.” you “ that, But is careful to add whatsoever have answered they he. or discourse, interlocutory judge upon' question they it if fin'd from and are not lawfully they cause, vary 145. concluded.” thereby pp.

It is difficult to exhibit of Chief Justice strength detached extracts from his reasoning by. Yaughan’s opinion. other a few are But directly passages point: “A man caunot see another’s hear by another’s eye,.nor no more can a man conclude or infer the ear; to be thing another’s resolved understanding reasoning; though be the verdict not assured jury give, yet they, being is from their own so at forsworn, least understanding, conscientioeP p. foro “ decantatum our That ad re- books, non qucestionemfacti ad non judices, spondent qitcestionemlegis respondent juratores, for if it taken, true: be What demanded, literally fact? the cannot answer it be What is the it; asked, n lawin the case ? the cannot answer it.” He then explains or mo- demurrers, verdicts, by showing upon special in arrest of tions inform fact, the naked judgment, the court deliver law.” But all issues; upon not in debt, nil debet culpable pleaded nul. trespass, nul disseisin in ne tort, assize, disturba impedit, pas quare like; it be matter whether the defend- of law though ant be a debtor, disseisor, or trespasser, disturber, par- cases in ticular find not in a ver- issue, yet (as special fact case the law to the itself, 'dict) every leaving find court, for the or defendant issue plaintiff ti'ied, wherein fact resolve both law and complicately, not the fact itself; so as answer singly though what is the determine the yet they all where issue is tried matters, joined principal HANSEN SPARF AND v. UNITED STATES. Shiras, Opinion: Gray,

Dissenting JJ. special.” case, but is where verdict except] pp. [i.e. 150. He then observes that to this the Lord Hobart purpose Needier's ease Winchester is Bishop very appo near the site,” passage citing quoted beginning his main concludes as follows: opinión; argument “ The verdict of the to be recorded, legal ju'ry, finding for the what if defendant; answer, asked, plaintiff.or they some not their ver- fact, questions concerning particular are dict nor bound to such essentially, they agree particu- lars if all to find their issue for the or ; they agree plaintiff differ in the wherefore defendant, motives they may [therefor], as well as or judges, giving plaintiff judgment differ in the reasons wherefore defendant, may they give which is 150. judgment, very ordinary.” p.

That thus to have been rested, judgment clearly appears on the technical merely comparatively ground, upon come in until issue no matter of law could general have been nor the old facts found yet by jury; upon some knowledge theory jurors might personal on the rea- broad evidence; facts not mainly appearing if in criminal were sons, trials, especially obliged of the court in matter of no law, the directions neces- to follow could or to convenient use be found continue juries, sary all; that the verdict of the them at trials though down to the law as laid- yet according right that it is so, their own are not assured understanding and that least in eonseientice the decan- forsworn, at ; foro non ad books, in our respondent judices, tatum gueestionemfaeti means that is- non respondent juratores, ad juris gueestionem demurrers, law, verdicts, motions special sues upon court; but that are to be decided arrest judgment, law, the matter of re- fact, issues involving upon general and so determine the law. fact law and solve both complicately, that authoritative declaration Notwithstanding .to determine the issue, law, jury, upon of. of Harris for a seditious the trial Chief Justice upon Scroggs, Trials, 925, insisted that libel State 930,) Howell’s 1680, (7 TERM, OCTOBER. Shiras, Opinion: Gray, from, Chief Justice court; the law must take the trial of at Algernon Sidney Jeffreys, presiding our oaths follows: It is our duty charged ,our are bound to receive law to to declare the you you, this declaration to inquire declaration to find the a fact, whether there be sufficiently proved, prisoner And of which he stands indicted.” treason of the high guilty 9 Howell’s and executed. sentenced, convicted, Sidney 889. State Trials, II, the Trial of James In the last reign year took Trials, 183, 12 Howell’s State

Seven Bishops, reported libel contained information for a seditious an upon place would be that he to the pleased their King, praying petition in the churches on their not to insist distributing reading with the statutes declaration penal concerning his dispensing at bar all the The trial was before the exercise religion. a Bench, general plea Justices of upon King’s that was, of defence A King principal ground guilty. and therefore the had no petition power, dispensing an innocent exercise to him was peti bishops defence, ancient of this was not a libel. tion, support evidence; and, wmre acts of Parliament given “Bead Justice French, said, the Chief offer of one Norman and it read for the was so it,” it in to.understand English, Attor And when the 374, 375. a sworn pp. interpreter, to that were not these matters General pertinent ney argued Mr. “Yes, said: Justice, him, the Chief interrupting it lie tell what which wdll offer, I’ll they Attorney, you how would have show to; to answer they you you give or diminished the disturbed the this has King’s government, authority.” p. of the four close each

At the arguments, Lord said: Chief Justice turn Wright charged jury. it before before me and so is is, you, The only gen- question here be a whether certain fact, it a tlemen, being question And then the next is a aof question publication? proof if there be a whether indeed, of law publication it libel?” “Now, be a anything gentlemen, proved, UNITED HANSEN v. STATES. AND SPAEF Shiras, Opinion: Gray, mischief or make and a stir disturb shall government, within case of Libellis Famo- certainly among people, I do I short take it to you must give my opinion, sis ; this brothers have my a libel. Now being point be I deliver will it, suppose they say opin- anything ions.” said: are satisfied

Mr. “If there Justice Holloway you like, or the to find sedition, an ill intention of them you ought in the case that but be but if there nothing you find, guilty; deliver to save did themselves harm- petition only from blame, themselves less and free I'eason by showing command, which of their disobedience King’s they ap- them, to be could grievance prehended obedience think to, I cannot not in conscience is a libel. give It that is is left you, my opinion.” gentlemen, also his Mr. Justice Powell expressed opinion “Now, and said: was not a the mat- libel; gentlemen, paper it, consider of ter of it is before is worth you you; He then consideration.” expressed your concluded: If had no power; dispensing King Parliament; all will need no there of, allowed once legis- a worth which is will be in the thing lation King, considering, consciences.” leave and and I the issue God your “ The after Justice single Mr. Allybone, saying,. question sense of is, my that falls share petition, my give a libel it of in or shall be in construction law. itself, whether it of that was a innocence,” great thing expressed a libel. were the and allowed by on

The jury retiring, requested, the information, book, them the statute to take. with of declaration the King; the the of petition bishops, whereat there was a verdict of not and returned guilty, in and throughout England. London great popular rejoicing Own Time, 1 Burnet’s 425-431; 12 Trials, Howell’s State of most one the trial, that that It thus upon clearly appears the of liberties affecting history, deeply important English differ- Bench, while of the the the four judges .King’s people, the whether the themselves petition ing among question TERM, Opinion: Gray, Shiras, that was a concurred libel, submitting ques- bishops not to the decision of as law, as of tion, who was a those between judges thought paper umpii’es not, who libel and those thought judges law of and with tribunal vested by England power as between the Crown of determining, ultimately right as of law, all of well involved fact, matters accused, or not issue of guilty guilty. general of William Parliament de the accession Mary, Upon the laws to with be clared King’s power dispensing and reversed conviction unlawful; Algernon Sidney, construction statute” “for unjust partial had been the instructions which his conviction treasons in 1 W. & M. c. sess. 6 Statutes 2; Stat. procured. ;155 Howell’s State 996. And Realm, 143, Trials, early Holt was Lord Justice, the new Chief reign appointed Somers, Lord Keeper. of his Somers,

Lord pages essay opening or the Power and Lives, Trust, Security Englishmen’s (first of the Grand Juries England, published Duty the end of his after he life, towards republished down in the clearest had been terms Lord Chancellor,) lays made : “It is to decide saying be Parlia- fundamental our (unless government, no be man’s life shall touched for crime whatso- ment) save of at least ever, men; twenty-four judgment indictment, twelve or to find whether he is, more, the bill or and twelve or realm, commoner; peers peer if a above, lord, commoners, twelve not, give judg- “ The ment issue joined.” guilty are office and of these juries only power judicial, life indicted are to from whose sentence the expect the lives death: understanding, Upon integrity all into do ultimately depend; brought judgment from their verdict there lies no by finding guilty appeal; law and not resolve both fact. do guilty, they complicately As it hath so been the custom been the it hath always of these all issues, and,practice pleaded juries, upon general UNITED STATES. AND HANSEN v. SPARF Opinion: Gray, Shiras, both of the law cases, as well as criminal, civil “ all men of the Our that careful, fact.” ancestors were and each and to be sensible condition like quality, presumed of each other’s should other’s infirmity, mutually rule, and taste of lives, and alternately subjection every man liable to be accused or indicted, perhaps equally being at of whom ishe present be suddenly party, judged by found if he be innocent.” judge, “ that in all Justice Holt declared cases Chief Lord as verdict, all actions jury general special may give criminal and the court to receive civil, well in causes ought for if doubt issue, if it, point pertinent themselves to the not bound so refer are an in And the trial of do.” Anon. Salk. 373. (1697) upon formation for a while he his libel, seditious opinion expressed face a criminal he submitted libel, its paper upon whether to the it was such Now jury, saying, words have read to are to consider whether these I you you not administration do tend to ill beget 11 Howell’s State case, Tutchin’s (1701) government.” 1Ó95,1128. he concluded with Trials, charge Although he is “If words, are satisfied you guilty composing find London, these at him publishing you papers Mr. these words have observes, Starkie well yet, guilty,” immediate reference of defence which upon ground Mr. Tutchin’s counsel the offence meant to rely, namely, had not been in London; been committed proved cannot be considered for the as used withdrawing purpose the attention of the from quality publication, instructions; had before received just n too much, indeed to had meant would so prove suppose so, the truth directed not to find were since, Slander, innuendoes.” Starkie on decisions, Some cited as often involved verdict matter of law to determine general were issue of special guilty, guilty Townsend’s, of law. Such were verdicts presenting pure questions 111; Plowd. (15 King Oneby, 54) TEKM, 1894.

128 Opinion: Shiras, Dissenting Gray, JJ. 2 1 17; S. C. Stra. Barnard. 1485; 766; 2 Ld. Raym.

(1726) 29. Trials, State Howell’s 17 of Lord Chief II, the accession Justice

After George Bay at nisi for seditious on trials libels, mond, prius (ignoring and of The Seven told Tutchin of Bishops,) juries .cases law from the court, to take the and that were bound they which the defendant was whether accused paper question, was a a mere libel, of writing publishing was. had to do. Clarke's case, law with jury nothing 1 Trials, Howell’s State S. C. 667, note; Barnard. 17 (1729) case, Howell’s State Trials, 625, Francklin's 17 304; (1731) 672. an information nature of a warrcmto 1734,upon quo defendant to show cause what he by authority

against his motion for a new Liverpool, trial, be mayor acted had found a for the Crown general cause verdict the instructions he judge, notwithstanding a was verdict, them to return special granted ordered Chief Justice Bench, Lord Hardwicke Court saying: King’s if the rule nisi directs is, prius “The judge law, and think fit they obstinately point that is direction, to his sufficient a find verdict contrary ground and when the a doubt of trial; new judge upon for granting matter directs law bring specially, that also is a sufficient foundation verdict, find general ' “ The this 'determi trial.” new thing governs greatly of law is not to be that the determined nation is, point have a determine matters by.law power juries juries; and it ; is of fact greatest only consequence that these subject, powers judge England distinc determines the t; are kept and jury fact; and ever come to be confounded, the confusion and destruction of the law of it will Eng prove v. Hardw. Poole, Cas. 23, 26, 28; The King temp. land.” 16. 11, 14, C. Cunningham, S. to a civil an information to title office such try

But (though the forms of a criminal it had some of prosecution) brought mere a civil was consid- for the trying purpose right, UNITED v. STATES. AND HANSEN SPARE Gray, Shiras, Opinion: 3 Bl. nature of a civil Com. 263; as in the ered proceeding. Kansas, v. 484; T. R. Ames U. S. Francis, King first above And, 449, 460, passage appears it was Lord Hardwicke’s so cited from opinion, evidently trials treated under the new practice granting civil which had of either to a on motion gradually party a the as substitute for within century preceding, up grown 204, Witham 206; v. War dell, Willes, attaints. Bell (1740) v. 1 55; v. 1 Wilson, 48, Bright Eynon, Lewis, (1757) (1744) 394. In a criminal the court case, Burrow, 390, certainly, a verdict. the to return Noth could not compel jury special in case as’to the of was Poole's therefore, right ing, adjudged for crime. the in And to decide jury prosecutions both of that were is case that, reports significant although Mansfield, 1784, in not cited Lord in 1770, was by published when the authorities against right jury collecting in 4 73, v. 168. criminal cases. Shipley, King Doug. indeed,

Lord Hardwicke’s own presumed opinion, for when to have been right jury; Attorney against in above cited, General had so Francklin's case, he 17 argued he Trials, as observed ; was, Howell’s 669 State justly in bred crown and' his whole Mr. a Hallam, lawyer, regularly life to hold authority government.” disposed very high His therefore, 3 Hallam’s Hist. 287. opinion, Const. (9th ed.) a constitutional less upon question affecting weight other law or of than liberty subject, questions equity.

