that the whole English Constitution and machinery of government—not quoting words—were only to put into a jury-box twelve honest men. What advantage could it be to an accused to put twelve honest men into the jury-box, if the judge, without asking for their opinion, or without their intervention, can order a verdict of guilty to be entered up against the accused?
Nothing, therefore, can be of more consequence to the citizen in troublous times to protect him against the exercise of usurped or other power for oppression, than the intervention of the judgment of his peers upon the question whether he has been guilty of a crime, or alleged offense against the Government. And in the judgment of your committee, we can not too scrupulously guard, in the interest of the liberty of the citizen, this great and almost invaluable right. The friends of liberty under the common-law system have stood for it and stood by it, strenuously and assiduously, as the palladium of their liberties and the impenetrable shield of the people from oppression. By the order of the judge the defendant was deprived of this right, and if, in this case of minor consequence so far as regards the punishment inflicted, this can be done, so in the trial for murder or treason a judge may order a verdict of the jury without allowing them to pass upon the fact. It has been sometimes said "Can this be done?" We are clearly of the opinion that it can not and ought not to be done. It is sometimes said as a triumphant argument in favor of the exercise of this power, "Has not the judge the power to order a verdict of acquittal?" The answer to that, as a matter of law, is "No; he can only direct the jury that upon the facts and matter of law he believes the case can not be maintained, but that it is for the jury to say whether they will follow that direction;" and his remedy is to set aside that verdict, and that power has always been exercised at common law in favor of the prisoner, but he can not set aside the verdict of not guilty. Sometimes, in the darker hours of English jurisprudence, the judges fined the jury when they were not the obedient instruments of their will but persisted in finding the defendants in state prosecutions not guilty when the judge thought they ought to have been found guilty; but neither Jeffreys nor Scroggs ever dared to set aside a verdict of not guilty.
Your committee have been led by the great consequence of this precedent more carefully and at length to give an examination to this question to which its importance would not otherwise have entitled it. But your committee do not find it necessary to impute any intent of wrong to the learned judge who tried this case; but the effect of his error was to deprive this petitioner of a great and beneficent right, guaranteed to her as strongly as any other by the Constitution of her country, to have the question of her guilt passed upon by her peers, which error has had the same effect upon her rights as an intentional assumption of power would have had, and may have hereafter, in bad times, wherein corrupt judges, wielding instruments of power, shield themselves by precedents set by good judges in good times.
Therefore, because the fine has been imposed by a court of the United States for an offense triable by jury, without the same being submitted