s, merely at the discretion of the court, for finding
their verdict contrary to the direction of the Judge, was
arbitrary, unconstitutional, and illegal, and is treated as
such by Sir Thomas Smith two hundred years ago, who
accounted "such doings to be very violent, tyrannical, and
contrary to the liberty and custom of the realm of England."
For, as Sir Matthew Hale well observes, it would be a most
unhappy case for the Judge himself if the prisoner's fate
depended upon his directions; unhappy also for the prisoner,
for, if the Judge's opinion must rule the verdict, the trial
by jury would be useless. Yet, in many instances where
contrary to evidence the jury have found the prisoner
guilty, their verdict hath been mercifully set aside and a
new trial granted by the court of King's Bench; for in such
case, as hath been said, it can not be set right by attaint.
But there hath been yet no instance of granting a new trial
where the prisoner was acquitted upon the first.

In Wilson's Lectures, Vol. II., p. 72, the same doctrine is
declared and illustrated; and he says:

The jury must do their duty and their whole duty. They must
decide the law as well as the fact. This doctrine is
peculiarly applicable to criminal cases, and from them,
indeed, derives its peculiar importance.

In Forsyth's Jury Trials, after an examination of the subject, it
is said, p. 265:

It can not therefore be denied that, in all criminal cases,
the jury do virtually possess the power of deciding
questions of law as well as of fact.

The authorities quoted from conclusively show that at the time
the Constitution was adopted, and for nearly a quarter of a
century afterward, juries were understood and declared to possess
the right to pass upon questions of law as well as fact in all
criminal cases; and this is all that need be shown to bring this
right within the protection of the Constitution.

The first case it is believed in which the contrary doctrine
received favor in any American court was in the case of the
United States _vs._ Battiste, 2 Sum., 240, decided in 1835. Mr.
Justice Story, in that case, said:

My opinion is that the jury ar