UNITED STATES REPORTS VOLUME 156 CASES ADJUDGED IN THE SUPREME COURT AT OCTOBER TERM, 1894 J. C. BANCROFT DAVIS REPORTER NEW YORK AND ALBANY BANKS & BROTHERS, LAW PUBLISHERS 1895 Copyright, 1895, By BANKS & BROTHERS. JUSTICES OF THE SUPREME COURT DURING THE TIME OF THESE REPORTS. MELVILLE WESTON FULLER, Chief Justice. STEPHEN JOHNSON FIELD, Associate Justice. JOHN MARSHALL HARLAN, Associate Justice. HORACE GRAY, Associate Justice. DAVID JOSIAH BREWER, Associate Justice. HENRY BILLINGS BROWN, Associate Justice. GEORGE SHIRAS, Jr., Associate Justice. HOWELL EDMONDS JACKSON, Associate Justice.1 EDWARD DOUGLASS WHITE, Associate Justice. RICHARD OLNEY, Attorney General. LAWRENCE MAXWELL, Jr., Solicitor General. ' HOLMES CONRAD, Solicitor General.1 2 JAMES HALL McKENNEY, Clerk. JOHN MONTGOMERY WRIGHT, Marshal. 1 Mr. Justice Jackson, by reason of illness, heard argument in no case after October 23, 1894. 2 Mr. Maxwell resigned January 30, 1895. Mr. Conrad was commissioned February 6, 1895, and qualified February 7, 1895. iii TABLE OF CONTENTS. TABLE OF CASES REPORTED. l-'AGK Andrews v. Swartz . .........................272 Ard v. Brandon............................537 Ard v. Pratt..............................537 Arizona Territory, Maricopa and Phoenix Railroad Company v............................... 347 Atlantic, Gulf and West India Transit Company, Johnson v. . ........ 618 Baltimore, Postal Telegraph Cable Company v. . 210 Bank of Rondout, McGahan v................218 Bank of Rondout v. Smith .................330 Bannon and Mulkey v. United States .... 464 Batchelor v. United States ...... 426 Bates, Pittsburg and Southern Coal Company v. . . 577 Beach, Wood v. . ..............................548 Bell Silver and Copper Mining Company v. First National Bank of Butte .........................470 Berdan Fire-Arms Manufacturing Company v. United States.................................552 Berdan Fire-Arms Manufacturing Company, United States v. . ....................552 Black Diamond Coal Mining Company v. Excelsior Coal Company...............................611 Boston Cash Indicator and Recorder Company, National Cash Register Company v. .... ■: 502 Brandon, Ard v......... 537 Brown, Illinois Central Railroad Company v. . . • 386 Brown v. Webster..........................328 Burgess, Lindsay v. ....... 208 Burnham, Maddox v........ 544 vi TABLE OF CONTENTS. Table of Cases Reported. PAGE Carr v. Fife . . ............................494 Carter, St. Louis and San Francisco Railway Company v. 667 Chapman, Petitioner, In re.......................211 Citizens’ Saving and Loan Association v. Perry County 692 Coffin v. United States..........................432 Connell v. Smiley.............................. 335 Corinne Mill Canal and Stock Company v. Johnson . 574 Corning, Palmer v................................342 Cunningham v. Macon and Brunswick Railroad Company 400 Davis v. Wakelee.................................680 Delaware and Hudson Canal Company v. Pennsylvania 200 Dunbar v. United States..........................185 E. C. Knight Company, United States v. 1 Easton, Stuart v. ................................46 Emert v. Missouri ........ 296 Evers v. Watson ....... 527 Excelsior Coal Company, Black Diamond Coal Mining Company v....................................611 Fife, Carr v.....................................494 First National Bank of Butte, Bell Silver and Copper Mining Company v. ...... 470 First National Bank of Shreveport, Lindsay v. . . 485 Fox v. Haarstick.................................674 Gill, St. Louis and San Francisco Railway Company v. 649 Goldey v. Morning News . . ... . . 518 Grimm v. United States...........................604 Haarstick, Fox v............................ . 674 Hays v. Steiger..................................387 Hudson v. Parker............................... 277 Illinois Central Railroad Company v. Brown . . 386 In re Chapman, Petitioner........................211 In re Lehigh Mining and Manufacturing Company, Petitioner .......................................322 TABLE OF CONTENTS. vii Table of Cases Reported. PAGE In re Robertson, Petitioner . . . . . 183 In re Schriver, Petitioner...........................218 In re Streep, Petitioner.............................207 Johnson v. Atlantic, Gulf and West India Transit Company .............................................618 Johnson, Corinne Mill Canal and Stock Company v. . 574 Lazarus v. Phelps....................................202 Lehigh Mining and Manufacturing Company, Petitioner, In re . . . . . . . . 322 Letcher, Rouse v......................................47 Lindsay v. Burgess *.................................208 Lindsay v. First National Bank of Shreveport . . 485 Louisiana, Pittsburg and Southern Coal Company v. 590 McGahan v. Bank of Rondout . . . . . 218 Macon and Brunswick Railroad Company, Cunningham v. 400 Maddox v. Burnham....................................544 Maricopa and Phoenix Railroad Company v. Arizona Territory........................................347 Mather v. Rillston . . . . . . 391 Mattox v. United States ...... 237 Missouri, Emert v. 296 Missouri ex rel. Merriam, St. Louis, Cape Girardeau and Fort Smith Railway Company v.....................478 Montgomery, Winter v.................................385 Morning News, Goldey v...............................518 National Cash Register Company v. Boston Cash Indi- cator and Recorder Company .... 502 Norfolk and Western Railroad Company v. Pendleton 667 Palmer v. Corning . . . . . - . . . 342 Parker, Hudson v. . . . . . . . 277 Pendleton, Norfolk and Western Railroad Company v. . 667 Pennsylvania, Delaware and Hudson Canal Company v. 200 Perry County, Citizens’ Saving and Loan Association v. 692 viii TABLE OF CONTENTS. Table of Cases Reported. . PAGE Phelps, Lazarus v......................................202 Pittsburg and Southern Coal Company v. Bates . . 577 Pittsburg and Southern Coal Company v. Louisiana . 590 Postal Telegraph Cable Company v. Baltimore . . 210 Pratt, Ard v................................ . . 537 Rillston, Mather v.....................................391 Robertson, Petitioner, In re ' . . '. . . 183 Roller Mill Patent ....................................261 Rouse v. Letcher ....... 47 St. Louis and San Francisco Railway Company r. Carter 667 St. Louis and San Francisco Railway Company v. Gill . 649 St. Louis and San Francisco Railway Company v. Stevenson ................................................667 St. Louis and San Francisco Railway Company v. Trimble 667 St. Louis, Cape Girardeau and Fort Smith Railway Com- pany v. Missouri, ex ret. Merriam .... 478 Sal ton stall v. Wiebusch..............................601 Schriver, Petitioner, In re . . . . . .218 Smiley, Connell v......................................335 Smith, Bank of Rondout v...............................330 Sparf and Hansen v. United States . . . .51, 715 Steiger, Hays v.........................................387 Stevenson, St. Louis and San Francisco Railway*Com-pany v. . 667 Streep, Petitioner, In re.............................. 207 Stuart v. Easton........................................46 Swartz, Andrews v.......................................272 Thoman, United States ex rel. Siegel v. . . . 353 Trimble, St. Louis and San Francisco Railway Company v. 667 United States, Bannon and Mulkey v.....................464 United States, Batchelor v. ..... 426 United States v. Berdan Fire-Arms Manufacturing Company ...............................................552 United States, Berdan Fire-Arms Manufacturing' Com-pany v..............................................552 TABLE OE CONTENTS. ix Table of Cases Reported. PAGE United States, Coffin v...............................432 United States, Dunbar -y..............................185 United States v. E. C. Knight Company ... 1 United States, Grimm u . . . . . 604 United States, Mattox v...............................237 United States ex rel. Siegel v. Thoman . . . 353 United States, Sparf and Hansen v. . . . 51, 715 Wakelee, Davis v......................................680 Waldron v. Waldron....................................361 Waldron, Waldron v....................................361 Watson, Evers v.......................................527 Webster, Brown v. . 328, Wiebusch, Saltonstall v...............................601 Winter v. Montgomery ............................... 385, Wood v. Beach...................................... 548, Appendix......................................... 71 & Index......................................k 717. TABLE OF CASES CITED IN OPINIONS. PAGE Abbot». Wilbur, 22 La. Ann. 368 691 Adams v. State, 29 0. St. 412 86 Ahlhauser v. Butler, 50 Fed. Rep. 705 526 Alcorn v. Chicago & Alton Railway, 108 Mo. 81 58 Alexander v. People, 96 Ill. 96 454 American Fur Co. v. United States, 2 Pet. 358 469 American Ins. Co. v. Fisk, 1 Paige Ch. 90 688 American Woodenware Co. v. Stem, 63 Fed. Rep. 676 520 Ames v. Kansas, 111 U. S. 449 129 Andrews v. Hovey, 124 U. S. 694 169 Anon. (1697), 3 Salk. 373 127 Arnot v. Pittston & Elmira Coal Co., 68 N. Y. 558 27 Aron v. Manhattan Railroad Co., 132 U. S. 84 515, 517 Asher ®. Texas, 128 U. S. 129 319 Atchison v. Morris, 11 Bissell, 191 526 Attorney General v. Tongue, 12 Price, 51 307 Aveson v. Kinnaird, 6 East, 188 246, 254 Ayers v. Watson, 113 U. S. 594 339 Ayers v. Watson, 132 U. S. 394 247, 253, 254 Baker v. Preston, Gilmer, 235 152 Bank of United States v. Halstead, 10 Wheat. 51 281 Bank of Wilmington v. Wollaston, 3 Harr. (Del.) 90 * 688 Barden v. Northern Pacific Rail- road, 154 U. S. 288 576 Barnet v. People, 54 Ill. 325 242 Barney v. Latham, 103 U. S. 205 341 Barron v. Burnside, 121 U. S. 186 523 Bartholomew v. Clark, 1 Conn. 472 146 Bateman v. Burr, 57 Cal. 480 477 PAGE Bates v. United States, 10 Fed. Rep. 92 610 Bayard’s Case, 14 How. St. Tr. 471 146 Bayard’s Lessee v. Colefax, 4 Wash. C. C. 38 205 Baylis v. Lawrence, 11 Ad. & El. 920; S. C. 3 Per. & Dav. 526 142 Beers v. Houghton, 9 Pet. 329 281, 282 Belcher v. Chambers, 53 Cal. 635 689 Bell v. Wardell, Willes, 204 129 Bennett v. Butterworth, 11 How. 669 493 Bentlif v. London & Colonial Cor- poration, 44 Fed. Rep. 667 520, 526 Bigelow, Ex parte, 113 U. S. 328 215 Bingham v. Cabot, 3 Dall. 19 158 Bingham v. Cabot, 3 Dall. 382 47 Binney v. Chesapeake & Ohio Canal Co., 8 Pet. 201 359 Bishop of Meath v. Marquis of Winchester, 4 Cl. & Fin. 445 99 Black v. State, 1 Tex. App. 368 457 Blair v. Turtle, 1 McCrary, 372 526 Blake v. San Francisco, 113 U. S. - 679 516 Blake v. State, 130 Ind. 203 153 Blake v. State, 3 Tex. App. 581 454 Blitz v. United States, 153 U. S. 308 175 Bloomer v. State, 48 Md. 521 152 Bollman and Swartwout, Ex parte, 4 Cranch, 75 66 Bors v. Preston, 111 U. S. 252 47 Bostick v. State, 3 Humph. 344 241 Bostwick v. Gasquet, 10 La. 80 152 Bowen’s Case, Bowen’s Trial, 51 145 Bowman v. Chicago & N. W. Rail- way, 125 U. S. 465 12 Boyce v. Grundy, 3 Pet. 210 688 Boynton v. Ball, 121 U. S. 457 689 Bradstreet, Ex parte, 4 Pet. 102 208, 288 Brady v. Waldron, 2 Johns. Ch. 148 235 xi xii TABLE OF CASES CITED. PAGE Brennan v. Titusville, 153 U. S. 289 319, 320 Bright v. Eynon, 1 Burr. 390 129 Brison v. Brison, 90 Cal. 323 678 Broderick Will Case, 21 Wall. 503 493 Brogy v. Commonwealth, 10 Grat. 722 241 Broil v. State, 45 Md. 356 152 Brooks v. Clark, 119 U. S. 502 341 Brow v. State, 103 Ind. 133 380 Brown v. Commonwealth, 73 Penn. St. 321 242 Brown v. Commonwealth, 87 Va. 215 86 Brown v. Houston, 114 U. S. 622 317, 584, 588, 589 Brown v. Keene, 8 Pet. 115 47 Brownu. King, 5Met. (Mass.) 173 205 Brown v. Maryland, 12 Wheat. 419 12, 15, 312, 313, 316, 321 Brown v. Piper, 91 U. S. 37 515, 616 Brown v. State, 40 Ga. 689 86 Brown v. United States, 150 U. S. 93 56 Bryan v. Bates, 12 Allen, 201 286 Buchanan v. Litchfield, 102 U. S. 278 701, 712 Buckworth’s Case, T. Raym. 170 241 Bullock v. Smith, 15 Ga. 395 380 Burr’s Case, Burr’s Trial 66 78, 94, 165 Bushell’s Case, Vaughan, 135; 8. a 6 How. St. Tr. 999; 1 Freeman, 1; T. Jones, 13 90, 91, 116,119, 120, 121, 172 Bushnell v. Kennedy, 9 Wall. 387 522, 523 Cady v. Shepherd, 11 Pick. 400; (S'. C. 22 Am. Dec. 379 233 Caha v. United States, 152 U. S. 211 239 Cairo v. Zane, 149 U. S. 122 704, 713 Caldwell v. Auger, 4 Minn. 217; 8. C. 77 Am. Dec. 515 688 Callender’s Case, Wharton’s State Trials, 688 70, 164 Capital & Counties Bank v. Henty, 7 App. Cas. 741 134 Capron v. Van Noorden, 2 Cranch, 125 47 Carpenter v. Westinghouse Co., 32 Fed. Rep. 434 520 Carter v. State, 2 Ind. 617 153 Catlett v. Brodie, 9 Wheat. 553 287 Central Ohio Salt Co. v. Guthrie, 35 O. St. 666 27 Chamberlain v. St. Paul & Sioux City Railroad, 92 U. S. 299 419, 420 Chapman v. Brewer, 114 U. S. 158 532 Charles Morgan, The, 115 U. S. 69 246 PAGE Chase’s Case, Chase’s Trial, (Evans’ ed.) 151 162 Chateaugay Iron Co., Petitioner, 128 U. S. 544 208, 281, 289 Chesapeake & Ohio Railway v. Miller, 114 U. S. 176 656, 673 Chicago & Grand Trunk Railway v. Wellman, 143 U. S. 339 658, 660 Chicago & North Western Rail- way v. Whitton. 13 Wall. 270 456 Chicago, Milwaukee &c. Kail- way v. Artery, 137 U. S. 507 246 Chicago, Milwaukee &c. Rail- way v. Minnesota, 134 U. S. 418 658 Claasen’s Case, 140 U. S. 200 283, 284, 293 Claflin v. Commonwealth Ins. Co., 110 U. S. 81 523 Clark v. Commonwealth, 123 Penn. St. 81 104 Clark v. Spence, 10 Watts, 335 258 Clark’s Case, 17 How. St. Tr. 667, n.; N. C. 1 Barnard. 304 128 Clayton v. Utah, 132 U. S. 632 351 Clements v. Warner, 24 How. 394 543 Clews v. Woodstock Co., 44 Fed. Rep. 31 520, 526 Clyde Mattox v. United States, 146 U. S. 140 244 Coe v. Errol, 116 U. S. 517 13,41 Coffin v. Coffin, 4 Mass. 1; 8. C. 3 Am. Dec. 189 145 Cohens v. Virginia, 6 Wheat. 264 20, 286 Collins v. Riggs, 14 Wall. 491 425 Colorado Central Mining Co. v. Turek, 150 U. S. 138 50 Commonwealth v. Anthes, 5 Gray, 185, 80,82,91,114,146,164,169 Commonwealth v. Baker, 155 Mass. 287 610 Commonwealth v. Carlisle, Brightly, (Penn.) 36 35 Commonwealth v. Costley, 118 Mass. 1 199 Commonwealth v. Gardner, 133 Penn. St. 284 309 Commonwealth v. Garth, 3 Leigh, 761 152 Commonwealth v. Harman, 4 Penn. St. 269 85 Commonwealth v. Knapp, 10 Pick. 477; 6'. C. 20 Am. Dec. 534 146 Commonwealth v. McKie, 1 Gray, 61; 8. C. 61 Am. Dec. 410 178 Commonwealth v. McManus, 143 Penn. St. 64 85 Commonwealth v. Ober, 12 Cush. 493 308 Commonwealth v. Porter, 10 Met. (Mass.) 263 79, 82, 169 TABLE OF CASES CITED. xiii PAGE Commonwealth v. Richards, 18 Pick. 434 ; /S'. C. 29 Am. Dec. 608 241 Commonwealth v. Robinson, 1 Gray, 555 58 Commonwealth v. Rock, 10 Gray, 4 82 Commonwealth v. Sherman, 13 Allen, 248 452 Commonwealth v. Sherry, Whar- ton on Homicide, Appx. 481 84 Commonwealth v. Thornton, 14 Gray, 41 451 Commonwealth v. Vansickle, Brightly, (Penn.) 69 85 Commonwealth v. Van Tuyl, 1 Met. (Ky.) 1; S.C. 71 Am. Dec. 455 86 Commonwealth v. Webster, 5 Cush. 295 ; N. C. 52 Am. Dec. 711 454 Commonwealth v. Whittaker, 131 Mass. 224 454 Commonwealth v. Worcester, 3 Pick. 462 145 Concorde. Robinson, 121 U. S. 165 698 Connolly v. Taylor, 2 Pet. 556 47 Conrad v. Griffey, 16 How. 38 246, 253 Cook ».Pennsylvania, 97 U. S. 566 316 Cooley v. Board of Wardens, 12 How. 299 587 County Commissioners v. Clark, 94 U. S. 278 101 County of Mobile v. Kimball, 102 U. S. 691 22 Cowles v. Brittain, 2 Hawks, 204 309 Cox v. Lee, L. R. 4 Ex. 284 142 Coy, In re, 127 U. S. 731 215 Craft v. Commonwealth, 81 Ky. 250 249, 255, 256 Craft v. McConoughy, 79 Ill. 346 28 Crane, Ex parte, 5 Pet. 190 288 I Crary v. Sprague, 12 Wend. 41 ; N. C. 27 Am. Dec. 110 242 Credit Co. v. Arkansas Railway, 128 U. S. 258 288 Cross v. Burke, 146 U. S. 82 116 Cross v. De Valle, 1 Wall. 1 686 Cross v. United States, 145 U. S. 571 115 Curr v. Hundley, 31 Pac. Rep. 939 58 Currier v. Gale, 9 Allen, 522 205 Dainese v. Kendall, 119 U. S. 53 333 Dale v. Cooke, 4 Johns. Ch. 11 686 Dance’s Case, 5 Munf. 349 152 Daniels v. Tearney, 102 U. S. 415 691 D’Arcy v. Ketchum, 11 How. 165 521 Davenport ». Commonwealth, 1 Leigh, 588 . 152 Davis ». Patrick, 122 U. S. 138 378 Dean of St. Asaph’s Case, 4 Doug. 73; N. C. 21 How. St. Tr. 847; 3 T. R. 428, n. 81, 116, 129, 130, 132, 133, 134, 147 PAGE Delaware County v. Diebold Co., 133 U. S. 473 523 Denny v. Pironi, 141 U. S. 121 47 Dent v. West Virginia, 129 U. S. 114 320, 322 Des Moines Navigation Co. v. Iowa Homestead Co., 123 U. S. 552 533 Dickerson ». Burke, 25 Ga. 225 380 Dillin ». People, 8 Mich. 357 383 Dixon County ». Field, 111 U. S. 83 713 Dow ». Beidelman, 125 U. S. 681 658, 661 Dowell ». Applegate, 152 U. S. 327 533 Drake ». State, 24 Vroom, (53 N. J. Law,) 23 151 Drexel ». Berney, 122 U. S. 241 686 Duffy ». People,*26 N. Y. 588 83 Duncan ». Lyon, 3 Johns. Ch. 351 ; S. C. 8 Am. Dec. 513 686 I Duncan ». Missouri, 152 U. S. 377 185 I Dunlap ». State, 9 Tex. App. 179 242 Dyson, Ex parte, 25 Miss. 356 290 Edwards ». Connecticut Ins. Co., 20 Fed. Rep. 452 522 Elgin Co. ». Atchison &c. Rail- way, 24 Fed. Rep. 866 520, 526 Eliot ». Himrod, 108 Penn. St. 569 292 Ellis ». White, 61 Iowa, 243 691 Eustis ». Bolles, 150 U. S. 361 386 Evans ». United States, 153 U. S. 584 429, 448, 451, 469 Everett ». Saltus, 15 Wend. 474 691 Famous Smith ». United States, 151 U. S. 50 100, 174 Farman ». Lanman, 73 Ind. 568 380 Farmer ». National Life Associa- tion, 138 N. Y. 265 523 Ficklen ». Shelby Taxing District, 145 U. S. 1 320 Fidelity Co. ». Mobile Railway, 53 Fed. Rep. 850 521 Finn ». Commonwealth, 5 Rand. (Va.) 701 241 Fishburn ». Chicago &c. Rail- way, 137 U. S. 60 281 Fisher ». People, 23 Ill. 283 153 Fisher ». Railway Co., 131 Penn. St. 292 86 Fitzgerald Co. ». Fitzgerald, 137 U. S. 98 522 Fletcher ». Fletcher, 5 La. Ann. 406 257 Fletcher ». Henley, 13 La. Ann. 191 257 Fogarty ». Sawyer, 17 Cal. 589 476 Forrest ». Union Pacific Rail- road, 47 Fed. Rep. 1 526 Foster ». Kansas, 112 U. S. 201 288 xiv TABLE OF CASES CITED. PAGE Foster v. Mansfield, Coldwater &c. Railroad, 146 U. S. 88 535 Francklin’s Case, 17 How. St. Tr. 625 128, 129 Franklin v. State, 12 Md. 236 152 Frederick, Petitioner, In re, 149 U. S. 70 ' 215 Fries’ Case, Chase’s Trial, App. 44; 8. C. Trials of Fries, 180; Wharton’s St. Tr. 634 69, 70, 162 Frisbie-r. Whitney, 9 Wall. 187 542 Frost v. Wolf, 77 Tex. 455 233 Galliher v. Cadwell, 145 U. S. 368 647 Gaylord v. Van Loan, 15 Wend. 308 688 Georgia v. Brailsford, 2 Dall. 402 155 Georgia v. Brailsford, 3 Dall. 1 64, 154, 156, 157 German Bankr. Franklin County, 128 U. S. 526 703, 704 Gibbons v. Ogden, 9 Wheat. 1 12, 15, 19, 21, 36, 45 Gibbons v. United States, 8 Wall. 269 566 Gloucester Ferry Co. v. Pennsyl- vania, 114 U. S. 196 22 Goldey v. Morning News, 42 Fed. Rep. 112 520 Good Hope Co. v. Railway Barb Fencing Co., 23 Blatch. 43 520 Goodnow v. Hill, 125 Mass. 587 383 Gordon, Ex parte, 1 Black, 503 176 Gordon v. Longest, 16 Pet. 97 523 Graffty v. Rushville, 107 Ind. 502 309 Grant v. Burr, 54 Cal. 298 477 Graser v. Stellwagen, 25 N.Y. 315 233 Gray v. Finch, 23 Conn. 495 205 Green v. Custard, 23 How. 484 523 Greene v. Darling, 5 Mason, 201 686 Grendon v. Bishop of London, 2 Plowd. 493 93 Griffith v. State, 37 Ark. 324 250,255 Grignon’s Lessee v. Astor, 2 How. 319 532 Groenwelt v. Burwell, 1 Ld. Raym. 454 120 Gunter v. Williams, 40 Ala. 561 233 Hadden v. Collector, 5 Wall. 107 292 Hahn v. Kelly, 34 Cal. 391; 8. C. 94 Am. Dec. 742 689 Hailes v. Van Wormer, 20 Wall. 253 345 Hall v. Lanning, 91 U. S. 160 521 Hamblin v. Western Land Co., . 147 U. S. 531 483 Hamilton v. People, 29 Mich. 173 83 Hancock v. Day, McMullan Eq. 69; 8. C. 36 Am. Dec. 293 236 Hardeman v. Anderson, 4 How. 640 281 Hardin v. Hardin, 34 S. C. 77 235 PAGE Hardy v. State, 7 Mo. 607 86 Harkness v. Hyde, 98 U. S. 476 351, 520, 526 Harris’s Case, 7 How. St. Tr. 925 123 Harter ■». Kernochan, 103 U. S. 562 532 Hawes v. Gustin, 2 Allen, 402 383 Heath, Petitioner, In re, 144 U. S. 92 115 Hedge v. Clapp, 22 Conn. 262; 8. C. 58 Am. Dec. 424 252,256 Hendrick v. Lindsay, 93 U. S. 143 174 Hendrickson v. Chicago &c. Rail- way, 22 Fed. Rep. 569 526 Hendy v. Miners’ Iron Works, 127 U. S. 370 617 Henfleld’s Case, Wharton’s State Trials, 48 68, 69, 158 Hill v. Chicago & Evanston Railroad, 129 U. S. 170; 140 U. S. 52 335 Hillr. United States, 149 U. S. 593 566 Hiller v. Burlington &c. Railroad, 70 N. Y. 223 520 Hinson v. Lott, 8 Wall. 148, 314, 315, 316 Hodges’s Case, 3 Hall’s Law Tracts, 19; 8. C. 2 Wheeler Crim. Cas. 477 163 Hoff" v. Crafton, 79 N. C. 592 380 Hohorst, In re, 150 U. S. 653 522 Holbrook v. Wight, 24 Wend. 169; 8. C. 35 Am. Dec. 607 691 Holt v. Robertson, McMullan Eq. 475 236 Hooker v. Vandewater, 4 Denio, 351 ; N. C. 47 Am. Dec. 258 27 Hopt v. Utah, 110 U. S. 574 55, 178 Hopt v. Utah, 120 U. S. 430 199, 383, 454 Horn v. Lockhart, 17 Wall. 570 645 Horne v. George H. Hammond Co., 155 U. S. 393 47 Horne’s Case, 20 How. St. Tr. 709 130 Hostler v. Hays, 3 Cal. 302 688 Howe v. Sheppard, 2 Sumner, 409 686 Howe Machine Co. v. Cage, 9 Baxter, 518 309, 311 Hubbard v. Briggs, 31 N. Y. 518 250, 255 Hudelson v. State, 94 Ind. 426 153 Hudgins v. Kemp, 18 How. 530 283 Hunnicutt v. Peyton, 102 U. S. 333 378 Hunt v. State., 81 Ga. 140 86 Huntington, In re, 137 U. S. 63 217 India Bagging Association v. Kock, 14 La. Ann. 168 29 Insurance Co. v. Bruce, 105 U. S. 328 702, 703, 704 TABLE OF CASES CITED. xv PAGE Insurance Co. v. Morse, 20 Wall. 445 523 J. E. Rumbell, The, 148 U. S. 1 169 Jackson v. Twentyman, 2 Pet. 136 47 Jenkins v. N. C. Ore Dressing Co., 65 N. C. 563 380 Jerome v. McCarter, 21 Wall. 17 287 Johnston v. Standard Mining Co., 148 U. S. 360 648 Johnston v. State, 2 Yerger, 58 241 Jones v. Massey, 14 S. C. 292 236 Jones v. State, 52 Ark. 345 105 Kane v. Commonwealth, 89 Penn. St. 522 85, 87, 151 Kansas City, Lawrence &c. Railroad v. Attorney General, 118 U. S.682 540, 549 Kauffman v. Kennedy, 25 Fed. Rep. 785 526 Kearney, Ex parte, 7 Wheat. 38 176 Keller v. Ashford, 133 U. S. 610 237 Kendrick v. State, 10 Humphrey, 479 241 Kennedy v. Georgia State Bank, 8 How. 586 533 Kidd v. Pearson, 128 U. S. 1 14, 16, 22, 34, 35 Kimball v. Davis, 19 Wend. 437 250, 256 King®. Baldwin, 17 Johns. 384; 8. C. 8 Am. Dec. 415 688 King v. Burdett, 3 B. & Aid. 717; 4 B. & Aid. 95; 8. C. 1 St. Tr. (N. S.) 1 140, 141, 179, 180 King v. Francis, 2 T. R. 484 129 King v. Gallun, 109 U. S. 99 616 King v. Joliffe, 4 T. R. 285 240 King v. Poole, Cas. Temp. Hard-wicke, 23; & O. Cunningham, 11 94, 128, 129 King v. Radbourne, 1 Leach Cr. Law, 457 240 King v. Shipley, 4 Doug. 73; 8. C. 21 How. St. Tr. 847; 3 T. R. 428, n. 81, 116, 129, 130, 132, 133, , . 134, 147 King v. Withers, 3 T. R. 428 95, 134 ] Knapp v. Morss, 150 U. S. 221 515 ] Knowles v. Gaslight Co., 19 Wall. _58,_ 521 ] Koch v. Briggs, 14 Cal. 256; Ä C. 73 Am. Dec. 651 475, 473 ] Lafayette Ins. Co. v. French, 18 How. 404 522 ] Lancaster, In re, 137 U. S. 393 217 1 Lancaster ®. Collins, 115 U. S. 1 222 206 Lane County v. Oregon, 7 Wall. 71 19 J Lazarus v. Phelps, 152 U. S. 81 203 Lee v. Johnson, 116 U. S. 48 501 I Leeper ». Texas, 139 U. S. 462 185 _ „ , PAGE Leffler v. Armstrong, 4 Iowa, 482; 3 8. C. 68 Am. Dec. 672 474 1 Leisy v. Hardin, 135 U. S. 100 r 12, 321, 322 Leloup v. Mobile, 127 IT. S. 640 320 ) Levi v. Milne, 4 Bing. 195 96,141, 142 r Levy v. Milne, 12 J. B. Moore, 418 96, 141, 142 1 Lewis v. Lee County, 66 Ala. 480 109 . Lexington v. Butler, 14 Wall. 282 523 > License Cases, 5 How. 504 12 • Lilienthal’s Tobacco v. United States, 97 U. S. 237 178, 454 . Line v. State, 51 Ind. 172 457 Linford v. Ellison, 155 U. S. 503 351 Liverpool Steam Co. v. Phenix ' Ins. Co., 129 U. S. 397 169 Lloyd ®. H. & St. J. Railroad, 53 Mo. 509 380 Logan v. United States, 144 U. S. 263 56 Long v. State, 46 Ind. 489 457 Lotta wanna, The, 21 Wall. 558 284 Louisville v. Savings Bank, 104 U. S. 469 697 Louisville & Nashville Railroad v. Ide, 114 U. S. 52 340 Louisville & St. Louis Railroad v. Clarke, 152 U. S. 230 116 Lynch v. State, 9 Ind. 541 153 Lyng v. Michigan, 135 U. S. 161 321 Lyon’s Case, Wharton’s St. Tr. 333 164 McCaden v. Lowenstein, 92 Tenn. 614 58 McCarthy v. State, 56 Ind. 203 153 McClevnard v. Commonwealth, 12 S. W. Rep. 148 105 McCormick v. Sullivant, 10 Wheat. 192 533 McCoy v. State, 27 Tex. App. 415 104 McCulloch v. Maryland, 4 Wheat. 316 33, 39, 40 McDaniel v. State, 30 Ga. 853 152 McGillin v. Claflin, 52 Fed. Rep. 657 526 McGuffle v. State, 17 Ga. 497 152 Machine Co. v. Gage, 100 U. S. 676 311, 312, 316, 319 McKane v. Durston, 153 U. S. 684 275 Mackin v. United States, 117 U. S. 348 466, 467 McKinley’s Case, 33 St. Tr. 275 456 McLish v. Roff, 141 U. S. 661 387 McMullen v. State, 1 Tex. App. 577 457 Maddock v. Magone, 152 U. S. 368 602 Makin v. Attorney General, (1894) App. Cas. 57 181 XVI TABLE OF CASES CITED. PAGE Mansfield, Coldwater &c. Railway v. Swan, 111 U. S. 379 340 Marshall v. Hubbard, 117 U. S. 415 100, 101 Martin v. Baltimore & Ohio Railroad, 151 U. S. 673 339, 525 Martin v. Orndorff, 22 Iowa, 504 380 Mason v. Fearson, 9 How. 248 359 Maxwell Land Grant Co. v. Dawson, 151 U. S. 586 576 Maynard v. Hecht, 151 U. S. 324 326 Meehan v. Valentine, 145 U. S. 611 100 Mendenhall v. Hall, 134 U. S. 559 334 Mendum v. Commonwealth, 6 Rand. (Va.) 704 241 Mexican Central Railway v. Pink- ney, 149 U. S. 194 520, 522, 524, 526 Michaels v. Post, 21 Wall. 398 532 Michigan Ins. Bank v. Eldred, 143 U. S. 293 378 Miles v. United States, 103 U. S. 304 199 Miller’s Case, 20 How. St. Tr. 869 131 Mills v. Hoffman, 92 N. Y. 181 691 Milwaukee Railroad, Ex parte, 5 Wall. 188 281, 289 Miner v. Markham, 28 Fed. Rep. 387 526 Minnesota Co. v. St. Paul Co., 2 Wall. 609 49 Minor v. Mechanics’ Bank, 1 Pet. 46 359 Mirzan, Ex parte, 119 U. S. 584 217 Mobile v. Kimball, 102 U. S. 691 12 Montclair v. Dana, 107 U. S. 162 100 Montee v. Commonwealth, 3 J. J. Marsh, 132 82, 168 Montgomery v. State, 11 Ohio, 427 76, 86 Moorer v. State, 44 Ala. 15 454, 458 Morehead v. State, 34 O. St. 212 457 Morgan, Ex parte, 114 U. S. 174 289 Morgan v. Louisiana, 93 U. S. 217 656, 673 Morgan«.United States, 14 Wall. 531 566 Morgan’s Co. v. Texas Central Railway, 137 U. S. 171 49 Morrill v. State, 38 Wis. 428 309 Morris Run Coal Co. v. Barclay Coal Co., 68 Penn. St. 173 25 Mossman v. Higginson, 4 Dall. 12 47 Mullinix v. People, 76 Ill. 211 154 Mutual Life Ins. Co. v. Hillmon, 145 U. S. 285 58, 110 Myers v. State, 33 Tex. 525 86 Needier v. Bishop of Winchester, Hob. 220 116 Nels,«. State, 2 Tex. 280 86 PAGB Nelson v. Pinegar, 30 Ill. 473 235 New Orleans v. New Orleans Waterworks, 142 U. S. 79 483 New Orleans Insurance Co. v. Albro Co., 112 U. S. 506 685 New York v. Eno, 155 U. S. 89 115, 116 New York, Lake Erie & Western Railroad v. Pennsylvania, 153 U. S. 628 201 Nicholson v. Commonwealth, 96 Penn. St. 503 85 Nix v. Hedden, 149 U. S. 304 602 Noble v. Union River Logging Railroad, 147 U. S. 165 532 Northern Bank v. Porter Township, 110 U. S. 608 709 Nudd v. Burrows, 91 U. S. 426 469 O’Brian v. Commonwealth, 6 Bush, 563 242 O’Brien v. Commonwealth, 89 Ky. 354 105 O’Donnell v. Atchison &c. Rail- road, 49 Fed. Rep. 689 526 Ogletree v. State, 28 Ala. 693 458 Oregon Steam Nav. Co. v. Winsor, 20 Wall. 64 24 O’Reilly v. Edrington, 96 U. S. 724 287 Owen’s Case, 18 How. St. Tr. 1203 130 Owens v. State, 63 Miss. 450 242 Pacific Railroad v. Ketchum, 101 U. S. 289 532 Parker, Ex parte, 120 U. S. 737 289 Parker, In re, 131 U. S. 221 289 Parks, Ex parte, 93 U. S. 18 215 ’Parmiter v. Coupland, 6 M. & W. 104 97, 142 Parrott v. Alabama Ins. Co., 5 Fed. Rep. 391 526 Pearson v. Carlton, 18 S. C. 47 236 Peine v. Weber, 47 Ill. 41 233 Penn & Mead’s Case, 6 How. St. Tr. 951 119 Pennoyer v. Neff, 95 U. S. 714 521, 522, 685, 689 Pennsylvania «.Bell, Addison, 156 151 Pennsylvania «. M’Fall, Addison, 255 151 Pennsylvania Railroad «. Loco-tive Truck Co., 110 U. S. 490 515 People «. Anderson, 44 Cal. 65 83 People «. Barry, 90 Cal. 41 86, 103 People «. Beach, 87 N. Y. 508 57 People v. Chicago Gas Trust Co., 130 Ill. 269 29 People «. Chung Ah Chue, 57 Cal. 567 241 People «. Croswell, 3 Johns. Cas. 337 72, 114, 147, 149, 150, 173, 175 TABLE OF CASES CITED. xvii PARE People v. Downs, 123 N. Y. 558 178 People v. Fairchild, 48 Mich. 31 454 People v. Finnegan, 1 Parker’s Cr. Cas. 142 83 People v. Garbutt, 17 Mich. 9; 8. C. 97 Am. Dec. 162 179 People v. Graney, 91 Mich. 646 457 People v. Lenon, 79 Cal. 625 458 People v. Macard, 73 Mich. 15 457 People v. McNutt, 93 Cal. 658 103 People v. Madden, 76 Cal. 521 86 People v. Millard, 53 Mich. 63 454 People v. Neuman, 85 Mich. 98 86 People®. Noelke, 94 N. Y. 137 611 People ®. Oiler, 66 Cal. 101 241 People ®. Potter, 89 Mich. 353 457 People ®. Qurise, 59 Cal. 343 241 People ®. Russell, 49 Mich. 617 309 People ®. Thayers, 1 Parker’s Crim. Cas. 595 150 People ®. Videto, 1 Parker’s Crim. Cas. 603 150 People ®. Wright, 93 Cal. 564 86 Pepke ®. Cronan, 155 U. S. 100 276 Perkins ®. Hendryx, 40 Fed. Rep. 657 526 Peugh ®. Davis, 110 U. S. 227 283 Philadelphia &c. Railroad ®. Howard, 13 How. 307 689 Phillips ®. Detroit, 111 U. S. 601 616 Pickering ®. McCullough, 104 U. S. 310 345 Pierce v. State, 13 N. H. 536 72, 83 Pike ®. Bacon, 21 Me. 280; 8. C. 38 Am. Dec. 259 233 Pleasant ®. State, 13 Ark. 360 86 Pleasants ®. Fant, 22 Wall. 116 100, 101, 174 Plumley ®. Massachusetts, 155 U. S. 461 321, 322 Pollard ®. Dwight, 4 Cranch, 421 520 Pope ®. Terre Haute Co., 87 N. Y. 137 520 Postal Telegraph Co. ®. Adams, 155 U. S. 688 320 Postal Telegraph Co. v. Charles- ton, 153 U. S. 692 320 Potter ®. United States, 155 U. S. 438 178 Poultney v. La Fayette, 12 Pet. 472 284 Priesmuth®. State, 1 Tex.App. 480 457 Pullman’s Car Co.®. Pennsylvania, 141 U. S. 18 320 Queen ®. Bertrand, L. R. 1 P. C. 520 142 Queen ®. Eduljee Byramjee, 5 Moore P. C. 276 142 Queen ®. Reeve, L. R. 1 C. C. 362 56 Queen’s Case, 2 Brod. & Bing. 284 252, 256, 257 PAGE Rahrer, In re, 140 U. S. 545 12, 321 Railroad Commission Cases, 116 U. S. 307 658 Railroad Companies ®. Schutte, 103 U. S. 118 422 Railroad Co. ®. McCarthy, 96 U. S. 258 ' 690 Railroad Co. ®. National Bank, 102 U. S. 14 691 Railway Co. ®. Gill, 54 Ark. 101 656 Railway Co. ®. Roberts, 141 U. S. 690 387 Randall ®. Baltimore & Ohio Railroad, 109 U. S. 478 100 Rathbone ®. Warren, 10 Johns. 587 688 Rawlyn’s Case, 4 Rep. 52 a 115 Raymond ®. Leavitt, 46 Mich. 447 32 Reagan ®. Farmers’ Loan & Trust Co., 154 U. S. 362 658,662 Reckendorfer ®. Faber, 92 U. S. 347 345 Reeves ®. Templar, 2 Jur. 137 98 Regina ®. Parish, 8 Carr. & P. 94 96 Reifsnider ®. American Publish- ing Co., 45 Fed. Rep. 433 520, 526 Removal Cases, 100 U. S. 457 532 Rex ®. Court, 7 Car. & P. 486 56 Rex ®. Gill, 2 B. & Aid. 204 468 Rex ®. Hamilton, 7 Carr. & P. 448 468 Rex ®. Oneby, 2 Str. 766; 8. G. 2 Ld. Raym. 1485; 1 Barnard. 17; 17 How. St. Tr. 29 94, 127 Rex ®. Smith, 2 Starkie, 208 240 Reynolds ®. United States, 98 U. S. 145 242 Rich ®. Keyser, 54 Penn. St. 86 291 Richardson ®. Buhl, 77 Mich. 632 30 Richmond ®. Irons, 121 U. S. 27 50 Ridenhour ®. State, 75 Ga. 382 169 Robbins ®. Shelby Taxing Dis- trict, 120 U. S. 489 21, 318, 319 Robbins ®. State, 8 O. St. 131 86 Roberts ®. State, 68 Ala. 515 242 Robertson ®. Cease, 97 U. S. 646 47 Robinson ®. State, 66 Ga. 517 86 Robinson ®. State, 68 Ga. 833 242 Robinson ®. State, 84 Ga. 674 105 Rolling Mill Co. ®. Ore & Steel Co., 152 U. S. 596 686 Royall, Ex parte, 117 U. S. 241 215, 216, 217 Rumery ®. McCulloch, 54 Wis. 565 233 Runyan ®. Price, 15 O. St. 1; 8. G. 86 Am. Dec. 459 249, 255, 256 Russell ®. Annable, 109 Mass. 72 233 Safford ®. People, 1 Parker’s Cr. Cas. 474 83 Sage®. Railroad Co., 96 U. S. 712 283 St. Clair ®. Cox, 106 U. S. 350 522 xviîi TABLE OF CASES CITED. PAGE St. Clair V. United States, 154 U. S, 134 52, 110 St. Germain v. Brunswick, 135 U. S. 227 516 St. Lawrence, The, 1 Black, 522 284 St. Louis v. Western Union Tel. Co., 148 U. S. 92 211 St. Louis &c. Railway v. Gill, 156 U. S. 649 , 667 St. Louis Co. v. Consolidated Barb Wire Co., 32 Fed. Rep. 802 520 Salinas v. Bennett, 33 S. C. 285 233 Santa Clara Mill & Lumber Co. v. Hayes, 76 Cal. 387 29 Saratoga Bank v. King, 44 N. Y. 87 27 Saunders v. Baxter, 53 Tenn. 369 380 Saunders v. People, 38 Mich. 218 610 Sayles'v. Northwestern Ins. Co., 2 Curtis, 212 522 Scaife v. Thomson, 15 S. C. 337 236 Schall v. Bowman, 62 Ill. 321 697 Schillinger v. United States, 155 U. S. 163 566 Schmertz v. Shreeve, 62 Penn. St. 457 233 Schneider, Petitioner, In re, 148 U. S. 162 215 Schofield v. Chicago & St. Paul Railway, 114 U. S. 615 100, 174 Searle v. Sawyer, 127 Mass. 491 235 Seven Bishops’ Case, 12 How. St. Tr. 183 124, 125 Shebbeare’s Case, 4 Collection of Tracts (1763-1770), 162 130, 131 Shepley v. Cowan, 91 U. S. 330 542 Sherlock v. Alling, 93 U. S. 99 33 Shibuya Jugiro, In re, 140 U. S. 291 276 Sidney’s Case, 9 How. St. Tr. 817 124 Siebold, Ex parte, 100 U. S. 371 276 Sir John Fenwick’s Case, 13 How. St. Tr. 537 240 Skillern’s Executors v. May’s Executors, 6 Cranch, 267 533 Small v. Montgomery, 5 Mc- Crary, 440 526 Smelting Co.«. Kemp, 104 U.S. 636 501 Smith v. Alabama, 124 U. S. 465 598 Smith v. Hardy, 36 Wis. 417 205 Smith v. Kerr, 3 Comst. (3 N. Y.) 144 233 Smith v. Whitman, 6 Allen, 562 383 Smith’s Case, Trials of Smith and Ogden, 236 162 Southampton Dock Co. v. Southampton Harbour Board, L. R. 17 Eq. 254 688 Southern Pacific Co. v. Denton, 146 Ü. S. 202 523, 524, 526 Specht v. Howard, 16 Wall. 564 383 Spies v. Illinois, 122 Ill. 1 154 Sprott v. United States, 20 Wall. 459 646 Stacy v. Graham, 14 N. Y. 492 248, 255 Stanton v. Allen, 5 Denio, 434 27 Starr v. United States, 153 U. S. 614 179 State v. Able, 65 Mo. 357 242 State«. Atkins, 1 Overton, 229 241 State v. Baker, 24 Mo. 437 242 State v. Bartlett, 43 N. H. 224; 8. C. 80 Am. Dec. 154 454 State v. Brite, 73 N. C. 26 . 