The later of the law of England upon history right is illustrated a the law in criminal cases to-decide jury between Mr. afterwards conflict the views Murray, long and of Mr. after- Pratt, Lord Mansfield, right, after the favor, -which, wards in its Camden, Lord public of Mr. been argument sentiment had aroused by great was finally settled, Erskine in The Dean St. Asaph's view, Lord act declaratory accordance with Camden’s of Parliament. libel, Trial of Owen,

Upon publishing General, Mr. as Solicitor argued Murray, VOL. clyi — ^[9] TEEM, OCTOBEE 1894. Opinion: Sliiras, Gray, determined the of fact of question publication,

determined the law. But Mr. Pratt, counsel for the de fendant, the whole matter to the argued jury; and,' although and Chief publication fully Justice Lee told proved, could that, so, not avoid being bringing in the defendant returned and guilty, they persisted verdict of Howell’s State acquittal. Trials, 1203, 29 Parl. 1227, 1228; Hist. 1408.

In the like case of Nutt, on 1754, (Starkie Slander, 615,) conducted Mr. by Murray General, the like direc- Attorney tion was Chief Justice given Lord Ryder. Mansfield, The King Shipley, Doug.

In the similar case of Shebbeare, (Starkie Mr. Slander, 56, Pratt, 616,) General, when Attorney before Lord Mansfield for leave to file moving the informa- said: “It tion, the matter in a merely put trial; way admit, for I and his well lordship knows, of the law as well fact, as the and have an undoubted to consider whether, whole, pamphlet be or be not with a published wicked, seditious and be or not a intent, false, and malicious, scandalous libel.” Second to Letter to Mr..Almon on Postscript Libels, (1770) 4 Collection of 7; Tracts 1763-1770, 162. And at the p. p. “ as he in trial, afterwards said House he went Lords, into court to insist on the predetermined jury taking Avholeof libel into consideration,” and, “so little did he attend of the on that authority that judges subject, he turned his back on them, directed all he had to say 29 the. Pari. Hist. 1408. And jury.” see 20 Howell’s State But Trials, Lord 709. Mansfield instructed the jury whether the awas libel was to be deter- jaublication 4 mined court. 169. Doug. Camden,

Lord AvhenChief Justice of the Common Pleas, at criminal instructed the trials, Avere presiding jury of the law as well as the fact. on Juries judges Pettingal in cited 21 Howell’s State (1769) Trials, 853; Parl. Hist. 1408. In the in the summer of prosecutions, 1770, Miller and UNITED STATES. AND HANSEN

SPARF Sliiras, Opinion: Gray, the letter of Lord Woodfall Junius King, publishing instructed the in the same as Shebbeare's Mansfield way jury In of not case, Miller's returned a verdict case. guilty. “ returned a verdict of case, guilty Woodfall's ” and the court therefore publishing printing only; granted a motion for a new trial. But Lord on November Mansfield, 20, 1770, took occa motion, delivering judgment upon “ ,to that the court sion was of that the direction say opinion. to law.” Howell’s case, Miller's according ; State 895 Id. Trials, 869, 893, 895, 901-903, Woodfall's 5 Burrow, S. C. 2668. 918, 920; 2661, 2666, On 5, 1770, December House of Lords, judgment case was attacked Lord Chatham, de- Woo.dfall's fended Lord Mansfield, Lord whom Chatham replying said: This, lords, I never understood to be the law of my but the I understood England, contrary. always were of the law as well as the competent fact; judges if were and, indeed, I can see no essential not, benefit from their institution to the And Lord Camden, community.” after that it would be to have an observing highly necessary authentic statement of the direction to the in that case laid before the said House, : If we can obtain this direction, obtain stated, I shall fully deliver very readily my opin- ion the doctrines it inculcates, to me they appear to the known and the contrary established principles I shall constitution, author to tell the of his mis- scruple open assembly.” take face of this 16 Pari. Hist. 1302- On the next a warm debate took in the House of day, place Commons a motion for a committee Glynn Serjeant “ to into the of criminal inquire administration justice, Hall, Westminster proceedings particularly and the constitutional relating liberty press eases of in the course which Mr. Dun- power duty juries,” then the leader of bar, and afterwards Lord Ashbur- ning, ton, denied that the doctrine of Lord emphatically Raymond and Lord Mansfield was the established law of the 16 land. Pafl. Hist. 1212,1276. See also 2 Debates, Cavendish’s 369. 141, TERM, 1894. (cid:127) Opinion: Shiras, Gray, Lord Mansfield on to a wish expressed by

Pursuant day met Lords on December "when 10, the House of he in- after, he had with its left clerk a' the House formed copy court case. Lord Camden judgment WoodfalVs that he considered said as a paper thereupon challenge him, which he and said : accepted, directed In personally I him, maintain that his doctrine not direct contradiction I am to enter into the debate ready England. fix noble lord will for it.” And whenever the he day pro- to Lord framed with the Mansfield, writing questions posed far how denied the view ascertaining judgment ih verdict a criminal to deter- case, of the jury, by general well as the fact. Lord the law as Mansfield evaded mine and, while himself declaring ready answering questions, at-some future declined discuss them to name one. day, for the time. 16 the matter Pari. Hist. 1312- And dropped after the United 1783, States had Independence came the Britain, Great of Rex been case recognized by as The Dean St. known commonly Shipley, Asaph's in 4 and in 21 Howell’s State Trials, Doug. fully reported note, in 3 T. R. 428, stated a crimi- was briefly for a seditious libel contained in a nal prosecution pamphlet William Mr. Sir Jones. Justice at the written by Buller, told the trial, for them were only questions the defendant and whether whether published pamphlet, indictment true; the innuendoes were and that the ques- in.the libel no libel was a of law-for the court, tion , and not which he declined to express any but that it would be for the consideration opinion, open the court a motion arrest of judgment. a verdict of but

returned were “guilty only,” publishing it in this form: judge put Guilty persuaded find.” a libel or not the whether do publishing, 82, 85, 86; Trials, 946, Howell’s State 950-955. Doug. The effect all this was that the defendant was found guilty which neither the nor the publishing paper, held to libel; had- be a arrested judgment ultimately STATES. AND UNITED HANSEN

SPAKF Shiras, Opinion: Gray, Dissenting 33. - out the it that, the as set was indictment,

upon ground State 1044. Trials, libellous. 21 Howell’s before motion arrest But, judgment argued, Erskine obtained a rule to show cause Mr. a new trial why not be that should granted, principally upon ground told the that the whether libel not was their decision; not for whereas upon the-jury, general had not but the to issue, the law. only power, right, decide this made It was rule that Mr. Erskine his famous upon argu of the ment and that Lord Mans juries, support rights field delivered which Mr. Justice Ashurst judgment which concurred, has since been reliance of those principal who decide the law involved deny right in. issue a criminal case. general It should not be that at the overlooked, this hearing motion, Mr. for the Bearcroft, counsel Crown, leading “he with for said the counsel defendant, it agreed if on the of not right they please, plea guilty, take themselves the decision of of law upon every question defendant; of the and Lord Mans- necessary acquittal should it field he call not the observing power, right, adhered to he the latter that he added, expression; it an which, thought important privilege, particular if occasions, censure of the as, instance, measures proper of the the Crown were to be construed servants aby judge libellous, it to be would be laudable and them justifiable exercise.” 4 note. See also Doug. p.-108.

Mr. Justice from the Willes, dissenting court, said was sure these statements Mr. he Bearcroft “ the sentiments of the of Westminster expressed part greater Hall;” and “I it be the law of declared: conceive this of not country, jury, upon- plea guilty, an indictment or an for a issue, libel, information have constitutional think fit, examine the right, innocence or criminality there paper, notwithstanding is sufficient I no believe proof given publication.” man will venture to not the I say power, mean have the Where a civil right. expressly say they power TERM, SMras, Opinion: Gray, sort has been exercised control, without presumes, nay, continual It was the usage, gives right. the Seven exercised those times of violence when juries who tried, were which even Bishops partial did then not but'authorized them to exercise presided dispute, of the their libel; subject-matter by upon solemn verdict that became one of the occasion, happy upon under of the instruments, Providence, salvation this country. This has been assumed in a variety privilege by jury and modern in case of instances, ancient particularly v. without Owen, Rex correction or even reprimand It is a in court. for the most reasons, right, cogent lodged ; as without this restraint the in bad times would jury subject no for And he his or security life, liberty, property.” in concurred in his new because trial, refusing opinion solely neither the counsel nor the prosecution, judge presiding at the had the verdict re- trial, doctrines, these impugned turned was in verdict, the nature of special effect the law to the court. 4 171-175. submitting Doug.

In in The R. Lord v. 3 T. Withers, King Kenyon instructed a Buller had same that Mr. Justice way . done The Dean St. case Asaph's “ An act to remove statute, entitled declaratory doubts libel,” the functions of in cases of respecting juries and known as Fox’s Libel was introduced in Act, Parliament, and was Stat. 32 Geo. c. 60. III, passed “the Lord act, observed By legislature,” lately “ Blackburn the House of the words almost Lords, adopted ” the substance of Mr. of that quite passage opinion Willes, Justice first above. Bank and Counties quoted Capital Cas. Henty, 741, 775. App. The doubts which were, the act was to remove passed at the recited whether act, beginning upon the trial on of an indictment information for libel, or upon “ of not it be plea guilty, jury impanelled competent the same to their verdict the whole matter try give upon and it issue;” enacted,” was “therefore declared putin (not enacted, but declared law as to be the merely already

SPARF AND v. UNITED STATES. HANSEN Sliiras, Opinion: Gray, “ sworn to that on trial the such existing,) try every issue or verdict may guilty give general guilty the. or whole indictment infor- matter in issue such put mation and the court or ; directed, shall not be required before information shall be whom such indictment or judge to find tried, the defendant defendants merely guilty, or defendants such defendant proof publication by the sense ascribed to tobe a and of libel, paper charged the same in such indictment or information.”

The act then first, presiding judge may, provides, at his second, instructions to the discretion, jury; give at verdictand discretion, return a jury may, special if found move arrest third, defendant, guilty, The first one of these judgment. only provisos, shall, is that the at his dis- requiring particular notice, cretion, on the and directions to give opinion matter at like manner as other criminal cases.” issue,” “His and directions” of advice means clearly way and instruction and not of order command; only, by way “ in manner as in other criminal like explanation, cases,” shows laid that no rule was intended to be peculiar down in the case of libel. And that this was the understand- at the time is from debate on the ing apparent proviso, which was on the motion of Sir Scott, John adopted (then Solicitor General, and afterwards Lord before the Eldon,) just bill the House of in 29 Pari. Hist. Commons 1791. passed 594-602'.

The clear effect of the whole act is to declare that the if instructions of he sees jury (after receiving judge, fit to a instructions) decide, verdict, give any by general issue,” the whole matter in includes put necessarily fact, all in as well as of involved questions or not ; and to same rule guilty guilty recognize issue all criminal cases. existing words Not of the this the clear only act; meaning but that such was its intent and effect shown grounds taken its and its supporters Parliament, as. opponents well as by subsequent judicial opinions England. TERM, 1894 Shiras, Gray, Opinion: introduction of the bill in

Mr. Fox, moving after that he was of Commons not observing House were not and convertible that terms, right ignorant power was vested “if a was in-any person, said that, surely power ” “ there was a that exercised; meant to be vested power law and as often as fact, were they jury judge be were not to understood have a united; the constitution would never to exercise power, ” “ but knew with it 'was it; have entrusted them fact; of law and and this was judge province but of murder treason, case not of felony, high only, ” and that criminal must indictment; other be every to infer the men, to a left in all cases guilt not lose his life but a could judgment subject English And Mr. 564, 565, 29 Parl. Hist. 597. Pitt, his peers.” that his own declared bill, supporting “ and that he saw no reason judges, why, practice whole consideration of the libel, in the trial of case to the unfettered of twelve not judgment go precisely might their vex’dict men, sworn honestly conscientiously, give and other it did in matter's crimes of a felony high Parl. Hist. nature.” 29 in the'House of Lords, the debate on motion Lord . Thurlow to off the

Chancellor Lord put bill, reading said, “He would venture to affirm, Camden should not be contradicted man, afraid of by any professional being as it now stood, the law of had a England right, whether it libel, on was criminal or not; deciding- had exercised only possessed right, juries it in various instances.” He as “a pdded, matter which he conceived should that if every mind, imprinted juror’s a verdict of the and left found publishing, they criminality had to answer to God axxdtheir consciences they judge, that such for be inflicted on might, by punishment judge, fine, whether it was defendant, loss of ears, imprisonment, which was the other sentence of any disgrace, whipping, “ further the court.” he said: I enforcing opinion, After have that affirm' that there is will no they right, AND SPAEF HANSEN v. UNITED STATES. 137 Shiras, Opinion: Gray, law of them from the country prevent power exercise of that think fit to maintain they it; right, when defendant, their they pleased acquit acquittal “ will stand until the law of good England changed.” My said lords,” to the he, give right trial of the of this must it to subjects you one country; give and I think can have no them, which to you difficulty pre fer.” And he concluded he did not by saying appre hend that the bill had a to alter but tendency merely to remove doubts that never to have been ought entertained, and therefore the bill had his but, as hearty concurrence; he was assured that the was not hostile to proposed delay bill, to take it into serious principle only considera tion, and to he had no forward, bring again objection motion of the Lord Chancellor.” 29 Parl. Hist. 729, 730, 732.

