J u 
Jury as to liave a foreman who cannot pronounce the ver¬ 
dict in a full tone of voice, and with collectednefs of 
mind, fo as not to have occafion to explain himfelf. If 
he does his duty with commendable care, he will in every 
cafe write the verdiCt, and read it from his paper at the 
time he pronounces it. “Every part of the duty of a jury¬ 
man, and particularly all that regards the delivery of the 
verdiCt, fhould be performed with gravity and folemnity. 
He fhould maintain a permanent feeling in regard to the 
fanCtity, the impartiality, and the immutable and ferious 
confequences, of his decifion. He fhould bear conftantly 
in mind the confideration, that he is filling an office 
which fecures juftice to himfelf and his pofterity; and 
which mult often have been honeftly and ably filled by 
bis forefathers, or the right could not have def'cended to 
him; nor his native country have afforded its exifting 
bleffings of legal protection and fecurity, and of civil and 
religious liberty.” Phillips, 210. 
The queltion whether juries are, or are not, judges of 
law as well as of fall, has been long agitated with great 
zeal and energy. The following is the view which is 
taken of the lubjeCl' by Mr. Counfellor Tomlins, the edi¬ 
tor of Jacob’s Law Dictionary : 
We have juft feen, that juries may, by a general verdiCt of 
acquittal in criminal profecutions, prevent the cafe from 
coming under the final confideration of the court; who, 
in that event, have no opportunity of deciding on the 
queflion of law. But, in cafes of conviction, it is the 
eftablifhed rule, that the judges of the court in which the 
profecution is carried on may arreft the judgment, or 
grant a new trial, where they are of opinion, that the of¬ 
fence is not fuch as is charged in the indictment; that the 
indictment is defective in charging it; or, that the verdiCt 
is againft evidence. Thus much therefore appears indis¬ 
putable, that in one event the court are the acknowledged 
judges of the law, as the jury are of the fad; and that 
the latter have the abfolute power of acquittal in criminal 
cales; but not of conviction. A provifion, indeed, full of 
that wifdom and mercy which io eminently characterize 
the Englilh laws. 
This litigated queltion has principally arifen on profe- 
fcutions for libels, and above all others for tliofe for fate- 
libels-, in which it had for a long time been the uj'age for 
the judge to direct the jury, that if the fact of the publi¬ 
cation of the paper charged to be a libel was proved, and 
if they believed the innuendoes in the indictment, they 
mult find the defendant guilty ; without adverting to any 
other circumftances, fuch as whether the paper were in 
their opinion a libel, or publilhed with a malicious, Sedi¬ 
tious, or traiterous, &c. intention. The counfel for the 
defendants in fuch profecutions always maintained, that 
it was the province of the jury to judge whether the pa¬ 
per was a libel; and alfo whether it were publilhed with 
a malicious, Seditious, &c. intention, as charged ; a com¬ 
plicated queltion of law and faCt. 
Mr. Erlkine was the molt Itrenuous aiferter of this lat¬ 
ter doCtrine; and by the indefatigable exertions of him 
and Mr. Fox, the following aCt of parliament was obtain¬ 
ed with a view exprefsly of fettling this queltion by le¬ 
gislative authority : The ftat. 32. Geo. III. c. 60, after re¬ 
citing that “doubts had arifen whether on the trial of an 
indictment or information for the making or publifiiing 
any libel, where an ilfue or ilfues are joined between the 
king and the defendant, on the plea of Not guilty pleaded, 
it be competent to the jury, impanelled to try the fame, 
to give their verdiCt upon the whole matter in iffue ;” enaCts, 
that, “ on every fuch trial, the jury fworn to try the ilfue 
may give a general verdiCt of Guilty or Not guilty upon 
the whole matter put in iffue upon fuch indictment or infor¬ 
mation ; and lhall not be required or direCted by the court 
or judge, before whom the indictment, See. lhall be tried, 
to find the defendant guilty, merely on the proof of the 
publication by fuch defendant, of the paper charged to be 
a libel, and of the fenfe aferibed to the fame in fuch in- 
diCtment.” §. 1. But it is provided in the Said ftatute, 
Pc Y. 547 
that the court or judge lhall, according to their discre¬ 
tion, give their opinions and directions to the jury on the 
matter in iffue, as in other criminal cafes; that the jury 
may alfo find a Special verdiCt; and that, in cafe the jury 
lhall find the defendant guilty, he may move in arreft of 
judgment, as by law he might have done before the pall¬ 
ing of the aCt. §. 2, 3, 4. 