109 State v. Buckley, 40 Conn. 246 146 State v. Burpee, 65 Vt. 1 72, 86 State v. Campbell, 1 Rich. (S. C.) 124 241 State v. Casford, 76 Iowa, 330 104 State v. Cook, 23 La. Ann. 347 242 State v. Croteau, 23 Vt. 14; N. C. 54 Am. Dec. 90 72, 86, 114, 146 State v. Drawdy, 14 Rich. (S. C.) 87 86 State v. Emert, 103 Mo. 241 310 State v. Elwood, 73 N. C. 189 86 State v. Estep, 44 Kansas, 572 105 State v. Ford, 37 La. Ann. 443 86 Stater. Glidden, 55 Conn. 46 35 State v. Hodge, 50 N. H. 510 146 State v. Hooker, 17 Vt. 658 242 State v. Houser, 26 Mo. 431 242 State v. Jansen, 22 Kansas, 498 611 State v. Jay, 5 Vroom, (34 N. J. Law,) 368 151 State v. Jeandell, 5 Harr. (Del.) 475 86 State v. Johnson, 30 La. Ann. 904 86 State v. Johnson, 12 NeV. 121 242 State v. Jones, 5 Ala. 666 152 State v. Jones, 64 Mo. 391 86 State v. Jurche, 17 La. Ann. 71 152 State v. Lane, 64 Mo. 319 104 State v. McKinney, 111 N. C. 683 104 State v. McLain, 104 N. C. 894 86 State v. McO’Blenis, 24 Mo. 402; 8. C. 69 Am. Dec. 435 242 State v. May, 4 Dev. (Law) 330 383 State v. Musick, 101 Mo. 260 104 State v. Richards, 32 W. Va. 348 309 State v. Scott, 11 La. Ann. 429 152 State v. Smith, 6 R. I. 33 84 State v. Snow, 18 Me. 346 146 State v. Stewart, 59 Vt. 273 34 State v. Stickney, 53 Kansas, 308 611 State v. Tibbetts, 53 Me. 81 454 State v. Tisdale, 41 La. Ann. 338 169 State v. Valentine, 7 Iredell, (Law,) 225 242 State r. Wilkinson, 2 Vt. 480; 8. C. 21 Am. Dec. 560 146 State v. Williams, 65 N. C. 505 380 TABLE OF CASES CITED. xix PA.GK State v. Wilson, 24 Kansas, 189 242 State v. Wright, 53 Me. 328 86 Steam Packet Co. v. Sickles, 10 How. 419 572 Stettinius v. United States, 5 Cranch C. C. 73 79 Stewart v. Dunham, 115 N. Y. 61 50 Stobart v. Dryden, 1 M. & W. 615 247, 254 Stockton v. Bishop, 2 How. 74 281 Stoutenburgh v. Hennick, 129 U. S. 141 320 Stroman v. Yarn, 19 S. C. 307 233 Stuart v. Laird, 1 Cranch, 299 169 Sullivan v. Smith, 15 Neb. 476 233 Summons®. State, 5 Ohio St. 325 242 Supervisors v. United States, 4 Wall. 435 359 Swan, In re, 150 U. S. 637 215 Swan v. Arthur, 103 U. S. 597 602 Sweeny v. Coffin, 1 Dill. 73 526 Tallman v. Baltimore & Ohio Railroad, 45 Fed. Rep. 156 523 Taylor, Ex parte, 14 How. 3 289 Teague v. Russell, 2 Stew. (Ala.) 450 688 Teal v. Walker, 111 U. S. 242 235 Tennessee Bond Cases, 114 U. S. 663 420 Terhune v. Phillips, 99 U. S. 592 616 Test v. Larsh, 76 Ind. 452 691 Texas Standard Oil Co. v. Adoue, 83 Tex. 650 32 Thatcher Heating Co. v. Burtis, 121 U. S. 286 346 Thompson v. Bostick, McMullan Eq. 75 236 Thompson v. Carroll’s Lessee, 22 How. 422 359 Thompson v. Railroad Companies, 6 Wall. 134 493 Town of Coloma v. Eaves, 92 Ü. S. 484 712 Town of Prairie &c. v. Lloyd, 97 Ill. 179 712 Townsend v. State, 2 Blackf. 151 153 Townsend’s Case, 1 Plowd. Ill 93 127 Tozer v. N. Y. Central &c. Railroad, 105 N. Y. 659 58 Tracy v. State, 3 Mo. 3 309 Tripp v. Santa Rosa Street Railroad, 144 U. S. 126 684 Tucker®. Henniker, 41 N. H. 317 380 Tucker®. Welsh, 17 Mass. 160; S. C. 9 Am. Dec. 137 252, 256 Turner ».Newburgh, 109 N.Y. 301 58 Turner ®. Rody, 3 N. Y. 193 688 Tutchin’s Case, 14 How. St. Tr. 1095 127, 147 Tyler, In re, 149 U. S. 164 215 | PAGE Union Pacific Railway v. Hutchinson, 40 Kansas, 51 86 Unis v. Charlton, 12 Grat. 484 250, 256 United States v. Adams, 59 Fed. Rep. 674 610 United States v. American Bell Tel. Co., 29 Fed. Rep. 17 520 United States v. Battiste, 2 Sumner, 240 73, 168 United States v. Britton, 107 U. S. 655 429,449 United States v. Britton, 108 U. S. 199 469 United States v. Carli, 105 U. S. 611 192, 193 United States v. Claflin, 13 Blatch. 178 191 United States v. Curry, 6 How. 106 684 United States v. Dorsey, 40 Fed. Rep. 752 610 United States v. Fries, 3 Dall. 515 175 United States v. Gibert, 2 Sumner, 19 175 United States v. Greathouse, 4 Sawyer, 457 78 United States v. Harding, 1 Wall. Jr. 127 175 United States v. Hutchings, 2 Wheeler Crim. Cas. 543 167 United States v. Jahn, 155 U. S. 109 327 United States v. Jones, 3 Wash. C. C. 209 167 United States v. Keen, 1 McLean, 429 175 United States v. Keller, 19 Fed. Rep. 633 79 United States v. Knight, 14 Pet. 301 282 United States v. Macomb, 5 McLean, 286 175, 242 United States v. Matthews, 35 Fed. Rep. 890 610 United States v. Missouri, Kansas & Texas Railway, 141 U. S. 358 541 United States v. Moore, 19 Fed. Rep. 39 610 United States v. More, 3 Cranch, 159 176 United States v. Morris, 1 Curtis, 23 65, 74, 98, 107 United States v. Murphy, 16 Pet. 203 258 United States v. Northway, 120 U. S. 327 429, 447, 449, 450 United States v. Palmer, 128 U. S. 262 566, 569 United States v. Palmer, 3 Wheat. 610 167 XX TABLE OF CASES CITED. PAGE United States v. Perrin, 131 U. S. 55 176 United States v. Poillon, 1 Carolina Law Repository, 60 163 United States v. Riley, 5 Blatch. 204 79 United States v. Rundlett, 2 Curtis, 41 282 United States v. Russell, 13 Wall. 623 569 United States v. Sanges, 144 U. S. 310 176 United States v. Shive, Baldwin, 510 73, 164 United States v. Simmons, 47 Fed. Rep. 723 294 United States v. Simmons, 96 U. S. 360 448 United States v. Smith, 3 Blatch. 255 175 United States v. Staats, 8 How. 41 466, 467 United States v. Taylor, 3 McCrary, 500 105 United States v. Tweed, 16 Wall. 504 456 United States v. Walsh, 5 Dill. 58 468 United States v. White, 5 Cranch C. C. 457 242 United States v. Whittier, 11 Bissell, 356 285 United States v. Whittier, 5 Dill. 35 610 United States v. Wight, 38 Fed. Rep. 106 610 United States v. William, 2 Hall’s L. J. 255 163 United States v. Williams, 1 Cliff. 5 175 United States v. Wilson and Por- ter, Baldwin, 78 72, 73,163, 164, 175 United States v. Wood, 3 Wash. C. C. 440 242 Utah & Northern Railway v. Fisher, 116 U. S. 28 351 Van Brunt v. Applegate, 44 N. Y. 544 " 233 Veazie v. Moor, 14 How. 568 15 Virginia v. Paul, 148 U. S. 107 289 Walling v. Michigan, 116 U. S. 446 317, 318, 322 Walton v. Shelley, 1 T. R. 296 254 Ward v. Chamberlain, 2 Black, 430 281 Ward v. Maryland, 12 Wall. 418 315, 316 Ward v. Wilms, 16 Colo. 86 58 Warren v. State, 4 Blackf. 150 153 Washington v. Pratt, 8 Wheat. 681 359 PAGE Watkins, Ex parte, 3 Pet. 193 215, 533 Watson v. Sutherland, 5 Wall. 74 688 Wayman v. Southard, 10 Wheat. 1 281 Webber v. Virginia, 103 U. S. 344 316, 317 Wehrman v. Conklin, 155 U. S. 314 686 Welland Canal Co. v. Hathaway, 8 Wend. 480; S.C. 24 Am. Dec. 51 688 Welton v. Missouri, 91 U. S. 275 315, 316 Weymouth®. Boyer, 1 Ves. Jr.416 688 Wharton v. State, 73 Ala. 366 454 Wheeler v. State, 42 Md. 563 152 Wightman v. Providence, 1 Cliff. 524 380 Williams v. State, 32 Miss. 389 ; & C. 66 Am. Dec. 615 86, 90 Willion v. Berkley, 1 Plowd. 221 93 Wilson, Exparte, 114 U. S. 417 467, 468 Wilson v. Gaines, 103 U. S. 417 656, 673 Wilson v. Hunter, 14 Wis. 683; 8. C. 80 Am. Dec. 795 233 Wilson v. Seligman, 144 U. S. 41 521 Winter v. Coit, 7 N. Y. 288 ; 8. C. 57 Am. Dec. 522 691 Wisconsin v. Pelican Ins. Co., 127 U. S. 265 157 Witham v. Lewis, 1 Wilson, 48 129 Witter v. Brewster, Kirby, 422 146 Wollensak v. Sargent, 151 U. S. 227 515 Wolsey v. Chapman, 101 U. S. 755 549 Wood, In re, 140 U. S. 278 276 Wood v. Seely, 32 N. Y. 105 691 Woodfall’s Case, 20 How. St. Tr. 895; 8. C. 5 Burr. 2661 131, 132 Woodruff v. Parham, 8 Wall. 123 314, 316, 587, 600 Worcester®. Georgia, 6 Pet. 515 286 World ®. State, 50 Md. 49 152 Worthington ®. Robbins, 139 U. S. 337 604 Worthy ®. Johnson, 8 Ga. 236; N. C. 52 Am. Dec. 399 424 Wright ®. Littler, 3 Burr. 1244 246, 254 Wroe ®. State, 20 O. St. 460 249, 255 Wynne ®. Wright, 1 Dev. & Bat. 19 309 Yarbrough, Ex parte, 110 U. S. 651 176, 215 Yoe ®. People, 49 Ill. 410 380 York ®. Texas, 137 U. S. 15 521 Yosemite Valley Case, 15 Wall. 77 542 Zenger’s Case, 17 How. St. Tr. 675 147, 151 TABLE OF STATUTES CITED IN OPINIONS. (A.) Statutes of the United States. PAGE 1789, Sept. 24, 1 Stat. 81, c. 20, 281, 282, 520 1790, Apr. 80, 1 Stat. 113, c. 9... 166 1790, May 26, 1 Stat. 122, c. 11.. 521 1792, May 8, 1 Stat. 276, c. 36.,. 281 1798, July 14,1 Stat. 596, c. 74, 76, 161 1802, Apr. 29, 2 Stat. 159, c. 31.. 176 1804, Mar. 27, 2 Stat. 299, c. 56.. 521 1808, Jan. 8, 2 Stat. 453, c. 8, 162, 163 1811, Feb. 20, 2 Stat. 641, c. 21.. 600 1828, May 19, 4 Stat. 281, c. 68.. 281 1842, Aug. 23, 5 Stat. 518, c. 188, * 281 282 1862, May 20, 12 Stat. 392, c. 75,’ 546 1862, July 1, 12 Stat. 457, c. 119, 314 1866, July 13, 14 Stat. 172, c. 184, 286 1866, July 23, 14 Stat. 218, c. 219, 388 1866, July 26, 14 Stat. 290, c. 270, 551 1867, Mar. 2, 14 Stat. 428, c. 153, 645 1872, June 1, 17 Stat. 197, c. 255, 281 1875, Feb. 18, 18 Stat. 318, c. 80, 520 1875, Mar. 3, 18 Stat. 470, c. 137, 339, 340, 531, 532 1879, Mar. 3, 20 Stat. 354, c. 176, 285, 291 1879, May 17, 21 Stat. 4, c. 8.... 466 1880, May 14, 21 Stat. 141, c. 89. 546 1883, Jan. 6, 22 Stat. 400, c. 13.. .239 1885, Mar. 3, 23 Stat. 443, c. 355, 350 1887, Mar. 3, 24 Stat. 552, c. 373 . 339 1888, Aug. 13, 25 Stat. 433, c. 866, 339, 524 1889, Feb. 6, 25,Stat. 656, c. 113, 176, 286, 291 1890, May 2, 26 Stat. 81, c. 182.. 239 1890, July 2, 26 Stat. 209, c. 647, 9, 16, 22, 23, 34, 39, 40, 42, 46 1890, Aug. 8, 26 Stat. 313, c. 728, 321 PAGE 1890, Oct. 1, 26 Stat. 567, c. 1244, 189 1891, Mar. 3, 26 Stat. 826, c. 517, 48, 49, 176, 282, 283, 284, 287, 291, 326, 327 1893, Feb. 9, 27 Stat. 434, c. 74.. 216 Revised Statutes. § 605..................... 294 § 650..................... 327 § 651..................176,327 § 652..................... 327 § 693..................... 327 § 697..................176,327 § 716..................281,283 § 905............ '..........521 § 914..................281,524 § 917......................282 §§ 999, 1000............... 283 §§ 1002,1003................. 283 § 1007.......................283 § 1011.......................520 § 1014 ..............282, 285, 290 §§ 1015, 1016.............285, 290 § 1017...................286,290 § 1025..’................... 192 § 1035 ...............62, 63, 181 § 1039 ..................239, 240 § 2258...................... 550 § 2289...................... 550 § 2297...................... 498 § 2865...................... 190 § 3028...................... 190 §§ 4884-4886................. 566 § 5209...................... 429 § 5339...................61, 112 § 5372...................... 167 § 5431...................... 193 § 5440...................466,468 (B.) Statutes of the States and Territories. Arizona. Rev. Stat. 1887, § 954.......... 353 Arkansas. 1887, Apr. 4, Acts of 1887, Arkansas (coni.) p. 227, c. 129 ... .652, 653, 655, 657, 665 California. Practice Act, § 260.....475, 476 xxi xxü TABLE OF STATUTES CITED. PAGE Florida. 1853, Jan. 8, Acts of 1852-53, c. 482, No. 3.............641, 643 1855, Jan. 6, Acts of 1854-55, c. 610, No. 1.......640, 641, 642, 643, 644, 645 1855, Dec. 14, Acts of 1855, c. 729, No. 120...........643, 644 1869, June 24, Acts of 1869, c. 1716, No. 4................ 640 1872, Jan. 18, Acts of 1872, c. 1918, No. 56 ...........640, 644 Georgia. ' . 1866, Dec. 3, Acts of 1866, No. 178, p. 127.. .420, 421, 422, 423, 424,‘425 1870, Oct. 29, Acts of 1870, No. 219, p. 336...420, 421, 422, 423, 424, 425 Illinois. 1849, Nov. 6, 1 Gross’ Ill. Stat. 1869, p. 552.....695, 696, 697, 701, 702, 709 1857, Feb. 14, Pr. Laws of 1857, p. 707 .....694, 697, 701 1869, Mar. 4, Pr. Laws of 1869, Vol. 2, p. 824........705 1869, Apr. 16, Pub. Laws of 1869, p. 317......698, 700, 701, 702, 703, 710, 712 Louisiana. 1877, Acts of 1877, No. 30, 358, 360, 361 1880, Acts of 1880, No. 77, 585, 586 1 1882, Acts of 1882, No. 20, 358, 360 '1886, Acts of 1886, No. 98 . ..491 1886, Acts of 1886, No. 109, 358, 360 1888, Acts of 1888, No. 85 .. .491 1888, Acts of 1888, No. 147, 597, 599, 600 Massachusetts. 1713, Stats. 1713-14, c. 7.... 307 1716, Stats. 1716-17, c. 10... 307 1721, Stats. 1721-22, c. 6.... 307 PACK Massachusetts (cont.) 1726, Stats. 1726-27, c. 4.... 307 1785, Stats. 1785, c. 2..... 307 1799, Stats. 1799, c. 20 ... 307 1820, Stats. 1820, c. 45.... 307 1846, Stats. 1846, c. 244. ... 307 Rev. Stats, c. 35 .......... 307 Michigan. 1889, June 28, Pub. Laws of 1889, p. 282, No. 202..... 660 Minnesota. 1887, Mar. 7, Gen. Laws of 1887, p. 49, c. 10...... 658 Mississippi. 1884-^Mar. 11, Laws of 1884, . p. 31t,c. 23............... 658 Missouri, 't-x. Rev. Statsf (1879) §§-¿4.71-6473 ............ 309 r §§ 6476-6479 ............ 309 Montana. Rev. Stat. §,!371........473, 475 New Jersey. 1676, Learning & Spicer’s Laws, 396-398............. 151 1681, Learning & Spicer’s Laws, 428, 429 ........... 151 1795, Mar. 6, Revision of 1821, p. 184, § 13........ 275 1874, Mar. 27, Revision of 1877, p. 266 ............. 274 Rev. Stat. (1877) 283, § 83.. 272 Rev. Stat. 272, § 30........ 276 New York. Code Civ. Proc. (1847) § 138, 687 Code Civ. Proc. § 532....... 687 Utah. 2 Comp. Laws, p. 251, § 3248, 677 p. 288, §§ 3379-3381...... 677 Virginia. 1837, Mar. 11, Acts of 1836-37, p. 101, c. 118............ 669 1853, Jan. 14, Acts of 1852- 53, p. 62, c. 57.......... 668 1870, June 17, Acts of 1869- 70, p. 181, c. 143........ 670 • (C.) Fobeign Statutes. Great Britain. 13 Edw. 1, c. 30.......... 115 11 Hen. 7, c. 24.......... 117 21 Jac. 1, c. 3............. 9 1 W. & M. Sess. 2, c. 2... 126 Great Britain (co»i.) 32 Geo. 3, c. 60....... .81, 97, 98, 134, 150 50 Geo. 3, c. 41............. 307 46 Viet. c. 17............... 180 CASES ADJUDGED IN THE SUPREME COURT JÆ TJÈ UNITED STATES, OC^pBE^PTERM, 1894. UNITED STATES v. E. 0. KNIGHT COMPANY. APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. No. 675. Argued October 24,1894. —Decided January 21, 1895. The monopoly and restraint denounced by the act of July 2, 1890, c. 647, 26 Stat. 209, “to protect trade and commerce against unlawful restraints and monopolies,” are a monopoly in interstate and international trade or commerce, and not a monopoly in the manufacture of a necessary of life. The American Sugar Refining Company, a corporation existing under the laws of the State of New Jersey, being in control of a large majority of the manufactories of refined sugar in the United States, acquired, through the purchase of stock in four Philadelphia refineries, such disposition over those manufactories throughout the United States as gave it a practical monopoly of the business. Held, that the result of the transaction was the creation of a monopoly in the manufacture of a necessary of life, which could -not be suppressed under the provisions of the act of July 2, 1890, c. 647, 26 Stat. 209, “ to protect trade and commerce against unlawful restraints and monopolies,” in the mode attempted in this suit ; and that the acquisition of Philadelphia refineries by a New Jersey corporation, and the business of sugar refining in Pennsylvania, bear no direct relation to commerce between the States or with foreign nations. VOL. CLVI—1 1 2 OCTOBER TERM, 1894. Statement of the Case. This was a bill filed by the United States against E. C. Knight Company and others, in the Circuit Court of the United States for the Eastern District of Pennsylvania, charging that the defendants had violated the provisions of an act of Congress approved July 2,1890, c. 647, entitled “ An act to protect trade and commerce against unlawful restraints and monopolies,” 26 Stat. 209, “providing that every contract, combination in the form of trust, or otherwise, or conspiracy in restraint of trade and commerce among the several States is illegal, and that persons who shall monopolize or shall attempt to monopolize, or combine or conspire with other persons to monopolize trade and commerce among the several States, shall be guilty of a misdemeanor.” The bill alleged that the defendant, the American Sugar Refining Company, was incorporated under and by virtue of the laws of New Jersey, whose certificate of incorporation named the , places in New Jersey and New York at which its principal business was to be transacted, and several other States in which it proposed to carry on operations, and stated that the objects for which said company was formed were “ the purchase, manufacture, refining, and sale of sugar, molasses, and melads, and all lawful business incidental thereto; ” that the defendant, E. C. Knight Company, was incorporated under the laws of Pennsylvania “ for the purpose of importing, manufacturing, refining and dealing in sugars and molasses,” at the city of Philadelphia; that the defendant, the Franklin Sugar Company, was incorporated under the laws of Pennsylvania “for the purpose of the manufacture of sugar and the purchase of raw material for that purpose,” at Philadelphia; that the defendant, Spreckels Sugar Refining Company, was incorporated under the laws of Pennsylvania “ for the purpose of refining sugar, which will involve the buying of the raw material therefor and selling the manufactured product, and of doing whatever else shall be incidental to the said business of refining,” at the city of Philadelphia; that the defendant, the Delaware Sugar House, was incorporated under the laws of Pennsylvania “ for the purpose of the manufacture of sugar and syrups, and preparing the same for UNITED STATES v. E. C. KNIGHT CO. 3 Statement of the Case. market, and the transaction of such work or business as may be necessary or proper for the proper management of the business of manufacture.” It was further averred that the four defendants last named were independently engaged in the manufacture and sale of sugar until on or about March 4, 1892; that the product of their refineries amounted to thirty-three per cent of the sugar refined in the United States; that they were competitors with the American Sugar Refining Company; that the products of their several refineries were distributed among the several States of the United States, and that all the companies were engaged in trade or commerce with the several States and with foreign nations; that the American Sugar Refining Company had, on or prior to March 4, 1892, obtained the control of all the sugar refineries of the United States with the exception of the Revere of Boston, and the refineries of the four defendants above mentioned; that the Revere produced annually about two per cent of the total amount of sugar refined. The bill then alleged that in order that the American Sugar Refining Company might obtain complete control of the price of sugar in the United States, that company, and John E. Searles, Jr., acting for it, entered into an unlawful and fraudulent scheme to purchase the stock, machinery, and real estate of the other four corporations defendant, by which they attempted to control all the sugar refineries for the purpose of restraining the trade thereof with other States as theretofore carried on independently by said defendants; that in pursuance of this scheme, on or about March 4, 1892, Searles entered into a contract with the defendant Knight Company and individual stockholders named, for the purchase of all the stock of that company, and subsequently delivered to the defendants therefor in exchange shares of the American Sugar Refining Company; that on or about the same date Searles entered into a similar contract with the Spreckels Company and individual stockholders, and with the Franklin Company and stockholders, and with the Delaware Sugar House and stockholders. It was further averred that the American Sugar Refining Company monopolized the manufacture-and 4 OCTOBER TERM, 1894. Statement of the Case. sale of refined sugar in the United States, and controlled the price of sugar; that in making the contracts, Searles and the American Sugar Refining Company combined and conspired with the other defendants to restrain trade and commerce in refined sugar among the several States and foreign nations, and that the said contracts were made with the intent to enable the American Sugar Refining Company to restrain the sale of refined sugar in Pennsylvania and among the several States, and to increase the regular price at which refined sugar was sold, and thereby to exact and secure large sums of money from the State of Pennsylvania, and from the other States of the United States, and from all other purchasers, and that the same was unlawful and contrary to the said act. The bill called for answers under oath, and prayed — “1. That all and each of the said unlawful agreements made and entered into. by and between the said defendants, on or about the fourth day of March, 1892, shall be delivered up, cancelled, and declared to be void; and that the said defendants,. the American Sugar Refining Company and John E. Searles, Jr., be ordered to deliver to the other said defendants respectively the shares of stock received by them in performance of the said contracts; and that the other said defendants be ordered to deliver to the said defendants, the American Sugar Refining Company and John E. Searles, Jr., the shares of stock received by them respectively in performance of the said contracts. “2. That an injunction issue preliminary until the final determination of this cause, and perpetual thereafter, preventing and restraining the said defendants from the further performance of the terms and conditions of the said unlawful agreements. “ 3. That an injunction may issue preventing and restraining the said defendants from further and continued violations o of the said act of Congress, approved July 2, 1890. “ 4. Such other and further relief as equity and justice may require in the premises.” Answers were filed and evidence taken, which was thus UNITED STATES v. E. C. KNIGHT CO. 5 Statement of the Case. sufficiently summarized by Judge Butler in his opinion in the Circuit Court: “ The material facts proved are that the American Sugar Refining Co., one of the defendants, is incorporated under the laws of New Jersey, and has authority to purchase, refine, and sell sugar ; that the Franklin Sugar Refinery, the E. C. Knight Co., the Spreckels Sugar Refinery, and the Delaware Sugar House, were incorporated under the laws of Pennsylvania, and authorized to purchase, refine, and sell sugar.; that the four latter Pennsylvania companies were located in Philadelphia, and prior to March, 1892, produced about thirty-three per cent of the total amount of sugar refined in the United States, and were in active competition with the American Sugar Refining Co., and with each other, selling their product wherever demand was found for it throughout the United States; that prior to March, 1892, the American Sugar Refining Co. had obtained control of all refineries in the United States, excepting the four located in Philadelphia, and that of the Revere Co. in Boston, the latter producing about two per cent of the amount refined in this country; that in March, 1892, the American Sugar Refining Co. entered into contracts (on different dates) with the stockholders of each of the Philadelphia corporations named, whereby it purchased their stock, paying therefor by transfers of stock in its company; that the American Sugar Refining Co. thus obtained possession of the Philadelphia refineries and their business ; that each of the purchases was made subject to the American Sugar Refining Co. obtaining authority to increase its stock $25,000,000; that this assent was subsequently obtained and the increase made ; that there was no understanding or concert of action between the stockholders of the several Philadelphia companies respecting the sales, but that those of each company acted independently of those of the others, and in ignorance of what was being done by such others ; that the stockholders of each company acted in concert with each other, understanding and intending that all the stock and property of the company should be sold; that the contract of sale in each instance left the sellers free to establish other refineries 6 OCTOBER TERM, 1894. Statement of the Case. and continue the business if they should see fit to do so, and contained no provision respecting trade or commerce in sugar, and that no arrangement or provision on this subject has been made since; that since the purchase the Delaware Sugar House Refinery has been operated in conjunction with the Spreckels Refinery, and the E. C. Knight Refinery in connection with the Franklin, this combination being made apparently for reasons of economy in conducting the business; that the amount of sugar refined in Philadelphia has been increased since the purchases; that the price has been slightly advanced since that event, but is still lower than it had been for some years before, and up to within a few months of the sales; that about ten per cent of the sugar refined and sold in the United States is refined in other refineries than those controlled by the American Sugar Refining Co.; that some additional sugar is produced in Louisiana and some is brought from Europe, but the amount is not large in either instance. “The object in purchasing the Philadelphia refineries was to obtain a greater influence or more perfect control over the business of refining and selling sugar in this country.” The Circuit Court held that the facts did not show a contract, combination, or conspiracy to restrain or monopolize trade or commerce “ among the several States or with foreign nations,” and dismissed the bill. 60 Fed. Rep. 306. The cause was taken to the Circuit Court of Appeals for the Third Circuit, and the decree affirmed. 60 Fed. Rep. 934. This appeal was then prosecuted. The act of Congress of July 2, 1890, c. 647, is as follows : “An act to protect trade and commerce against unlawful restraints and monopolies. “ Sec. 1. Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal. Every person who shall make any such contract or engage in any such combination or conspiracy, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by a fine not exceeding five thousand dollars, or by imprisonment not exceeding one UNITED STATES v. E. C. KNIGHT CO. 7 Statement of the Case. year, or by both said punishments, in the discretion of the court. “ Sec. 2. Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by fine not exceeding five thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court. “ Sec. 3. Every contract, combination in form of trust or otherwise, or conspiracy, in restraint of trade or commerce in any Territory of the United States or of the District of Columbia, or in restraint of trade or commerce between any such Territory and another, or between any such Territory or Territories and any State or States or the District of Columbia, or with foreign nations, or between the District of Columbia and any State or States or foreign nations, is hereby declared illegal. Every person who shall make any such contract or engage in any such combination or conspiracy, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by a fine not exceeding five thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court. “ Sec. 4. The several Circuit Courts of the United States are hereby invested with jurisdiction to prevent and restrain violations of this act; and it shall be the duty of the several district attorneys of the United States, in their respective districts, under the direction of the Attorney General, to institute proceedings in equity to prevent and restrain such violations. Such proceedings may be by way of petition setting forth the case and praying that such violation shall be enjoined or otherwise prohibited. When the parties complained of shall have been duly notified of such petition the court shall proceed, as soon as may be, to the hearing and determination of the case; and pending such petition and before final decree, the court may at any time make such temporary 8 OCTOBER TERM, 1894. Counsel for Appellees. restraining order or prohibition as shall be deemed just in the premises. “Seo. 5. Whenever it shall appear to the court before which any proceeding under section four of this act may be pending, that the ends of justice require that other parties should be brought before the court, the court may cause them to be summoned, whether they reside in the district in which the court is held or not; and subpoenas to that end may be served in any district by the marshal thereof. “Seo. 6. Any property owned under any contract or by any combination, or pursuant to any conspiracy (and being the subject thereof) mentioned in section one of this act, and being in the course of transportation from one State to another, or to a foreign country, shall be forfeited to the United States, and may be seized and condemned by like proceedings as those provided by law for the forfeiture, seizure, and condemnation of property imported into the United States contrary to law. “ Sec. 7. Any person who shall be injured in his business or property by any other person or corporation by reason of anything forbidden or declared to be unlawful by this act, may sue therefor in any Circuit Court of the United States in the district in which the defendant resides or is found, without respect to the amount, in controversy, and shall recover threefold the damages by him Sustained, and. the costs of suit, including a reasonable attorney’s fee. “ Sec. 8. That the word ‘ person,’ or ‘ persons,’ wherever used in this act, shall be deemed to include corporations and associations existing under or authorized by the laws of either the United States, the laws of any of the Territories, the laws of any State, or the laws of any foreign country.” 26 Stat. 209, c. 647. J/A Solicitor General and Mr. S. F. Phillips, (with whom was Mr. Attorney General on the brief,) for appellants. Mr. John G. Johnson, (with whom was Mr. John E. Parsons on the brief,) for appellees. UNITED STATES v. E. C. KNIGHT CO. 9 Opinion of the Court. Me. Chief Justice Fuller, after stating the case, delivered the opinion of the court. By the purchase of the stock of the four Philadelphia refineries, with shares of its own stock, the American Sugar Refining Company acquired nearly complete control of the manufacture of refined sugar within the United States. The bill charged that the contracts under which these purchases were made constituted combinations in restraint of trade, and that in entering into them the defendants combined and conspired to restrain the trade and commerce in refined sugar among the several States and with foreign nations, contrary to the act of Congress of July 2, 1890. The relief sought was the cancellation of the agreements under which the stock was transferred; the redelivery of the stock to the parties respectively; and an injunction against the further performance of the agreements and further violations of the act. As usual, there was a prayer for general relief, but only such relief could be afforded under that prayer as would be agreeable to the case made by the bill and consistent with that specifically prayed. And as to the injunction asked, that relief was ancillary to and in aid of the primary equity, or ground of suit, and, if that failed, would fall with it. That ground here was the existence of contracts to monopolize interstate or international trade or commerce, and to restrain such trade or commerce, which, by the provisions of the act, could be rescinded, or operations thereunder arrested. In commenting upon the statute, 21 Jac. 1, c. 3, at the commencement of chapter 85 of the third Institute, entitled “Against Monopolists, Propounders, and Projectors,” Lord Coke, in language often quoted, said : “ It appeareth by the preamble of this act (as a judgment in Parliament) that all grants of monopolies are against the ancient and fundamentail laws of this Kingdome. And therefore it is necessary to define what a monopoly is. “ A monopoly is an institution, or allowance by the King by his grant, commission, or otherwise to any person or persons, bodies politique, or corporate, of or for the sole 10 OCTOBER TERM, 1894. Opinion of the Court. buying, selling, making, working, or using of anything,, whereby any person or persons, bodies politique, or corporate, are sought to be restrained of any freedome or liberty that they had before, or hindred in their lawfull trade. “ For the word monopoly, dicitur airo r8 /jl6v8, (i. solo,} teal ircoXeo/jbat, (i. vendere,) quod est cum unus solus aliquod genus mercaturoz universum vendit, ut solus vendat, pretium ad suum libitum statuens: hereof you may read more at large in that case. Trin. 44 Eliz. Lib. 11, f. 84, 85; le case de monopolies” 3 Inst. 181. Counsel contend that this definition, as explained by the derivation of the word, may be applied to all cases in which “ one person sells alone the whole of any kind of marketable thing, so that only he can continue to sell it, fixing the price at his own pleasure,” whether by virtue of legislative grant or agreement; that the monopolization referred to in the act of Congress is not confined to the common law sense of the term as implying an exclusive control, by authority, of one branch of industry without legal right of any other person to-interfere therewith by competition or otherwise, but that it includes engrossing as well, and covers controlling the market by contracts securing the advantage of selling alone or exclusively all, or some considerable portion, of a particular kind of merchandise or commodity to the detriment of the public; and that such contracts amount to that restraint of trade or commerce declared to be illegal. But the monopoly and restraint denounced by the act are the monopoly and restraint of interstate and international trade or commerce, while the conclusion to be assumed on this record is that the result of the transaction complained of was the creation of a monopoly in the manufacture of a necessary of life. In the view which we take of the case, we need not discuss whether because the tentacles which drew the outlying refineries into the dominant corporation were separately put out, therefore there Was no combination to monopolize; or, because, according to political economists, aggregations of capital may reduce prices, therefore the objection to concentration of power is relieved; or, because others were theoretically left UNITED STATES v. E. C. KNIGHT CO. 11 Opinion of the Court. free to go into the business of refining sugar, and the original stockholders of the Philadelphia refineries after becoming stockholders of the American Company might go into competition with themselves, or, parting with that stock, might set up again for themselves, therefore no objectionable restraint was imposed. The fundamental question is, whether conceding that the existence of a monopoly in manufacture is established by the evidence, that monopoly can be directly suppressed under the act of Congress in the mode attempted by this bill. It cannot be denied that the power of a State to protect the lives, health, and property of its citizens, and to preserve good order and the public morals, “ the power to govern men and things within the limits of its dominion,” is a power originally and always belonging to the States, not surrendered by them to the general government, nor directly restrained by the Constitution of the United States, and essentially exclusive. The relief of the citizens of each State from the burden of monopoly and the evils resulting from the restraint of trade among such citizens was left with the States to deal with, and this court has recognized their possession of that power even to the extent of holding that an employment or business carried on by private individuals, when it becomes a matter of such public interest and importance as to create a common charge or burden upon the citizen; in other words, when it becomes a practical monopoly, to which the citizen is compelled to resort and by means of which a tribute can be exacted from the community, is subject to regulation by state legislative power. On the other hand, the power of Congress to regulate commerce among the several States is also exclusive. The Constitution does not provide that interstate commerce shall be free, but, by the grant of this exclusive power to regulate it, it was left free except as Congress might impose restraints. Therefore it has been determined that the failure of Congress to exercise this exclusive power in any case is an expression of its will that the subject shall be free from restrictions or impositions upon it by the several States, and if a law passed by a State in the exercise of its acknowledged powers comes into conflict 12 OCTOBER TERM, 1894. Opinion of the Court. with that will, the Congress and the State cannot occupy the position of equal opposing sovereignties, because the Constitution declares its supremacy and that of the laws passed in pursuance thereof; and that which is not supreme must yield to that which is supreme. “ Commerce, undoubtedly, is traffic,” «aid Chief Justice Marshall, “but it is something more; it is intercourse. It describes the commercial intercourse between nations and parts of nations in all its branches, and is regulated by prescribing rules for carrying on that intercourse.” That which belongs to commerce is within the jurisdiction of the United States, but that which does not belong to commerce is within the jurisdiction of the police power of the State. Gibbons v. Ogden, 9 Wheat. 