In the House of Lords the bill having again passed the House of Lord Commons, for Loughborough, many years Chief Justice Common said Pleas, that he “had ever libel, deemed it his in cases of to state the law duty, as it bore on the facts, to refer the combined consideration to the and that “their decision was final. There jury;” was no control in their them verdict. The evident reason and sense of this man was, was held to good every be acquainted Aviththe criminal law of the land. was no Ignorance plea commissionof a and no man crime; Avastherefore supposed the evidence ignorant adduced of judging upon or innocence of a defendant. It Avas guilt the admitted maxim of law, ad qximstionem ád juris respondeantjudices, qumstionem but when the law and the fact juratores ; were blended, facti it was the undoubted to decide. If the laAV to them there was put fairly, one case in undoubtedly a thousand on Avhich would not decide they If properly. were in the dark, were sometimes led kept into Avrong, mere of tiieir through own jealousy Parl. Hist. right.” 1296, 1297. the debate, the

Pending House of Lords put questions who returned judges, after which, opinion, saying that “the criminal law of is the laAVof England TERM, 1894 Sliiras, Opinion: Gray,

Dissenting JJ. fundamental libel,” laid as a down, applica- they proposition, “ that the crimes, ble to treason as well as to other criminality includes' act done any or innocence (which paper which the law pro- is the result of judgment written) in all cases, must therefore be that act, nounces upon matter of law and not fact.” matter of circumstances, under all that to be at a it is wondered basis, With such hardly they “ is to declare to the the law to be that the conceived judge of the “that is the what the law is,” duty jury, matter in whole will find a verdict upon they general the fact as that verdict of appears issue, compound to them the law as it is declared before and of them, evidence “ this occasion to took however, The judge.” judges, ” “ will have had offered no observe opinion of law out of a issue, effect of matter general taking ” of under- and disclaimed verdict; folly out aof general find a verdict, a who can general prove taking matter of law to deal with take themselves arising cannot made of the fact, .hazard verdict up in a and'to issue, to their matter law, conception and of the according 29 Pari. Hist. all direction judge.” 1361-1369. in order the bill was motion,

On Lord Camden’s postponed, the House to consider judges; to enable when Lord Camden with, was then exposed proceeded fact, between law and distinction the fallacy pretended or not guilty guilty printing publish- much as were united as intent libel; and.action ing Without of all other criminal consideration proceedings. even of found malice a man could not be guilty, implied until it was man was murder. simple killing nothing, kill man that the malice. A might act arose from proved circumstances or under various defence, another own were these no murder.' How which rendered the killing the case. ? the circumstances of things explained the intention of party. What ruling principle? the; judge? were intention party Who the judges were allowed So judge No; jury. AND SPAKE1 HANSEN UNITED STATES. Opinion: Shiras, Gray, intention an indictment and not murder, the intention of the libel.” And Lord party upon Lough- as Lord as well Camden, affirmed, and borough, distinctly Thurlow as the denied, Lord issue distinctly after criminal the had stated the to cases, law the judge to were both decide law and the jury, jury question of fact. 29 Parl. Hist. 1370, 1426, 1429. the close of the Towards Lord debate, moved to Thurlow “ bill amend the the words state by inserting to effect the record.” Lord Camden jury legal the amendment, “as an indi- successfully opposed attempt to convert the bill into the of what rectly it very opposite intended to and was to be, ten times give judges power ” “ than had ever and said, yet exercised; He greater must contend, that the had an undoubted to form jury verdict themselves their .their to consciences, according apply- to the law the if it were the first fact; otherwise, ing principle of the law of would be and defeated overthrown. If England the twelve were assert the judges contrary again again, he would because was to .deny every utterly, Englishman tried be his and who but was his his country; country twelve sworn to or condemn to their peers, acquit according ? consciences If the doctrine were to trial obtain, opposite trial, for, would be a nominal a mere fact, the form; and not the would He man. would con- judge, try tend for the truth to the latest hour of his argument life, manibus With to the pedibusque. regard judge stating to the what each case, was particular his undoubted so do; done so, duty having were to take both law and fact into their consideration, exercise discretion and their consciences.” discharge 29 Pari. Hist. 1535, 1536. first Lord Thurlow, of Lord ground protest Bathurst, Lord other lords three Kenyon “ of the act was rule because the laid down

passage bill, to the determination and the un- contrary judges varied subverts fundamental practice ages, important which, principle English jurisprudence, leaving ' TERM, Shiras, Gray, Opinion: the court the decision of the fact, the trial reserves to law.” 29 Parl. Hist. 1537. Camden, in his sketch of Lord declares Lord Brougham, which he uniformly firmness manly displayed constitution, free wholly

maintaining principles towards unmixed with leaning extravagant opin popular entitles ions, favour, justly any disposition vulgar court him to the England highest place among very judges bill libel of his conduct through and, carrying speaking can more of Lords, the House says “nothing refreshing ven to those who more lovers gratifying liberty, than character, glorious erate the contemplate judicial Lord with which principles struggle long-cherished some of his illustrious life closed;” Camden’s quotes “the mind above statements, cited; passages upon that future dwells,” lawyers hopeful fondly reverently and the virtue of emulate the and future glory of III, Statesmen George man.” Brougham’s great 156, 178, 179. (ed. 1843,) 3 B. Burdett, The v. & Ald. known case of King

In the well for 717, 95; 1; & S. C. State Trials (N. S.) 4 B. Ald. Best Chief (afterwards seditious Mr. Justice libel, a publishing tolcl the and Lord Pleas, Justice Common Wynford) a libel; his the they that in opinion publication jury but whether would his decide they opinion; were to adopt him, law unless were take the from they were to that they 147, 183. The he was 4 B. & Ald. satisfied wrong. Bench, the convicted, been Court King’s defendant having after that this trial, held, advisement, motion for a new was correct. instruction Best said: “It must not be supposed

Mr. Justice made of libel III question question statute George it would it an anomaly, instead of had, fact. If removing and the law, Libel is judge have created one. cases, in libel as in all other of the law jury is the judge to his statement agreeably acting having power is to that the statute or not. All does prevent ques- law left to the the narrow way tion from being jury AND HANSEN UNITED STATES. SPARF 141- Shiras, Dissenting Opinion: Gray, left before time. were then to it was find jury only and the the fact truth publication, innuendoes; used to tell them that the for intent was an infer judges to be drawn from the ence of with which paper, to do. The had has said that that nothing legislature is not but that the whole case is to be left to so, But jury.. terms directed to down the law lay as in express other In all cases the

cases. find a jury may general verdict; they do so cases murder- and treason, hut there the tells judge the law, them what is find though they may against him, unless are satisfied with his And this is opinion. plain- from the words of the statute.” &4 B. Ald. 131, Justices and Chief Justice Holroyd Abbott Bayley Lord the same (afterwards Tenterden) view. & expressed B. 145-147, Ald. 184. Mr. Justice said: “The old Bayley rule ad is, of law ad qucestionem respondent juris judices, it I take qucestionem respondent juratores; facti the bounden down the duty lay judge and that of strikes him, accede unless it, on the superior knowledge direction subject: this case did not take from the away power acting their own And the Chief Justice said: “If judgment.” is to to the as in other crim give opinion jury, inal it must be not cases, only competent proper him tell if the case will so warrant, that in his opinion before them is of the character and publication tendency attributed the indictment; that, if it be so is an offence opinion, publication -law.” “ The statute was not intended to confine the matter in issue without exclusively hearing but-to declare that should be at judge, to exer liberty cise own the whole matter in judgment issue, after upon and directions of receiving thereupon opinion judge.” The of this deliberate and unanimous declaration of weight of the' to decide the rightful power criminal cases is not the obiter dictum by uttered and impaired hastily recalled Chief Justice Best the civil promptly by case, sum decided a narrower marily of Levi v. upon point, Milne, and 142 TERM, Shiras, Opinion: Gray, 4in and in 12 B. Moore, J. so differently Bing. reported it doubtful what he said. And accord leave really authorities, even in civil actions, later English ques ing be to the or no libel submitted by libel judge tion of his own it. Parmiter expressing opinion upon without v. 11 105, 108; & W. Ad. Baylis 6 Lawrence, v. Coupland, M. C. Per. & 4 Dav. Cox v. L. R. 526; Lee, S. 920; & El. Ex. 284. the law of a remembered, is to England,

It treason or could not or felony convicted appeal, pérson a or in or file bill trial, a new exceptions, move review of or instruc obtain manner judicial rulings other record, unless the him tions appearing for the of all the to reserve fit saw self as observed Dr. short, deliver In Lushington judges. Council, The has no Privy prisoner legal ing judgment of the to demand term, sense a reconsider in the proper right, verdict, court ation, any legal objec The v. Queen at the trial.” Eduljee Byramjee, tion raised L. R. 1 P. 276, 287; Queen Bertrand, C. C. Moore P. Crimes, 654 Bussell on Law, 622, ; Crim. (9th 1 Chit. 520; tried before an prisoner 212. Consequently, arbitrary, ed.,) had no the con protection ignorant judge corrupt the firmness of the jury. science no occasion further to the examination of pursue There authorities, because from modern English country, until settlement more than half a after the of its century time law as Independence, Declaration rights understood and was more as generally put practice, juries, Bacon, Hale, Somers, with the views of in accord Vaughan, than with Camden, those Jef- Holt Kelyng, Scroggs, Hardwicke Mansfield. a consti- Upon Baymond, freys, there tutional affecting liberty subject,. question, doubt that Somers and of Camden, be no opinions can and were so very were highest, authority, especially, founders of the considered Bepublic. authorities Massachusetts, leading question, time of Declaration Independence

nearest SPARF AND HANSEN v. UNITED STATES. Opinion: Shiras,

Dissenting Gray, JJ. of the Constitution of the United are States, John adoption and Parsons, Adams each whom was Theophilus appointed, with of the bar and the Chief approval general people, Justice of State the ; to that one, office appointed by revolutionary it the next government resigning year, in the Continental the Declara- remaining Congress support tion afterwards Independence, the first Vice-President and the second President of the United States; other, a Constitution the United States in leading supporter the convention of 1788 which Massachusetts ratified the Constitution, President Adams in 1801 Attor- appointed General of the United States, but ney office, declining Chief Justice Massachusetts in 1806. becoming Adams, John said: “Juries taken, writing are. from the lot or mass of the and no man by suffrage, people, of life, can condemned or limb, or or property, reputation, without the concurrence of the voice of the “The people.” British has been much alarmed, late empire with years, doctrines their concerning juries, powers duties, have been-said, printed have been papers pamphlets, from the delivered tribunals of Whether highest justice. these accusations are it is certain that not, just many per- are and deluded sons them to such a misguided degree, we hear often in conversation doctrines advanced for if which, true, would render law, a mere ostentation juries and the court absolute of law and pageantry, found, “Whenever a verdict fact.” general assuredly both the determines fact and the law. It was never dis- yet that a verdict, doubted under the direc- puted general given the court in tion determination of point legal the issue: Therefore the an power deciding issue verdict. is it not And, have, upon general that the law would them absurdity to find suppose oblige a verdict to-the direction of according ” “ own ? conscience The rules opinion, judgment of law and common under which ordi- regulations society, themselves, transactions are well known nary arrange enough of the constitution ordinary jurors. great principles TERM, 1894. Shiras, Opinion: Gray, felt Briton; by every sensibly known; are intimately drawn in and im- are they say it is scarcely extravagant should the Now, and first air. milk the nurse’s bibed with their should opin- arise that give case judges melancholy fundamental one of these principles, ions to the jury against to this his verdict according generally, a juror obliged give and submit find the fact specially, even direction, conscience, the court % Every man, any feeling law to his his 'It not duty, No. answer, only right, will best under- to his oAvn the verdict according find in direct and conscience, though opposi- standing, judgment, law court.” The English obliges to the direction tion his own oath judg- cause man to decide no Works, Adams’s 253-255. ment.” John convention the Massachusetts Parsons, Theophilus the Constitution 1788, answering objection con for submitted to the States,-as adoption, people United “ The themselves have bill of said: no rights, people tained without to resist in their being power effectually usurpation, obli is not arms. An act to an usurpation driven appeal man his re ; law; it is not and justified gatory him be a criminal Let considered as sistance. him; can convict fellow-citizens they. yet only .his

government, ajl him innocent, and if they pronounce are cer can hurt innocent him; they of Congress powers he him, if the law resisted will pronounce supposed tainly 2 Ban Debates, 94; 2 Elliot’s was an act of usurpation.” of the Constitution, 267. History croft’s Parsons, Chief Justice In delivering judgment said: “Both have submitted slander, action civil parties law this to a involved both .trial of issue issue jury. To must decide the law and fact. fact, jury the testi- them to settle the Avereto fact, enable they weigh were laAv, decide ; mony they might truly had If the entitled assistance judge. matter must 'have aid in a law, declined his. yet Avere of law as they conclusion as correctly formed as the “In able.” And, states, reporter AND HANSEN v. UNITED STATES. SPABF Siiiras, , Opinion: Gray, other Justice, Sewall, viz. Thatcher Chief judges, Sedgwick, their full and Parker, declared entire concur severally 1, 25, 4 Mass. rence.” Coffin, Coffin the trial of an indictment In for murder, the Court Massachusetts, Judicial held Chief Supreme Parker and Justice Justices Jackson and Putnam, instructed follows: In all cases, are the capital of the law and .The fact. court to direct them in judges matters of it is for them to safer although rely derived from instructions that source, still, gentlemen, are to decide for themselves.” Trial, Bowen’s 51.- Mr. Justice for the Wilde, whole court, speaking assumed, as that “in criminal- unquestionable, prosecutions are the both fact.” Common Worcester, wealth v. 3 Pick. 462, 475. 1830,

