550 J U 
mined. But, if a matter where the law only is in ques¬ 
tion is never, nor can in its nature be, fent to a jury, it 
proves almolt to a demonftration, that the jury have no¬ 
thing to do with bare law. 2. Nor is the argument to be 
drawn from the nature of a fpecial verdict of lefs force on 
this occafion. The ignorance of the jury as to the law in 
the cafe, and their reference to the court, is the conftant 
language of a fpecial verdiCt. Not that the jury can in 
reality be fuppofed more ignorant of the law arifing in 
fuch a cafe than they are in a thonfand others, where all 
is concluded under a general verdict. Indeed, in that light, 
the common juries are now much improved in their know¬ 
ledge of the law, there being very few inftances of their 
expreffing their doubts in fpecial verdiCts at this day. 
The reafon of having fpecial verdicts was, at all times, 
in order to have the point of law Solemnly determined, 
and remain on record ; without which, in many cafes, no 
writ of error could have been brought in former times, 
mor the point referved for the consideration of the court. 
The ufage of fating a cafe, and having a general verdiEl, 
S'ubjeCt to the opinion of the court afterwards on the cir¬ 
cumstances of the cafe, is an invention of the late times ; 
and is found in practice to be lefs expenfive, and to an- 
fwer to the parties as well as a fpecial verdict. But the 
cafe Stated, and the fpecial verdiEl, are equally proofs of 
what is here contended for, by exprefsly leaving the law 
to the court for their determination. 
“ The profelfed patrons of the right of the jury to be 
judges of law have principally applied their doCtrine, as 
has been already remarked, to the cafe of libels ; but they 
were aware that the conclusion would be general, though 
the cafe w'as particular 5 becaufe the right of the juries to 
determine the law in the cafe of libels, could only be a 
confequence of their right to find the law in other cafes. 
There Seems to be this fatality that has in practice attend¬ 
ed the cafe of libels, that the law and the fact have not 
been always accurately distinguished ; and perhaps, in fe¬ 
verish times, fome particulars have been contended for as 
implications of law, which ought rather to have been con¬ 
sidered as faCts, and left to the jury. [An evil, and per¬ 
haps the only one, in fome meafure guarded againft by the 
construction put on the Slat. 32 Geo. III. c. 60. mention¬ 
ed at the beginning of this difeuffion.] 
“ It teems however univerfally, that any aftion, the in¬ 
tention of the agents, and every other circumstance under 
which that action was done, are equally faEls, and as fuch 
cognizable by a jury ; but, whether that aCtion, under all 
the circumftances in which it has been admitted or proved 
to have been done, is a crime or not, is what the law alone 
tan determine ; and the judges, whofe brealts are the depo¬ 
sitories of the law, alone can pronounce. Otherwise it is 
evident the quality of human aCtions, more efpecially of 
thofe that are in theinfeives indifferent, and have been de¬ 
fined by fociety alone, would be referred, not only to a 
very variable Standard, but an incompetent one. Apply this 
particularly to the cafe of libels, and the leaSl reflection 
will be fufficient to Show, that the power and province of 
juries is the fame in cafe of libels as in every other cafe. 
And that in no cafe whatever a jury has, in its nature, a 
cognizance of law, though by accident the law may have 
been Sometimes left to them." 
Yet there are fome arguments in favour of the jury’s 
Tight, as relating to criminal cafes, which feem not anfwer- 
ed by the remarks arifing from the conduct of civil caufes. 
In the firft place, their oath is, that they Shall “ well and 
truly try, and a true deliverance make, between our fove- 
jeign lord the king and the prifoner whom they have in 
charge, and a true verdiCt give according to the evidence.” 
