form to require the jury to deliberate and find a verdict in a case where if the verdict was not one way, the court would set it aside and order a new trial, and so on, until a verdict should be found that was satisfactory to the court. So in practice it is usual for the court to direct the jury to acquit the prisoner in a criminal case; because, if the jury find against the prisoner, the court may set the verdict aside and order a new trial, and continue to do so until a verdict of acquittal shall be rendered; though it is doubtful whether, even in a civil cause, the court could refuse to let the jury be polled, or could enter a verdict for the jury to which they did not agree. The court could direct the jury what to do, and set aside the verdict if they did otherwise; but it is not admitted that, even in a civil cause, the court could enter a verdict against the wishes of the jury.
But at the common law and in the Federal courts it is certain that where the jury render a verdict of acquittal, even against the evidence and the instructions of the court on propositions of law, the court can not set aside the verdict and order another trial. From this it follows that the court can not take from the jury this power of acquittal in a criminal case, by directing and compelling a verdict against the prisoner, and refusing to have the jury polled. But the importance of this question requires its examination not only in the light of reason, but of authority. The Constitution of the United States provides:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and a public trial by an impartial jury of the State and district wherein the 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."