In in celebrated trial murder, for before Justices the Putnam, Morton, Wilde of the right duty jury to decide the law as well the fact involved in the as general issue were in and affirmed to the recognized charge jury, and were from distinguished right deciding questions have the evidence, follows: As and if jury right, are to return a bound, verdict required by prisoner general or not must guilty guilty, they necessarily, discharge decide, this such as well as of duty, law, fact, questions as are involved in no there is mode general question; in -whichtheir of law can be reviewed opinions upon questions this court or other tribunal. But this does not by any diminish the the court to obligation explain resting upon the. or their for of the the correctness responsibility prin- of law them down. The instructions of the ciples laid court of law matters the consciences of may safely guide unless know them be And when to they wrong. undertake- decide the law (as they undoubtedly have the the court, advice of power do) opposition assume a should care- they very high responsibility, ful to see are clearly Although right. .

have the and it all is their to decide power, duty, points law which involved in the are general guilt

VOL. CLVI ^[10] — TERM, 1894. 146 Shiras, Opinion: Gray, of law arise of the when yet innocence prisoner, questions or in the of the prisoner, arraignment progress evidence, must be in relation admissibility trial, not be reviewed court, afterwards decided by 477, 10 v. Pick. 496. Commonwealth Knapp, jury.” authorities, from the earliest other Massachusetts Many to maintain the mentioned, date last times tending in'the decide the law involved general right of Mr. Justice Thomas collected in the issue, and in a note to 275-280, 558-560, Quincy’s Reports, Gray, 563-567. in criminal cases later, that date,

To fact, even directions both decide and acted on was of the court, certainly recognized through-, Island. State v. unless Rhode Snow, out New England, v. 50 N. H. Doe, J., C. State Maine, 346; Hodge, (1841) 2 Vermont, 480, v. Wilkinson, 488; 523; State (1829) v. Witter Croteau, Vermont, 14; Brewster (1849) 23 State v. Connecti Clark, Bartholomew 422; (1816) Kirby, (1788) 40 Connecticut, State v. 246. 481; cut, 472, Buckley, (1873) in 1 Rhode Island Col. Rec. 195, 203, of 1647 See Laws York, on the trial of the Province New Colo- treason, nel Rayard argued by Nicholas high and not denied counsel, jury, upon. were as well matter of issue of guilty, Trials, of fact. 14 Howell’s State 471, 502, law of matter 503, 505. in Province, same trial of John Peter 1735,

(cid:127)In the upon libel, his Andrew Hamilton, for a seditious counsel, Zenger, while that the Philadelphia, admitting jury might, they the defendant and find guilty printing pleased, publishing, it to court to whether words were and leave without, contradiction the court: But I do libellous, said, by ’ do otherwise. I have the they know know likewise and all to determine both the law beyond dispute, right, do doubt where of the law, they and fact; ought in court submitted do afterwards so.” jury, SPARE AND HANSEN v. UNITED STATES. 147

' Opinion: Shiras, Gray, Holt, of Lord Chief Justice in words Tutchin's 14 case, How 1128, above Trials, cited, ell’s State whether the question forth words set were libellous. And was Zenger acquitted by Howell’s State Trials, 675, 706, 716, jury. 722. in the trial Court of the State of Upon Supreme New for York, 1803, indictment a libel on the President of the United Chief Justice States, Lewis instructed the jury, other of libel or among no libel was things, question an inference of law from the fact, and that the law as laid Lord Mansfield in The down Dean case was St. Asaph’s the law of State. The defendant was convicted, and the correctness of these brought instructions the full court before 1804. a motion for a new trial. Johns. Croswell, 337, 341, Cas. People Alexander Hamilton counsel for the defendant. his Two that motion have reports come argument upon tó down the one us, 352-362, Johns. Cas. other in a iri the case, contemporary pamphlet the-speeches 62-78, pp. Works, (ed. 7 Hamilton’s reprinted 18S6,) 336-373. n But most statement compact of his trustworthy posi- tion general question, for unsurpassed precision force on the to be by anything found is in subject elsewhere, three his brief,- propositions upon Hamilton’s (7 Works, 335, jn read him 336,) Johns. (3 recapitulating argument, Cas. which were as : 362,) follows “That in the distribution of general our powers system of law jurisprudence, cognizance belongs of fact to the that as often as are not jury; théy blended, of the court is and exclusive. power That in civil absolute cases be so always so, exerted.. That may rightfully in criminal cases, the law and fact blended, the being always reasons of nature, for the political peculiar of life is entrusted with security of de- liberty, power both law and fact. ciding “ That this distinction from the ancient forms of results: cases, in civil none but allowed in pleading special pleas being matter of law; criminal, issue; none but the from the to attaint civil liability cases, and the ' TEEM, OCTOBEE Shiras, Opinion: Gray, court as substitute in its new granting power from attaint from the exemption and

trials, jury to control their the defect and cases, power criminal the test of its trials, new every legal power being verdicts effect, definitive liable neither to punish- to produce capacity control. nor ment are cases, the court nevertheless, criminal

“That in matter who law; advisers constitutional or rashly their conscience disregarding by lightly compromit their consciences still more advice, compromit -may with discretion it, if exercising judgments by following have a clear conviction charge and honesty they the court wrong.” Kent divided Judge opinion,

The court equally and Justice Judge Thomp- Chief Chancellor) (afterwards Chief Lewis and trial, of a new Justice in favor son being drew a careful it. Kent up Judge Livingston against Judge authorities, reviewed the in which he leading English opinion, are taken: from which passages following of not guilty, criminal plea “In every to'find a unless choose must, indeed they they may, of the law, the decision themselves take verdict, special as a verdict fact, comprehensive as well bring with issue; such are because, case, they every charged the crime of which he the defendant from deliverance of involved, are so law and fact “The is accused.” unless both, decide under an necessity indispensable This them verdict. special they separate received the well as the fact has law as determine in the law.” authorities some highest sanction it is denied is admitted, while the “But power juiy without com- it, exercise can lawfully rightfully are bound and that their consciences, implic- promitting from the court. The to receive the law in all cases, itly, to a intended, have however, power must, granting or would a lawful power, them rightful grant of it. the undue exercise a remedy against provided is its produce The true criterion legal, power capacity SPARE AND HANSEN v. UNITED STATES. Shiras,

Dissenting Opinion: Gray, JJ. liable to censure nor effect, a definitive neither review. And the of in a criminal case, verdict not is, guilty, every final. The are liable to respect, absolutely jury punish- ment, nor the verdict to control. attaint nor can a lies, No new trial be awarded. exercise of power jury has and from been constant sanctioned, activity, upheld the earliest 3 Johns. Cas. 366-368. ages.” “ The a firm is, result from this view to convic- mind, my tion that this court is not bound decisions of Lord the and from the his successors. Raymond By jury withdrawing the consideration of the essence of the render charge, their function and Those nugatory contemptible. opinions to the ancient authorities which had more repugnant to the the and it with the given power, right, judge issue, of law and fact, when were blended and which rendered their criminal final decisions, cases, and conclusive. The bar resisted those steadily English as decisions, on the of Some usurpations rights jury. treated the and doctrine the Parlia- erroneous, at .ment, last, .innovation, declared trial by restoring libel, cases of to that ancient and by jury, vigour independ- ence, which it had so nation, grown precious guardian life, liberty power the vindictive and the persecution oppres- prosecutor, sion of the government. “ I am aware of the fitness objection competency aof to decide with law, and, especially, questions to overrule the In the first power directions of judge. it is not however, often to place, likely happen, will resist the of the court on the matter of. law. That receive its due and effect; opinion will,generally weight and in civil cases it be can, always ought ultimately enforced the verdict. But in aside power setting human whether evil institutions, not, every will can be but what be contingency avoided, arrangement And productive the least be appears inconvenience. consistent with the most. security subject, permanent that in jury should, criminal after cases the receiving TERM, Opinion: Gray, Shiras, and assistance as to the into

advice take all consideration the circumstances of the act done, with which and to intention determine upon the act be, not, whether done be within the the whole, the law. This distribution of which the power, by meaning assist, and other, check each court and mutually mutually safest, the wisest seems arrange- consequently to the trial crimes. The constructions ment, respect intention of the often be on the (with may party, judges, refined, and not too most motives) speculative upright in their Their rules case. application every altogether just technical cast, become, have too their operation, and To and of motives severe oppressive. accurately does not a master’s skill the science intentions require law. It more on a of the depends passions, knowledge of human action, and be the lot of and springs and 3 Johns. Cas. ordinary sagacity.” 375, 376. experience 1805, statute, of New York legislature In April, passed Libel like Fox’s an indictment Act, declaring very “ the libel, information for who shall the same try fact, under determine the law and the shall have right in like manner as in criminal court, direction other habeas cited the earlier of this corpus, part as well opinion, as to the of Andrew Hamilton, argument Philadelphia, the foremost the certainty lawyer Colonies,” Zenger's case, above cited. And the of the in criminal cases right to decide both law and fact (notwithstanding opinions near the end of the contrary, last expressed century by of a court and county charging juries grand juries, 257, Addison’s 160, was Reports, pp. Charges, pp. 57-63) in that v. long State. Kane Com generally recognized 89 Penn. monwealth, 522, St. 526; William Testimony Lewis and Edward Chase’s Trial, 20, Tilghman, (Evans’s ed.) 21, 27.

In the Maryland, art. provision 1851, constitution TEEM, 1894'. OCTOBEE 152 Opinion: Shiras, Gray, art. sec. the sec. 10, 5, 1864, 12, 4, constitutions of repeated art. sec. trial of all criminal 1867, 15, 5, and of shall be well as has fact,” of law as cases the judges the Court of to be been held by Appeals merely declaratory but applicable preexisting of a statute. 1 Charters Constitu the constitutionality 12 885, 918; Franklin v. tions, 858, State, Maryland, (1858) has been said Mr. 236, court, 249. As speaking “ the made the law as well jury'are Alvey, Justice in the trial of criminal under constitution as of fact, cases, instruction of this as State; given by but in no crime, law of the manner bind advisory, as to what jury, except regard questions ing as State, be considered evidence.” Wheeler v. 42 shall (1875) 563, 570. See also Broll v. 45 State, (1876) Mary Maryland, Bloomer v. 48 land, 356; State, 521, 538, (1878) Maryland, State, v. 50 539; 49, World 55. Maryland, (1878) In doctrine Virginia, jury, upon criminal had the case, in a as the issue well right, power, law and to decide both to have been fact, appears generally until admitted 1829, when, practised upon surprise it was treated the Court of doubtful. bar, Appeals Preston, 5 Munf. Baker Dance's v. (1817) 363; 235, 303; v. Gilmer, Commonwealth, Davenport (1829) (1821) 596; 1 Commonwealth v. 3 Garth, Leigh, (1831) Leigh, 3 Rob. Va. Pract. c. 23. 770; (1839) Louisiana, Alabama and Georgia, State, v. 17 formerly recognized. (1855) Georgia, McGuffie v. v. State, McDaniel 30 State 497, 513; 853; (1860) Georgia, Jones, 666; Bostwick v. Alabama, (1843) Gasquet, (1836) State Ann. State 80; Scott, v. 11 La. Louisiana, 429; (1856) Ann. 17 La. Jurche, (1865) of the Continental The Ordinance Congress of the Northwest .that Territory provided government be should entitled inhabitants Territory always no man the trial and that should the benefit of by jury, of his of his liberty property, judgment deprived law of the and the constitutions of land; or the peers n SPABF AND HANSEN v. STATES. UNITED 153 Opinión: Siiiras, Gray, State Indiana in 1818 and of Illinois 1816, contained similar 1 Charters Constitutions, provisions. 431, 446, 447, 501. 466, 500, Indiana,