1, 189, 210; Brown v. Maryland, 12 Wheat. 419, 448; The License Cases, 5 How. 504, 599; Mobile v. Kimball, 102 U. S. 691; Bowman v. Chicago <& N. W. Railway, 125 U. S. 465; Leisy v. Hardin, 135 U. S. 100; In re Rahrer, 140 U. S. 545, 5,55. The argument is that the power to control the manufacture of refined sugar is a monopoly over a necessary of life, to the enjoyment of which by a large part of the population of the United States interstate commerce is indispensable, and that, therefore, the general government in the exercise of the power to regulate commerce may repress such monopoly directly and set aside the instruments which have created it. But this argument cannot be confined to necessaries of life merely, and must include all articles of general consumption. Doubtless the power to control the manufacture of a given thing involves in a certain sense the control of its disposition, but this is a secondary and not the primary sense; and although the exercise of that power may result in bringing the operation of commerce into play, it does not control it, and affects it only incidentally and indirectly. Commerce succeeds to manufacture, and is not a part of it. The power to regulate commerce is the power to prescribe the rule by which commerce shall be governed, and is a power independent of the power to suppress monopoly. But it may operate in repression of monopoly whenever that comes within the rules by which commerce is governed or whenever the transaction is itself a monopoly of commerce. UNITED STATES v. E. C. KNIGHT CO. IS Opinion of the Court. It is vital that the independence of the commercial power and of the police power, and the delimitation between them, however sometimes perplexing, should always be recognized and observed, for while the one furnishes the strongest bond of union, the other is essential to the preservation of the-autonomy of the States as required by our dual form of government; and acknowledged evils, however grave and urgent they may appear to be, had better be borne, than the risk be run, in the effort to suppress them, of more serious consequences by resort to expedients of even doubtful constitutionality. It will be perceived how far-reaching the proposition is that the power of dealing with a monopoly directly may be exercised by the general government whenever interstate or international commerce may be ultimately affected. The regulation of commerce applies to the subjects of commerce and not to matters of internal police. Contracts to buy, sell, or exchange goods to be transported among the several States, the transportation and its instrumentalities, and articles bought, sold,, or exchanged for the purposes of such transit among the States, or put in the way of transit, may be regulated, but this is because they form part of interstate trade or commerce. The fact that an article is manufactured for export, to another State does not of itself make it an article of interstate commerce, and the intent of the manufacturer does not. determine the time when the article or product passes from the control of the State and belongs to commerce. This was. so ruled in Coe v. Errol, 116 U. S. 517, 525, in which the question before the court was whether certain logs cut at a place in New Hampshire and hauled to a river town for the purpose of transportation to the State of Maine were liable to be taxed like other property in the State of New Hampshire. Mr. Justice Bradley, delivering the opinion of the court, said : “ Does the owner’s state of mind in relation to the goods, that is, his intent to export them, and his partial preparation to do so, exempt them from taxation ? This is the precise question for solution. . . . There must be a point of time when they Cease to be governed exclusively by the domestic. 14 OCTOBER TERM, 1894. Opinion of the Court. law and begin to be governed and protected by the national law of commercial regulation, and that moment seems to us to be a legitimate one for this purpose, in which they commence their final movement from the State of their origin to that of their destination.” And again, in Kidd v. Pearson, 128 IT. S. 1, 20, 21, 22, where the question was discussed whether the right of a State to enact a statute prohibiting within its limits the manufacture of intoxicating liquors, except for certain purposes, could be overthrown by the fact that the manufacturer intended to export the liquors when made, it was held that the intent of the manufacturer did not determine the time when the article or product passed from the control of the State and belonged to commerce, and that, therefore, the statute, in omitting to except from its operation the manufacture of intoxicating liquors within the limits of the State for export, did not constitute an unauthorized interference with the right of Congress to regulate commerce. And Mr. Justice Lamar remarked : “No distinction is more popular to the common mind, or more clearly expressed in economic and political literature, than that between manufacture and commerce. Manufacture is transformation— the fashioning of raw materials into a change of form for use. The functions of commerce are different. The buying and selling and the transportation incidental thereto constitute commerce; and the regulation of commerce in the constitutional sense embraces the regulation at least of such transportation. . . . If it be held that the term includes the regulation of all such manufactures as are intended to be the subject of commercial transactions in the future, it is impossible to deny that it would also include all productive industries that contemplate the same thing. The result would be that Congress would be invested, to the exclusion of the States, with the power to regulate, not only manufactures, but also agriculture, horticulture, stock raising, domestic fisheries, mining—in short, every branch of human industry. For is there one of them that does not contemplate, more or less clearly, an interstate or foreign market? Does not the wheat grower of the Northwest or the cotton planter of the UNITED STATES v. E. C. KNIGHT CO. 15 Opinion of the Court. South, plant, cultivate, and harvest his crop with an eye on the prices at Liverpool, New York, and Chicago ? The power being vested in Congress and denied to the States, it would follow as an inevitable result that the duty would devolve on Congress to regulate all of these delicate, multiform and vital interests — interests which in their nature are and must be local in all the details of their successful management. . . . The demands of such a supervision would require, not uniform legislation generally applicable throughout the United States, but a swarm of statutes only locally applicable and utterly inconsistent. Any movement toward the establishment of rules of production in this vast country, with its many different climates and opportunities, could only be at the sacrifice of the peculiar advantages of a large part of the localities in it, if not of every one of them. On the other hand, any movement toward the local, detailed and incongruous legislation required by such interpretation would be about the widest possible departure from the declared object of the clause in question. Nor this alone. Even in the exercise of the power contended for, Congress would be confined to the regulation, not of certain branches of industry, however numerous, but to those instances in each and every branch where the producer contemplated an interstate market. These instances would be almost infinite, as we have seen ; but still there would always remain the possibility, and often it would be the case, that the producer contemplated a domestic market. In that case the supervisory power must be executed by the State; and the interminable trouble would be presented, that whether the one power or the other should exercise the authority in question would be determined, not by any general or intelligible rule, but by the secret and changeable intention of the producer in each and every act of production. A situation more paralyzing to the state governments, and more provocative of conflicts between the general government and the States, and less likely to have been what the framers of the Constitution intended, it would be difficult to imagine.” And see Veasie v. 2foor, 14 How. 568, 574. In Gibbons v. Ogden, Brown v. Maryland, and other cases 16 OCTOBER TERM, 1894. Opinion of the Court. often cited, the state laws, which were held inoperative, were instances of direct interference with, or regulations of, interstate or international commerce ; yet in Kidd v. Pearson the refusal of a State to allow articles to be manufactured within her borders even for export was held not to directly affect external commerce, and state legislation which, in a great variety of ways, affected interstate commerce and persons engaged in it, has been frequently sustained because the interference was not direct. Contracts, combinations, or conspiracies to control domestic; enterprise in manufacture, agriculture, mining, production in all its forms, or to raise or lower prices or wages, might unquestionably tend to restrain external as well as domestic trade, but the restraint would be an indirect result, however inevitable and whatever its extent, and such result would not necessarily determine the object of the contract, combination, or conspiracy. Again, all the authorities agree that in order to vitiate a contract or combination it is not essential that its result should be a complete monopoly; it is sufficient if ‘ it really tends to that end and to deprive the public of the advantages which flow from free competition. Slight reflection will show that if the national power extends to all contracts and combinations in manufacture, agriculture, mining, and other productive industries, whose ultimate result may affect external commerce, comparatively little of business operationsand affairs would be left for state control. It was in the light of well-settled principles that the act of July 2, 1890, was framed. Congress did not attempt thereby to assert the power to deal with monopoly directly as such ; or to limit and restrict the rights of corporations created by the States or the citizens of the States in the acquisition, control, or disposition of property; or to regulate or prescribe the price or prices at which such property or the products thereof should be sold ; or to make criminal the acts of persons in the acquisition and control of property which the States of their residence or creation sanctioned or permitted. Aside from the provisions applicable where Congress might exercise mu- UNITED STATES v. E. C. KNIGHT CO. 17 Opinion of the Court. nicipal power, what the law struck at was combinations, contracts, and conspiracies to monopolize trade and commerce among the several States or with foreign nations; but the contracts and acts of the defendants related exclusively to the acquisition of the Philadelphia refineries and the business of sugar refining in Pennsylvania, and bore no direct relation to commerce between the States or with foreign nations. The object was manifestly private gain in the manufacture of the commodity, but not through the control of interstate or foreign commerce. It is true that the bill alleged that the products of these refineries were sold and distributed among the several States, and that all the companies were engaged in trade or commerce with the several States and with foreign nations; but this was no more than to say that trade and commerce served manufacture to fulfil its function. Sugar was refined for sale, and sales were probably made at Philadelphia for consumption, and undoubtedly for resale by the first purchasers throughout Pennsylvania and other States, and refined sugar was also forwarded by the companies to other States for sale. Nevertheless it does not follow that an attempt to monopolize, or the actual monopoly of, the manufacture was an attempt, whether executory or consummated, to monopolize commerce, even though, in order to dispose of the product, the instrumentality of commerce was necessarily invoked. There was nothing in the proofs to indicate any intention to put a restraint upon trade or commerce, and the fact, as we have seen, that trade or commerce might be indirectly affected was not enough to entitle complainants to a decree. The subject-matter of the sale was shares of manufacturing stock, and the relief sought was the surrender of property which had already passed and the suppression of the alleged monopoly in manufacture by the restoration of the status quo before the transfers; yet the act of Congress only authorized the Circuit Courts to proceed by way of preventing and restraining violations of the act in respect of contracts, combinations, or conspiracies in restraint of interstate or international trade or commerce. The Circuit Court declined, upon the pleadings and proofs, VOL. CLVI—2 18 OCTOBER TERM, 1894. Dissenting Opinion: Harlan, J. to grant the relief prayed, and dismissed the bill,, and we are of opinion that the Circuit Court of Appeals did not err in affirming that decree. Decree affirmed. Mr. Justice Harlan, dissenting. Prior to the 4th day of March, 1892, the American Sugar Refining Company, a corporation organized under a general statute of New Jersey for the purpose of buying, manufacturing, refining, and selling sugar in diff erent parts of the country, had obtained the control of all the sugar refineries in the United States except five, of which four were owned and operated by Pennsylvania corporations — the E. C. Knight Company, the Franklin Sugar Refining Company, Spreckels’ Sugar Refining Company, and the Delaware Sugar House — and the other, by the Revere Sugar Refinery of Boston. These five corporations were all in active competition with the American Sugar Refining Company and with each other. The product of the Pennsylvania companies was about thirty-three per cent, and that of the Boston company about two per cent, of the entire quantity of sugar refined in the United States. In March, 1892, by means of contracts or arrangements with stockholders of the four Pennsylvania companies, the New Jersey corporation—using for that purpose its own stock — purchased the stock of those companies, and thus obtained absolute control of the entire business of sugar refining in the United States except that done by the Boston company, which is too small in amount to be regarded in this discussion. “The object,” the court below said, “in purchasing the Philadelphia refineries was to obtain a greater influence or more perfect control over the l)usi/ness of refining and selling sugar in this country?1 This characterization of the object for which this stupendous combination was formed is properly accepted in the opinion of the court as justified by the proof. I need not therefore analyze the evidence upon this point. In its consideration of the important constitutional question presented, this court assumes on the record before us UNITED STATES v. E. C. KNIGHT CO. 19 Dissenting Opinion: Harlan, J. that the result of the transactions disclosed by the pleadings and proof was the creation of a monopoly in the manufacture of a necessary of life. If this combination, so far as its operations necessarily or directly affect interstate commerce, cannot be restrained or suppressed under some power granted to Congress, it will be cause for regret that the patriotic statesmen who framed the Constitution did not foresee the necessity of investing the national government with power to deal with gigantic monopolies holding in their grasp, and injuriously controlling in their own interest, the entire trade among the States in food products that are essential to the comfort of every household in the land. The court holds it to be vital in our system of government to recognize and give effect to both the commercial power of the nation and the police powers of the States, to the end that the Union be strengthened and the autonomy of the States preserved. In this view I entirely concur. Undoubtedly, the preservation of the just authority of the States is an object of deep concern to every lover of his country. No greater calamity could befall our free institutions than the destruction of that authority, by whatever means such a result might be accomplished. “ Without the States in union,” this court has said, “ there could be no such political body as the United States.” Lane County v. Oregon, 1 Wall. 71, 76. But it is equally true that the preservation of the just authority of the General Government is essential as-well to the safety of the States as to the attainment of the important ends for which that government was ordained by the People of the United States ; and the destruction of that authority would be fatal to the peace and well-being of the American people. The Constitution which enumerates the powers committed to the nation for objects of interest to the people of all the States should not, therefore, be subjected to an interpretation so rigid, technical, and narrow, that those objects cannot be accomplished. Learned counsel in Gibbons v. Ogden, 9 Wheat. 1,187, having suggested that the Constitution should be strictly construed, this court, speaking by Chief Justice Marshall, said that when the original States “ converted their league into a 20 OCTOBER TERM, 1894. Dissenting Opinion : Harlan, J. government, when they converted their Congress of Ambassadors, deputed to deliberate on their common concerns, and to recommend measures of general utility, into a legislature empowered to enact laws on the most interesting subjects, the whole character in which the States appear underwent a change, the extent of which must be determined by a fair consideration of the instrument by which that change was effected.” “ What do gentlemen mean,” the court inquired, “ by a strict construction ? If they contend only against that enlarged construction, which would extend words beyond their natural and obvious import, one might question the application of the term, but should not controvert the principle. If they contend for that narrow construction which, in support of some theory not to be found in the Constitution, would deny to the government those powers which the words of the grant, as usually understood, import, and which are consistent with the general views and objects of the instrument — for that narrow construction, which would cripple the government, and render it unequal to the objects for which it is declared to be instituted, and to which the powers given, as fairly understood, render it competent — then we cannot perceive the propriety of this strict construction, nor adopt it as the rule by which the Constitution is to be expounded.” p. 188. On the same occasion the principle was announced that the objects for which a power was granted to Congress, especially when those objects are expressed in the Constitution itself, should have great influence in determining the extent of any given power. Congress is invested with power to regulate commerce with foreign nations and among the several States. The power to regulate is the power to prescribe the rule by which the subject regulated is to be governed. It is one that must be exercised whenever necessary throughout the territorial limits of the several States. Cohens v. Virginia, 6 Wheat. 264, 413. The power to make these regulations “is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution.” It is plenary because vested in Congress “as absolutely as it UNITED STATES v. E. C. KNIGHT CO. 21 Dissenting Opinion: Harlan, J. would be in a single government having in its constitution the same restrictions on the exercise of the power as are found in the Constitution of the United States.” It may be exercised “ whenever the subject exists.” Gibbons v. Ogden, 9 Wheat. 1, 195,196. In his concurring opinion in that case, Mr. Justice Johnson observed that the grant to Congress of the power to regulate commerce carried with it the whole subject, leaving nothing for the State to act upon, and that “ if there was any one object riding over every other in the adoption of the Constitution, it was to keep commercial intercourse among the States free from all invidious and partial restraints.” p. 231. “In all commercial regulations we are one and the same people.” Mr. Justice Bradley, speaking for this court, said that the United States are but one country, and are and must be subject to one system of regulations in respect to interstate commerce. Robbins v. Shelby Taxing District, 120 U. S. 489, 494. What is commerce among the States ? The decisions of this court fully answer the question. “ Commerce, undoubtedly, is traffic, but it is something more : it is intercourse. It does not embrace the completely interior traffic of the respective States — that which is “ carried on between man and man in a State, or between different parts of the same State and which does not extend to or affect other States ” — but it does embrace “ every species of commercial intercourse ” between the United States and foreign nations and among the States, and, therefore, it includes such traffic or trade, buying, selling, and interchange of commodities, as directly affects or necessarily involves the interests of the People of the United States. “Commerce, as the word is used in the Constitution, is a unit,” and “cannot stop at the external boundary line of each State, but may be introduced into the interior.” “ The genius and character of the whole government seem to be, that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the States generally^ These principles were announced in Gibbons v. Ogden, and have often been approved. It is the settled doctrine of this 22 OCTOBER TERM, 1894. Dissenting Opinion: Harlan, J. court that interstate commerce embraces something more than the mere physical transportation of articles of property, and the vehicles or vessels by which such transportation is effected. In County of Mobile v. Kimball, 102 U. S. 691, 702, it was said that “commerce with foreign countries and among the States, strictly considered, consists in intercourse and traffic, including, in these terms, navigation and the transportation and transit of persons and property, as well as the purchase, sale, and exchange of commodities.” In- Gloucester Ferry Co. n. Pennsylvania, 114 U. S. 196, 203, the language of the court was: “ Commerce among the States consists of intercourse and traffic between their citizens, and includes the transportation of persons and property, and the navigation of public waters for that purpose, as well as the purchase, sale, and exchange of commodities. The power to regulate that commerce, as well as commerce with foreign nations, vested in Congress, is the power to prescribe the rules by which it shall be governed, that is, the conditions upon which it shall be conducted ; to determine when it shall be free, and when subject to duties or other exactions.” In Kidd v. Pearson, 128 U. S. 1, 20, it was said that “ the buying and selling, and the transportation incidental thereto constitute commerce.” Interstate commerce does not, therefore, consist in transportation simply. It includes the purchase and sale of articles that are intended to be transported from one State to another — every species of commercial intercourse among the States and with foreign nations. In the light of these principles, determining as well the scope of the power to regulate commerce among the States as the nature of such commerce, we are to inquire whether the act of Congress of July 2, 1890, c. 647, entitled “An act to protect trade and commerce against unlawful restraints and monopolies,” 26 Stat. 209, is repugnant to the Constitution. By that act “every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States or with foreign nations,” is declared to be illegal, and every person making any such contract, or engaging in any such combination or conspiracy, UNITED STATES v. E. C. KNIGHT CO. 23 Dissenting Opinion: Harlan, J. is to be deemed guilty of a misdemeanor, and punishable, on conviction, by a fine not exceeding five thousand dollars, or by imprisonment not exceeding one year, or by both said punishments in the discretion of the court. § 1. It is also made a misdemeanor, punishable in like manner, for any person to “ monopolize, or attempt to monopolize, or combine or conspire with any other person or persons to monopolize, any part of the trade or commerce among the several States or with foreign nations.” §,2. The act also declares illegal “every contract, combination in form of trust or otherwise, or conspiracy, in restraint of trade or commerce in any Territory of the United States or of the District of Columbia, or in restraint of trade or commerce between any such Territory and another, or between any such Territory or Territories or any State or States or the District of Columbia, or with foreign nations, or between the District of Columbia and any State or States or foreign nations,” and prescribes the same punishments for every person making any such contract, or engaging in any such combination or conspiracy. § 3. The fourth section of the act is in these words: “ Sec. 4. The several Circuit Courts of the United States are hereby invested with jurisdiction to prevent and restrain violations of this act; and it shall be the duty of the several district attorneys of the United States, in their respective districts, under the direction of the Attorney General, to institute proceedings in equity to prevent and restrain such violations. Such proceedings may be by way of petition setting forth the case and praying that such violation shall be enjoined or otherwise prohibited. When the parties complained of shall have been duly notified of such petition the court shall proceed, as soon as may be, to the hearing and determination of the case; and pending such petition and before final decree, the court may at any time make such temporary restraining order or prohibition as shall be deemed just in the premises.” It would seem to be indisputable that no combination of corporations or individuals can, of right, impose unlawful restraints upon interstate trade, whether upon transportation, or upon such interstate intercourse and traffic as precede trans- 24 OCTOBER TERM, 1894. Dissenting Opinion: Harlan, J. portation, any more than it can, of right, impose unreasonable restraints upon the completely internal traffic of a State. The supposition cannot be indulged that this general proposition will be disputed. If it be true that a combination of corporations or individuals may, so far as the power of Congress is concerned, subject interstate trade, in any of its stages, to unlawful restraints, the conclusion is inevitable that the Constitution has failed to accomplish one primary object of the Union, which was to place commerce among the States under the control of the common government of all the people, and thereby relieve or protect it against burdens or restrictions imposed, by whatever authority, for the benefit of particular localities or special interests. The fundamental inquiry in this case is, What, in a legal sense, is an unlawful restraint of trade ? Sir William Erle, formerly Chief Justice of the Common Pleas, in his essay on the Law Relating to Trade Unions, well said that “ restraint of trade, according to a general principle of the common law, is unlawful; ” that “ at common law every person has individually, and the public also have collectively, a right to require that the course of trade should be kept free from unreasonable obstruction; ” and that “ the right to a free course for trade is of great importance to commerce and productive industry, and has been carefully maintained by those who have administered the common law.” pp. 6, 7, 8. There is a partial restraint of trade which, in certain circumstances, is tolerated by the law. The rule upon that subject is stated in Oregon Steam Nav. Co. v. Winsor, 20 Wall. 64, 66, where it was said that “ an agreement in general restraint of trade is illegal and void; but an agreement which operates merely in partial restraint of trade is good, provided it be not unreasonable and there be a consideration to support it. In order that it may not be unreasonable, the restraint imposed must not be larger than is required for the necessary protection of the party with whom the contract is made. Horner v. Gra/ves, 7 Bing. 735, 743. A contract, even on good consideration, not to use a trade anywhere in England is held void in that country as being too general a restraint of trade.” UNITED STATES v. E. C. KNIGHT CO. 25 Dissenting Opinion: Harlan, J. But a general restraint of trade has often resulted from ■combinations formed for the purpose of controlling prices by destroying the opportunity of buyers and sellers to deal with each other upon the basis of fair, open, free competition. Combinations of this character have frequently been the subject of judicial scrutiny, and have always been condemned as illegal because of their necessary tendency to restrain trade. Such combinations are against common right and are crimes against the public. To some of the cases of that character it will be well to refer. In Morris Run Coal Co. v. Barclay Coal Co., 68 Penn. St. 173, 184, 186, 187, the principal question was as to the validity of a contract made between five coal corporations of Pennsylvania, by which they divided between themselves two coal regions of which they had the control. The referee in the case found that those companies acquired under their arrangement the power to control the entire market for bituminous coal in the northern part of the State, and their combination was, therefore, a restraint upon trade and against public policy. In response to the suggestion that the real purpose of the combination was to lessen expenses, to advance the quality of coal, and to deliver it in the markets intended to be supplied in the best order to the consumer, the Supreme Court of Pennsylvania said: “ This is denied by the defendants ; but it seems to us it is immaterial whether these positions are sustained or not. Admitting their correctness, it does not follow that these advantages redeem the contract from the obnoxious effects so strikingly presented by the referee. The important fact is that these companies control this immense coal field; that it is the great source of supply of bituminous coal to the State of New York and large territories westward; that by this contract they control the price of coal in this extensive market, and make it bring sums it would not command if left to the natural laws of trade; that it concerns an article of prime necessity for many uses; that its operation is general in this large region, and affects all who use coal as a fuel, and this is accomplished by a combination of all the companies engaged in this branch of business 26 OCTOBER TERM, 1894. Dissenting Opinion: Harlan, J. in the large region where they operate. The combination is wide in scope, general in its influence, and injurious in effects. These being its features, the contract is against public policy, illegal, and therefore void.” Again, in the same case: “ The effects produced on the public interests lead to the consideration of another feature of great weight in determining the illegality of the contract, to wit, the combination resorted to by these five companies. Singly each might have suspended deliveries and sales of coal to suit its own interests, and might have raised the price, even though this might have been detrimental to the public interest. There is a certain freedom which must be allowed to. every one in the management of his-own affairs. When competition is left free, individual error or folly will generally find a correction in the conduct of others. But here is a combination of all the companies operating in the Blossburg and Barclay mining regions, and controlling their entire productions. They have combined together to govern the supply and the price of coal in all the markets from the Hudson to the Mississippi rivers, and from Pennsylvania to the lakes. This combination has a power in its confederated form which no individual action can confer. The public interest must succumb to it, for it has left no competition free to correct its baleful influence. When the supply of coal is suspended the demand for it becomes importunate, and prices must rise. Or if the supply goes forward, the price fixed by the confederates must accompany it. The domestic hearth, the furnaces of the iron master, and the fires of the manufacturer, all feel the restraint, while many dependent hands are paralyzed and hungry mouths are stinted. The influence of a lack of supply or a rise in the price of an article of such prime necessity cannot be measured. It permeates the entire mass of community, and leaves few of its members untouched by its withering blight. Such a combination is more than a contract; it is an offence. ‘I take it,’ said Gibson, J., ‘ a combination is criminal whenever the act to be done has a necessary tendency to prejudice the public or to oppress individuals, by unjustly subjecting them to the power of the confederates, and giving effect to the purpose of the UNITED STATES v. E. C. KNIGHT CO. 27 Dissenting Opinion: Harlan, J. latter, whether of extortion or of mischief.’ Commonwealth v. Carlisle, Brightly, (Penn.,) 40. In all such combinations where the purpose is injurious or unlawful, the gist of the offence is the conspiracy. Men can often do by the combination of many what severally no one could accomplish, and even what when done by one would be innocent.” “ There is a potency in numbers when combined, which the law . cannot overlook, where injury is the consequence.” This case in the Supreme Court of Pennsylvania was cited with approval in Arnot v. Pittston & Elmira Coal Co., 68 N. Y. 558, 565, which involved the validity of a contract between two coal companies, the object and effect of which was to give one of them the monopoly of the trade in coal in a particular region, by which the price of that commodity could be artifically enhanced. The Court of Appeals of New York held that “ a combination to effect such a purpose is inimical to the interests of the public, and that all contracts designed to effect such an end are contrary to public policy, and therefore illegal. . . . If they should be sustained, the prices of articles of pure necessity, such as coal, flour and other indispensable commodities, might be artificially raised to a ruinous extent far exceeding any naturally resulting from the proportion between supply and demand. No illustration of the mischief of such contracts is perhaps more apt than a monopoly of anthracite coal, the region of the production of which is known to be limited.” See also Hooker v. Vandewater, 4 Denio, 351, 352; Stanton v. Allen, 5 Denio, 434; Saratoga Bank v. King, 44 N. Y. 87. In Central Ohio Salt Co. v. Guthrie, 35 Ohio St. 666, 672, the principal question was as to the legality of an association of substantially all the manufacturers of salt in a large salt producing territory. After adverting to the rule that contracts in general restraint of trade are against public policy, and to the agreement there in question, it was said : “ Public policy, unquestionably, favors competition in trade to the end that its commodities may be afforded to the consumer as cheaply as possible, and is opposed to monopolies, which tend to advance market prices, to the injury of the general public. 38 OCTOBER TERM, 1894. Dissenting Opinion: Harlan, J. . . . The clear tendency of such an agreement is to establish a monopoly, and to destroy competition in trade, and for that reason, on grounds of public policy, the courts will not aid in its enforcement. It is no answer to say that competition in the salt trade was not in fact destroyed, or that the price of the commodity was not unreasonably advanced. Courts will not stop to inquire as to the degree of injury inflicted upon the public; it is enough to know that the. inevitable tendency of such contracts is injurious to the public.” In Craft v. McConoughy, 79 Illinois, 346, 349, 350, which related to a combination between all the grain dealers of a particular town to stifle competition, and to obtain control of the price of grain, the Supreme Court of Illinois said: “ While the argument, upon its face, would seem to indicate that the parties had formed a copartnership for the purpose of trading in grain, yet, from the terms of the contract, and the other proof in the record, it is apparent that the true object was, to form a secret combination which would stifle all competition, and enable the parties, by secret and fraudulent means, to control the price of grain, cost of storage, and expense of shipment. In other words, the four firms, by a shrewd, deep-laid, secret combination, attempted to control and monopolize the entire grain trade of the town and surrounding country. That the effect of this contract was to restrain the trade and commerce of the country, is a proposition that cannot be successfully denied. We understand it to be a well-settled rule of law, that an agreement in general restraint of trade is contrary to public policy, illegal and void, but an agreement in partial or particular restraint upon trade has been held good, where the restraint was only partial, consideration adequate, and the restriction reasonable.” “ While these parties were in business, in competition with each other, they had the undoubted right to establish their own rates for grain stored and commissions for shipment and sale. They could pay as high or low a price for grain as they saw proper, and as they could make contracts with the producer. So long as competition was free, the interest of the public was safe. The laws of trade, in connection with the right of competition, were all the UNITED STATES v. E. 0. KNIGHT CO. 29« Dissenting Opinion: Harlan, J. guaranty the public required, but the secret combination created by the contract destroyed all competition and created a monopoly against which the public interest had no protection.” These principles were applied in People v. Chicago Gas Trust Co., 130 Illinois, 269, 292,297, which involved the validity of a corporation formed for the purpose of operating gas works, and of manufacturing and selling gas, and which, for the purpose of destroying competition, acquired the stock of four other gas companies, and thereby obtained a monopoly in the business of furnishing illuminating gas to the city of Chicago and its inhabitants. The court, in declaring the organization of the company to be illegal, said : “ The fact that the appellee, almost immediately after its organization, bought up a majority of the shares of stock of each of these companies, shows that it was not making a mere investment of surplus funds, but that it designed and intended to bring the four companies under its control, and by crushing out competition to monopolize the gas business in Chicago.” “ Of what avail,” said the court, “ is it that any number of gas companies may be formed under the general incorporation law, if a giant trust company can be clothed with the power of buying up and holding the stock and property of such companies, and, through the control thereby attained, can direct all their operations and weld them into one huge combination ? ” So, in India Bagging Association v. Kock, 14 La. Ann. 168, where the court passed upon the legality of an association of various commercial firms in New Orleans that were engaged in the sale of India bagging, it was said: “ The agreement between the parties was palpably and unequivo-cably a combination in restraint of trade, and to enhance the price in the market of an article of primary necessity to cotton planters. Such combinations are contrary to public order, and cannot be enforced in a court of justice.” In Santa Clara Mill Lumber Co. v. Hayes, 76 California, 387, 390, which related to a combination, the result of certain contracts among certain manufacturers, the court found that the object, purpose, and consideration of those contracts was to form a combination among all the manufacturers of lumber 30 OCTOBER TERM, 1894. Dissenting Opinion: Harlan, J. at or near a particular place, for the sole purpose of increasing the price of that article, limiting the amount to be manufactured, and giving certain parties the control of all lumber manufactured near that place for the year 1881, and of the supply for that year in specified counties. It held the combination to be illegal, observing that “among the contracts illegal under the common law, because opposed to public policy, were contracts in general restraint of trade; contracts between individuals to prevent competition and keep up the price of articles of utility.” It further said that while the courts had nothing to do with the results naturally flowing from the laws of demand and supply, they would not respect agreements made for the purpose of “ taking trade out of the realm of competition, and thereby enhancing or depressing prices of commodities.” A leading case on the question as to what combinations are illegal as being in general restraint of trade, is Richardson v. Buhl, Tl Michigan, 632, 635, 657, 660, which related to certain agreements connected with the business and operations of the Diamond Match Company. From the report of the case it appears that that company was organized, under the laws of Connecticut, for the purpose of uniting in one corporation all the match manufactories in the United States, and to monopolize and control the business of making all the friction matches in the country, and establish the price thereof. To that end it became necessary, among other things, to buy many plants that had become established or were about to’be established, as well as the property used in connection therewith. Chief Justice Sherwood of the Supreme Court of Michigan said: “ The sole object of the corporation is to make money by having it in its power to raise the price of the article, or diminish the quantity to be made and used, at its pleasure. Thus both the supply of the article and the price thereof are made to depend upon the action of a half dozen individuals, more or less, to satisfy their cupidity and avarice, who may happen to have the controlling interest in this corporation — an artificial person, governed by a single motive or purpose, which is to accumulate money regardless of the wants or neces- UNITED STATES v. E. C. KNIGHT CO. 31 Dissenting Opinion: Harlan, J. sities of over 60,000,000 people. The article thus completely under their control, for the last fifty years, has come to be regarded as one of necessity, not only in every household in the land, but one of daily use by almost every individual in the country. It is difficult to conceive of a monopoly which can affect a greater number of people, or one more extensive in its effect on the country, than that of the Diamond Match Company. It was to aid that company in its purposes and in carrying out its object that the contract in this case was made between those parties, which we are now asked to aid in enforcing. Monopoly in trade, or in any kind of business in this country, is odious to our form of government. It is sometimes permitted to aid the government in carrying on a great public enterprise or public work under governmental control in the interest of the public. Its tendency is, however, destructive of free institutions and repugnant to the instincts of a free people, and contrary to the whole scope and spirit of the Federal Constitution, and is not allowed to exist under express provisions in several of our state constitutions. . . . All combinations among persons or corporations for the purpose of raising or controlling the prices of merchandise, or any of the necessaries of life, are monopolies and intolerable; and ought to receive the condemnation of all courts.” In the same case, Mr. Justice Champlin, with whom Mr. Justice Campbell concurred, said: “There is no doubt that all the parties to this suit were active participants in perfecting the combination called ‘ The Diamond Match Company,’ and that the present dispute grows out of that transaction, and is the fruit of the scheme by which all competition in the manufacture of matches was stifled, opposition in the business crushed, and the whole business of the country in that line engrossed by the Diamond Match Company. Such a vast combination as has been entered into under the above name is a menace to the public. Its object and direct tendency is to prevent free and fair competition, and control prices throughout the national domain. It is no answer to say that this monopoly has in fact reduced the price of friction matches. That policy may have been necessary to crush competition. 32 OCTOBER TERM, 1894. Dissenting Opinion: Harlan, J. The fact exists that it rests in the discretion of this company at any time to raise the price to an exorbitant degree. Such combinations have frequently been condemned by courts as unlawful and against public policy.” See also Raymond v. Leavitt, 46 Michigan, 447, and Texas Standard Oil Co. v. A done, 83 Texas, 650. This extended reference to adjudged cases relating to unlawful restraints upon the interior traffic of a State has been made for the purpose of showing that a combination such as that organized under the name of the American Sugar Refining Company has been uniformly held by the courts of the States to-be against public policy and illegal because of its necessary tendency to impose improper restraints upon trade. And such, I take it, would be the judgment of any Circuit Court, of the United States in a case between parties in which it became necessary to determine the question. The judgments of the state courts rest upon general principles of law, and not t necessarily upon statutory provisions expressly condemning restraints of trade imposed by or resulting from combinations. Of course, in view of the authorities, it will not be doubted that it would be competent for a State, under the power to regulate its domestic commerce and for the purpose of protecting its people against fraud and injustice, to make it a public offence punishable by fine and imprisonment, for individuals or corporations to make contracts, form combinations, or engage in conspiracies, which unduly restrain trade or commerce carried on within its limits, and also to authorize the institution of proceedings for the purpose of annulling contracts of that character, as well as of preventing or restraining such combinations and conspiracies. But there is a trade among the several States which is distinct from that carried on within the territorial limits of a State. The regulation and control of the former is committed by the national Constitution to Congress. Commerce among the States, as this court has declared, is a unit, and in respect of that commerce this is one country, and we are one people. It may be regulated by rules applicable to- every part of the United States, and state lines and state jurisdiction cannot UNITED STATES v. E. C. KNIGHT CO. 33 Dissenting Opinion: Harlan, J. interfere with the enforcement of such rules. The jurisdiction of the general government extends over every foot of territory within the United States. Under the power with which it is invested, Congress may remove unlawful obstructions, of whatever kind, to the free course of trade among the States. In so doing it would not interfere with the “ autonomy of the States,” because the power thus to protect interstate commerce is expressly given by the people of all the States. Interstate intercourse, trade, and traffic is absolutely free, except as such intercourse, trade, or traffic may be incidentally or indirectly affected by the exercise by the States of their reserved police powers. Sherlock, n. Alling, 93 U. S. 99, 103. It is the Constitution, the supreme law of the land, which invests Congress with power to protect commerce among the States against burdens and exactions arising from unlawful restraints by whatever authority imposed. Surely a right secured or granted by that instrument is under the protection of the government which that instrument creates. Any combination, therefore, that disturbs or unreasonably obstructs freedom in buying and selling articles manufactured to be sold to persons in other States or to be carried to other States — a freedom that cannot exist if the right to buy and sell is fettered by unlawful restraints that crush out competition — affects, not incidentally, but directly, the people of all the States; and the remedy for such an evil is found only in the exercise of powers confided to a government which, this court has said, was the government of all, exercising powers delegated by all, representing all, acting for all. McCulloch v. Maryland, 4 Wheat. 316, 405. It has been argued that a combination between corporations of different States, or between the stockholders of such corporations, with the object and effect of controlling not simply the manufacture but the price of refined sugar throughout the whole of the United States— which is the case now before us — cannot be held to be in restraint of “ commerce among the States ” and amenable to national authority, without conceding that the general government has authority to say what shall and what shall not be manufactured in the several States. VOL. CLVI—3 34 OCTOBER TERM, 1894. Dissenting Opinion: Harlan, J. Kidd v. Pearson, 128 IT. S. 1, was cited in argument as supporting that view. In that case the sole question was, whether the State of Iowa could forbid the manufacture within its limits of ardent spirits intended for sale ultimately in other States. This court held that the manufacture of intoxicating liquors in a State is none the less a business within the State subject to state control because the manufacturer may intend, at his convenience, to export such liquors to foreign countries or to other States. The authority of the States over the manufacture of strong drinks within their respective jurisdictions was referred to their plenary power, never surrendered to the national government, of providing for the health, morals, and safety of their people. That case presented no question as to a combination to monopolize the sale of ardent spirits manufactured in Iowa to be sold in other States — no question as to combinations in restraint of trade as involved in the buying and selling of articles that are intended to go, and do go, and will always go, into commerce throughout the entire country, and are used by the people of all the States, and the making or manufacturing of which no State could forbid consistently with the liberty that every one has of pursuing, without undue restrictions, the ordinary callings of life. There is no dispute here as to the lawfulness of the business of refining sugar, apart from the undue restraint which the promoters of such business, who have combined to control prices, seek to put upon the freedom of interstate traffic in that article. It may be admitted that an act which did nothing more than forbid, and which had no other object than to forbid, the mere refining of sugar in any State, would be in excess of any power granted to Congress. But the act of 1890 is not of that character. It does not strike at the manufacture simply of articles that are legitimate or recognized subjects of commerce, but at combinations that unduly restrain, because they monopolize, the buying a/nd selling of articles which are to go into interstate commerce. In State v. Stewart, 59 Vermont, 273, 286, it was said that if a combination of persons “ seek to restrain trade, or tend to the destruction of the material prop- UNITED STATES v. E. C. KNIGHT CO. 35 Dissenting Opinion: Harlan, J. erty of the country, they work injury to the whole people.” And in State v. Glidden, 55 Connecticut, 46, 75, the court said : “ Any one man, or any one of several men acting independently, is powerless; but when several combine and direct their united energies to the accomplishment of a bad purpose, the combination is formidable. Its power for evil increases as its numbers increase. . . . The combination becomes dangerous and subversive of the rights of others, and the law wisely says it is a crime.” Chief Justice Gibson well said in Commonwealth v. Carlisle, Brightly, (Penn.,) 36, 41: “ There is between the different parts of the body politic a reciprocity of action on each other, which, like the action of antagonizing muscles in the natural body, not only prescribes to each its appropriate state and action, but regulates the motion of the whole. The effort of an individual to disturb this equilibrium can never be perceptible, nor carry the operation of his interest or that of any other individual beyond the limits of fair competition ; but the increase of power by combination of means, being in geometrical proportion to the number concerned, an association may be able to give an impulse, not only oppressive to individuals, but mischievous to the public at large; and it is the employment of an engine so powerful and dangerous that gives criminality to an act that would be perfectly innocent, at least in a legal view, when done by an individual.” These principles underlie the act of Congress, which has for its sole object the protection of such trade and commerce as the Constitution confides to national control, and the question is presented whether the combination assailed by this suit is an unlawful restraint upon interstate trade in a necessary article of food which, as every one knows, has always entered, now enters and must continue to enter, in vast quantities, into commerce among the States. In Kidd v. Pearson we recognized, as had been done in previous cases, the distinction between the mere transportation of articles of interstate commerce and the purchasing and selling thatprecede transportation. It is said that manufacture precedes commerce and is not a part of it. But it is equally true that when manufacture ends, that which has been manu- 36 OCTOBER TERM, 1894. Dissenting Opinion: Harlan, J. factured becomes a subject of commerce; that buying and selling succeed manufacture, come into existence after the process of manufacture is completed, precede transportation, and are as much commercial intercourse, where articles are bought to be carried from one State to another, as is the manual transportation of such articles after they have been so purchased. The distinction was recognized by this court in Gibbons v. Ogden, where the principal question was whether commerce included navigation. Both the court and counsel recognized buying and selling or barter as included in commerce. Chief Justice Marshall said that the mind can scarcely conceive a system for regulating commerce, which was “confined to prescribing rules for the conduct of individuals in the actual employment of buying and selling, or of barter.” pp. 189, 190. The power of Congress covers and protects the absolute freedom of such intercourse and trade among the States as may or must succeed manufacture and precede transportation from the place of purchase. This would seem to be conceded; for, the court in the present case expressly declare that “ contracts to buy, sell, or exchange goods to be transported among the several States, the transportation and its instrumentalities, and articles bought, sold, or exchanged for the purpose of such transit among the States, or put in the way of transit, may be regulated, but this is because they form part of interstate trade or commerce.” Here is a direct admission — one which the settled doctrines of this court justify — that contracts to buy and the purchasing of goods to be transported from one State to another, and transportation, with its instrumentalities, are all parts of interstate trade or commerce. Each part of such trade is then under the protection of Congress. And yet, by the opinion and judgment in this case, if I do not misapprehend them, Congress is without power to protect the commercial intercourse that such purchasing necessarily involves against the restraints and burdens arising from the existence of combinations that meet purchasers, from whatever State they come, with the threat — for it is nothing more nor less than a threat — that they shall not purchase what UNITED STATES v. E. C. KNIGHT CO. 37 Dissenting Opinion: Harlan, J. they desire to purchase, except at the prices fixed by such combinations. A citizen of Missouri has the right to go in person, or send orders, to Pennsylvania and New Jersey for the purpose of purchasing refined sugar. But of what value is that right if he is confronted in those States by a vast combination which absolutely controls the price of that article by reason of its having acquired all the sugar refineries in the United States in order that they may fix prices in their own interest exclusively ? In my judgment, the citizens of the several States composing the Union are entitled, of right, to buy goods in the State where they are manufactured, or in any other State, without being confronted by an illegal combination whose business extends throughout the whole country, which by the law everywhere is an enemy to the public interests, and which prevents such buying, except at prices arbitrarily fixed by it. I insist that the free course of trade among the States cannot coexist with such combinations. When I speak of trade I mean the buying and selling of articles of every kind that are recognized articles of interstate commerce. Whatever improperly obstructs the free course of interstate intercourse and trade, as involved in the buying and selling of articles to be carried from one State to another, may be reached by Congress, under its authority to regulate commerce among the States. The exercise of that authority so as to make trade among the States, in all recognized articles of commerce, absolutely free from unreasonable or illegal restrictions imposed by combinations, is justified by an express grant of power to Congress and would redound to the welfare of the whole country. I am unable to perceive that any such result would imperil the autonomy of the States, especially as that result cannot be attained through the action of any one State. Undue restrictions or burdens upon the purchasing of goods, in the market for sale, to be transported to other States, cannot be imposed even by a State without violating the freedom of commercial intercourse guaranteed by the Constitution. But if a State within whose limits the business of refining sugar is exclusively carried on may not constitutionally im- 38 OCTOBER TERM, 1894. Dissenting Opinion: Harlan, J. pose burdens upon purchases of sugar to be transported to other States, how comes it that combinations of corporations or individuals, within the same State, may not be prevented by the national government from putting unlawful restraints upon the purchasing of that article to be carried from, the State in which such purchases are made f If the national power is competent to repress State action in restraint of interstate trade as it may be involved in purchases of refined sugar to be transported from one State to another State, surely it ought to be deemed sufficient to prevent unlawful restraints attempted to be imposed by combinations of corporations or individuals upon those identical purchases; otherwise, illegal combinations of corporations or individuals may — so far as national power and interstate commerce are concerned — do, with impunity, what no State can do. Suppose that a suit were brought in one of the courts of the United States — jurisdiction being based, it may be, alone upon the diverse citizenship of the parties — to enforce the stipulations of a written agreement, which had for its object to acquire the possession of all the sugar refineries in the United States, in order that those engaged in the combination might obtain the entire control of the business of refining and selling sugar throughout the country, and thereby to increase or diminish prices as the particular interests of the combination might require. I take it that the court, upon recognized principles of law common to the jurisprudence of this country and of Great .Britain, would deny the relief asked and dismiss the suit upon the ground that the necessary tendency of such an agreement and combination was to restrain, not simply trade that was completely internal to the State in which the parties resided, but trade and commerce among all the States, and was, therefore, against public policy and illegal. If I am right in this view, it would seem to follow, necessarily, that Congress could enact a statute forbidding such combinations so far as they affected interstate commerce, and provide for their suppression as well through civil proceedings instituted for that purpose, as by penalties against those engaged in them. UNITED STATES v. E. C. KNIGHT CO. 39 Dissenting Opinion; Harlan, J. In committing to Congress the control of commerce with foreign nations and among the several States, the Constitution did not define the means that may be employed to protect the freedom of commercial intercourse and traffic established for the benefit of all the people of the Union. It wisely forbore to impose any limitations upon the exercise of that power except those arising from the general nature of the government, or such as are embodied in the fundamental guarantees of liberty and property. It gives to Congress, in express words, authority to enact all laws necessary and proper for carrying into execution the power to regulate commerce ; and whether an act of Congress, passed to accomplish an object to which the general government is competent, is within the power granted, must be determined by the rule announced through Chief Justice Marshall three-quarters of a century ago, and which has been repeatedly affirmed by this court. That rule is: “The sound construction of the Constitution must allow to the national legislature the discretion with respect to the means by which the powers it confers are to'be carried into execution, which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional.” McCulloch v. Maryland 4 Wheat. 316, 421. The end proposed to be accomplished by the act of 1890 is the protection of trade and commerce among the States against unlawful restraints. Who can say that that end is not legitimate or is not within the scope of the Constitution? The means employed are the suppression, by legal proceedings, of combinations, conspiracies, and monopolies, which by their inevitable and admitted tendency, improperly restrain trade and commerce among the States. Who can say that such means are not appropriate to attain the end of free-mg commercial intercourse among the States from burdens and exactions imposed upon it by combinations which, under principles long recognized in this country as well as at the 40 OCTOBER TERM, 1894. Dissenting Opinion: Harlan, J. common law, are illegal and dangerous to the public welfare ? What clause of the Constitution can be referred to which prohibits the means thus prescribed in the act of Congress ? It may be that the means employed by Congress to suppress combinations that restrain interstate trade and commerce are not all or the best that could have been devised. But Congress, under the delegation of authority to enact laws necessary and proper to carry into effect a power granted, is not restricted to the employment of those means “without which the end would be entirely unattainable.” “ To have prescribed the means,” this court has said, “ by which government should, in all future time, execute its powers, would have been to change entirely the character of that instrument, and give it the properties of a legal code. It would have been an unwise attempt to provide, by immutable rules for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur. To have declared that the best means shall not be used, but those alone without which the power given would be nugatory, would have been to deprive the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances.” Again : “ Where the law is not prohibited, and is really calculated to effect any of the objects entrusted to the government, to undertake here to inquire into the degree of its necessity would be to pass the line which circumscribes the judicial department, and to tread on legislative ground.” McCulloch n. Maryland, 4 Wheat. 