The above is the whole fubftance of the Statute; the 
only cafe that appears on the Subject of libels, in the books, 
fubfequent to the palling that aCt, is the king againft Holt, 
5 ’Term. Rep. 436. which does not Seem to bear upon the 
queltion, further than that Mr. Erlkine incorrectly ftated 
the llatute, as giving the jury a right to take into their 
confideration the intention of the defendant. 
It is obfervable, however, that, as the rule on this Sub¬ 
ject laid down by lord Coke. 1 Inf. 155, b. is in a negative 
way ; 11 Ad quaflionem facli non refpondent judices, ad quajlionem 
juris non refpondent juratores ; Judges are not to anfwer to 
the queltion of faCt; juries are not to anfwer to the quef- 
tion of law ;” fo this modern Statute, in the fame kind of 
language, provides, that “ the jury lhall not be required or 
direCted to find a verdiCt of guilty, merely on the proof 
of publication, and the fenfe aferibed to the paper.” The 
Statute does not proceed any further to ftate what matters 
may or may not be given or produced in evidence in fuch 
trials ; nor does it lay one word as to the contelted point, 
the fettling of which was the pretext for its being pro¬ 
cured, as to the right or province of the jury to decide 
the queltion of law. On the contrary, it is molt remark¬ 
able that the doubt, expreffed to have been entertained, is, 
whether it were competent to the jury to give their verdiCt 
upon the whole matter in ilfue. Now this doubt certainly 
never exifted; Since, wherever the queltion of law is in 
ilfue, it is always tried by the court on a demurrer, and is 
never Submitted at all to a jury. On an iffue of fall, 
(fuch as that joined on all indictments is,) the law is ne¬ 
ver in difpute. And the provifion in the aCt, “that in 
cafes where the jury lhall find a verdict of guilty, the de¬ 
fendant may move in arreft of judgment, as by law he 
might have done before the palling of the aCt,” Seems as 
exprefs a denial of the right of the jury to determine the 
queftion of law as could poftibly be framed ; Since that 
queltion can never arife on a verdiCt of Not guilty. It 
was, doubtlefs, adopted in majoran caulelam ; left, by any 
forced conftruCtion, the ftatute fhould have been inter¬ 
preted as taking into confideration the queftion how far 
the jury could aCt as judges of law. 
The whole fallacy of the controversy feems to have origi¬ 
nated, firft, from the complication of faCt and law, which is 
more apparent in profecutions for libel than in other cri¬ 
minal cafes ; and, Secondly, from confounding the terms 
power and right, as Synonymous ; faculties frequently fo 
fimilar in their operations, that it requires the discrimina¬ 
tion of a penetrating mind to aifign the effeCts arifing from 
either to their proper fource. The jury, as the law at pre¬ 
sent Hands, have the power of acquittal, abfolute and un- 
controuled; except, may-be, by the tedious and now moll 
uncertain procefs of attaint; which, though it might pu- 
nilli the jury for their verdiCt, yet could not couviCt the 
defendant whom they had acquitted ; and it is even 
doubted whether fuch attaint could be maintained, in a 
criminal cafe, againft a jury. Let it not, however, be 
thought invidious to remark, that there may have been 
verdiCts, in which none but the jury themfelves, or the 
party wiiofe caufe they efpoufed, were capable of conceiv¬ 
ing that they had the right of acquittal, by conltituting 
themfelves judges of the law. But thefe are cafes over which 
it becomes a Sincere lover of the conftitution, and of this 
molt valuable branch of it, to draw a veil; in pity to the 
perhaps laudable and often irrefiftible prejudices to which 
the frailty of human nature is liable. 
There is no doubt that, before the palling of the above- 
mentioned ftat. 32 Geo. III. c. 60, if a jury were con¬ 
vinced, either that the paper alleged to be a libel vvas 
not fuch in law, or that the defendant publilhed the .fame 
through. 
