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Mr. Justice Story has said in the United States v. Battiste 1 : "If the jury were at lib erty to settle the law for themselves, the effect would be, not only that the law itself would be most uncertain, from the different views which juries might take of it, but in case of error there would be no remedy or redress of the injured party, for the Court would not have any right to review the law as it had been settled by the jury. Indeed it would be almost impracticable to ascertain what the law, as settled by the jury, actually was. On the contrary, if the court should err in laying down the law to the jury, there is an adequate remedy for the injured party by a motion for a new trial or a writ of error as the nature of the particular jurisdiction may require. Every person accused as a criminal has a right to be tried according to the law of the land — the fixed law of the land, and not by the law as a jury may understand it, or choose from wantonness, ignorance, or accidental mistake to interpret it." This is very able and sound reasoning, no doubt; but, after all, with the play of con science allowed to jurors in all criminal trials, to ignore the instruction of the judge if it conflicts with the dictates of conscience, the result deplored by Judge Story very often happens. The chief Justice of Montana in 3 Crim. Law Mag. 497, says of the law as interpreted by juries : " It is a mystery and a myth; no one can lay his hands upon it; no one can construe or interpret it; it affords no guide for the future, for it vanishes into nonentity the moment the verdict is returned, and the verdict makes no sign; the decision and the judges quickly disappear. ' The showman and the show, themselves but shadows, into shadows go.'" In the noted Anarchist cases, tried at Chicago in 1887, the judge of the trial court instructed the jury that if they could say upon their oaths that they knew the law better than the court itself, they have the 1 2 Sumn. (U. S.) 243.
right to follow their own interpretation; but that before doing so they should reflect whether from their study and experience they are better qualified to judge of the law than the court. The appellate court held this instruction as proper. (Spies et al. v. People, 122 Ill. 25, 3 Am. St. Rpts. 461.1 Such a spectacle as shown here in the passing of judge and jury, or rather of jury and judge, for the jury is the prominent charac ter in the scene, would almost produce a blush upon the bronze cheek of the statue of Liberty. Yet this spectacle could hardly be different in a state with the same consti tutional distrust of the integrity and ability of its judiciary. The learned Sharswood, while Chief Justice of Pennsylvania in 1879, attempted to estab lish this doctrine in the jurisprudence of that State (Kane v. Com. 89 Pa. 525*). He held that the jury judge of the law in all criminal cases. Having the power, they have the right to give a verdict contrary to the instructions of the court upon the law. The court may present the considerations which should induce them to follow its in structions, but should not give a binding instruction which it would be powerless to enforce by granting a new trial if the in structions were disregarded. The great drift of authority in the Amer ican States follows the well settled English practice, which regards as repugnant to judicial dignity and usefulness any theory or practice other than that which gives to the judiciary the exclusive right to interpret the law. And let us hope that it will not be long before the several remaining states of the American Union will lay aside this relic of a semi-barbaric legal age, and adopt the homogeneous principle and practice of the best nations of the earth. 1 See also Schnier v. People, 23 Ill. 17; Fishery. People, 23 id. 218; Mullinix v. People, 76 id. 211; Davison ^. People, 90 id. 221. 2 See Nicholson v. Commonwealth, 96 id. 503.
