hat the
defendant could not, even by his own consent, be lawfully tried
by a less number of jurors than twelve. It would seem to follow
that he could not waive the entire panel, and effectually consent
to be tried by the Court alone, and still less could the Court,
against his protest, assume the duties of the jury, and
effectually pronounce the verdict of guilty or not guilty in
their stead.

It will doubtless be insisted that there was no disputed question
of fact upon which the jury were required to pass. In regard to
that, I insist that however clear and conclusive the proof of the
facts might appear to be, the response to the question, guilty or
not guilty, must under the Constitution come from the jury and
could not be supplied by the judgment of the court, unless,
indeed, the jury should see fit to render a special verdict,
which they always may, but can never be required to do. It was
the province of the court to instruct the jury as to the law, and
to point out to them how clearly the law, on its view of the
established facts, made out the offense; but it has no authority
to instruct them positively on any question of fact, or to order
them to find any particular verdict. That must be their
spontaneous work.

But there was a question of fact, which constituted the very
essence of the offense, and one on which the jury were not only
entitled to exercise, but were in duty bound to exercise, their
independent judgment. That question of fact was, whether the
defendant, at the time when she voted, knew that she had not a
right to vote. The statute makes this knowledge the very gist of
the offense, without the existence of which, in the mind of the
voter at the time of voting, there is no crime. There is none by
the statute and none in morals. The existence of this knowledge,
in the mind of the voter at the time of voting, is under the
statute, necessarily a fact and nothing but a fact, and one which
the jury was bound to find as a fact, before they could, without
violating the statute, find the defendant guilty. The ruling
which took that question away from the jury, on the ground that
it was a question of law and not of fact, and which declared that
as a question of law, the knowledge existed, was, I respectfully
submit, a mo