316, 415, 423. By the act of 1890, Congress subjected to forfeiture “ any property owned under any contract or by any combination, or pursuant to any conspiracy, (and being the subject thereof,) mentioned in section one of this act, and being in the course of transportation from one State to another, or to a foreign country.” It was not deemed wise to subject such property to forfeiture before transportation began or after it ended. If it be suggested that Congress might have prohibited the transportation from the State in which they are manufactured of any articles, by whomsoever at the time owned, that had been UNITED STATES v. E. C. KNIGHT CO. 41 Dissenting Opinion: Harlan, J. manufactured by combinations formed to monopolize some designated part of trade or commerce among the States, my answer is that it is not within the functions of the judiciary to adjudge that Congress shall employ particular means in execution of a given power, simply because such means are, in the judgment of the courts, best conducive to the end sought to be accomplished. Congress, in the exercise of its discretion as to choice of means conducive to an end to which it was competent, determined to reach that end through civil proceedings instituted to prevent or restrain these obnoxious combinations in their attempts to burden interstate commerce by obstructions that interfere in advance of transportation with the free course of trade between the people of the States. In other words, Congress sought to prevent the coming into existence of combinations, the purpose or tendency of which was to impose unlawful restraints upon interstate commerce. There is nothing in conflict with these views in Coe v. Errol, 116 U. S. 517, 529. There the question was whether certain logs cut in New Hampshire, and hauled to a river that they might be transported to another State, were liable to be taxed in the former State before actual transportation to the latter State began. The court held that the logs might be taxed while they remained in the State of their origin as part of the general mass of property there; that “for’ZA^s purpose ” — taxation — the property did not pass from the jurisdiction of the State in which it was until transportation began. The scope of the decision is clearly indicated by the following clause in the opinion of Mr. Justice Bradley: “How can property thus situated, to wit, deposited or stored at the place of entrepot for future exportation, be taxed in the regular way as part of the property of the State ? The answer is plain. It can be taxed as all other property is taxed, in the place where it is found, if taxed or assessed for taxation in the usual manner in which such property is taxed ; and not singled out to be assessed by itself in an unusual and exceptional manner because of its situation.” As we have now no question as to the taxation of articles manufactured by one of the combinations condemned by the act of Congress, and 42 OCTOBER TERM, 1894. Dissenting Opinion: Harlan, J. as no one has suggested that the State in which they may be manufactured could not tax them as property so long as they remained within its limits, and before transportation of them to other States began, I am at a loss to understand how the case before us can be affected by a decision that personal property, while it remains in the State of its origin, although it is to be sent at a future time to another State, is within the jurisdiction of the former State for purposes of taxation. The question here relates to restraints upon the freedom of interstate trade and commerce imposed by illegal combinations. After the fullest consideration I have been able to bestow upon this important question, I find it impossible to refuse my assent to this proposition: Whatever a State may do to protect its completely interior traffic or trade against unlawful restraints, the general government is empowered to do for the protection of the people of all the States — for this purpose one people — against unlawful restraints imposed upon interstate traffic or trade in articles that are to enter into commerce among the several States. If, as already shown, a State may prevent or suppress a combination, the effect of which is to subject its domestic trade to the restraints necessarily arising from their obtaining the absolute control of the sale of a particular article in general use by the community, there ought to be no hesitation in allowing to Congress the right to suppress a similar combination that imposes a like unlawful restraint upon interstate trade and traffic in that article. While the States retain, because they have never surrendered, full control of their completely internal traffic, it was not intended by the framers of the Constitution that any part of interstate commerce should be excluded from the control of Congress. Each State can reach and suppress combinations so far as they unlawfully restrain its interior trade, while the national government may reach and suppress them so far as they unlawfully restrain trade among the States. While the opinion of the court in this case does not declare the act of 1890 to be unconstitutional, it defeats the main object for which it was passed. For it is, in effect, held that the statute would be unconstitutional if interpreted as em- UNITED STATES v. E. C. KNIGHT CO. 43 Dissenting Opinion: Harlan, J. bracing such unlawful restraints upon the purchasing of goods; in one State to be carried to another State as necessarily arise from the existence of combinations formed for-the purpose and with the effect, not only of monopolizing the ownership of all such goods in every part of the country, but of controlling the-prices for them in all the States. This view of the scope of the act leaves the public, so far as national power is concerned, entirely at the mercy of combinations which arbitrarily control the prices of articles purchased to be transported from one State to another State. I cannot assent to that, view. In my judgment, the general government is not placed; by the Constitution in such a condition of helplessness that it, must fold its arms and remain inactive while capital combines,., under the name of a corporation, to destroy competition, not in one State only, but throughout the entire country, in the-buying and selling of articles — especially the necessaries of life — that go into commerce among the States. The doctrine of the autonomy of the States cannot properly be invoked to justify a denial of power in the national government to meet such an emergency, involving as it does that freedom; of commercial intercourse among the States which the Constitution sought to attain. It is said that there are no proofs in the record which indicate an intention upon the part of the American Sugar Refining Company and its associates to put a restraint upon trade or commerce. Was it necessary that formal proof be made* that the persons engaged in this combination admitted, in words, that they intended to restrain trade or commerced Did any one expect to find in the written agreements which» resulted in the formation of this combination a distinct expression of a purpose to restrain interstate trade or commerce?» Men who form and control these combinations are too cautious and wary to make such admissions orally or in writing. Why, it is conceded that the object of this combination was to obtain control of the business of making and selling refined sugar throughout the entire country. Those interested in its operations will be satisfied with nothing less than to have the whole population of America pay tribute to them.. That object. 44 OCTOBER TERM, 1894. Dissenting Opinion: Harlan, J. is disclosed upon the very face of the transactions described in the bill. And it is proved — indeed, is conceded — that that object has been accomplished to the extent that the American Sugar Refining Company now controls ninety-eight per cent of all the sugar refining business in the country, and therefore controls the price of that article everywhere. Now, the mere existence of a combination having such an object and possessing such extraordinary power is itself, under settled principles of law — there being no adjudged case to the contrary in this country — a direct restraint of trade in the article for the control of the sales of which in this country that combination was organized. And that restraint is felt in all the States, for the reason, known to all, that the article in question goes, was intended to go, and must always go, into commerce among the several States, and into the homes of people in every condition of life. A decree recognizing the freedom of commercial intercourse as embracing the right to buy goods to be transported from one State to another, without buyers being burdened by unlawful restraints imposed by combinations of corporations or individuals, so far from disturbing or endangering, would tend to preserve the autonomy of the States, and protect the people of all the States against dangers so portentous as to excite apprehension for the safety of our liberties. If this be not a sound interpretation of the Constitution, it is easy to perceive that interstate traffic, so far as it involves the price to be paid for articles necessary to the comfort and well-being of the people in all the States, may pass under the absolute control of overshadowing combinations having financial resources without limit and an audacity in the accomplishment of their objects that recognizes none of the restraints of moral •obligations controlling the action of individuals; combinations governed entirely by the law of greed and selfishness — so powerful that no single State is able to overthrow them and give the required protection to the whole country, and so allpervading that they threaten the integrity of our institutions. We have before us the case of a combination which absolutely controls, or may, at its discretion, control the price of all UNITED STATES v. E. C. KNIGHT CO. 45 Dissenting Opinion: Harlan, J. refined sugar in this country. Suppose another combination, organized for private gain and to control prices, should obtain possession of all the large flour mills in the United States; another, of all the grain elevators; another, of all the oil territory ; another, of all the salt-producing regions; another, of all the cotton mills; and another, of all the great establishments for slaughtering animals, and the preparation of meats.. What power is competent to protect the people of the United States against such dangers except a national power — one that is capable of exerting its sovereign authority throughout every part of the territory and over all the people of the nation ? To the general government has been committed the control of commercial intercourse among the States, to the end that it may be free at all times from any restraints except such as Congress may impose or permit for the benefit of the whole country. The common government of all the people is the only one that can adequately deal with a matter which directly and injuriously affects the entire commerce of the country, which concerns equally all the people of the Union, and which, it must be confessed, cannot be adequately controlled by any one State. Its authority should not be so weakened by construction that it cannot reach and eradicate evils that, beyond all question, tend to defeat an object which that government is entitled, by the Constitution, to accomplish. “ Powerful and ingenious minds,” this court has said, 11 taking, as postulates, that the powers expressly granted to the government of the Union, are to be contracted by construction into the narrowest possible compass, and that the original powers of the States are retained if any possible construction will retain them, may, by a course of well digested, but refined and metaphysical reasoning, founded on these premises, explain away the Constitution of our country, and leave it, a magnificent structure,, indeed, to look at, but totally unfit for use. They may so entangle and perplex the understanding as to obscure principles which were before thought quite plain, and induce doubts where, if the mind were to pursue its own course, none would be perceived.” Gibbons v. Ogden, 9 Wheat. 1, 222. While a decree annulling the contracts under which the 46 OCTOBER TERM, 1894. Opinion of the Court. combination in question was formed, may not, in view of the facts disclosed, be effectual to accomplish the object of the act of 1890,1 perceive no difficulty in the way of the court passing a decree declaring that that combination imposes an unlawful restraint upon trade and commerce among the States, and perpetually enjoining it from further prosecuting any business pursuant to the unlawful agreements under which it was formed or by which it was created. Such a decree would be within the scope of the bill, and is appropriate to the end which Congress intended to accomplish, namely, to protect the freedom of commercial intercourse among the States against combinations and conspiracies which impose unlawful restraints upon such intercourse. For the reasons stated I dissent from the opinion and judgment of the court. STUART v. EASTON. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF PENNSYLVANIA. No. 151. Argued January 15,1895. — Decided January 21,1895. An averment that the plaintiff is “a citizen of London, England,” is not sufficient to give the Circuit Court jurisdiction on the ground of his alienage, the defendant being a citizen ; and on the question being raised in this court, the case may be remanded with leave to apply to the Circuit Court for amendment and for further proceedings. The case is stated in the opinion. Mr. C. Berkeley Taylor and Jfr. A. T. Freedley, (with whom was Mr. W. Brooke Bawle on the brief,) for plaintiff in error. Mr. H. J. Steele for defendants in error. The Chief Justice : Plaintiff in error is described throughout the record as “ a citizen of London, England,” and the defendants as “corporations of the State of Pennsylvania.” As the jurisdiction of the Circuit Court confessedly depended ROUSE v. LETCHER. 47 Statement of the Case. on the alienage of plaintiff in error, and that fact was not made affirmatively to appear, the judgment must be reversed at the costs of plaintiff in error, and the cause be remanded to the Circuit Court with leave to apply for amendment and for further proceedings. Bingham v. Cabot, 3 Dall. 382; Mossman v. Higginson, 4 Dall. 12; Capron v. Van Noor den, 2 Cranch, 125 ; Jackson v. Twentyman, 2 Pet. 136; ConoUy v. Taylor, 2 Pet. 556; Brown v. Keene, 8 Pet. 115 ; Robertson v. Cease, 97 U. S. 646; Bdrs v. Preston, 111 U. S. 252, 263; Denny v. Pironi, 141 U. S. 121; Horne v. George H. Hammond Co., 155 U. S. 393. Judgment reversed. ROUSE v. LETCHER. APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. No. 582. Submitted December 17,1894. — Decided January 21, 1895. A judgment in a Circuit Court of Appeals upon the claim of an intervenor, set up in a Circuit Court against the receiver of a railroad appointed by that court in a suit for the foreclosure of a mortgage upon the road, is a final judgment which cannot be reviewed in this court. Motion to dismiss. The Mercantile Trust Company, a corporation of Hew York, filed its bill in the Circuit Court of the United States for the District of Kansas, June 8,1888, against the Missouri, Kansas and Texas Railway Company, a corporation of Kansas, for the foreclosure of certain mortgages and deeds of trust, and George A. Eddy and H. C. Cross were thereupon appointed receivers of the company, and took charge of its property, which consisted, among other things, of a line of railroad running from Hannibal, Missouri, to Parsons, Kansas, and to Fort Worth, Texas. Ancillary proceedings were also had in the Circuit Courts of the United States through whose jurisdiction the railway ran. On October 11, 1890, Annie Letcher filed her intervening petition in that cause in the Circuit Court of the United States for the Northern 48 OCTOBER TERM, 1894. Opinion of the Court. Division, of the Eastern District of Missouri, at Hannibal,, claiming damages on account of the death of her husband, Harvey Letcher, occasioned, as she averred, by the negligence of the receivers, their agents, servants and employés. The receivers having filed their answer thereto, the matter was referred by the court to a master in chancery to report conclusions thereon. A hearing was had and a report made by the master, May 18, 1891, recommending a judgment for $5000 in favor of the intervenor. Exceptions were filed and overruled, and the Circuit Court at Hannibal, on January 5, 1892, allowed the claim of the intervenor and rendered judgment for $5000 against the receivers, and ordered it “paid unto the intervenor herein, or her solicitor of record, by George A. Eddy and Harrison C. Cross, the receivers in this cause, out of any money or funds in their hands applicable to that purpose, or that the same be paid by the persons or corporations who have succeeded to the possession of the property lately in the custody of said receivers, who by the terms of the final decree, or previous orders in this cause, are chargeable with the payment of such claims.” An appeal from this decree was taken by the receivers to the Circuit Court of Appeals for the Eighth Circuit and the decree affirmed, July 10, 1893. JEddy v. Letcher, 12 IT. S. App. 506 ; & C. 57 Fed. Rep. 115. Thereupon an appeal was prayed and allowed to this court, which the intervenor moved to dismiss. The deaths of Eddy and Cross having been suggested, the appearance of Henry C. Rouse, appointed receiver in their place, was entered. JZr. James P. Wood for the motion. Mr. James Hagerman and J/r. George P. B. Jackson opposing. Mr. Chief Justice Fuller, after stating the case, delivered the opinion of the court. By section six of the judiciary act of March 3, 1891, c. 517, the judgments or decrees of the Circuit Courts of Appeals are made final “ in all cases in which the jurisdiction is dependent ROUSE v. LETCHER. 49 Opinion of the Court entirely upon the opposite parties to the suit or controversy being aliens and citizens of the United States or citizens of different States.” And it is also provided that “ in all cases not hereinbefore, in this section, made final there shall be of right an appeal or writ of error or review of the case by the Supreme Court of the United States where the matter in controversy shall exceed one thousand dollars.” 26 Stat. 826, 828. If the decree of the Circuit Court of Appeals for the Eighth Circuit was final under the sixth section, then this appeal must be dismissed, and in order to maintain that the decision was not final it must appear that the jurisdiction of the Circuit Court was not dependent entirely upon the opposite parties being citizens of different States. The jurisdiction of the Circuit Court was invoked by the filing of the bill, upon which it appeared that the suit was one of which cognizance could properly be taken on the ground of diverse citizenship, and it did not appear therefrom that jurisdiction was rested or could be asserted on any other ground. But it is insisted that appellee’s cause of action arose long after the Circuit Court had taken jurisdiction and the receivers had been appointed, and that her suit by intervention was one arising under the Constitution and laws of the United States because the cause of action was asserted against the receivers as officers of the United States court and arose as alleged by reason of negligence on their part in the course of their receivership. It is plain, however, that the intervention was entertained as belonging to that class of proceedings recognized as allowable where property sought to be charged is in custodia legis, and not on any other ground. Although appellee’s claim was purely a legal one, she did not bring an action at law, but was permitted to intervene by petition as in the assertion of a claim upon the property or fund being administered by the court. It is well settled that where property is in the actual possession of a court, this draws to it the right to decide upon conflicting claims to its ultimate possession and control; Minnesota Go. v. St. Paul Go., 2 Wall. 609; Morgan? s Go. n. Texas Central Railway, 137 U. S. 171, 201; and that where assets are in the course of administration, all persons entitled VOL. CLVI—4 50 OCTOBER TERM, 1894. Opinion of the Court. to participate may come in, under the jurisdiction acquired between the original parties, by ancillary or supplemental proceedings, even though jurisdiction would be lacking if such proceedings had been originally and independently prosecuted. Stewart v. Dunham, 115 U. S. 61, 64; Richmond v. Irons, 121 U. S. 27, 52. And since where jurisdiction would not obtain in an independent suit, an intervening proceeding may nevertheless be maintained as ancillary and supplemental under jurisdiction already subsisting, such proceeding is to be regarded in that aspect, even in cases where the Circuit Court might have had jurisdiction of an independent-action. Here, as we have said, the jurisdiction of the. Circuit Court was invoked in the first instance by the filing of the bill, and it was under that jurisdiction that appellee intervened in the case, and that jurisdiction depended entirely upon, diverse citizenship. We think the use of the words “suit or controversy” in the sixth section does not affect the conclusion. If the word “ controversy ” added anything to the comprehensiveness of the section, the fact remains that the exercise of the power of disposition over this intervention, whether styled suit or controversy, was the exercise of power invoked at the institution of the main suit, and it is to that point of time that the inquiry as to jurisdiction must necessarily be referred. Colorado Cent/ral Mining Co. v. Tur ch, 150 U. S. 138. Nor can the conclusion be otherwise because separate appeals may be allowed on such interventions. Decrees upon controversies separable from the main suit may indeed be separately reviewed but the jurisdiction of the Circuit Court over such controversies is not, therefore, to be ascribed to grounds independent of jurisdiction in the main suit. We are unable to attribute to Congress the intention of allowing final orders on every incidental controversy, involving over one thousand dollars, to be brought to this court for review, while denying such review of the principal decree, although involving millions. Tested by these principles, the decree of the Circuit Court of Appeals was final, and the motion to dismiss must be sustained. Appeal dismissed. SPARE AND HANSEN v. UNITED STATES. 51 Syllabus. SPARE AND HANSEN v. UNITED STATES. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF CALIFORNIA. No. 618. Submitted March 5, 1894. — Decided January 21, 1895. If one of two persons accused of having together committed the crime of murder makes a voluntary confession in the presence of the other, under such circumstances that he would naturally have contradicted it if he did not assent, the confession is admissible in evidence against both. If two persons are indicted and tried jointly for murder, declarations of one made after the killing and in the absence of the other, tending to prove the guilt of both, are admissible in evidence against the one making the declarations, but not against the other. An objection to the admissibility of such evidence, made at the trial in the name of both defendants, on the general ground that it was irrelevant, immaterial, and incompetent, furnishes, if the testimony be admitted, sufficient ground in case of conviction for bringing the case to this court, and warrants the reversal of the conviction of the defendant against whom it was not admissible. Confession of a person imprisoned and in irons, under an accusation of having committed a capital offence, are admissible in evidence against him, if they appear to have been voluntary, and not obtained by putting him in fear, or by promises. Section 1035 of the Revised Statutes does not authorize a jury in a criminal case to find the defendant guilty of a less offence than the one charged, unless the evidence justifies it; but it enables the jury, in case the defendant is not shown to be guilty of the particular crime charged, to find him guilty of a lesser offence necessarily included in the one charged, or of the attempt to commit the one charged, when the evidence permits that to be done. In the courts of the United States it is the duty of the jury, in criminal cases, to receive the law from the court, and to apply it as given by the court, subject to the condition that by a general verdict a jury of necessity determines both law and fact as compounded in the issue submitted to them in the particular case. In criminal cases it is competent for the court to instruct the jury as to the legal presumptions arising from a given state of facts ; but it may not, by a peremptory instruction, require the jury to find the accused guilty of the offence charged, nor of any offence less than that charged. On the trial in a court of the United States of a person accused of committing the crime of murder, if there be no evidence upon which the jury can properly find the defendant guilty of an offence included in or less than the one charged, it is not error to instruct them that they cannot return a verdict of guilty of manslaughter, or of any offence less than 52 OCTOBER TERM, 1894. Opinion of the Court. the one charged; and, in such case, if the defendant was not guilty of the offence charged, it is the duty of the jury to return a verdict of not guilty. The case is stated in the opinion. Mr. J. F. Smith and Mr. F. J. Fierce for plaintiffs in error. Mr. Assistant Attorney General Conrad for defendants in error. Mr. Justice Harlan delivered the opinion of the court. The plaintiffs in error and Thomas St. Clair were indicted jointly for the murder of Maurice Fitzgerald upon the high seas, on board of an American vessel, the bark Hesper, as set forth in the indictment mentioned in St. Clair v. United States, 154 U. S. 134. On motion of the accused it was ordered that they be tried separately. St. Clair was tried, found guilty of murder, and sentenced to suffer the punishment of death. Subsequently the order for separate trials was set aside, and the present defendants were tried together, and both were convicted of murder. A motion for a new trial having been overruled, a like sentence was imposed upon them. The general facts of this case do not differ from those proved in St. Clair’s case, and some of the questions arising upon the present assignments of error were determined in that case. Only such questions will be here examined as were not properly presented or did not arise in the other case, and as are of sufficient importance to require notice at our hands. In the night of January 13, 1893, Fitzgerald, the second mate of the Hesper, was found to be missing, and it was believed that he had been killed and his body thrown overboard. Suspicion being directed to St. Clair, Sparf, and Hansen, part of the crew of the Hesper, as participants in the killing, they were put in irons by order of Captain Soder-gren, master of the vessel, and were so kept during the SPARE AND HANSEN v. UNITED STATES. 53 Opinion of the Court. voyage from the locality of the supposed murder to Tahiti, an island in the South Pacific belonging to the French government. They were taken ashore by the United States consul at that island, and subsequently were sent, with others, to San Francisco on the vessel Tropic Bird. At the trial, Captain Sodergren, a witness for the government, was asked whether or not after the 13th day of January and before reaching Tahiti — which was more than one thousand miles from the locality of the alleged murder — he had any conversation with the defendant Hansen about the killing of Fitzgerald. This question having been answered by the witness in the affirmative, he was fully examined as to the circumstances under which the conversation was held. He said among other things that no one was present but Hansen and himself. Being asked to repeat the conversation referred to, the accused, by the counsel who had been appointed by the court to represent them, objected to the question as “ irrelevant, immaterial, and incompetent, and upon the ground that any statement made by Hansen was not and could not be voluntary.” The objection was overruled, and the defendants duly excepted. The witness then stated what Hansen had said to him. That evidence tended strongly to show that Fitzgerald was murdered pursuant to a plan formed between St. Clair, Sparf, and Hansen; that all three actively participated in the murder; and that the crime was committed under the most revolting circumstances. Thomas Green and Edward Larsen, two of the crew of the Ilesper, were also witnesses for the government. They were permitted to state what Hansen said to them during the voyage from Tahiti to San Francisco. This evidence was also objected to as irrelevant, immaterial, and incompetent, and upon the further ground that the statement the accused was represented to have made was not voluntary. But the objection was overruled and an exception taken. Upon the conclusion of the evidence the defendants requested certain instructions which the court refused to give, and they excepted to its action in that particular, as well as to certain parts of the charge to the jury. 54 OCTOBER TERM, 1894. Opinion of the Court. 1. The declarations of Hansen, as detailed by Sodergren, Green, and Larsen, were clearly admissible in evidence against him. There was no ground on which their exclusion could have been sustained. In reference to this proof, the court charged the jury that if they believed from the evidence that Green and Larsen or either of them were accomplices in the commission of the acts charged in the indictment, they should act upon their testimony with great caution, subjecting it to a careful examination in the light of all the other evidence, and ought not to convict upon their testimony alone, unless satisfied beyond reasonable doubt of its truth; that if Larsen and Green or either of them or any other person were induced to testify by promises of immunity from punishment, or by hope held out from any one that it would go easier with them in case they disclosed their confederates, or in case they implicated some one else in the crime, this must be taken into consideration in determining the weight to be given to their testimony, and should be closely scrutinized; that the confessions of a prisoner out of court and m custody made to persons having no authority to examine him, should be acted upon and received with great care and caution; that words are often misreported through ignorance, inattention, or malice, are extremely liable to misconstruction, are rarely sufficient to warrant conviction as well on- account of the great danger of mistake upon the part of the witness, as of the fact that the mind of the prisoner himself may be oppressed by his situation or influenced by motives of hope or fear to make an untrue confession; that in considering the weight to be given to the alleged confessions of the defendants, the jury were to consider their condition at the time they were made, the fact that they had been charged with crime, and were in custody; and that the jury were to determine whether those confessions were voluntary or whether any inducements were held out to them by any one. The defendants did not offer themselves as witnesses, and the court took care to say that a person charged with crime is under no obligation to testify in his own behalf, and that his neglect to testify did not create any presumption whatever against him. SPARE AND HANSEN v. UNITED STATES. 55 Opinion of the Court. So far as the record discloses, these confessions were entirely free and voluntary, uninfluenced by any hope of reward or fear of punishment. In Hopt v. Utah, 110 U. S. 574, 584, it was said: “ While some of the adjudged cases indicate distrust of confessions which are not judicial, it is certain, as observed by Baron Parke, in Regina v. Baldry, 2 Dennison & Pearce Cr. Cas. 430, 445, that the rule against their admissibility has been sometimes carried too far, and in its application justice and common sense have too frequently been sacrificed at the shrine of mercy. A confession, if freely and voluntarily made, is evidence of the most satisfactory character. Such a confession, said Eyre, C. B., King n. Warickshall, 1 Leach Cr. Law, 263, ‘ is deserving of the highest credit, because it is presumed to flow from the strongest, sense of guilt, and, therefore, it is admitted as proof of the crime to which it refers.’ Elementary writers of authority concur in saying that while from the nature of such evidence it must be subjected to careful scrutiny and received with great caution, a deliberate voluntary confession of guilt is among the most effectual proofs in the law and constitutes the strongest evidence against the party making it that can be given of the facts stated in such confession.” Counsel for the accused insist that there cannot be a voluntary statement, a free open confession, while a defendant is confined and in irons under an accusation of having committed a capital offence. We have not been referred to any authority in support of that position. It is true that the fact of a prisoner being in custody at the time he makes a confession is a circumstance not to be overlooked, because it bears upon the inquiry whether the confession was voluntarily made or was extorted by threats or violence or made under the influence of fear. But confinement or imprisonment is not in itself sufficient to justify the exclusion of a confession, if it appears to have been voluntary, and was not obtained by putting the prisoner in fear or by promises. Wharton’s Cr. Ev. 9th ed. §§ 661, 663, and authorities cited. The import of Sodergren’s evidence was that when Hansen manifested a desire to speak to him on the subject of the killing, the latter said he did not 56 OCTOBER TERM, 1894. Opinion of the Court. wish to hear it, but “ to keep it until the right time came and then tell the truth.” But this was not offering to the prisoner an inducement to make a confession. Littledale, J., well observed in Rex v. Court, 7 Car. & P. 486, that telling a man to be sure to tell the truth is not advising him to confess anything of which he is really not guilty. See also Queen v. Reeve, L. R. 1 C. C. 362. Nothing said to Hansen prior to the confession was at all calculated to put him in fear or to excite any hope of his escaping punishment by telling what he knew or witnessed or did in reference to the killing. The declarations of Hansen after the killing, as detailed by Green and Larsen, were also admissible in evidence against Sparf, because they appear to have been made in his presence and under such circumstances as would warrant the inference that he would naturally have contradicted them if he did not assent to their truth. But the confession and declarations of Hansen to Sodergren after the killing of Fitzgerald were incompetent as evidence against Sparf. St. Clair, Hansen, and Sparf were charged jointly with the murder of Fitzgerald. What Hansen said after the deed had been fully consummated, and not on the occasion of the killing and in the presence only of the witness, was clearly incompetent against his codefendant, Sparf, however strongly it tended to connect the latter with the commission of the crime. If the evidence made a case of conspiracy to kill and murder, the rule is settled that “ after the conspiracy has come to an end, and whether by success or by failure, the admissions of one conspirator by way of narrative of past facts are not admissible in evidence against the others.” Logan v. United States, 144 U. S. 263, 309 ; Brown v. United States, 150 U. S. 93, 98; Wright’s Criminal Conspiracies, Car-son’s ed. 212, 213, 217; 1 Greenleaf, § 233. The same rule is applicable where the evidence does not show that the killing was pursuant to a conspiracy, but yet was by the joint act of the defendants. The objection to the question, in answer to which the declarations of Hansen to Sodergren were given, was sufficiently specific. The general rule undoubtedly is that an objection SPARF AND HANSEN v. UNITED STATES. 57 Opinion of the Court. should be so framed as to indicate the precise point upon which the court is asked to rule. It has, therefore, been often held that an objection to evidence as irrelevant, immaterial, and incompetent, nothing more being stated, is too general to be considered on error, if in any possible circumstances it could be deemed or could be made relevant, material, or competent. But this principle will not sustain the ruling by which the declarations of Hansen, made long after the commission of the alleged murder, and not in the presence of Sparf, were admitted as evidence against the latter. In no state of case were those declarations competent against Sparf. Its inadmissibility as to him was apparent. It appeared upon the very face of the question itself. In People v. Beach, 87 N. Y. 508, 513, which was an indictment for petit larceny, the prosecution offered in evidence the statements of a third party, not in the presence of the accused, which related to the vital point upon which the conviction turned. There was a general objection to the evidence. The court said: “We think, however, the general objection made in this case was sufficient. It appeared, when the objection was made, that the conversation proposed to be shown was between the prosecutor and Hardacre, when the defendant was not present. There was no possible view of the case, as it then or afterward stood, in which such a conversation was admissible. When the witness was asked to state the conversation, and counsel objected, both the court and the prosecuting officer must have understood that it was an objection to the competency of the proposed evidence. If the objection had been made in terms, on the ground that the evidence was incompetent, the sufficiency of the objection could not have been questioned, and the objection, as made, necessarily implied this. Neither the court nor prosecuting attorney could have been misled as to the point of the objection. It was patent on considering the objection in connection with the proof offered. If any doubt could be entertained as to the technical sufficiency of the objection, we should be disinclined in a criminal case, to deprive a defendant of the benefit of an •exception by the strict application of a rule more especially 58 OCTOBER TERM, 1894. Opinion of the Court. applicable to civil cases, when we can see that its application would produce injustice.” And in Turner n. City of JTew-burgh, 109 N. Y. 301, 308, it was said: “ This court has held that when the objection to evidence is general and it is overruled and the evidence is received, the ruling will not be held erroneous unless there be some grounds which could not have been obviated had they been specified, or unless the evidence in its essential nature be incompetent.” Tozer v. N. Y. Central (& Hudson River Railroad, 105 N. Y. 659; Alcorn v. Chicago & Alton Railway, 108 Missouri, 81; Curr v. Hundley, (Colorado) 31 Pac. Rep. 939, 940; McCaden v. Lowenstein, 92 Tennessee, 614; Ward v. Wilms, 16 Colorado, 86. We are of opinion that as the declarations of Hansen to Sod-ergren were not, in any view of the case, competent evidence against Sparf, the court, upon objection being made by counsel representing both defendants, should have excluded them as evidence against him, and admitted them against Hansen. The fact that the objection was made in the name of both defendants did not justify the court in overruling it as to both, when the evidence was obviously incompetent and could not have been made competent against Sparf, and was obviously competent against Hansen. It was not necessary that counsel should have made the objection on behalf of one defendant and then formally repeated it, in the same words, for the other defendant. If Sparf had been tried alone, a general objection in his behalf on the ground of incompetency would have been sufficiently definite. Surely, such an objection coming from Sparf when tried with another ought not to be deemed ineffectual because of the circumstance that his counsel, who by order of the court represented also his codefendant, incautiously spoke in the name of both defendants. Each was entitled to make his own defence, and the jury could have found one of them guilty and acquitted the other. Mutual Life Ins. Co. n. Hillmon, 145 ü. S. 285, 293. See also Commonwealth v. Robinson, 1 Gray, 555, 560. For the error of the court in not sustaining the objection referred to, so far as it related to Sparf, the judgment must be reversed as to him. If he were the only defendant, we might SPARF AND HANSEN v. UNITED STATES. 59 Opinion of the Court. withhold any expression of opinion upon other questions raised by the assignments of error. But as some of those questions are important and may arise upon another trial of Sparf, and especially as they must be now determined with reference to Hansen, we proceed to their examination. 2. One of the specifications of error relates to the refusal of the court to give certain instructions asked by the defendants, and to parts of the charge to the jury. The defendants asked the court to instruct the jury as follows: “ In all criminal causes the defendant may be found guilty of any offence the commission of which is necessarily included in that with which he is charged in the indictment, or the defendant may be found guilty of an attempt to commit the offence so charged, provided that such attempt be itself a separate offence.” “ Under an indictment charging murder* the defendant may be convicted of murder, of manslaughter, or an attempt to commit either murder or manslaughter.” “Under the indictment in this case, the defendants may be convicted of murder, or manslaughter, or of an attempt to commit murder or manslaughter, and if after a full and careful consideration of all the evidence before you you believe beyond a reasonable doubt that the defendants are guilty, either of manslaughter or of an assault with intent to commit murder or manslaughter, you should so find your verdict.” These instructions were refused and the defendants excepted. In its charge to the jury the court, among other things, said: “ What, then, is murder ? There are only two kinds of felonious homicide known to the laws of the United States. One is murder and the other is manslaughter. There are no degrees of murder.” “There is no definition of murder by any United States statute. We resort to the common law for that. By the common law, murder is the unlawful killing of a human being in the peace of the State, with malice aforethought, either express or implied. Malice, then, is an element in the offence and discriminates it from the other crime of felonious homicide which I have mentioned, to wit, manslaughter; that is, malice express or implied, discriminates 60 OCTOBER TERM, 1894. Opinion of the Court. murder from the offence of manslaughter.” “ Express malice exists when one, by deliberate premeditation and design, formed in advance, to kill or to do bodily harm, the premeditation and design being implied from external circumstances capable of proof, such as lying in wait, antecedent threats, and concerted schemes against a victim. Implied malice is an inference of the law from any deliberate and cruel act committed by one person against another. The two kinds of malice, therefore, to repeat, indicate but one state of mind, established in different ways, the one by circumstances showing premeditation of the homicide, the other by an inference of the law from the act committed; that is, malice is inferred when one kills another without provocation, or when the provocation is not great. Manslaughter is the unlawful killing of' a human being without malice either expressed or implied. I do not consider it necessary, gentlemen, to explain it further, for if a felonious homicide has been committed, of which you are to be the judges from the proof , there is nothing in this case to reduce it below the grade of murder. In other words, it may be in the power of the jury under the indictment by which these defendants are accused and tried of finding them guilty of a less crime than murder, to wit, manslaughter, or an attempt to commit murder; yet, as 1 have said in this case, if a felonious homicide has been committed at all, of which 1 repeat you are the judges, there is nothing to reduce it below the grade of murder.” The court further said to the jury: “You are the exclusive judges of the credibility of the witnesses, and in judging of their credibility you have a right to take into consideration their prejudices, motives, or feelings of revenge, if any such have been proven or shown by the evidence in the case; if you believe from the evidence that any witness or witnesses have knowingly and wilfully testified falsely as to any material fact or point, you are at liberty to disregard entirely the testimony of such witness or witnesses.” “ Gentlemen, I have given you these instructions as carefully as I could, avoiding all references to the testimony, but I do not wish to be misunderstood, and out of abundant SPARF AND HANSEN v. UNITED STATES. 61 Opinion of the Court. caution I say further to you, in giving you these instructions, I may by accident have assumed facts to be proven ; if so you must disregard the assumption. It is not my purpose, nor is it my function, to assume any fact to be proven, nor to suggest to you that any fact has been proven. You are the exclusive judges of the fact. No matter what assumption may appear during the course of the t/rial in any ruling of mine, or what may appear in any one of these instructions, you are to take this case and consider it, and remember you are the tribunal to which the law has referred the case and whose judgment the law wants on the case” After the jury had been in consultation for a time, they returned into court for further instructions. The colloquy between the court and the jurors is set forth at large in the margin.1 1 “ Foreman. There is one of us who wishes to be instructed by your honor as tq certain points upon the question of United States marine laws in regard to murder on the high seas. “ Court. The instruction which I gave you, gentlemen, in regard to the law upon which the indictment was based was section 5339 of the Revised Statutes, which I will read to you again. Juror. Your honor, I would like to know in regard to the interpretation of the laws of the United States in regard to manslaughter, as to whether the defendants can be found guilty of manslaughter, or that the defendants must be found guilty. “ Court. I will read the section to you and see if that touches the proposition. The indictment is based upon section 5339, which provides, among other things, ‘that every ’ person who commits murder upon the high seas or in any arm of the sea, or in any river, haven, creek, basin, or bay, within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State, or who, upon any such waters, maliciously strikes, stabs, wounds, poisons, ‘ or shoots any other person, of which striking, stabbing, wounding, poisoning, or shooting such other person dies on land or at sea, within or without the United States, shall suffer death.’ Hence, that is the penalty for the offence described in the indictment. I have given you the definition of murder. If you remember it, you will connect it with these words: ‘Every person who commits murder upon the high seas, or in any arm of the sea, or in any river, haven, etc. Juror. Are the two. words‘aiding’or‘abetting’ defined ? Court. The words ‘aiding’ or ‘abetting’ are not defined, but I have instructed you as to the legal effect of aiding and abetting, and this you should accept as law. If I have made an error there is a higher tribunal to correct it. “Juror. I am the spokesman for two of us. We desire to clearly understand the matter. It is a barrier in our mind to our determining the matter. The question arising amongst us is as to aiding and abetting. 62 OCTOBER TERM, 1894. Opinion of the Court. The requests for instruction made by the defendants were based upon section 1035 of the Revised Statutes of the United Furthermore, as I understand, it must be one thing or the other. It must be guilty or not guilty. Court. Yes; under the instructions I have given you. I will read them to you again, so as to be careful and that you may understand. Murder is the unlawful killing of a human being in the peace of the State, with malice aforethought, either express or implied. I defined to you what malice was, and I assume you can recall my definition to your minds. Manslaughter is the unlawful killing of a human being without malice, either express or implied. I do not con. sider it necessary to explain it further. If a felonious homicide has been committed by either of the defendants, of which you are to be the judges from the proof, there is nothing in this case to reduce it below the grade of murder. “Juror. Then, as I understand your honor clearly, there is nothing about manslaughter in this court ? Court. No ; I do not wish to be so understood. A verdict must be based on evidence, and in a proper case a verdict for manslaughter may be rendered. “ Juror. A crime committed on the high seas must have been murder, or can it be manslaughter ? Court. In a proper case, it may be murder or it may be manslaughter, but in this case it cannot be properly manslaughter. As I have said, if a felonious homicide has been committed, the facts of the case do not reduce it below murder. Do not understand me to say that manslaughter or murder has been committed. That is for you gentlemen to determine from the testimony and the instructions I have given you. . . . Mr. Smith. We take an exception. Juror. We have got to bring a verdict for either manslaughter or murder ? Court. Do not misunderstand me. I have not said so. Juror. I know you have not. Court. I cannot direct you what conclusion to come to from the facts. I direct you only as to the law. A judgment on the facts is your province. “Mr. Garter. May I ask the court to instruct this jury that in cases where persons are being tried upon a charge of murder, and the facts proven at their trial show that the defendants are guilty of manslaughter, under an indictment, they may find him guilty of manslaughter, as a general rule; but, however, if the facts show that the defendants have been guilty of murder, and that, in this case, there is no evidence tending to establish the crime or offence of manslaughter--- “ Mr. Smith. It is the province of the jury. Court. I have already so instructed the jury. I have endeavored to make myself understood. Juror. If we bring in a verdict of guilty, that is capital punishment ? Court. Yes. Juror. Then there is no other verdict we can bring in except guilty or not guilty ? Court. In a proper case, a verdict for manslaughter may be rendered, as the district attorney has stated; and even in this case you have the physical power to do so; but as one of the tribunals of the country, a jury is expected to be governed by law, and the law it should receive from the court. Juror. There has been a misunderstanding amongst us. Now it is clearly interpreted to us, and no doubt we can now agree on certain facts.” SPARE AND HANSEN v. UNITED STATES. 63 Opinion of the Court. States, providing that “ in all criminal causes the defendant may be found guilty of any offence the commission of which is necessarily included in that with which he is charged in the indictment, or may be found guilty of an attempt to commit the offence so charged: Provided, That such attempt be itself a separate offence.” The refusal to grant the defendants’ requests for instructions, taken in connection with so much of the charge as referred to the crime of manslaughter, and the observations of the court when the jury through their foreman applied for further instructions, present the question whether the court transcended its authority when saying, as in effect it did, that in view of the evidence the only verdict the jury could under the law properly render would be either one of guilty of the offence charged or one of not guilty of the offence charged ; that if a felonious homicide had been committed by either of the defendants, of which the jury were the judges from the proof, there was nothing in this case to reduce it below the grade of murder; and that, “ as one of the tribunals of the country, a jury is expected to be governed by law, and the law it should receive from the court.” The court below assumed, and correctly, that section 1035 of the Revised Statutes did not authorize a jury in a criminal case to find the defendant guilty of a less offence than the one charged, unless the evidence justified them in so doing. Congress did not intend to invest juries in criminal cases with power arbitrarily to disregard the evidence and the principles of law applicable to the case on trial. The only object of that section was to enable the jury, in case the defendant was not shown to be guilty of the particular crime charged, and if the evidence permitted them to do so, to find him guilty of a lesser offence necessarily included in the one charged, or of the offence of attempting to commit the one charged. Upon a careful scrutiny of the evidence, we cannot find any ground whatever upon which the jury could properly have reached t e conclusion that the defendant Hansen was only guilty of an offence included in the one charged, or of a mere attempt ° commit the offence charged. A verdict of guilty of an 64 OCTOBER TERM, 1894. Opinion of the Court. offence less than the one charged would have been in flagrant disregard of all the proof, and in violation by the jury of their obligation to render a true verdict. There was an entire ab-sence of evidence upon which to rest a verdict of guilty of manslaughter or of simple assault. A verdict of that kind would have been the exercise by the jury of the power to commute the punishment for an offence actually committed, and thus impose a punishment different from that prescribed by law. The general question as to the duty of the jury to receive the law from the court, is not concluded by any direct decision of this court. But it has been often considered by other courts and by judges of high authority, and, where its determination has not been controlled by specific constitutional or statutory provisions expressly empowering the jury to determine both law and facts, the principle by which courts and juries are to be guided in the exercise of their respective functions has become firmly established. If this be true, this court should not announce a different rule, unless impelled to do so by reasons so cogent and controlling that they cannot properly be overlooked or disregarded. Some of the members of this court, after much consideration and upon an extended review of the authorities, are of opinion that the conclusion reached by this court is erroneous both upon principle and authority. For this reason, and because the question is of great importance in the administration of justice, and also involves human life, we deem it appropriate to state with more fulness than under other circumstances would be necessary the grounds upon which our judgment will rest — looking first to cases determined in the courts of the United States. In Georgia v. Brailsford, 3 Dall. 1, 4, a case in this court tried by a special jury upon an amicable issue, Chief Justice Jay is reported to have said: “ It may not be amiss here, gentlemen, to remind you of the good old rule, that on questions of fact it is the province of the jury, on questions of law it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take SPARF AND HANSEN v. UNITED STATES. 65 Opinion of the Court. upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt you will pay that respect which is due to the opinion of the court; for as, on the one hand, it is presumed that juries are best judges of facts, it is, on the other hand, presumable that the courts are the best judges of law. But still both objects are lawfully within your power of decision.” Of the correctness of this report, Mr. Justice Curtis in United States v. Morris, 1 Curtis, 23, 58, expressed much doubt, for the reason that the Chief Justice is reported as saying that, in civil cases, and that was a civil case, the jury had the right to decide the law, and because, also, the different parts of the charge conflict with each other; the Chief Justice, according to the report, saying at the outset that it is the province of the jury to decide questions of fact and of the court to decide questions of law, and in the succeeding sentence informing the jury that they had the right to take upon themselves the determination of both law and fact. If the Chief Justice said that it was the province of the court to decide questions of law, and the province of the jury to decide questions of fact, he could not have said that the jury had the right, in a civil case, to judge of and determine both law and fact. “ The whole case,” Mr. Justice Curtis said, “ is an anomaly. It purports to be a trial by jury in the Supreme Court of the United States of certain issues out of chancery. And the Chief Justice begins by telling the jury that the facts are all agreed, and the only question is a matter of law, and upon that the whole court were agreed. If it be correctly reported, I can only say it is not in accordance with the views of any other court, so far as I know, in this country or in England, and is certainly not in accordance with the course of the Supreme Court for many years.” Certain observations of Chief Justice Marshall in the course of the trial of Burr have sometimes been referred to in support of the contention that the jury in a criminal case are under no legal obligation to accept the law as laid down by the court. But nothing said by him at that trial was inconsistent with the views expressed by eminent jurists in cases VOL. clvi—5 66 OCTOBER TERM, 1894. Opinion of the Court. to be presently cited. In the course of an opinion relating merely to the order‘of evidence, the Chief Justice said: “Levying of war is a fact which must be decided by the jury. The court may give general instructions on this as on every other question brought before them, but the jury must decide upon it as compounded of fact and law'' 1 Burr's Trial, 470. This language is supposed to justify the contention that the jury in a criminal case are entitled, of right, to determine questions of pure law adversely to the direction of the court. But that no such thought was in the mind of the Chief Justice is manifest from his written charge to the jury at a subsequent stage of the trial — the accuracy of the report of which has never been disputed — in which he discussed, in the light of the authorities, the question as to what constituted treason. In the course of that charge he indicated quite distinctly his view of the respective functions of court and jury. “ It has been thought proper,” he said, “ to discuss this question at large and to review the opinion of the Supreme Court, [Ex parte Bollman and Swartwout, 4 Cranch, 75,] although this court would be more disposed to leave the question oi fact whether an overt act of levying war were committed on Blannerhassett’s Island to the jury under this explanation of the law, and to instruct them that unless the assemblage on Blannerhassett’s Island was an assemblage in force, was a military assemblage in a condition to make war, it was not levying war, and that they could not construe it into an act of war, than to arrest the further testimony which might be offered to connect the prisoner with that assemblage, or to prove the intention of those who assembled together at that place. This point, however, is not to be understood as decided. It will, perhaps, constitute an essential inquiry in another case.” 2 Burr's Trial, 422. This language is wholly inconsistent with the theory that the Chief Justice recognized the right of the jury to disregard the court’s view of the law upon any question arising in the case before them. It was consistent only with the theory that the court could speak authoritatively as to the law, while the function of the jury SPARF AND HANSEN v. UNITED STATES. 67 Opinion of the Court. was to respond as to the facts. Again : “ It is further the opinion of the court that there is no testi/mony whatever which tends to prove that the accused was actually or constructively present when that assemblage did take place; indeed, the contrary is most apparent.” Ib. 439. “The opinion of this court on the order of testimony has frequently been adverted to as deciding this question against the motion. If a contradiction between the two opinions exist, the court cannot perceive it. It was said that levying war is an act compounded of law and fact; of which the jury, aided by the court, must judge. To that declaration the court still adheres.” Ib. 444. He concluded his memorable charge in these words: “ The jury have now heard the opinion of the court on the law of the case. They will apply that law to the facts, and will find a verdict of guilty or not guilty as their own consciences may direct.” Ib. 445. Again, according to the only recognized report of that trial ever published, the Chief Justice, in response to certain inquiries of counsel made after the jury returned their verdict, said: “ Without doubt the court intended to deliver merely a legal opinion as to what acts amounted in law to an overt act of levying war; and not whether such an overt act has or has not been proved. It merely stated the law, to which the jury would apply the facts proved. It is their province to say whether according to this statement and the evidence an overt act has been proved or not.” Ib. 448. The language of the Chief Justice plainly imports that while the jury must of necessity often pass upon a question, “ compounded of fact and law,” their duty, when considering the evidence, was to apply the law, as given by the court, to the facts proved; and, thus applying the law, return a verdict of guilty or not guilty as their consciences might direct. If he had believed that the jury were entitled, of right, whatever might be the views of the court, to determine for themselves the law of the case, it is impossible that lie could have said that “ they will apply that law ” — the law as he declared it to be — “ to the facts.” On the contrary, he observed that the province of the jury was to determine whether the accused was guilty or not guilty, according to his statement of the law as applied to the evidence. 68 OCTOBER TERM, 1894. Opinion of the Court. Of course, this court has no means of determining what were the views of Chief Justice Marshall, except by referring to such authorized publications as show what he said while discharging judicial functions. In none of his opinions delivered at the Circuit Court and published can there be found anything at all in conflict with his declarations at the trial of Burr. And it may be observed that the circumstances attending that trial were such as to induce him to weigh every word embodied in his elaborate written charge to the jury. That he understood the gravity of the occasion, so far as it related to the conduct of the trial, is manifest from his referring in the following language to certain considerations that had been advanced in argument: “ That this court dares not usurp power is most true. That this court dares not shrink from its duty is not less true. No man is desirous of placing himself in a disagreeable situation. No man is desirous of becoming the peculiar subject of calumny. No man, might he let the bitter cup pass from him without self-reproach, would drain it to the bottom. But if he had no choice in the case, if there be no alternative presented to him but a dereliction of duty or the opprobrium of those who are denominated the world, he merits the contempt as well as the indignation of his country who can hesitate which to embrace. That gentlemen, in a case the most interesting, in the zeal with which they advocate particular opinions, and under the conviction in some measure produced by that zeal, should on each side press their arguments too far, should be impatient at any deliberation in the court, and should suspect or fear the operation of motives to which alone they can ascribe that deliberation, is perhaps a frailty incident to human nature; but, if any conduct on the part of the court could warrant a sentiment that it would deviate to the one side or the other from the line prescribed by duty and by law, that conduct would be viewed by the judges themselves with an eye of extreme severity, and would long be recollected with deep and serious regret,” pp. 444, 445. In Henfield's case, Mr. Justice Wilson, with whom sat Mr. Justice Iredell, stated that the jury, in a general verdict, must SPARE AND HANSEN v. UNITED STATES. 69 Opinion of the Court. decide both law and fact, but that “this did not authorize them to decide it as they pleased,” and that “ the questions of law coming into joint consideration with the facts, it is the duty of the court to explain the law to the jury, and give it to them in direction?