In the constitution of Court, under Supreme denied and affirmed having alternately right in criminal cases to decide the by people, constitution in November, took effect declared that in all criminal shall cases whatever have ”; and to determine the law and the has facts right since when been maintained even the constitu court, by of a statute v. State, was involved. Townsend tionality (1828) 2 4 150 Blackford, 151; Blackford, ; Warren v. State, (1836) State, 617; Carter v. 2 1 Charters Indiana, (May, 1851) State, 9 Constitutions, 513, Indiana, 541; v. 526; Lynch (1857) v. 203; Hudelson v. McCarthy State, Indiana, State, (1877) 426; Indiana, 203. Indiana, Blake v. State, (1891) (1883) Illinois, the code declared that criminal juries having all cases shall be at fact,” the law and judges a trial into for out for came time, after some murder, being that a main their foreman court, juror through suggested tained that he Avas correctness judge competent of the law instructions of the as the juror’s judge must dictate. The instructed the might they take the larv as to them and could court, down laid by them determine for law so themselves Avhetherthe given was or Avasnot the to the instructions, law. Upon exception Breese, Court of Illinois, Supreme speaking Judge a new trial and said: the law granted “Being are to them fact, not bound the law as they given can each court, but assume the responsibility deciding, can Avhatthe laAVis. If himself, juror say, upon they their oaths, court, than the know the law better they they laAV If so to do. power say prepared different from it is what declared to have a accord the verdict and find so, perfect say legal right between their own a matter ing notions the law. It is can God, which no consciences and their with power See interfere.” 23 Illinois, 283, Fisher People, (1860) TERM, 1894. 164 SMras, Opinion: Gray, Dissenting JJ. v. 76 v. Illi Illinois, 211; Mullinix People, (1875)

also Spies 252. Illinois, 1, 122 nois, (1887) of October the Declaration Eights unanimously adopted which Adams, the Continental John 1774,

14, by Congress, John Adams, Sherman, -Chase, Samuel Jay, Samuel Eoger Patrick were was and Henry members, George Washington Colonies to the “that entitled resolved respective and more law of especially common England, great tried vici- being by peers inestimable privilege 1 course of that law.” Journals of Con- according nage, gress, in States, of the United as framed The Constitution trial 1788, 3, 3, in art. sect. in ordained,

and adopted cases in shall be all crimes, impeachment, by jury; except be held in the State where said crime -trial shall and such ” committed; have been Sixth and, Fifth, shall “nor 1791, Amendments shall Seventh adopted any person- the same offence be twice for be put subject jeopardy “nor be limb,” life, life deprived liberty property, ” “ law; in all criminal due without process prosecutions, to a trial, accused shall enjoy speedy public right an and district State wherein by impartial committed, been which district shall have been crime shall have “in suits law;” ascertained at common by previously dollars, where shall exceed value controversy twenty shall trial be tried no fact by jury right preserved, shall be otherwise re-examined court of by jury States, than to the rules of the law.” United common according Within six after the Constitution was established, years the law issue, determine jury, upon as the fact in well and un- as Avas controversy, unhesitatingly affirmed in the first of the few by court, very qualifiedly had at trials ever its under by jury bar, jurisdic- original tion conferred the Constitution. by upon trial term, That took at place February Georgia Dall. at law was action the State Brailsford, others, Brailsford and British Georgia against subjects. The files of this Avere pleadings, appears AND HANSEN v. UNITED

SPARF STATES. Opinion: Sliiras, Gray, was The declaration had and follows: assumpsit money the defendants received; non pleaded assumpsit, “put ” themselves And upon country; was, replication State of also herself the said the coun- putteth Georgia as the action, shows, recover report try;” brought received the defendants a bond of a citizen of moneys them, to which the State of claimed title Georgia Georgia act of under an confiscation that State in dur- passed War, under circumstances which were Revolutionary ing as stated the suit in the same between agreed equity 2in Dali. the had After case been reported parties, 415- for four to the court and Chief Justice days argued jury, Jay, “ as the states, on the February delivered fol- report lowing charge;”

“This cause been has as of and regarded great importance, it is been It has treated the doubtless so. accordingly and and on counsel with diligence ability; great learning, is, it heard with attention. It has been part particular your the me follow over therefore, unnecessary investigation been are into which it has carried; the extensive field you of the merits of can now, be, ever you possessed completely the cause. “ are case the The facts the agreed; only comprehended the law of land settle what is that remains is to point it is that from and on that facts; those point, proper arising It is fortunate on of should be the court given. opinion to find the occasion, as it be on opin- must every present, no of sen- we entertain unanimous; the court diversity ion of difficulty no and uniting we timent; experienced deliver.” it is which my province charge of court Justice, opinion The after Chief stating of law, of the proceeded favor defendants upon questions “ to remind here, amiss, not be follows: It gentlemen, as it is the of fact that on of the rule, old questions you good it is of law the province of the on questions province jury, it be observed But must the court to decide. distribution, of reasonable same which law, recognizes to take your- have nevertheless you jurisdiction, TERM, 1894. Sliiras, Opinion: Gray, and to determine the law as well both, selves and other this, On on occasion, fact every controversy. no doubt will we have however, you pay respect as on the one for, hand, court; due to the opinion facts; is, are the best on the that juries judges presumed that the court are the best other hand, presumable both within law. But still objects lawfully .your power of decision.” influ after should not be

Then, telling enced a consideration situations comparative means of the he concluded the thus: “Go, parties, charge from the without then, bar, any impressions gentlemen, for the one or the well other; favor prejudice party weigh to do on do on case, this, you merits ought The after occasion, every justice.” jury, equal impartial into further ex court, coming requesting receiving verdict for the planations questions returned the bar. 3 without from Dall. 3-5. defendants, going again there no that, shows a cáse which con- report while about facts, troversy stating its unanimous the law of reminding them of of fact it is the old that on rule, good questions law it is the province province questions decide,” the court informed them that expressly this, same distribution of reasonable recognizes to take have a nevertheless jurisdiction,” jury upon right themselves to law as well and to determine the both, judge as the fact in controversy.”

The court at that time Justice consisted of Chief Jay, all of Paterson, Justices Iredell "Wilson,Blair, Cushing, Iredell, were whom, its Justice (as:appears by records,) except at the trial. present of the doubts which have been sometimes expressed unfounded, as is Mr. Dallas’s

accuracy apparent report from for several considerations. was counsel plain- He tiff. and there is The court was then held at Philadelphia; no in the reason doubt that the mentioned preface practice courts of in the his first volume of cases containing reports u UNITED STATES.

SPARF AND HANSEN Shiras, Opinion: Gray, before it which'“each was sent case, only, by Pennsylvania the examination of underwent presiding press, it was determined,” of the court in which >was con- in tinued volumes cases “reports containing succeeding courts of the United ruled and in the several States, adjudged the seat of the Federal Govern- and of held at Pennsylvania, internal evidence re- ment.” The contains being charge marks at the verbatim, end, has ported although quotation And the in the are omitted at the charge, beginning. that it was delivered same with words, by Jay, prefix in the Justice, Chief on the February, 7th following American terms,” Claypole’s Daily printed Dunlop Advertiser February a was not a criminal nor suit to recover a

That pen been had it have within been, could ; alty hardly brought Wisconsin v. Pelican of this court. original jurisdiction it was a 295. But suit State Co., Ins. 127 U. S. 265, 294, act of its to assert a title legislature acquired war in time of exercise itsof against private sovereign powers court dealt with the only individuals. As the charge discussion, does not case before without it, general any as to whether the right expressed opinion appear was based to determine the law supposed analogy upon crime, or and a between such suit upon prosecution American authorities of the countenanced theory, many as in that at the foundation Republic, early period, extended to all cases, times England, right issue. tried criminal, civil or general it cannot be doubted that been, However that that the' at that date, opinion this court, early in- of law all matters had decide for themselves right and ik is certain cases; issue volved criminal been no there has that in that has since elapsed century of the court, deciding intimating, judgment does form, appertain individual such cases. And justices expressed opinions time of decision near of the court subject, afterwards, forty v. or within years Georgia Brailsford, (cid:127) TERM,o1894 SMras, Opinion: Gray, Dissentiug more known to or less exist, tend, (cid:127)which any reports there not a this That is to affirm right jury. directly, evidence to effect is ac- this accumulation easily greater that, it is remembered few when for comparatively counted were and that the of trials printed, jury reports be well that it con- settled, so was seldom was considered trials. noticed troverted specially reporting practice, Henfield Circuit Court trial Grideon Upon 1793, for the District Pennsylvania United States Peters, for ille- Wilson and Iredell Judge before Justices “the that Mr. Justice Wilson told jury gal privateering, with the consideration of law into coming joint questions the court to law the facts, it is duty explain ” after direction; and, it to them expressing give in- court of law unanimous questions concluded remarking volved in jury, law both that this fact, must decide verdict, a general were decide it as them to pleased; they did not authorize : law the bound decide by responsi- much Trials, 84, Wharton’s State both.” bility equal 87, 88. in a de- verdict, must

This statement as much fact, cide law and and were bound decide both and under an as the judges, equal responsibility, with the idea that the were inconsistent bound quite and direction of the court matter of accept explanation That neither Mr. .law as Justice controlling judgment. such Wilson nor Mr. Justice Iredell entertained idea authentic and definite statements conclusively disproved by their views upon question. for himself case Iredell, Mr. Justice civil only, speaking “: court at said It will not be

before term, February the court to find sufficient, might char’ge because, will defendant; generally though respect of law, of the court on are not sentiments points a verdict bound to deliver Bingham them. conformably ” Cabot, Dall. Appendix]. [see Mr. in his law the Philadel- Justice lectures on at Wilson, AND UNITED STATES.'

SPAKF HANSEN 159 Gnay, Shiras,

Dissenting Opinion: JJ. maxim and the discussing phia College the the law and determine the determine fact, jury judges observations: made the following well known division between their been This has provinces and established. When the of law recognized question long of decided and the fact can be there nois separately, question doubt or whom the decision difficulty saying separate the If, shall be made. between there is no parties litigant, the but an is a facts, contention issue concerning joined upon as in a the law, is the case determination demurrer, question of this and the trial of this issue, belongs exclusively question, the is no to the On other there when hand, judges. question and the between the concerning controversy parties the determination of depends entirely upon fact, matter to an matter, issue, to the brought exclusively belongs is of law But, many cases, jury. question intimately blended fact; with the when inseparably this is the one case, decision .of involves the necessarily decision of the other. is is When this incumbent on the to inform is law; and .it jury concerning judges much incumbent on information, regard pay now the which receive from the But difficulty they judges. us. this interesting subject begins press upon Suppose taken to avoid a difference of that, it, after all precautions with sentiment takes between' place the fact to be to a law; regard point suppose one determination of at interwoven, must, so that a closely time, embrace the determination of other; same sup- in trial before of this to come matter pose — description their must do what must do ? The duty well the law as their whole decide must duty; ; to criminal cases fact. This doctrine peculiarly applicable them, indeed, and from derives its importance.” peculiar com- make : they may Juries mistakes undoubtedly may mit But ones. errors: commit they may gross changed can and mistakes never their errors are, grow constantly into a their sen- native The dangerous system. uprightness timents will not be bent under precedent weight TERM, Shiras,

Dissenting Opinion: Gray, will The de not be introduced esprit authority. corps among will from them nor those mischiefs them; society experience de unchecked, sometimes esprit corps, produc- their mistakes and their Besides, errors, tive. the ve- except made on the side traverse ones mercy juries, .nial redress. dissatisfied without with their ver- exercise the will dict, power, power, granting trial. This while a new corrects the power, prevents errors, effects of preserves jurisdiction juries The cause is not evoked before a tribunal of unimpaired. — abstract, of the an as it has kind; another country — n summoned, the citizens at im- selected, of called, large been sworn as the must decide.” former, still panelled, “ must not .In however, our attention. One escape thing, which and on we have mentioned, cases principles of But the power determining legal questions. jurors possess them to determine law.” "Wilson’s must according Works, 371-374 discussion of the subject, reviewing closing “ he said: With to law stated, before regard

principles as ours, in a such cases, citizen, criminal every government of its a reasonable knowledge prin- endeavor should acquire direction, conduct, .he for of his when is rules, ciples and when he is answer, when he is called to called obey, will be of his deficiencies law, On called judge. questions of the whose directions judges, by’the professional supplied direct him. business it and whose is professionally duty n For, in criminal seen, verdicts, cases, we generally of as the fact. tlie as well law, question determine question it to determine. fact, is his exclusive Questions province with the consideration of evidence unconnected With be dis- will not he is to his attention -which try, question will be we nature, of that for presume, tracted ; everything mind, of his the court. The collected powers excluded be’ and without fixed, interruption will therefore, steadily is an This issue he is sworn to try. the issue 386, 2 Wilson’s Works, of fact.” issue the view taken evince These together, clearly passages, UNITED HANSEN «. STATES.' AND SPAEF Opinion: Sliiras, Gray, to have been an that, Wilson while issue of law is Justice Mr. an decided issue of fact, tried and judge, to be although of law blended and with the interwoven involve question to be tried and decided after is fact, receiving and, if a difference of arise court; instructions them and the is law, between judge upon to decide the law as the and their as well their duty right that a of the and rules reasonable fact; knowledge principles “ called. citizen, law is when he is only important ” “ he is individual, as an when called to answer” to obey but also he is called to as a as a “when defendant, judge” which the in a criminal and that the issue .juror; are sworn to which it is to decide, case try, duty “ if it involve issue .offact.” even questions The of section the act provision July Congress “ libels, c. seditious punishing shall the cause shall have a determine the who try right and the under of the as in other law the direction fact, a clear cases,” Stat. (1 recognition 597,) express determine in all criminal cases to fact. words as here court,” direction ” like the and directions used, words opinion English the libel do the the act, adopt opinion oblige jury instruction, aid, but are merely equivalent guide and not to command control. is order, provision affirmance of and not rule, way creating for was that the reason exception; inserting probably had been more often denied Eng- right jury lish courts in for seditious libels than any prosecutions class of other cases. before treason, Fries for trial of John

