efused the request of
counsel to have the jury polled in regard to their verdict. No
precedent has been shown for this proceeding, and it is believed
none exists. It is altogether a departure from, and a most
dangerous innovation upon, the well-settled method of jury-trial
in criminal cases. Such a doctrine renders the trial by jury a
farce. The memorialist had no jury-trial within the meaning of
the Constitution, and her conviction was therefore erroneous.

But it may be said that the ruling of the court was correct in
point of law, and, had the court submitted the case to the jury,
it would have been the duty of the jury to find the memorialist
guilty; therefore she is not aggrieved by the judgment which the
court pronounced. Should this reasoning be adopted, it would
follow that the memorialist had been tried by the court and by
Congress; but it would still be true that she had been denied
trial by a jury which the Constitution secures to her.

It is not safe thus to trifle with the rights of citizens. The
trial by jury--the judgment of one's peers--is the shield of real
innocence imperiled by legal presumptions. A Judge would charge a
jury that a child who had stolen bread to escape starvation had
committed the crime of larceny, but all the Judges in Christendom
could not induce a jury to convict in such a case. It is the
humane policy of our law, that, before any citizen shall suffer
punishment, he shall be condemned by the verdict of his peers,
who may be expected to judge as they would be judged. To sustain
the judgment in this case, is to strike a fatal blow at this
sacred right.

But the question remains, What relief can be granted? I concur
with the majority of the Committee that Congress can not remit
the judgment; that would be to exercise the pardoning power.
Congress can not grant a new trial; that would be an exercise of
judicial power. There is no Court of the Government which has
jurisdiction to review the case. In Commonwealth _vs._ Austin, 5
Gray, 226, Chief-Justice Shaw says:

Now, when a new statute is passed, and a question of law is
raised by counsel, it must first come before the court,
charged by law with the conduct and superintendence of a
jury trial; and, in any well-ordered system of