* Wharton’s State Trials, 48, 84. This statement of the principle is sometimes referred to in support of the proposition that the jury is not under a legal duty to accept the law as declared by the court in a criminal case. We think it tends to show that it is the province and duty of the jury to apply to the facts of the case the law as given to them by the court “ in direction.” There is nothing in conflict with this in the lectures on law delivered by Mr. Justice Wilson. In one of those lectures, referring to the duties of jurors in criminal cases, he said: “ On questions of law, his [the juror’s] deficiencies will be supplied by the professional. directions of the judges, whose duty and whose business it is professionally to direct him. For, as we have seen, verdicts, in criminal cases, generally determine the question of law as well as the question of fact. Questions of fact it is his exclusive province to determine. With the consideration of evidence unconnected with the question which he is to try, his attention will not be distracted; for everything of that nature, we presume, will be excluded by the court. The collected powers of his mind, therefore, will be fixed, steadily and ’without interruption, upon the issue which he is sworn to try. This issue is an issue of fact? 2 Wilson’s Works, 386. Other observations found in these lectures, if considered alone, are not so explicit upon the question of the respective functions of court and jury; but taken in connection with all that he said, it is reasonably clear that when Mr. Justice Wilson spoke of the determination by a jury, in a criminal case, of both law and fact, he meant only that a general verdict of guilty or not guilty, of necessity, decided every question before them which involved a joint consideration of law and fact; not that the jury could ignore the directions of the court, and take the law into their own hands. The observations of Mr. Justice Samuel Chase in the case of John Fries, tried for treason, in 1800, are supposed to sustain 70 OCTOBER TERM, 1894. Opinion of the Court. the broad proposition that the jury may, of right, disregard the law as expounded by the court. He undoubtedly did say that while it was the duty of the court, in all criminal cases, to state the law arising on the facts, the jury were to decide “ both the law and the facts, on their consideration of the whole case.” Chase’s Trial, App. 44. But on the trial, in the same year, in the Circuit Court of the United States for the Virginia District, of James Thompson Callender for seditious libel, Wharton’s State Trials, 688, he was appalled at the suggestion by learned counsel that the jury were entitled, of right, to determine the constitutional validity of the act of Congress under which the accused was indicted. Mr. Wirt, counsel for the defendant, said: “ Since, then, the jury have a right to consider the law, and since the Constitution is law, the conclusion is certainly syllogistic that the jury have a right to consider the Constitution.” Ib. 710. But Mr. Justice Chase declined to accept this view. He said: “ The statute on which the traverser is indicted enacts 4 that the jury who shall try the cause shall have a right to determine the law and the fact, under the direction of the court, as in other cases? By this provision I understand that a right is given to the jury to determine what the law is in the case before them; and not to decide whether a statute of the United States produced to them is a law or not, or whether it is void, under an opinion that it is unconstitutional, that is, contrary to the Constitution of the United States. I admit that the jury are to compare the statute with the facts proved, and then to decide whether the acts done are prohibited by the law ; and whether they amount to the offence described in the indictment. This power the jury necessarily possesses, in order to enable them to decide on the guilt or innocence of the person accused. It is one thing to decide what the law is on the facts proved, and another and a very different thing to determine that the statute produced is no law. To decide what the law is on the facts, is an admission that the law exists. If there be no law in the case there can be no comparison between it and the facts ; and it is unnecessary to establish facts before it is ascertained that there is a law to punish the commission of them.” Ib. 713. SPARF AND HANSEN v. UNITED STATES. 71 Opinion of the Court. « It was never pretended,” he continued, “ as I ever heard, before this time, that a petit jury in England (from whence our common law is derived) or in any part of the United States, ever exercised such power. If a petit jury can rightfully exercise this power over one statute of Congress, they must have an equal right and power over any other statute, and indeed over all the statutes; for no line can be drawn, no restriction imposed on the exercise of such power ; it must rest in discretion only. If this power be once admitted, petit jurors will be superior to the national legislature, and its laws will be subject to their control. The power to abrogate or to make laws nugatory is equal to the authority of making them. The evident consequences of this right in juries will be, that a law of Congress will be in operation in one State and not in another. A law to impose taxes will be obeyed in one State, and not in another, unless force be employed to compel submission. The doing of certain acts will be held criminal, and punished in one State, and similar acts may be held innocent, and even approved and applauded in another. The effects of the exercise of this power by petit jurors may be readily conceived. It appears to me that the right now claimed has a direct tendency to dissolve the Union of the United States, on which, under divine Providence, our political safety, happiness, and prosperity depend.” Ib. 714. He concluded his opinion in these words: “ I consider it of the greatest consequence to the administration of justice that the powers of the court and the powers of the petit jury should be kept distinct and separate. I have uniformly delivered the opinion ‘ that the petit jury have a right to decide the law as well as the fact in criminal cases; ’ but it never entered into my mind that they, therefore, had a right to determine the constitutionality of any statute of the United States.” Ib. 718. What Mr. Justice Chase said is quite sufficient to show the mischievous consequences that would flow from the doctrine that the jury may, of right, disregard the directions of the court, and determine the law for themselves. For if, as is contended, the jury in criminal cases are not bound to take the law from the court, it is impossible to deny their absolute 72 OCTOBER TERM, 1894. Opinion of the Court. right in a case depending entirely upon an act of Congress, or a statute of a State, to determine, upon their own responsibility, whether that act or statute is or is not law, that is, whether it is or is not in violation of the Constitution. Mr. Justice Thompson, who became a member of this court in 1823, concurred in the opinion delivered by Kent, J., in People n. Croswell, (1804,) 3 Johns. Cas. 337, 362, where the court was equally divided, Chief Justice Lewis and Judge Brockhoist Livingston, afterwards a Justice of this court, holding that to questions of law the court, to questions of fact the jury, must respond. But in his opinion in Pierce v. State, 13 N. H. 536, 564, Chief Justice Parker, referring to Judge Kent’s opinion in People v. Croswell, said: “ Mr. Justice Thompson, who concurred in that opinion, must have understood that concurrence to be merely in the points necessary to the decision of that cause, or have subsequently changed his views; for I have his authority for saying that he has repeatedly ruled that the jury are not judges of the law in criminal cases.” And in the dissenting opinion of Judge Bennett in State v. Croteau, 23 Vermont, 14, 63, (where it was held that the jury, in criminal cases, could rightfully decide questions of both law and fact, but which case has been overruled, 65 Vermont 1, 34,) it was said: “Judge Thompson, whose judicial learning and experience, while on the bench of the Supreme Court of New York, and on the bench of the United States, were very extensive, thus wrote to a friend some short time before his death: ‘ I have repeatedly ruled on the trial of criminal cases, that it was the right as well as the duty of the court to decide questions of law; and any other rule, it appears to me, would be at war with our whole judicial system, and introduce the utmost confusion in criminal trials. It is true, the jury may disregard the instructions of the court, and in some cases there may be no remedy. But it is still the right of the court to instruct the jury on the law, and the duty of the jury to obey the instructions.’ ” See also Wharton’s Cr. Pl. & Pr. § 810, note 3. The remarks of Mr. Justice Baldwin in United States v. Wilson and Porter, 1 Baldwin, 78, 100, 108, have sometimes SPARF AND HANSEN v. UNITED STATES. 73 Opinion of the Court. been referred to as in conflict with the rule that it is the duty of the jury to accept the law as expounded by the court. It is quite true that in the charge in Wilson’s case, Mr. Justice Baldwin said that if the jury were prepared to say that the law was different from what the court had announced, they were in the exercise of their constitutional right to do so. But in his charge in Porter’s case, he explained what was said in Wilson’s case.. After remarking, that if a jury find a prisoner guilty against the court’s opinion of the law of the case, a new trial would l)e granted, as no court would pronounce a judgment on a prisoner against what it believes to be the law, he said: “ This, then, you will understand to be what is meant by your power to decide on the law; but you will still bear in mind that it is a very old, sound, and valuable maxim in law that the court answers to questions of law, and the jury to facts. Every day’s experience evinces the wisdom of this rule.” Subsequently in United States v. Shire, 1 Baldwin, 510, 513, which was an indictment for passing a counterfeit note of the Bank of the United States, and when the question arose as to the right of the jury to pass upon the constitutionality of the act of Congress on which the prosecution was founded, Mr. Justice Baldwin said, in his charge: “If juries once exercise this power, we are without a Constitution or laws, one jury has the same power as another, you cannot bind those who may take your places, what you declare constitutional to-day another jury may declare unconstitutional tomorrow.” The question before us received full consideration by Mr. Justice Story in United States v. Battiste, 2 Sumner, 240, 243, 244. That was an indictment for a capital offence, and the question was directly presented whether in criminal cases, especially in capital cases, the jury were the judges of the law as well as of the facts. He said: “My opinion is that the jury are no more judges of the law in a capital or other criminal case, upon the plea of not guilty, than they are in every civil case tried upon the general issue. In each of these cases, their verdict, when general, is necessarily compounded of law and of fact; and includes both. In each they must necessarily 74 OCTOBER TERM, 1894. Opinion of the Court. determine the law as well as the fact. In each they have the physical power to disregard the law, as laid down to them by the court. But I deny that, in any case, civil or criminal, they have the moral right to decide the law according to their own notions or pleasure. On the contrary, I hold it the most sacred constitutional right of every party accused of a crime that the jury should respond as to the facts, and the court as to the law. It is the duty of the court to instruct the jury as to the law and it is the duty of the jury to follow the law as it is laid down by the court. This is the right of every citizen, and it is his only protection. If the jury were at liberty 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 different juries might take of it, but in case of error there would be no remedy or redress by the injured party; for the court would not have any right to review the law as it had been settled by the jury. 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 or ignorance or accidental mistake, to interpret it. If I thought that the jury were the proper judges of the law in criminal cases, I should hold it my duty to abstain from the responsibility of stating the law to them upon any such trial. But believing, as I do, that every citizen has a right to be tried by the law, and according to the law; that it is his privilege and truest shield against oppression and wrong ; I feel it my duty to state my views fully and openly on the present occasion.” In United States n. Morris, 1 Curtis, 23, 52-58, the question, in all of its aspects, was examined by Mr. Justice Curtis with his accustomed care. In that case the contention was that every jury, impanelled in a court of the United States, was the rightful judge of the existence, construction, and effect of every law that was material in a criminal case, and could, of right, and if it did its duty must, decide finally on the constitutional validity of any act of Congress which the trial brought in question. Touching the rightful powers and duties of the court and the jury under the Constitution in criminal cases, SPARF AND HANSEN v. UNITED STATES. 75 Opinion of the Court. Mr. Justice Curtis, among other things, said: “The sixth article, after declaring that the Constitution, laws, and treaties of the United States shall be the supreme law of the land, proceeds, ‘ and the judges, in every State, shall be bound thereby.’ But was it not intended that the Constitution, laws, and treaties of the United States should be the supreme law in criminal as w’ell as in civil cases ? If a state law should make it penal for an officer of the United States to do what an act of Congress commands him to do, was not the latter to be supreme over the former ? And if so, and in such cases, juries finally and rightfully determine the law, and the Constitution so means when it speaks of a trial by jury, why was this command laid on the judges alone, who are thus mere advisers of the jury, and may be bound to give sound advice, but have no real power in the matter? It was evidently the intention of the Constitution that all persons engaged in making, expounding, and executing the laws, not only under the authority of the United States but of the several States, should be bound by oath or affirmation to support the Constitution of the United States. But no such oath or affirmation is required of jurors, to whom it is alleged the Constitution confides the power of expounding that instrument; and not only construing, but holding invalid any law which may come in question on a criminal trial.” “ In my opinion,” the learned justice proceeded, “ it is the duty of the court to decide every question of law which arises in a criminal trial; if the question touches any matter affecting the course of the trial, such as the competency of a witness, the admissibility of evidence, and the like, the jury receive no direction concerning it; it affects the materials out of which they are to form their verdict, but they have no more concern with it than they would have had if the question had arisen in some other trial. If the question of law enters into the issue, and forms part of it, the jury are to be told what the law is, and they are bound to consider that they are told truly; that law they apply to the facts, as they find them, and thus, passing both on the law and the fact, they, from both, frame their general verdict of guilty or not guilty. Such is my view of the respective duties of the differ- 76 OCTOBER TERM, 1894. Opinion of the Court. -ent parts of this tribunal in the trial of criminal cases, and I have not found a single decision of any court in England, prior to the formation of the Constitution, which conflicts with it.” It was also contended that the clause in the act of Congress, known as the Sedition Law of July 14, 1798, c. 74, § 3, 1 Stat. 596, 597, declaring that “ the jury who shall try the cause shall have a right to determine the law and the fact, under the direction of the court, as in other cases,” implied that the jury “ in other cases ” might decide the law contrary to the direction of the court. But in response to this view Mr. Justice Curtis said: “ I draw from this the opposite inference; for where was the necessity of this provision if, by force of the Constitution, juries, as such, have both • the power and the right to determine all questions in .criminal cases; and why are they to be directed by the court ? ” See also Montgomery v. State11 Ohio, 427. . But Mr. Justice Curtis considered the question from another point of view, and gave reasons which appear to us entirely conclusive against the proposition that it is for the jury, in every criminal case, to say authoritatively what is the law by which they are to be governed in finding their verdict. He said: “ There is, however, another act of Congress which bears directly on this question. The act of the 29th of April, 1802, in section 6, after enacting that, in case of a division of opinion between the judges of the Circuit Court on any question, such question may be certified to the Supreme Court, proceeds, ‘ and shall by the said court be finally decided. And the decision of the Supreme Court and their order in the premises shall be remitted to the Circuit Court and be there entered of record and have effect according to the nature of such judgment and order.’ The residue of this section proves that criminal as well as civil cases are embraced in it, and under it many questions arising in criminal cases have been certified to and decided by the Supreme Court, and persons have been executed by reason of such decisions. Now, can it be that, after a question arising in a criminal trial has been certified to the Supreme Court, and there, in the language of this act, finally decided, and their order remitted here and en- SPARE AND HANSEN v. UNITED STATES. 77 Opinion of the Court. tered of record, that when the trial comes on the jury may rightfully revise and reverse this final decision ? Suppose, in the course of this trial, the judges had divided in opinion upon the question of the constitutionality of the act of 1850, and that, after a final decision thereon by the Supreme Court and the receipt of its mandate here, the trial should come on before a jury, does the Constitution of the United States, which established that Supreme Court, intend that a jury may, as matter of right, revise and reverse that decision? And, if not, what becomes of this supposed right ? Are the decisions of the Supreme Court binding on juries, and not the decisions of inferior courts ? This will hardly be pretended; and if it were, how is it to be determined whether the Supreme Court has or has not, in some former case, in effect settled a particular question of law ? In my judgment this act of Congress is in accordance with the Constitution, and designed to effect one of its important and even necessary objects — a uniform exposition and interpretation of the law of the United States — by providing means for a final decision of any question of law; final as respects every tribunal and every part of any tribunal in the country ; and if so, it is not only wholly inconsistent with the alleged power of juries, .to the extent of all questions so decided, but it tends strongly to prove that no such right as is claimed does or can exist.” Again: “ Considering the intense interest excited, the talent and learning employed, and consequently the careful researches made, in England, near the close of the last century, when the law of libel was under discussion in the courts and in Parliament, it cannot be doubted that, if any decision, having the least weight, could have been produced in support of the general proposition, that juries are judges of the law in criminal cases, it would then have been brought forward. I am not aware that any such was produced. And the decision of the King’s Bench in Rex v. The Dean of St. Asaph, 3 T. R. 428, and the answers of the twelve judges to the questions propounded by the House of Lords, assume as a necessary postulate, what Lord Mansfield so clearly declares in terms, that, by the law of England, juries cannot rightfully decide a ques- 78 OCTOBER TERM, 1894. Opinion of the Court. tion of law. Passing over what was said by ardent partisans and eloquent counsel, it will be found that the great contest, concerning what is known as Mr. Fox’s Libel Bill, was carried on upon quite a different ground by its leading friends; a ground which, while it admits that the jury are not to decide the law, denies that the libellous intent is matter of law; and asserts that it is so mixed with the fact that, under the general issue, it is for the jury to find it as a fact. 34 An. Reg. 170; 29 Pari. His. Debates in the Lords. Such I understand to be the effect of that famous declaratory law. 32 Geo. 3, c. 60. . . . I conclude, then, that when the Constitution of the United States was founded, it was a settled rule of the common law that, in criminal as well as civil cases, the court decided the law, and the jury the facts; and it cannot be doubted that this must have an important effect in determining what is meant by the Constitution when it adopts a trial by jury.” That eminent jurist, whose retirement from judicial station has never ceased to be a matter of deep regret to the bench and bar of this country, closed his great opinion with an expression of a firm conviction that, under the Constitution of the United States, juries in criminal cases have not the right to decide any question of law, and that, in rendering a general verdict, their duty and their oath require them to apply to the facts, as they find them, the law given to them by the court. And in so declaring he substantially repeated what Chief Justice Marshall had said in Burr’s case. In United States v. Greathouse, 4 Sawyer, 457, 464, which was an indictment for treason, Mr. Justice Field said: “There prevails a very general, but an erroneous, opinion that in all criminal cases the jury are the judges as well of the law as of the fact—that is, that they have the right to disregard the law as laid down by the court, and to follow their own notions on the subject. Such is not the right of the jury.” “It is their duty to take the law from the court and apply it to the facts of the case. It is the province of the court, and of the court alone, to determine all questions of law arising in the progress of a trial; and it is the province of the jury to SPARE AND HANSEN u UNITED STATES. 79 Opinion of the Court. pass upon the evidence and determine all contested questions of fact. The responsibility of deciding correctly as to the law rests solely with the court, and the responsibility of finding correctly the facts rests solely with the jury.” These principles were applied by Judge Shipman in United States v. Riley, 5 Blatchford, 204, and by Judge Cranch, upon an extended review of the authorities, in Stettinius v. United States, 5 Cranch C. C. 573. They were also applied by Judge Jackson, in the District of West Virginia, in United States v. Keller, 19 Fed. Rep. 633, in which case it was said that although an acquittal in a criminal case was final, even if the jury arbitrarily disregarded the instructions of the court on the law of the case, a jury, in order to discharge its whole duty, must take the law from the court and apply it to the facts of the case. Turning now to cases in the state courts, we find that in Commonwealth v. Porter, 10 Met. (Mass.) 263, 276, the Supreme Judicial Court of Massachusetts, speaking by Chief Justice Shaw delivering the unanimous judgment of the court composed of himself and Justices Wilde, Dewey, and Hubbard, held that it was a well-settled principle, lying at the foundation of jury trials, admitted and recognized ever since jury trial had been adopted as an established and settled mode of proceeding in courts of justice, that it was the proper province and duty of judges to consider and decide all questions of law, and the proper province and duty of the jury to decide all questions of fact. In the same case, the court, observing that the safety, efficiency, and purity of jury trial depend upon the steady maintenance and practical application of this principle, and adverting to the fact that a jury, in rendering a general verdict, must necessarily pass upon the whole issue, compounded of the law and of the fact, and thus incidentally pass on questions of law, said: “It is the duty of the court to instruct the jury on all questions of law which appear to arise in the cause, and also upon all questions, pertinent to the issue, upon which either party may request the direction of the court upon matters of law. And it is the duty of the jury to receive the law from the court, and to conform their judg- 80 OCTOBER TERM, 1894. Opinion of the Court. ment and decision to such instructions, as far as they understand them, in applying the law to the facts to be found by them; and it is not within the legitimate province of the jury to revise, reconsider, or decide contrary to such opinion or direction of the court in matter of law.” p. 286. Perhaps the fullest examination of the question upon principle, as well as upon authority, to be found in the decisions of any state court, was made in Commonwealth v. Anthes, 5 Gray, 185, 208, 218, where Chief Justice Shaw, speaking for a majority of the court, said that the true theory and fundamental principle of the common law, both in its civil and criminal departments, was, that the judges should adjudicate finally, upon the whole question of law, and the jury upon the whole question of fact. Considering, in the light of the authorities, the grounds upon which a verdict of guilty or not guilty, in a criminal case, was held, at common law, to be conclusive, he observed that though the jury have the power they had not the right to decide, that is, to adjudicate on both law and evidence. He said: “ The result of these several rules and principles is, that, in practice, the verdict of a jury, both upon the law and the fact, is conclusive ; because, from the nature of the proceeding, there is no judicial power by which the conclusion of law thus brought upon the record by that verdict can be reversed, set aside, or inquired into. A general verdict, either of conviction or acquittal, does embody and declare the result of both the law and the fact, and there is no mode of separating them on the record so as to ascertain whether the jury passed their judgment on the law or only on the evidence. The law authorized them to adjudicate definitively on the evidence; the law presumes that they acted upon correct rules of law given them by the judge; the verdict therefore stands conclusive and unquestionable, in point both of law and fact. In a certain limited sense, therefore, it may be said that the jury have a power and a legal right to pass upon both the law and the fact. And this is sufficient to account for many and most of the dicta in which the proposition is stated. But it would be more accurate to state, that it is the right of the jury to return SPARE AND HANSEN v. UNITED STATES. 81 Opinion of the Court. a general verdict; this draws after it, as a necessary consequence, that they incidentally pass upon the law. But here again is the question, what is intended by ‘ passing upon the law ?’ I think it is by embracing it in their verdict, and thus bringing it upon the record, with their finding of the facts. But does it follow that they may rightfully and by authority of the common law, by which all are conscientiously bound to govern their conduct, proceed upon the same grounds and principles in the one case as the other ? What the jury have a right to do, and what are the grounds and principles upon which they are in duty and conscience bound to act and govern themselves in the exercise of that right, are two very distinct questions. The latter is the one we have to deal with. Suppose they have a right to find a general verdict, and by that verdict to conclude the prosecutor in the matter of law, still it is an open and very different question, whether, in making up that verdict and thereby embracing the law, they have the same right to exercise their own reason and judgment, against the statement of the law by the judge, to adjudicate on the law, as unquestionably they have on the fact. The affirmative of this proposition is maintained by the defendant in this case, and by others in many of the cases before us. If I am right in the assumption that the judge is to adjudge the law and the jury the fact only, it furnishes the answer to this question, to what extent the jury adjudicate the law; and it is, that they receive authoritative directions from the court, and act in conformity with them, though by their verdict they thus embrace the law with the fact, which they may rightfully adjudicate.” Alluding to the history of this question in England, and particularly, as did Mr. Justice Curtis, to the controversy in King y. Dean of St. Asaph, 3 T. R. 428, and which resulted in the passage by Parliament, after the separation of this country from Great Britain, of the Libel Act, 32 G. 3, and observing that both parties to that controversy assumed the force and existence of the rule as the ancient rule of the .common law* the court said: “ The court and high prerogative party say,, judges answer to the law and jurors to the fact; the question VOL. CLVI—6 82 OCTOBER TERM, 1894. Opinion of the Court. of guilty or not, in the peculiar form of a criminal prosecution for libel, after the jury have found the fact of publication and truth of the innuendoes, is a question of law, and therefore must be declared exclusively by the court. The popular party, assuming the same major proposition, say, the question of guilty or not is a question of fact, and can be found only by the jury. It appears to me, therefore, as I stated on the outset, that considering the course of the controversy, the earnestness and ability with which every point was contested, and the thorough examination of the ancient authorities, this concurrence of views on the point in question affords strong proof that, up to the period of our separation from England, the fundamental definition of trials by jury depended on the uni versal maxim, without an exception, ad quoestionemfacti respondent juratores, ad quoestionem juris respondent judicesC The Anthes case, it may be observed, arose under a statute enacted in 1855, after the decision in the Porter case. But the court held that that statute did not confer upon juries, in criminal trials, the power of determining questions of law against the instructions of the court. And the Chief Justice said — Justices Metcalf and Merrick concurring — that if the statute could be so interpreted as to prescribe that the jury, consistently with their duty, may decide the law upon their judgment contrary to the decision and instruction of the court before whom the trial was had, such enactment would be beyond the scope of legitimate legislative power, repugnant to the Constitution, and, of course, inoperative and void. See also Commonwealth v. Roch, 10 Gray, 4, where the doctrines announced in Commonwealth v. Anthes were reaffirmed, no one of the members of the court expressing a dissent. This question was also fully considered in hbiontee v. Commonwealth, 3 J. J. Marsh. 132, 149, 151, in which case Chief Justice Robertson said: “The Circuit Judge would be a cypher, and a criminal trial before him a farce, if he had no right to decide all questions of law which might arise in the progress of the case. The jury are the exclusive judges of the facts. In this particular they cannot be controlled, and ought not to be instructed by the court. They are, also, ex SPARF AND HANSEN v. UNITED STATES. 83 Opinion of the Court. necessitate, the ultimate judges, in one respect, of the law; if they acquit, the judge cannot grant a new trial, how much soever they have misconceived or disregarded the law.” “ If the court had no right to decide on the law, error, confusion, uncertainty, and licentiousness would characterize the criminal trials; and the safety of the accused might be as much endangered as the stability of public justice would certainly be.” In Pierce v. State, 13 N. H. 536, 554, it was held to be inconsistent with the spirit of the Constitution that questions of law, and still less, questions of constitutional law, should be decided by the verdict of the jury, contrary to the instructions of the court. In Duffy v. People, 26 N. Y. 588, 592, Judge Selden, speaking for the Court of Appeals of New York, said: “The unquestionable power of juries to find general verdicts, involving both law and fact, furnishes the foundation for the opinion that they are judges of the law, as well as of the facts, and gives some plausibility to that opinion. They are not, however, compelled to decide legal questions, having the right to find special verdicts, giving the facts, and leaving the legal conclusions, which result from such facts, to the court. When they find general verdicts, I think it is their duty to be governed by the instructions of the court as to all legal questions involved in such verdicts. They have the power to do otherwise, but the exercise of such power cannot be regarded as rightful, although the law has provided no means, in criminal cases, of reviewing their decisions whether of law or fact, or of ascertaining the grounds upon which their verdicts are based.” See also People v. Finnegan, 1 Parker’s Or. Cas. 147,152 ; Safford v. People, 1 Parker’s Cr. Cas. 474, 480. So in Hamilton v. People, 29 Michigan, 173,192, Mr. Justice Campbell, as the organ of the court, said: “We understand the uniform practice and the decided weight of opinion to require that the judge give his views of the law to the jury as authority, and not as a matter to be submitted to their review.” And in People v. Anderson, 44 California, 65, 70: “ In this State it is so well settled as no longer to be open to debate, that it is the duty of a jury in a criminal case to take the law from the court.” 