Upon in the Circuit Peters, Mr. Justice Court Chase Judge the dis- the United the District of Pennsylvania, States trict from books defini- attorney having quoted English Mr. Chase tions of constructive Justice treason, actual and “ said : be read them, They any may, — decisions not as authorities we whereby thereupon and decisions men of bound, great opinions VOL. CLVI —11 TERM,

Dissenting Opinion: Gray, Shiras, JJ. But, even ability. then, court legal learning would to the time of attend carefully decision, and in no case must it be our Trials of binding upon juries.” Fries, 180. And he afterwards instructed the as follows : jury It is the of the court in this and in all duty criminal cases, to state to the of the law on jury arising facts; but the are to decide, and in all criminal the-present both,the law and the on their cases, consideration of the facts, And whole case.” he concluded his in these words: charge “ If, consideration of the whole matter, upon (law as well as are not satisfied, without fully fact,) you doubt, of the treason prisoner guilty charged indictment, find will him not but if guilty; you consideration upon (law the whole as well matter, are convinced you fact,) treason prisoner the indict- guilty charged ment, will find him These you guilty.” instructions, with italicized as are in the above, words exhibits annexed Mr. Justice Chase his answer upon impeachment Trial, Chase’s 48. See (Evans’s 44, 45, also appx. Trials ed.,) ;199 Wharton’s State Fries, 196, 634, 636. Trials, In at the trial of William S. Smith the Circuit Court United States for the District of New York, an indictment for out a upon setting military expedition at with the foreign country United peace States, said to the Judge “You Talmadge have heard jury: much said of a upon of'the law as well as the fact.” The law is now settled that this right appertains all criminal cases. They unquestionably may (cid:127)determine all the circumstances, if will take the and hazard of responsibility judging incorrectly upon ques- of mere law. tions But the is not therefore above In law. exercising attach to right, themselves character of and as such are as much judges, bound by the rules of decision as those legal who preside bench.” Trials of Smith and 236, 237. Ogden, in the District Court of the prosecutions United States for the District Massachusetts, under the act of Congress 8, c. 8, 1808, an January Stat. laying (2 embargo, 453,) UNITED STATES. AND HANSEN

SPARF Sliiras, Opinion: Gray, of the act to the unconstitutionality Dexter Samuel argued defendant, although they acquitted jury, clear, the violation of act was court evidence act was constitutional. and instructed held, 108, Works, Mass. note 3 Webster’s ; 329, Hist. 3 Bradford’s Journal, Law v. The 2 Hall’s William, States United 330; 61. Dexter, 60, Reminiscences 255 ; Sigma’s of an action in the District Court at 1812, In trial for a bond York, States the District New the United upon instructed Yan Ness Act, under Embargo Judge given not its nature and essence, though or criminal there- action; were, form, its penal law and the fact.” United entitled to both fore, 66. 1 Carolina Law Poillon, States v. Repository, at the trial the Circuit Court' In of John Hodges for trea the United States for the District Maryland “: The William for the best defendant, son, argued Pinkney, found in trial individuals is to be for the security rights of this consists its But the excellence institution by jury. of law and fact, are here exclusive power. to the and to their God, and are prisoner, only responsible Duvall of this court, And Mr. own consciences.” Justice of the case, said, after expressing opinion Houston: “The with the concurrence of Judge have a because bound to conform to this right, opinion, law and the facts.” on the all criminal to decide cases, Crim. S. 2 Wheeler Cas. III, 19, 28; C., Hall’s Law Tracts, 477, 478, n Porter were and James jointly Wilson George for the of the United States indicted in Court the Circuit tried mail, and were District of Pennsylvania robbing Baldwin, Mr. Justice Judge In Wilson’s separately. after expressing flopkinson concurring, have thus stated them: “We you law, said duties and under the solemn obligations the law of this case so we under the clear conviction us, doing imposed will the true test you apply you presented understand will evidence to the case but ; distinctly you TERM, 1894 Opinion: Gray, Shiras, Dissenting JJ. of the law and in are the both fact a

that criminal you bound of the court; and are not case, opinion you may should feel for you yourselves, your duty judge find verdict must At us, differ from your you accordingly. that it it is our accord- time, duty say, same perfect of our institutions that ance with courts spirit legal law, facts; decide should juries questions tribunals nature of the leads this division naturally and it is for the sake of duties, better, public justice, when the law is should be so: settled there is court, than when more done it will be better certainty jury, known and more But if opinion. respected public you the law is different from what say prepared you from are in us, heard the exercise aof constitutional you to do so. We have one other remark to make on right only — the law as the court, you subject by taking given by incur no moral iu; a rule of responsibility own, making your be some Baldwin, 99, there of mistake.” may danger case, 100. And Porter's after repeating these said to the instructions, “In a word, explaining decide on the law and- the facts as best gentlemen, comports n with sense act on duty your public yourselves; rule under which the same would be as a you guided magis- the oath trate or of office. Then responsibility will Baldwin, not err.” 109. you of this Some court, indeed, who, shown, justices already admitted cases to decide criminal general right juries law and fact, both denied their the consti pass right aof statute, that 'the tutionality apparently upon ground of the existence or the statute of a validity question the court alone. Paterson, J., case, Lyon’s (1798) Chase, Wharton’s State Trials, 333, 336; J., Callender’s Trials, 688, Baldwin, Wharton’s State 710-718; (1800) in United States v. It J., Shive, 510. Baldwin, (1832) be well doubted whether such a can distinction be maintained. 262; Anthes, 185, 188-192, Commonwealth Gray, Cooley Lim. But Const. does not arise in (6th ed.) point this' case. STATES'. HANSEN v. UNITED AND 165'

SPABF Shiras, Opinion: Gray, in crim- Upon Marshall’s Chief Justice decide cases to inal of that the evidence opinion, is of so weight, great be wished, not so satisfactory might perhaps although should disregarded. Burr in the Circuit Court of the Aaron

At the trial of for treason for the District States Virginia United Chief Justice Island, war in Blennerhassett’s by levying the order of evidence, Marshall, opinion upon delivering “ be decided which must fact, of war is by said: Levying instructions on this, The court may give general jury. before but them, other brought every question fact' law.” decide must compounded jury 1 Burr’s Trial, 410. the Chief Justice

In the drawn by writing, up charge, of the him to the and read question by jury, speaking “Had he not he said: defendant’s constructive presence, near but had taken a island, arrived in the position, enough to assist them island, with those on cooperate attacked, act of ór to aid them question hostility, would be a whether he was constructively present question be decided fact, of law would by compounded far as with the aid of the so the law.” respected jury, 2 Burr’s 429. Trial,

The Chief occasion to-demonstrate that Justice took ques- tions of the evidence must decided admissibility by “ that, court will contend in a civil No only, saying: person or criminal is at to introduce what either liberty party he to consume the testimony illegal, pleases, legal whole term in unconnected with the details of facts particular must on the case. Some tribunal, then, decide admissibility cannot constitute this tribunal; The testimony. parties it; cannot for the do not constitute agree. jury or not. whether shall hear question testimony Who then but the court can constitute it ? It is of necessity of the court to peculiar province admissibility 448. testimony.” p. to his on the order of

Referring previous opinion testimony, OCTOBER, TERM, 1894. .100 Gray, Opinion: Shiras, he remarked: It was said that war is an act com- levying “ fact; of law and of which the pounded aided court must To that declaration the court still ad- judge. “ heres.” 444. And he concluded his thus: The p. charge now heard the of the court on the law opinion the case. will that law to the facts, and will find They apply a verdict of or not as their own consciences guilty guilty direct.” p. Marshall,

It thus that Chief Justice while appears affirming that a evidence must be question admissibility decided that court, because whether the question hear should the evidence or told the not, yet. jury, (in forms, but of the same many meaning,) question of fact and law, involved the issue submitted compounded the court instructions, but jury, might give it; must decide that such a of law question, compounded be decided fact, would with the aid jury, court so far as the law; that of such a respects aided court, must that, judge; having “ heard court on the law of the case, they will opinion,” apply,” law,” namely, “ law as to the court had its expressed opinion, will find a verdict facts, or not as guilty guilty own consciences direct.” The may manifest intent and effect of all this was that after the aid of the receiving instructions of court on matter of law, must as their own determine, consciences direct, might every of law and compounded fact, involved in or not issue guilty guilty.

The meaning this as charge respect, carefully pre- the Chief by Justice, is too clear to be pared controlled by the words attributed to him the on reporter, 448, page the course of a conversation with desultory counsel regard to other defendants, after had found Burr not guilty. before Chief Justice Marshall, the same court,

there tried indictment for on piracy, by robbing under the act seas, high Congress c. 9,. 30, 1790, April AND SPARE HANSEN v. UNITED STATES. Shiras, Opinion: Gray, 113; Stat. Rev. Stat. that 8, (1 5372,) enacting any person §

§ seas murder or committing upon high robbery, other offence committed within the which, of a body county, the laws of the would United States be with punishable be deemed a should Mr. death,” for the de pirate. Upshur, “ that it was fendant, that should argued necessary robbery first be made with death the laws of the United punishable committed when States, before it amount to land, could sea, when committed on the which Avasnot now the piracy, that Johnson had case; so decided in South Judge Carolina, decision had been although contrary subsequently pro nounced conflict by Judge betAveen Washington; these learned two the kuv Avasat least judges proved doubtful '; case were well capital judges, laAV the bound fact, Avere Avhere acquit, either Avasdoubtful.” Chief Justice from Marshall, (far deny to for the inter ing jury,) being appealed decided that it Avasnot pretation necessary should death Avhencommitted on robbery punishable land, order to amount if committed on the ocean; piracy but as two both of Avhomthe court entertained (for had decisions highest respect) pronounced opposite it, the court not could undertake to that Avasnot at least say doubtful.” And the case submitted to the being jury, they returned a ATerdict not United States v. Hutchings, guilty. 2 Wheeler Crim. 548.1 Cas.

It be added that Mr. AvellknoAvn Robinson, Conway members of and this bar as a most careful many this court as Avellas informed Mr. Justice accurate, learned laAAyer, Blatchford and that he Avellremembered Chief myself hearing Justice trial of a criminal case Marshall, at the presiding the Circuit Court after ex Richmond, of the United States at at the on both his own sides, of the counsel pressing, request to, Johnson, appear decision of Mr. referred does Justice there reported. AArashington to have been re But the of Mr. Justice decision is. ported 209; point Jones, as the (1813) United 3 Wash. C. C. States court, way by was dissenting, decided the same Mr. Justice Johnson Palmer, United (1818) States v. 3 Wheat. ' TEEM, 1894. OCTOBEE Shiras, Opinion: Gray, the statute on which the of the construction

opinion upon the his conclude charge founded, jury indictment was criminal were not it was a that, them telling both but had the to decide bound to right opinion, accept fact. the law the after the Constitu-

Until adoption forty years nearly of the not a decision States, highest tion of the United single of a court the United State, or of court of any judge the found, has been States, right jury upon denying decide, case to issue in a criminal according general in that issue the law involved and consciences, own judgment — mentioned, or three above cases, concerning the two except And it cannot have of-a statute. escaped the constitutionality main- of the above utterances, attention that quoted, many the most emi- were some of of the right jury, taining of the United Constitution nent and steadfast supporters the national and of the States, authority judiciary. ¿dmitted that recent be more times, It must frankly of the Court of with the judgment Appeals beginning in 1830 in Montee v. J. J. Marsh. Commonwealth, Kentucky Justice to a 1835 and with Mr. Story’s charge v. Battiste, Sumner, United States tendency general in this the cases cited in decision country (as appears of the has been majority court) agaipst in the as well courts States, several right jury, where the States established, once including many right Circuit Courts of United current States. The been that in has so where counsel are Massachusetts, strong, admitted to have the right argue lias been held that have no to decide it, yet right and it has also been held, court, by majority could not confer legislature constitutionally the instructions of the determine, against ques- tions of cases; law involved issue in criminal and in and in Louisiana, Georgia general provision State, constitution in criminal cases declaring héld shall the law and been fact,” has authorize them decide the law the instruc- STATES. AND HANSEN v. UNITED

