crime shall have been
committed, etc.

The Constitution does not define or regulate the trial by jury,
but secures it as it was then known to the common law. This is a
proposition so well settled by judicial determination that I
shall spend no time upon it beyond citing the following
authorities: Norval _vs._ Rice, 2 Wis., 22; May _vs._ R. R. Co.,
3 Wis., 219; Byers & Davis _vs._ Com., 42 Penn. St., 89; United
States _vs._ Lorenzo Dow, Taney Decis., 35; Lamb _et al._ _vs._
Lane, 4 Ohio Stat., 167.

Therefore, if it can be shown that, at the time the Constitution
was adopted, it was well settled that the jury in a criminal
cause might find a general verdict, including both law and fact,
then this right is secured to juries in the Federal courts by the
Constitution itself; and not even an act of Congress could take
it away. What the law was at that time, is mere matter of
historical inquiry, wholly different from another question, which
is so often mistaken for it, whether juries ought to possess the
right.

What, then, was the law upon this subject when the Constitution
was adopted? Mr. Hargrave, in one of his annotations upon Lord
Coke's first Institute, declares that, inasmuch as the jury may,
as often as they think fit, find a general verdict, it was
unquestionable that they might so far decide upon the law as well
as fact, such a verdict necessarily involving both.

In this opinion, says Mr. Hargrave, I have the authority of
Littleton himself, who writes, "that if the inquest will
take upon them the knowledge of the law upon the matter,
they may give their verdict generally."

In People _vs._ Croswell, 3 Johnson's Cases, 336, Chief-Justice
Kent reviewed all the preceding authorities with great care, and
discussed the philosophy of the doctrine under consideration,
with the ability which characterizes his most celebrated
opinions; and his decision in this case stands to this day as one
of the landmarks upon this subject. After reciting the
authorities, he says:

To meet and resist directly this stream of authority is
impossible. But while the power of the jury is admitted, it
is denied that they can rightfully or lawfully exercise it
without compromitting their consciences,