In cases of this kind, when justice is on one side and the court on the other, it seems to me a conscientious man
the testimony of each witness forms one element of that evidence. The jury alone are to determine whether the testimony of the witnesses proves the fact.
The second question, (a) as to the deed which constitutes the crime, and (b) as to the law which denounces the crime, they are to settle by evidence; the testimony of the judge, of the States' Attorney, of the prisoner's counsel, each forms an element of that evidence. The jury alone are to determine whether that testimony proves that the deed constitutes the crime, and that there is a law denouncing death against it; and the jury are to remember that the Judge and the attorney who are the creatures of the government, and often paid to serve its passions, may be, and often have been, quite as partial, quite as unjust, as the prisoner's counsel.
The third question, as to punishing the prisoner, after the other questions are decided against him, is to be settled solely by the mind and conscience of the jury. If they know that John Doe did eat the Medford cracker, that the deed legally constitutes the crime of treason, and that there is a legal and constitutional statute denouncing death on that crime, they are still to determine, on their oath as jurors, on their manhood as men, whether John Doe shall suffer the punishment of death. They are jurors to do justice, not injustice; what they think is justice, not what they think injustice.
The government theory, though often laid down in the charge, is seldom if ever practically carried out by a judge in its full extent. For he does not declare on his own authority what is the law and what constitutes the crime, but gives the statutes, precedents, decisions, and the like; clearly implying by this very course that the jury are not to take his authority barely, but his reasons if reasonable.
In the majority of cases, the statute and the ruling of the court come as near to real justice as the opinion of the jury does; then if they are satisfied that the prisoner did the deed alleged, they return a verdict of guilty with a clear conscience, and subject the man to what they deem a just punishment for an unjust act. Their conduct then seems to confirm the government theory of the jurors' function. Lawyers and others sometimes reason exclusively from such cases, and conclude such is the true and actual theory thereof. But when a case occurs, wherein the ruling of the judge appears wrong to the jury; when he declares legal and constitutional what they think is not so; Avhen he declares that a trifiing offence constitutes a great crime; when the statute is manifestly unjust, forbidding what is not wrong, or when the punishment denounced for a real wrong is excessive, or any punishment is provided for a deed not wrong, though there is no doubt of the facts, the jury will not convict. Sometimes they will acquit the prisoner; sometimes fail to agree. The history of criminal trials in England and America proves this. In such cases the jury are not false to their function and jurors' oath, but faithful to both, for the jurors are the "country"—the justice and humanity of men.
Suppose some one should invent a machine to be used in criminal trials for determining the testimony given in court. Let me call it a Martyrion. This instrument receives the evidence and determines and reports the fact that the prisoner did, or did not, do the deed alleged. According to the government theory, the Martyrion would perfectly perform all the functions of the jury in a criminal case; but would any community substitute the machine for the jury of "twelve good men and true?" If the jury is to be merely the judge's machine, it had better be of iron and gutta-percha than of human beings.
In Philadelphia, some years ago, a man went deliberately and shot a person who had seduced his sister under circumstances of great atrocity. He was indicted for wilful murder. There was no doubt as to the fact, none as to the law,