SPARE 169 Shiras, Opinion: Gray, Dissenting JJ. 10 Porter, v. Met. 263; of the court. Commonwealth

tions v. Anthes, State, v. 5 Ridenhour 185; Commonwealth Gray, Ann. 338. 41 La. 382; Tisdale, State Georgia, of the true and effect But, upon question meaning of the United States the Constitution respect, opinions more than a after the adoption generation expressed almost unanimous have far less than weight .Constitution declara voice of earlier nearly contemporaneous judicial 299. Laird, Cranch, tions and Stuart v. practical usage. decisions of this constitutional neither And, upon question, States, nor courts of the United state of lower courts, rulings its own can relieve this court from duty exercising S. Co., v. Phenix Ins. 129 U. Steam Co. Liverpool judgment. The J. E. 717; Andrews 124 U. S. 397, 443; v. Hovey, Rumbell, 148 S.U. 1, 17. been which have deny- assigned principal grounds in a criminal of a issue right jury, upon

ing the law instructions to determine ad maxim, been that the old quaestionemjuris juratores, ad respondent qucsstionem respondent judiees, faeti are more ; competent is of universal application and that decisions of law ; determine than questions juries in one case become guide such precedents questions cases. the decision of subsequent in this what are respect,

But rights, and em- summoned and of crime, accused of juries persons of the United under the Constitution them, panelled try to what the is to be decided States, according not question to be and best think be the wdsest system court would what, but established legislature; by by people contemporaneous early and of light previous did affirm construction of the Constitution, people establish that instrument. constitutional construc-

This like all question, questions reason, it is for that a historical tion, question; largely tediousness, risk of that it seemed at the has necessary, authorities review and to state at some principal length subject to be The reasons and America. England TEBM, , OCTOBEB Opinion: Shiras, Gray, from these authorities for derived the contested maintaining in this be summed as follows: regard may up Charter Great American England, By constitutions, it is not a decision of the ablest or most that the citizen can be learned of his life or deprived judges, “the of his only by or, liberty; judgment peers,” the ancient taken from country,” phrase, body people. before and since forms,

The ancient used the adoption at the' and altered the Constitution, hardly present day, the issue is the and accused, which sub- by pleaded When mitted to the the jury, significant. defendant, indictment, the not he is arraigned upon being pleads guilty, “ ” the clerk of the How will be tried ? court, asked by you “ answers, God and The oath and By my adminis- country.” he called to each as is is, tered “You juror shall accepted and true deliverance well make try between our truly lord the State the or (or or sovereign King” the People, the as case States, United at be,) prisoner shall have in bar, whom to you evi- charge, according your God.” And dence. So after the help you have been the clerk reads the indictment to the empanelled, jury, them: To then this indictment at the says prisoner not bar has for trial has himself guilty, pleaded put upon are. You are now country, country you sworn to he is the issue. If will try so; not guilty, you say guilty, will and no more.” so; you say maxim,

In the ad qucestionemjxms ad respondent jud'ices, the word respondent juratores, de- qucestionem qucestio faeti notes an issue or joined by other- pleadings parties, stated on the wise decision record, by appropriate Issues of so or law, tribunal. are to be decided joined stated, issues of fact, If by by judge; accused jury. indictment, demurs to an issue of law is only presented, which must be decided and rendered thereon judgment by the court alone. But if the accused by pleads gen- issue is an fact, issue of be erally guilty, only joined — decided by by unless the jury only AND HANSEN v. UNITED SPARE STATES. Sidras,

Dissenting Opinion: Gray, to return a so that record verdict, choose special may pre- of mere be decided issue court. sent After defence matter of verdict guilty, again, any law, appar- record, on the be considered and ent decided the court motion in arrest of judgment. maxim has no application the course of rulings, the admission trial, evidence. The upon rules object of evidence is to trials competency prevent from being and the consideration and unduly prolonged, decision of the merits the real issue on trial obscured, embarrassed or preju- diced the introduction of irrelevant matter. The question whether evidence shall admitted or not particular is one to b.e decided before the can evidence be submitted at and must be, as all, is, decided the court; and always whether so, of the evidence admissibility depends, does, ; usually only question depends fact, as whether wholly largely dying declarations were made under immediate apprehension or whether a death, confession defendant volun- or whether sufficient foundation has been laid for the tary, of or introduction for a evidence, wit- secondary permitting to ness as an To the infer, because court must testify expert. decide of law which the of evi-' questions upon admissibility dence the have to no determine the depends, jury right issue, matter of law involved in the would be as un- general as infer, warrantable because the court must decide ques- tions of fact of the evidence upon admissibility depends, no decide the matter fact-in- right n in that issue. volved submitted,

The whom the case the upon general or issue of not are entrusted with the decision guilty guilty, both the law and the facts involved that issue. To assist facts, them decision the hear the' they testimony but are not bound to the witnesses; believe they testimony. To assist them the the law, decision the receive they instructions of the not but are to follow judge; they obliged his instructions. the the state Viewof

Upon facts, his although judge may TERM, Opinion: Sliiras, Gray, decision remains with the cannot .them, jury, duty them law involved thrown judge. Upon by if are satisfied to do fact, so, issue jury, they be decided either a by it by judge, returning let with accordance verdict expressed general verdict the facts or them, reciting by returning special thus the law from them, and, as found by by separating in a of law to be decided facts, shape by put manner. But more formal the whole issue, in a compli- court their fact, determination, law and submitted to being cated them to the law from does require separate them to decide both authorizes at once fact, by verdict. like other indeed, any duty

The duty imposed or the law of his officer by country, private person and not or by by must be caprice. governed wilfulness must ascertain the law as well as can. they Usually take it from the will, and instructions safely may, they are satisfied on their consciences that But court. laid down their court, than as to them other by law is their decide the law as know duty by right bo. it to believe forcible words of Chief Justice Bushell's Yaughan, “: A man cannot see already quoted

case, Vaughan, ear; nor hear another’s no more can another’s eye, infer the to be another’s resolved man conclude thing the verdict be or reasoning; though understanding their not assured is so from they, yet being jury give, are at forsworn, least oonsci understanding, own foro more stated in another or, briefly report entim;” if the.verdict be “The perjured same directions of the own their judgment, although 13,17. T. Jones, binds them their own oath judgment.” that a verdict al- conceded is universally It acquittal, is final, instruction’s of rendered judge, against though and have be aside; cannot and consequently set involved in decide themselves the law for power legal or not issue guilty. guilty AND HANSEN v. UNITED SPARE STATES. 1T3 Opinion: Shiras, Gray, It been asserted sometimes, however, that, has although no have do and that this, power, they right is their or at least their moral criminal legal, duty, every and follow instructions matter of obey judge’s is not that the not to law. exercise suggestion jury ought but that not to exercise it the power wrongfully, ought all; at whether the instructions of the court be or that, or to the law known of all wrong, just arbitrary, according or men, must be controlled to'it, directly contrary by and follow them.

But a which cannot in legal duty any directly way, be and a enforced, of which there can indirectly, legal power, under never, circumstances, be a and lawful rightful — are anomalies “the test of exercise, every legal power” (as said Alexander and Hamilton, affirmed Chancellor by by 3 Johns. Cas. Kent, Croswell, above People its a definite liable being capacity effect, cited) produce neither to nor nor control” —“to censure punishment review.”

It has been said if not their it is their that, duty, legal instructions, moral to follow the of the court in duty, matter But duties, law. moral from duties, distinguished legal human, divine laws and by ; governed oath which the case take to the jurors capital severally is to well and true deliverance Almighty Judge truly try make between the bar, at the government prisoner to their evidence —not to the instructions according according court —and decide in their whether, own judgment the accused is or not conscience, guilty guilty. The rules and the criminal for the most are, principles part, elementary understood simple, easily by jurors taken from the As citizen body people. every sub- to know the ject conclusively law, and presumed cannot set of it to him up excuse from criminal ignorance responsibil- ity it, of his must peers be offending pre- and, sumed to have after equal knowledge, especially being aided of the law counsel explanation exposition it to the facts as capable applying proved them. evidence before TERM, Slxiras, Opinion: Gray,

Dissenting JJ. it is a matter of common hand, the other observation, On the- most even able and lawyers, upright, judges too much influenced are technical sometimes learned, by rules; who or are those wholly and that chiefly occupied are of criminal to apt, the administration justice only grow decide but to of law sentences, in their too questions severe the accused. to unfavorably the undoubted uncontrollable to power

The jury having as well as the fact a themselves the law determine by gen- a denial the court of their verdict of to eral acquittal, by will be to excite in them a exercise power apt spirit contradiction, and to them from prevent giving jealousy to the consideration instructions of court due weight in matter law. new doubtless,

In civil since trials cases, power grant established, the authorized to become one has being grant as often as the verdict to either appears party contrary in order to avoid law, or unneces evidence, may, in it's whenever the evidence will warrant delay, sary order a for one verdict a verdict party only, accordingly. 116; 22 Wall. v. Fant, v. Hendrick Lindsay, Pleasants 143; v. 114 U. S. 615. S. &c. Railway, U. Chicago Schofield a accused crime has a twofold But person protection, court and the convicted. jury, against being unlawfully court to be the evidence insufficient If appears conviction, the court direct an to warrant acquittal. But States, S. 50. the court can never Smith United 151 U. can be convict; order for no one found guilty, judgment peers. by resort,

Decisions of courts of last courts, especially issues of such a demurrer upon presented become decisions verdict, precedents govern judicial special in like cases in the future. But verdict of but the issue of or not settles guilty general guilty, nothing case; innocence of accused in the particular guilt fact, decided issue is so of law blended complicated together, no recorded distinct decision of of law is dr any question not to made. trial purpose establishing SPARE AND HANSEN v. STATES. UNITED Opinion: Gray, Shiras, obtain rules of law for future but to secure use, impar- tial between the and the accused in justice each government itas arose. case

As said Alexander Hamilton in Croswell's case, above cited, both law power and fact deciding gen eral issue a criminal case is entrusted to the “for rea jury, of sons a nature, for of life political peculiar security 335; 3 Johns. Works, Hamilton’s Cas. 362. liberty.” 7 a drawn from take themselves, people, by among of conviction a accused every crime part person by that no man can be government; general knowledge otherwise convicted increases confidence in the public jus tice convictions, and a bulwark of the administra strong tion of the criminal law. the law of as has been a

By seen, accused England, person of murder or other and convicted before a felony, single could not move for a new and had no means of judge, trial, his instructions to the reviewing jury upon question law, unless the himself saw fit to reserve the for decision by judicial- higher authority. Mr. Justice in United States

Although Story, Gibert, v. 2 Sumner, a new 19, trial could not (1834) be thought to a man convicted murder a because to granted jury, so would be him twice of his put life, do jeopardy yet the Circuit Courts of the United States doubtless may grant new trials after not after conviction, though acquittal, criminal cases tried before them. States v. Fries, United 3 Dall. 515; United v. (1799) States Porter, Baldwin, (1830) 78, 108; United States v. 1 Wall. 127; Jr. Harding, (1846) United States 1 v. 429 Keen, McLean, ; United (1839) States Macomb, v. 5 McLean, 286; States Smith, v. (1851) United 3 255 Blatchford, ; United States v. 1 (1855) Williams, (1858) 5. But the Clifford, refusal a new trial rests granting in the discretion of the court in which the trial wholly had, and eannot be reviewed error. Blitz v. States, United 153 U. S. 308. Constitution the United

By this court has States, in such and under such appellate jurisdiction cases, regulations TERM, 1894 176 Shiras, Opinion: Gray, and under may prescribe; legislation only, Congress a no instructions 1889, before Circuit rulings Congress could in criminal case States a of the United brought Court a of division of certificate unless to this court, trial. A at the accused two person between presiding be tried, and, other crime convicted murder or might before dis sentenced single judge, only perhaps sentenced, there and if so convicted was no trict judge; could be reviewed in which rulings way judge’s 6, 2 31, c. Stat. Rev. 159; Act of court. April § More, v. 3 Cranch, 159, States 172 651, 697; ; United Stat. §§ 38, 42; Gordon, Ex Wheaton, Kearney, parte Ex parte 651; U. S. United Ex 503; Yarbrough, Black, parte Perrin, 131 U. S. 55. States 6, 1889, 113, 6, c. March 3, the acts February

By § murder or convicted of other 517, indeed, c. person States crime a Circuit Court United infamous this court writ of error, case to although bring do so. 25 Stat. 656; States cannot Stat. 827; United S. 310. the of U. But re Sanges, States right United to this cannot court, or view, so supersede given impair of the under the Constitution, jury power rightful deciding to them at the trial. submitted the issue be less of or There from danger prejudice oppression the President elected than by appointed people, judges from monarch. as the appointed by hereditary But, judges shows, it be of cannot history assumed that experience and from the and.free inclina- always just impartial, will even most to which learned tion, upright magistrates — known to from motives, been the most yield patriotic the most intent with honest promote symmetry — in the law of their own accuracy amplifying jurisdiction of those at the entrusted Consti- expense powers And to other bodies. there is no tution reason why surely of the citizén, chief of liberty security judgment in a be held less sacred than in a should republic monarchy. peers, we considerations, these that Upon opinion erred learned that were instructing judge jury they HANSEN v. UNITED STATES. AND SPABTF Opinion.: Shiras, Gray, in his as stated that instructions, the law bound to accept requires to be set aside to both the verdict error defendants. that committed an

But are also of judge we opinion error submit matter declining grave equally on trial. fact involved the issue that were not instructed' It clearly appears, only to.return while had the a verdict that, they physical power must the law take from the court; they manslaughter, yet , but were also instructed these that, found they they it could not be man- crime, defendants guilty any properly There no us, can be doubt record before slaughter. upon and it admitted in the court, majórity denied to find as a fact been that the defendants had guilty"of only. manslaughter Nor can there be were led doubt thereby a verdict of murder, agree upon guilty great preju- dice-of the defendants. a case which the appeared inquiries were whether the homicide doubt committed was murder the defendants to instruct manslaughter, not

them that could the defendants of murder acquit them convict must find them manslaughter only, murder or of no crime at does not all, guilty appear us. in a them, from case in differ, which principle, instructing no there was there was no manslaughter, could defendant, evidence do acquit him of murder. but convict anything in which This is a case declined to judge simply instructions of law which he give any upon question thought after did not arise the evidence. But, sufficient giving definitions, both of murder he manslaughter, peremp told them that could not convict the defendants of torily the denied thereby manslaughter only, right a matter of fact included in the issue pass upon necessarily presented by general plea guilty.

