and thus punish this man for that unlawful deed?"
Then they are to ask, also, "Was the deed _naturally wrong_; done from
a wrong motive, for a wrong purpose?" If not, then be the statute and
the whole complex of laws what they may, it can never be right for a
jury to punish a man for doing a right deed, however unlawful that
deed may be. No oath can ever make it right for a man to do what is
wrong, or what he thinks wrong--to punish a man for a just deed!

But if the twelve men think that the Law ought not to be applied in
this case--they find "not guilty," and he goes free; if otherwise,
"guilty," and he is delivered over to the judges for sentence and its
consequences, and the judge passes such sentence as the Law and his
Discretion point out.

The judge commonly, and especially in political trials, undertakes to
decide the two last Questions himself, determining the Law and the
Application thereof, and that by his Discretion. He wishes to leave
nothing to the Discretion of the jury, who thus have only the single
function of deciding the Question of Fact, which is not a Matter of
Discretion--that is, of moral judgment,--but only a logical deduction
from evidence, as the testimony compels. He would have no moral
element enter into their verdict. The judge asks the jury to give him
a deed of the ground on which he will erect such a building as suits
his purpose, and then calls the whole thing the work of the jury, who
only granted the land!

But this assumption of the judges ultimately and exclusively to decide
the question of Law and its Application, is a tyrannous usurpation.

(1.) It is contrary to the fundamental Idea of the Institution of
Trial by jury.

(2.) It leads to monstrous tyranny by putting the Property, Liberty,
and Life of every man at the mercy of the government officers, who
determine the Law and its Application, leaving for the jury only the
bare question of Fact, which the judge can so manage in many cases as
to ruin most virtuous and deserving men.

(3.) Not only in ancient times did the jury decide the three questions
of Fact, of Law, and of its special Application, but in cases of great
magnitude they continue to do so now, in both America and England, and
sometimes in direct contradiction to the commands of the judges.

* * * * *

Gentlemen of the Jury, if you perform this threefold function, then
you see the exceeding value of this mode of trial,

1. Fo