Now it is not exprefied what they Shall try ; it is therefore 
inferred, that the whole of the cafe is Submitted to their 
determination. But, we muff recolleCt that, in this as in 
all cafes, an ijfue is joined, between the king and the pri¬ 
soner, of Not guilty, and Guilty. The verdiCt according 
to the evidence muft be therefore on the ijfue, as in all 
other cafes 5 and the fa& only, not the law , is Submitted to 
n r. 
the consideration of the jury. Some doubt has arifen on 
the word deliverance-, whether it applies to delivering the 
verdict; to the deliverance of the culprit from his charge 
and imprifonment; or whether it does not Simply mean a 
true deliberation on, and consideration of, the evidence pro¬ 
duced to them ; which latter is the fenfe moil approved 
by legal writers and historians oil the fubjeCt. If indeed 
it does apply to the deliverance of the prifoner, Still it 
muft be true deliverance, on proof of his innocence, or ra¬ 
ther on failure in the proof of his guilt. 
Another argument, which at firft bears the appearance 
of more weight than thofe juft mentioned, though it has 
not been frequently relied on, is this: That, from the 
very nature and words of the verdict, the jury are consti¬ 
tuted judges of the law, as well as the faCt, in criminal 
cales. That the words Guilty or Not guilty do not 
merely afeertain the commiffion or non-commiftion of 
any indifferent faCt; but the commiflion of a criminal 
faCl; or the being free from any crime, as the fail is 
not done, or as the faCt though done were lawful, or 
performed without any illegal or criminal intention. That 
therefore the jurj in terms decide, by their verdiCt, not 
only on the perpetration of the faCt, but on the crimina¬ 
lity annexed to it; Since, if the faCt be not criminal, no 
guilt is incurred 5 and therefore the verdiCt of Guilty 
would be falfe, and of Not guilty nonfenfical; no guilt 
attaching to a praife-worthy, an indifferent, or an inno¬ 
cent, aCt. Two anfwers fuggeft tliemielves: One, that the 
language in which alone the jury can deliver a general 
verdiCt, according to the rules positively preferibed to 
them by law, at ail events allows the faff charged to be 
criminal as far as the judgment or discretion ot the jury 
on that queftioa can be exercifed, whatever may be the 
fubfequent decifion of the court. The Second, that the 
language of the verdiCt, interpreted according to the 
rules of law, of practice, and of common fenfe, is this— 
“Guilty, if the faCt, with which the prifoner is charged, 
be Sufficiently Stated, and is a crime in the eye of the 
law.” And that this is the true interpretation of the 
verdiCt of guilty, the right of the court to arreft the judg¬ 
ment, in cafe, on irifpettion of the record, they are of opi¬ 
nion that the faCt charged is no crime, or, if a'crime, is 
defectively charged, is undeniable proof. This right of 
the court to decide the law in the event of a verdiCt of 
guilty is recognized by ftat. 32 Geo. III. c. 60. already fo 
often cited. 
Still it may be objected, that the jury, by a verdiCt of 
Not guilty, have a right to decide the law. But the fal¬ 
lacy of confounding the terms right and power has already 
been noticed ; and it may be added, that, though nineteen 
juries were fucceffively to acquit nineteen defendants on 
a charge of publishing the fame libel, their verdiCts could 
never be produced as precedents in law, that a twentieth 
perfon might not be indicted for the fame libel, and found 
guilty by a twentieth jury. An instance occurred very 
lately, wherein the proprietors of the Examiner, a London 
newl’paper, were tried for a libel and acquitted ; and the 
proprietor of the Stamford News was tried at Lincoln af- 
fiS’es for publishing the Same libel, was convicted, and is 
now (Dec. 1811) fuffering imprifonment for the fame. 
To put the cafe Itill Stronger; it is by no means an un¬ 
common circumftance, that, where feveral criminals are in¬ 
cluded in the fame indictment, they fever in their chal¬ 
lenges, and are therefore tried Separately ; but it was ne¬ 
ver imagined that the conviction or acquittal of one had 
the leaft effeCt upon the question of the guilt or innocence 
of the others. Whereas the decifion of the court, on an 
indictment, that the faCt charged in it as a crime was not 
fuch, or was defectively charged, would quafh the whole 
indictment againlt all; and be a precedent for arrefting 
the judgment on any fubfequent conviction, or indict¬ 
ment under the fame circumltances.—And why ? Clearly 
becaufe in one cafe the mere faCt is decided, as relates to 
the individual accnied ; in the other the queltion of law, 
as relates to the crime charged. 
After 