This to us to be inconsistent with settled appears principles law, and with well considered authorities. clvi —12

VOL. TERM, 1894. 178 Opinion: Gray, Shiras, Mr. court, Clifford, Justice by speaking said As by is true rule that the burden of eases, proof In criminal before a conviction can be cases, had,, that all shifts; never from the evidence, reason beyond be satisfied must the jury the affirmative of issue doubt, presented able is the manner and the defendant guilty accusation in the indictment.” Lilienthal's tobacco v. form charged See also v. 237, U. S. 266. Potter United States, United 97 v. McKie, 61; Commonwealth 438; Gray, S. States, U. Y. Downs, 123 N. 558. v. People of an indictment under a statute of Ter the trial

Upon with murder, two Utah, establishing degrees ritory were “that instructed, different punishments, murder has some been committed by atrocious dastardly should, deliberations your you apparent, person ” be influenced and the defend not to by any careful feeling; of murder the first ant was found sen guilty degree, court, to death. This error tenced writ reversed be Court Territory, judgment, Supreme must that instruction have been cause by regarded com offence, as “an whomsoever instruction murder in first whereas was for mitted, was degree-; informed as to what was murder, been having jury, facts made a Utah, laws of whether the case of say first or murder in the second murder in-the degree;” degree had the and “the prisoner judgment cpurt uninfluenced direction from the facts, the evidence.” v. Utah, U. weight Hopt S. stated Chief Justice, As for this in a speaking murder, decided at case the last It true term, that in Federal courts the rule that obtains is similar to courts, his dis- English presiding may, he sum cretion think the facts to the and if proper, up jury; rule of law is no the matters of fact stated, incorrectly submitted to the determination of the ultimately that an has been held the facts is expression opinion upon on error. not reviewable Rucker U. S. Wheeler, 127 v. AND SPARE HANSEN UNITED STATES. Dissenting Opinion: Gray, Shiras, JJ. v. United

93; States, U. S. But he. 171, 173. Lovejoy from, separate should take care to the law and to facts, the latter in leave terms to the unequivocal judgment as and their true M'Lanahan v. peculiar province. Uni 1 Pet. versal Ins. 182. Co., As the are the triers of jurors facts, the court should be so expressions opinion by guarded to leave the free of their own exercise judg ments.” Starr United v. 153 U. States, S. 625. 614, 624, Court of Chief Justice Supreme Michigan, speaking by aside a verdict of Cooley, a case in which setting murder, homicide was admitted, was whether only question it murder or was said: “The trial of criminal manslaughter, cases is and court. The by jury country, are to alone, facts, jurors, judge weigh the evidence. The law has established this tribunal, because it from that, is believed its numbers, the mode their selec tion, the fact that all come from classes of jurors are better calculated to society, they motives, judge weigh and take what be called a common sense probabilities, may set (cid:127)view a both circumstances, act and intent, involving than however man, wise and he any eminent single pure, be. This is the and, the law, to theory criminal applied it accusations, wise, and favorable alike to eminently liberty But to it full effect, the be left justice. give must examine evidence, motives weigh alleged by. their own tests. cannot be furnished for this They properly with balances which leave them no purpose discretion, which, under certain will circumstances, them to find compel a malicious intent when cannot conscientiously say they believe such an intent to exist.” v. Mich Garbutt, 17 People 9, 27. igan,

In The cited the earlier Burdett, King part Mr. Justice Best said: “If evidence, there opinion, it was to leave who alone could my duty judge ' of its The rule that as to evidence weight. governs judge offered on the the defend- to the case applies equally part and that in It will ant, support prosecution. hardly contended, evidence offered on the there was part TERM,

180' Sliiras, Gray, Opinion: have a to take himself would defendant, judge withdraw evidence, the effect of the to decide on with he act, Were a so might, from the great jury. of the with the privileges jury, usurping justice, charged it not what our a trial a trial, criminal making And Tenterden, a the Lord but trial by judge.” by jury, “ In the said: case, present words applicable peculiarly of witness it that the murder, eye of cases rarely happens or the struck, poured fatal blow sees the poisonous-ingredients from or conclusion an inference into drawing cup. of to the nature be had must always facts regard proved, to be afforded, that facility appears particular “, The premises may or contradiction.” either of explanation and care must be conclusion, to the or less lead more strongly that but matters the conclusion ; not draw hastily taken mathematical of men, the conduct certainty regard it is one or cannot be expected; required demonstration con that the of our jurisprudence, of the advantages peculiar and con unanimous be drawn clusion is to judgment and business with the affairs twelve conversant men, science doubt is enter where reasonable and who that life, know, .of or more and not of one tained, is' duty acquit; 'be them habits leading whose suspected lawyers, might much and refinement.” of too subtilty indulgence 121, 161, Ald. B. & courts authority The care with which highest facts in decide the exclusive right guarded case before recent a criminal case exemplified very under sec in which, Committee Council, Judicial Privy Vict. Act, 423 of the Law Amendment (46 tion Criminal trial a criminal at c. authorizing judge presiding 17,) that no with a review, of law for reserve proviso questions substantial for some should be reversed “unless judgment reserved or other justice,” questions wrong miscarriage admitted, had been were whether certain evidence improperly that it was the conclusion if .the court came to and whether, affirm court could nevertheless not admissible, legally evi- that, if was independently judgment HANSEN v. UNITED STATES. AND SPARF Shiras, Opinion: Gray, evidence to was sufficient there support conviction, dence, of the offence was with which he accused guilty if, that without the was It inadmissible argued was charged. sufficient to sustain the was evidence verdict there evidence, there had the accused been no guilty, and to show justice miscarriage affirming judg substantial wrong But Lord conviction Chancellor jury. ment upon for six other law lords as well as for him Herschell, speaking said: It is obvious that the con otherwise, held self, for transfers from the to the court contended struction — whether the evidence the determination — the law what evidence establishes the is to regards say, The result is that in a the accused. case where the guilt have his innocence tried has accused guilt him is made to passed upon depend jury, judgment on the decision of the court. The finding are in truth substituted for the the verdict be and is arrived at a theirs and theirs alone, comes upon perusal without of the de the evidence any opportunity seeing the evidence with the meanour of the witnesses weighing that It is this affords. deny assistance which impossible one, law would be a serious such the very change are invited which their that the construction lordships put much affect the cherished the enactment would gravely upon cases.” trial in criminal Makin Attorney by jury 57, 69, 70. Cas. General, (1894) App. “in all criminal Statutes, 1035 of the Revised section

By offence be found the the defendant causes, any may guilty in that with which included commission of which is necessarily be found he is indictment, may guilty charged that Provided, so to commit the offence charged: attempt The defend offence.” such shall be itself a attempt separate been con therefore,, indictment, under this ants, might or of an assault victed of or of murder, only. manslaughter, be convicted could by not only Having pleadéd guilty, they was committed with the verdict of a If a homicide jury. without but if malice, murder; malice, it was committed. The without lawful it was excuse, manslaughter only. any TEEM, 1894 OCTOBEE Opinion: Shiras, Gray, burden of was at proof every step upon government: it order to must murder, obtain a prove beyond conviction with the homicide was committed reasonable doubt into malice. consideration all whether, The taking question evidence, as well as circumstances credibility homicide, there was criminal if witnesses, so, several and, could whether was murder or be only manslaughter, finally decided the defendants alone. by jury According1 in to the the courts of the United States, settled 'of practice its even a criminal- deed, express may opin fact, ion to the provided jury upon any question decision. But the court submits that jury this, that, case told the in this went beyond distinctly been committed if found that a felonious had homicide they convict them of defendants, could not they properly 'which was that, manslaughter, saying equivalent instruction had the crime it was murder. This proved, direct actual effect, inducing tendency, return a verdict of crime. The guilty higher have been killed the satisfied defendants mate with lawful whether, out have had doubts excuse, may yet much of kill true, so believed testimony was malicious and murder. That had therefore doubts ing shown occurred this jurors upon point ques tions addressed one them to the presiding judge. dis those further doubts, dispelled defining of law murder and tinction1 matter between manslaughter, that as fact could not matter of by telling convict defendants of thus sub He only. manslaughter own decision of fact for stituted question, of the entitled decision which the defendants were jury, the Constitution If all under laws of States. the United of this court should concur in the justices opinion below this the defendants fact, still question have not had the com tribunal decided question the-only by to do so under the and laws. Constitution petent For the twofold reason that the instruc-' the defendants, by tions the court to the both been given by deprived, ROBERTSON,

IN Petitioner. RE of the Statement Case. law involved decide the their to have right have the decide and also of issue, are of in that we issue, matter of fact involved

every remanded case reversed, should judgment trial as to both defendants. to order a new with directions ROBERTSON, re Petitioner. original. Submitted 1895. January January

No number. Decided 21, 1895. 22, Applications a to this court for of error to a state court are not enter- writ request court, by tained unless at the of member of the concurred in .a his associates. competent highest The decision of the court of a State that it under an was person simply, try of murder in indictment for murder convict perpetrated degree the first if the homicide in the commission was attempt presents question robbery, to commit no Federal for consider- ation. brought highest here from the court of State When the record in case court, no decided of error discloses Federal writ nothing there is in the case for this court tó consider. of murder in the was convicted first William Robertson at the court term, 1892, December county degree, Eranklin to be Feb- and sentenced County, hanged Virginia, 1893. A of error denied 3, for'writ ruary. petition subse- but the writ was Circuit Court of Franklin County', allowed one of the Court Supreme quently hy court on November Appeals Virginia, affirmed 20 E. court. S. Rep. judgment county Robertson to be executed December 21, ivas resentenced and a He then 25,1895. until applied January respite granted thereof, for a writ the Justices of error to one of from counsel the matter which was denied, brought whereupon to the attention court under the misapprehension he had with the assent been directed to do so Justice of his brethren. notes “in that, And of this cases.” reporter consequence court, statute, term, (no -1805, declaratory August been made on the unan- motion having judgment verdict,) anew trial 3 awarded above cause.” Johns. imously 413. Cas. 1S25, (afterwards In Walworth Judge Chancellor) presiding at indictments for in a court of trials of' oyer terminer, trials, “that had murder, instructed in.criminal they ; decide both law and the of the case facts right was of its bound, the court oaths of office judges, decide the impartially honestly questions arising case, and state them to but the had a the jury; the decision of the court disregard upon questions right in favor of were satisfied that life, especially they fully such decision was v. 1 Parker's Thayers, wrong.” People Cas. v. 595, 598; Videto, Crim. Id. 604. People SPARF AND HANSEN v. UNITED STATES. Opinion: Gray, Shiras, JJ. In New Provincial Jersey, by laws not enacted the trial of all only civil and causes, shall heard criminal, and decided the verdict of twelve honest men but also neighbourhood that there shall three be, every who shall justices commissioners, sit with the twelve men of the with them to neighbourhood, hear all causes, to assist the said twelve men of the in case of ; law and that neighbourhood the said justices shall such shall pronounce from, receive judgment and be directed said twelve whom men, only resides, otherwise; case of their judgment and, that then refusal, one of the neglect consent twelve, by of the rest, their own as the pronounce. judgment justices should have done.” & Laws, 396-398, Leaming Spicer’s pp. 428, 429. How far, under the constitution and laws present State, criminal cases, have the decide juries, the law for themselves, instructions of the disregarding at the does not trial, to be settled. judge presiding appear State v. 5 Vroom, N. J. Jay, (34 368; Drake (1871) Law,) State, Vroom, (1890) N. J. (53 Law,) Chief Justice Sharswood said: “No one Pennsylvania, with the life of the founder of this acquainted Commonwealth can entertain doubt of his or that of his friends ” — and followers to the case of Penn and Mead be referring fore the Recorder of and to that of London, Bushell upon

Case Details

Case Name: Sparf v. United States

Court Name: Supreme Court of the United States

Date Published: Jan 21, 1895

Citation: 156 U.S. 51

Docket Number: 613

Court Abbreviation: SCOTUS