84 OCTOBER TERM, 1894. Opinion of the Court. The principle was accurately stated by Chief Justice Ames, speaking for the Supreme Court of Rhode Island, when he said: “ The line between the duties of a court and jury in the trial of causes at law, both civil and criminal, is perfectly well defined; and the rigid observance of it is of the last importance to the administration of systematic justice. Whilst, on the one hand, the jury are the sole ultimate judges of the facts, they are, on the other, to receive the law applicable to the case before them solely from the publicly given instructions of the court. In this way court and jury are made responsible, each in its appropriate department, for the part taken by each in the trial and decision of causes, and in this way alone can errors of fact and errors of law be traced, for the purpose of correction, to their proper sources. If the jury can receive the law of a case on trial in any other mode than from the instructions of the court given in the presence of parties and counsel, how are their errors of law, with any certainty, to be detected, and how, with any certainty, therefore, to be corrected ? It is a statute right of parties here, following, too, the ancient course of the common law, to have the law given by the court, in their presence, to the jury, to guide their decision, in order that every error in matter of law may be known and corrected.” State v. Smith, 6 R. I. 33, 34. In Pennsylvania, in the case of Commonwealth v. Sherry, (reported in the Appendix to Wharton on Homicide, pp. 481, 482) Judge Rogers, a jurist of high reputation, thus charged the jury in a capital case: “You are, it is true, judges in a criminal case, in one sense, of both law and fact; for your verdict, as in civil cases, must pass on law and fact together. If you acquit, you interpose a final bar to a second prosecution, no matter how entirely your verdict may have been in opposition to the views expressed by the court. . . • It is important for you to keep this distinction in mind, remembering that, while you have the physical power, by an acquittal, to discharge a defendant from further prosecution, you have no moral power to do so against the law laid down by the court. . . . For your part, your duty is to receive the law, for the purposes of this trial, from the court. If an error injurious to SPARE AND HANSEN v. UNITED STATES. 85 Opinion of the Court. the prisoner occurs, it will be rectified by the revision of the court in banc. But an error resulting from either a conviction or acquittal, against the law, can never be rectified. In the first case, an unnecessary stigma is affixed to the character of a man who was not guilty of the offence with which he is charged. In the second case, a serious injury is effected by the arbitrary and irremediable discharge of a guilty man. You will see from these considerations the great importance of the preservation, in criminal as well as in civil cases, of the maxim that the law belongs to the court and the facts to the jury.” About the same time Judge Sergeant charged a jury ; “ The point, if you believe the evidence on both sides, is one of law, on which it is your duty to receive the instructions of the court. If you believe the evidence in the whole case, you must find the defendant guilty.” Commonwealth v. Vansickle, Brightly, (Penn.,) 69, 73, 75. To the same effect substantially was the language of Chief Justice Gibson, who, when closing a charge in a capital case, said: “ If the evidence on these points fail the prisoner, the conclusion of his guilt will be irresistible, and it will be your duty to draw it.” Commonwealth v. Harman, 4 Penn. St. 269. In a more recent case, Kane v. Commonwealth, 89 Penn. St. 522, Sharswood, C. J., said that the power of the jury to judge of the law in a criminal case was one of the most valuable securities guaranteed by the bill of rights of Pennsylvania. But in a later case, Nicholson v. Commonwealth, 96 Penn. St. 503, 505, it was said: “ The court had an undoubted right to instruct the jury as to the law, and to warn them as they did against finding contrary to it. This is very different from telling them that they must find the defendant guilty, which is what is meant by a binding instruction in criminal cases.” In Commonwealth v. McManus, 143 Penn. St. 64, 85, it was adjudged that the statement by the court was the best evidence of the law within the reach of the jury, and that the jury should be guided by what the court said as to the law. And this view the court, speaking by Chief Justice Paxson, said was in harmony with Kane v. Commonwealth. The question has recently been examined by the Supreme Court of Vermont, and after an elaborate review of the 86 OCTOBER TERM, 1894. Opinion of the Court. authorities, English and American, that court, by a unanimous judgment — overruling State v. Croteau, 23 Vermont, 14, and all the previous cases which had followed that case — said: " We are thus led to the conclusion that the doctrine that jurors are the judges of the law in criminal cases is untenable ; that it is contrary to the fundamental maxims of the common law from which it is claimed to take its origin; contrary to the uniform practice and decisions of the courts of Great Britain, where our jury system had its beginning, and where it matured; contrary to the great weight of authority in this country; contrary to the spirit and meaning of the Constitution of the United States; repugnant to the constitution of this State; repugnant to our statute relative to the reservation of questions of law in criminal cases and passing the same to the Supreme Court for final decision.” ■State v. Burpee, 65 Vermont, 1, 34. These principles are supported by a very large number of adjudications, as will be seen by an examination of the cases cited in the margin.1 To the same purport are the text writers. “In theory, therefore,” says Judge Cooley, “ the rule of law would seem to be, that it is the duty of the jury to receive and follow the law as delivered to them by the court; and such is the clear weight of authority.” Const. Lim. 323, 324. Greenleaf, in his treatise on the Law of Evidence, says: “ In trials by jury, it is the province of the presiding judge to determine all ques- 1 People v. Wright, 93 Cal. 564; Brown v. Commonwealth, 87 Va. 215; People v. Barry, 90 Cal. 41; People v. Madden, 76 Cal. 521; State v. Jeandell, 5 Harr. (Del.) 475; State v. Wright, 53 Maine, 328; Commonwealth v. Van Tuyl, 1 Met. (Ky.) 1; Montgomery v. State, 11 Ohio, 427; Adams v. State, 29 Ohio St. 412; Bobbins v. State, 8 Ohio St. 131, 167; Williams v. State, 32 Miss. 389, 396; Pleasant v. State, 13 Ark. 360, 372; Bobinson v. State, 66 Geo. 517; Brown v. State, 40 Geo. 689, 695; Hunt v. State, 81 Geo. 140; State v. Drawdy, 14 Rich. (S. C.) 87; Nels v. State, 2 Tex. 280; Myers v. State, 33 Tex. 525; State v. Jones, 64 Mo. 391; Hardy v. State, 7 Mo. 607; State v. Elwood, 73 N. C. 189; State v. McLain, 104 N. C. 894; People v. Neuman, 85 Mich. 98; State v. Johnson, 30 La. Ann. 904; State v. Ford, 37 La. Ann. 443, 465; Fisher v. Bailway Co., 131 Penn. St. 292, 297; Union Pacific Bailway v. Hutchinson, 40 Kansas, 51. SPARE AND HANSEN v. UNITED STATES. 87 Opinion of the Court. tionson the admissibility of evidence to the jury, as well as to instruct them in the rules of law, by which it is to be weighed. Whether there be any evidence or not is a question for the judge; whether it is sufficient evidence is a question for the jury.” “ Where the question is mixed, consisting of law and fact, so intimately blended as not to be easily susceptible of separate decision, it is submitted to the jury, who are first instructed by the judge in the principles and rules of law, by which they are to be governed in finding a verdict, and these instructions they are bound to follow.” Vol. 1, § 49. Starkie, in his treatise on Evidence, observes: “ Where the jury find a general verdict they are bound to apply the law as delivered by the court, in criminal as well as civil cases.” p. 816. So in Phillips on Evidence: “ They [the jury] are not in general, either in civil or criminal cases, judges of the law. They are bound to find the law as it is propounded to them by the court. They may, indeed, find a general verdict, including both law and fact; but if, in such verdict, they find the law contrary to the instructions of the court, they thereby violate their oath.” Vol. 3, Hill & Cowen’s Notes, part 2, 1501. See also 1 Taylor on Ev. §§ 21 to 24; 1 Best’s Ev. Morgan’s ed. § 82. In 1 Crim. Law Mag. 51 will be found a valuable note to the case of Kane v. Commonwealth, prepared by Mr. Wharton, m which the authorities are fully examined, and in which he says: “ It would be absurd to say that the determination of the law belongs to the jury, not court, if the court has power to set aside that which the jury determines. We must hold, to enable us to avoid the inconsistency, that, subject to the qualification that all acquittals are final, the law in criminal cases is to be determined by the court. In this way we have our liberties and rights determined, not by an irresponsible, but by a responsible, tribunal; not by a tribunal ignorant of the law, but by a tribunal trained to and disciplined by the law; not by an irreversible tribunal, but by a reversible tribunal ; not by a. tribunal which makes its own law, but by a tribunal that obeys the law as made. In this way we maintain two fundamental maxims. The first is, that while to 88 OCTOBER TERM, 1894. Opinion of the Court. facts answer juries, to the law answers the court. The second, which is still more important, is ‘ nullum crimen, nulla pana, sine lege.1 Unless there be a violation of law preannounced, and this by a constant and responsible tribunal, there is no crime, and can be no punishment.” 1 Crim. Law Mag. 56. The same author, in his treatise on Pleadings and Practice, concludes his examination of the question in these words: “ The conclusion we must, therefore, accept is, that the jury are no more judges of law in criminal than in civil cases, with the qualification that owing to the peculiar doctrine of autrefois acquit, a criminal acquitted cannot be overhauled by the court. In the Federal courts such is now the established rule.” §§ 809, 810. Forsyth, in his History of Trial by Jury — a work of merit — discusses the doctrine advanced by some that the jury were entitled in all cases, where no special pleas have been put on > the record, to give a general verdict according to their own views of the law, in criminal as well as in civil cases. He says: “ It is impossible to uphold the doctrine. It is founded on a confusion between the ideas of power and right” “Indeed, it is difficult to understand how any one acquainted with the principles and settled practice of the English law can assert that it sanctions the doctrine which is here combated.” Again: “ The distinction between the province of the judge and that of the jury is, in the English law, clearly defined, and observed with jealous accuracy. The jury must in all cases determine the value and effect of evidence which is submitted to them. They must decide what degree of credit is to be given to a witness, and hold the balance between conflicting probabilities. The law throws upon them the whole responsibility of ascertaining facts in dispute, and the judge does not attempt to interfere with the exercise of their unfettered discretion in this respect. But, on the other hand, the judge has his peculiar duty in the conduct of a trial. He must determine whether the kind of evidence offered is such as ought or ought not to be submitted to the jury, and what liabilities it imposes. When any questions of law arise, he alone determines them, and their consideration is absolutely SPARE AND HANSEN v. UNITED STATES. 89 Opinion of the Court. withdrawn from the jury, who must in such cases follow the direction of the judge; or if they perversely refuse to do so, their verdict (in civil cases) will be set aside, and a new trial granted.” London ed. 1852, pp. 261, 262, 282; Morgan’s ed. pp. 235, 236. Worthington, in his Inquiry into the Power of Juries, an English work published in 1825, and often cited in the adjudged cases, says: “ Were they [the jury] permitted to decide the law, the principles of justice would be subverted; the law would become as variable as the prejudices, the inclinations and the passions of men. If they could legally decide upon questions of law, their decision must of necessity be final and conclusive, which would involve an absurdity in all judicial proceedings, and would be contradictory to the fundamental principles of our jurisprudence.” “The jury, when called upon to decide facts which are complicated with law, are therefore constitutionally, and must be, from the nature and intention of the institution, bound to seek and to obey the direction of the judge with respect to the law. It becomes their duty to apply to the law thus explained to them the facts, (which it is their exclusive province to find,) and thus they deliver a verdict compounded of law and fact; but they do not determine or decide upon the law in any case.” pp. 193,194. Judge Thompson, in his work on Trials, §§ 1016, 1017, thus states the principles: “ The judge decides questions of law; the jury questions of fact.” So in Proffat on Trial by Jury, § 375: “The preponderance of judicial authority in this country is in favor of the doctrine that the jury should take the law from the court and apply it to the evidence under its direction.” The language of some judges and statesmen in the early history of the country, implying that the jury were entitled to disregard the law as expounded by the court, is, perhaps, to be explained by the fact that “ in many of the States the arbitrary temper of the colonial judges, holding office directly from the Crown, had made the independence of the jury in law as well as in fact of much popular importance.” Whar- 90 OCTOBER TERM, 1894. Opinion of the Court. ton’s Or. Pl. & Pr. 8th ed. § 806; Williams v. State, 32 Mississippi, 389, 396. Notwithstanding the declarations of eminent jurists and of numerous courts, as disclosed in the authorities cited, it is sometimes confidently asserted that they all erred when adjudging that the rule at common law was that the jury in criminal cases could not properly disregard the law as given by the court. We are of opinion that the law in England at the date of our separation from that country was as declared in the authorities we have cited. The contrary view rests, as we think, in large part upon expressions of certain judges and writers enforcing the principle, that when the question is compounded of law and fact, a general verdict, ex necessitate, disposes of the case in hand, both as to law and fact. That is what Lord Somers meant when he said in his essay on “The Security of Englishmen’s Lives, or the Trust, Power, and Duty of the Grand Juries of England,” that jurors only “are the judges from whose sentence the indicted are to expect life or death,” and that “by finding guilty or not guilty, they do complicately resolve both law and fact.” In the speeches of many statesmen and in the utterances of many jurists will be found the general observation that when law and fact are “ blended ” their combined consideration is for the jury, and a verdict of guilty or not guilty will determine both for the particular case in hand. But this falls far short of the contention that the jury, in applying the law to-the facts, may rightfully refuse to act upon the principles of law announced by the court. It is to be observed that those who have maintained the-broad position that a jury may, of right, disregard the law as declared by the court, cite the judgment of Chief Justice-Vaughan in Bushell's case, Vaughan, 135. In that case the accused were acquitted by a general verdict in opposition, as it was charged, to the directions of the court. And the question presented upon habeas corpus was, whether, for so doing, they were subject to be fined and committed to prison until the fine was paid. Upon a careful examination of the elaborate opinion in that case, it will become clear that the funda- SPARE AND HANSEN v. UNITED STATES. 91 Opinion of the Court. mental proposition decided was that, in view of the different functions of court and jury, and because a general verdict of necessity resolves “ both law and fact complicately, and not the fact by itself,” it could never be proved, where the case went to the jury upon both law and facts, that the jurors did not proceed upon their view of the evidence. Chief Justice Vaughan said that the words in the warrant, “ that the jury did acquit against the direction of the court in matter of law, literally taken, and de piano, are insignificant and not intelligible; for no issue can be joined of matter in law, no jury can be charged with the trial of matter in law barely, no evidence ever was or can be given to a jury of what is law or not; nor no such oath ca/n be given to or taken by a jury, to try matter in law; nor no attaint can lie for such a false oath.” Vaughan, 143. Touching the distinction between the oath cf a witness and that of a juror, he said: “ A witness swears but to what . . . hath fallen under his senses. But a juryman swears to what he can infer and conclude from the testimony of such witnesses, by the act and force of his own understanding, to be the fact inquired after, which differs nothing in the reason, though much in the punishment, from what a judge, out of various cases considered by him, infers to be law in the question before him.” p. 142. In referring to the opinion in BushelVs case, Mr. Justice Curtis well observed that it would be found that Chief Justice Vaughan “confines himself to a narrow though, for the case, a conclusive line of argument, that the general issue embracing fact as well as law, it can never be proved that the jury believed the testimony on which the fact depended, and in reference to which the direction was given, and so they cannot be shown to be guilty of any legal misdemeanor in returning a verdict, though apparently against the direction of the court in matter of law.” And this is the view of the opinion in Bushell?s case expressed by Hallam in his Constitutional History of England, c. 13. A similar criticism was made by the Supreme Judicial Court of Massachusetts in the case of Anthes. Chief Justice Shaw, after stating the principles involved in Bushell? s case, 92 OCTOBER TERM, 1894. Opinion of the Court. said : “ It may be remarked that from the improved views of the nature of jury trials, during the two hundred years which have elapsed since the decision of Chief Justice Vaughan, the juror is now in no more danger of punishment, for giving an erroneous judgment in matter of fact, than a judge is for giving an erroneous judgment in matter of law. But his statement clearly implies that the judge, within his appropriate sphere, is to act by the force of his reason and understanding, and, by the aid of his knowledge of the law and all appropriate means, to adjudge all questions of law, and direct the jury thereon; and in like manner the jury, by the force of their reason and understanding, acting upon all the competent evidence in the case, to reason, weigh evidence, draw inferences, and adjudge the question of fact embraced in the issue. Again: ‘In these cases the jury, and not the judge, resolve and find what the fact is. Therefore, always, in discreet and lawful assistance of the jury, the judge’s direction is hypothetical and upon supposition, and not positive upon coercion, namely: If you find the fact thus, (leaving it to them what to find,) then you are to find for the plaintiff; but if you find the fact thus, then it is for the defendant.’ Vaughan, 144.” “It is strange,” Chief Justice Shaw felt constrained to say, “that the authority of Vaughan, C. J, in this case should be cited, as it has been, to prove that a juror in finding a general verdict, embracing law and fact, being sworn to try the issue, must find his verdict upon his own conviction and conscience, relying, in support of the proposition, upon the following words of Vaughan, C. J.! ‘ A man cannot see by another’s eye, nor hear by anothers ear; no more can a man decide and infer the thing to be resolved by another’s understanding or reasoning.’ Vaughan, 148.” Had these words been applied to the whole issue embraced in a general verdict, as would be implied from the manner of referring to them, they would have countenanced the proposition ; but they are used expressly to illustrate the position, that the jury cannot be required implicitly to give a verdict by the dictates and authority of the judge. “ I refer, Chief Justice Shaw continued, “only to one other passage, SPARK AND HANSEN v. UNITED STATES. 93 Opinion of the Court. which serves as a key to the whole judgment. He says: ‘That decantatum in our books, ad queestionem facti non respondent judices, ad queestionem legis non respondent jura-tores, literally taken, is true, for if it be demanded, What is. the fact? the judge cannot answer; if it be asked, What is-the law in the case? the jury cannot a/nswer it? Vaughan, 149.” All this tends to show that the leading thought in the opinion of Chief Justice Vaughan was that while the jury cannot answer as to the law, nor the court as to the fact, a. general verdict, compounded of law and fact, of necessity determines both as to the case on trial. In Townsend’s case, an office taken by virtue of a writ of mandamus, and decided in the sixteenth century, the court said: “ For the office of twelve men is no other than to inquire of matters of fact, and not to adjudge what the law is, for that is the office of the court, and not of the jury, and if they find the matter of fact at large, and further say that thereupon the law is so, where in truth the law is not so, the judges shall adjudge according to the matter of fact, and not according to the conclusion of the jury.” 1 Plowd. Ill, 114. In Willion v. Berkley, 1 Plowd. 223, 231, also a civil case r “ Matters of fact being traversed, shall be tried by twelve men, and if the plaintiff should take a traverse here, it would be to make twelve illiterate men try a matter of law whereof they have no knowledge. It is not their office to try matters of law, but only to try matters of fact; for at the beginning of our law it was ordained that matters of fact should be tried by twelve men of the country where the matter arises, and matters of law by twelve judges of the law, for which purpose there were six judges here, and six in the King’s Bench, who, upon matters of law, used to assemble together in a certain place, in order to discuss what the law was therein. So that if a traverse should be here taken, it would be to make twelve ignorant men of the country try that whereof they are not judges, and which does not belong to them to try.” See also Grendon v. Bishop of London, 2 Plowd. 493, 496. As early as 1727, Raymond, C. J., delivering the unanimous opinion of the twelve judges of the King’s Bench in a 94 OCTOBER TERM, 1894. Opinion of the Court. case of murder, said that the jury are judges only of the fact, and the court of the law. Rex v. Oneby, 2 Str. 766, 773. The force of this language as to the functions of judge and jury is not materially weakened by the fact that the case was before the judges upon a special verdict, for it was expressly declared that jurors were judges only of the fact. Within a few years after Gueby’s case was determined, in 1734, the case of King v. Poole, which was a criminal information in the nature of a quo warranto, came before Lord Hardwicke. In passing upon a motion for a new trial that famous judge, than whom there could be no higher authority as to what was the settled law of England, said : “ The thing that governs greatly in this determination is, that the point of law is not to be determined by juries; juries have a power by law to determine matters of fact only: and it is of the greatest consequence to the law of England and to the subject, that these powers of the judge and the jury are kept distinct; that the judge determine the law, and the jury the fact; and if ever they come to be confounded, it will prove the confusion and destruction of the law of England.” Cas. Temp. Hard-wicke, 23, 27, 28. Upon the question here under examination Mr. Foster, to whose work Chief Justice Marshall frequently refers in his opinion or charge delivered in Burr's case, says, in the first edition of his work, which appeared in 1762, and again in the third edition, which appeared in 1792 : “ In every case where the point turneth upon the question whether the homicide was committed wilfully and maliciously, or under circumstances justifying, excusing, or alleviating the matter of fact, viz., whether the facts alleged by way of justification, excuse, or alleviation are true, is the proper and only province of the jury. But whether, upon a supposition of the truth of facts, such homicide be justified, excused, or alleviated must be submitted to the judgment of the court; for the construction the law putteth upon facts stated and agreed, or found by a jury is in this, as in all other cases, undoubtedly the proper province of the court. In cases of doubt and real difficulty it is commonly recommended to the jury to state facts and circuin- SPARE AND HANSEN v. UNITED STATES. 95 Opinion of the Court. stances in a special verdict. But where the law is clear, the jury, under the direction of the court in point of law, matters of fact being still left to their determination, may, and, if they are well advised, always will find a general verdict, conformably to such direction.” Foster’s Crown Law, 255, 256, 3d ed. See also The King v. Withers, (Lord Kenyon,) 3 T. R. 428; Bacon’s Abridg. Title Juries, M. 2; 2 Hawkins’ P. C. c. 22, § 21; 1 Duncomb, Trials per Pais, (Dublin, 1793,) pp. 229, 231. In Wynne’s Eunomus, or Dialogues Concerning the Law and Constitution of England, a work of considerable reputation, the first edition having been published about the time of the adoption of our Constitution, the principle is thus stated: “ All that I have said or have to say upon the subject of juries is agreeable to this established maxim, that ‘ juries must answer to questions of fact and judges to questions of law.’ This is the fundamental maxim acknowledged by the Constitution.” “ It is undoubtedly true that the jury are judges, the only judges of the fact; is it not equally within the spirit of the maxim thaty'Wygs only have the competent cognizance of the law ? Can it be contended that the jury have, in reality, an adequate knowledge of law ? Or, that the Constitution ever designed they should ? ” “ Well — ‘ but the law and the fact are often complicated ’ — then it is the province of the judge to distinguish them; to tell the jury, that supposing such and such facts were done, what the law is in such circumstances. This is an unbiassed direction; this keeps the province of judge and jury distinct; the facts are left altogether to the jury, and the law does not control the fact, but arises from it. ’ “ Every verdict is compounded of law and fact, but the law and fact are always distinct in their nature.” Wynne’s Eunomus, Dialogue III, § 53, 5th ed. 1822, pp. 523, 527, 528 ; 3d ed. 1809, Vol. 2, pp. 142, 144. Mr. Stephens, in his great work on the History of the Criminal Law of England, in discussing the powers of juries in France, says: “ The right of the counsel for the defence to address the jury on questions of law, as, for instance, whether killing in a duel is meurtre, is one of the features in which the 96 OCTOBER TERM, 1894. Opinion of the Court. administration of justice in France differs essentially from the administration of justice in England. In England the judge’s duty is to direct the jury in all matters of law, and any arguments of counsel upon the subject must be addressed to him and not to the jury. This is not only perfectly well established as matter of law, but it is as a fact acquiesced in by all whom it concerns.” Vol. 1, p. 551. To the same effect is Levi v. Milne, 4 Bing. 195, reported as Levy v. Milne, 12 J. B. Moore, 418, and decided in 1827. That was an action of libel. Mr. Sergeant Wilde, a counsel in the case, contended that in cases of libel the jury are judges of the law as well as of the fact. But Lord Chief Justice Best said: “ If the jury were to be made judges of the law as well as of fact, parties would be always liable to suffer from an arbitrary decision. In the present case, the jury have made themselves judges of the law, and have found against it.” “ My brother Wilde has stated that in cases of libel the jury are judges of the law as well as of fact; but I beg to deny that. Juries are not judges of the law, or at any rate not in civil actions. The authority on which the learned Sergeant has probably grounded his supposition is the 32d G-. 3, c. 60, which was the famous bill brought in by Mr. Fox, or, more properly, by Lord Erskine. But whoever reads that act will see that it does not apply to civil actions.— it applies only to criminal cases. There is nothing in it that in any way touches civil actions, and the jury, with respect to them, stand in the same situation as they ever have done. I mean, however, to protest against juries, even in criminal cases, becoming judges of the law: the act only says that they may find a general verdict.. Has a jury then a right to act against the opinion of the judge, and to return a verdict on their own construction of the law ? I am clearly of opinion that they have not.’ The report by Moore of this opinion is not as full as the report in Bingham, but the two reports do not differ in any material respect. But a later decision was that by Lord Abinger, Chief Baron, in 1837, in Regina v. Parish, 8 Carr. & P. 94. That was an indictment for offering, disposing of, and putting off a forged SPAKE AND HANSEN v. UNITED STATES. 97 Opinion of the Court. bill of exchange. In the course of his argument to the jury the counsel for the accused read the observations of Mr. Justice Coleridge in a certain case as sustaining his view of the law. He was interrupted by the judge, who said : “ I cannot allow you to read cases to the jury. It is the duty of the jury to take the law from the judge. It no doubt often happens that, in an address to the jury, counsel cite cases; but then it is considered that that part of the speech of the counsel is addressed to the judge. That cannot be so here, as you very properly in the first instance referred me to the case, and you have my opinion upon it; you can therefore make no further legitimate use of the case, and the only effect of reading it would be to discuss propositions of law with the jury, with which they have nothing to do, and which they ought. to take from me I The case of Parmiter v. Coupland, 6 M. & W. 104, 106, 108, which was an action for libel, is not without value as tending to show that Fox’s Libel Bill, so far from changing the rule, as generally applicable in criminal cases, only required the same practice to be pursued in prosecutions for libel as in other criminal cases. In the course of the argument of counsel, Parke, B., said: “ In criminal cases, the judge is to define the crime, and the jury are to find whether the party has committed that offence. Mr. Fox’s act made it the same in cases of libel, the practice having been otherwise before.” Again: “ But it has been the course for a long time for a judge, in cases of libel, as in other cases of a criminal nature, first to give a legal definition of the ojfence, and then to leave it to the jury to say whether the facts necessary to constitute that offence are proved to their satisfaction; and that, whether the libel is the subject of a criminal prosecution, or civil action. A publication, without justification or lawful excuse, which is calculated to injure the reputation of another, by exposing him to hatred, contempt, or ridicule, is a libel. Whether the particular publication, the subject of inquiry, is of that character, and would be likely to produce that effect, is a question upon which a jury is to exercise their judgment, and pronounce their opinion, as a guestion of fact. The judge, VOL. CLVI—7 98 OCTOBER TERM, 1894. Opinion of the Court. as a matter of advice to them in deciding that question, might have given his own opinion as to the nature of the publication, but was not bound to do so as a matter of law. Mr. Fox’s Libel Bill was a declaratory act, and put prosecution for libel on the same footing as other criminal cases.” Alderson, B., concurring, said that the judge “ ought — having defined what is a libel — to refer to the jury the consideration of the particular publication, whether falling within that definition Or not.” It is, therefore, a mistake to suppose that the English Libel Act changed in any degree the general common law rule in criminal cases, as to the right of the court to decide the law, and the duty of the jury to apply the law thus given to the facts, subject to the condition, inseparable from the jury system, that the jury by a general verdict of necessity determined in the particular case both law and fact as compounded in the issue submitted to them. That act provides that “ the court or judge, before whom such indictment or information shall be tried, shall, according to their or his discretion, give their or his opinion and directions to the jury on the matter in issue between the King and the defendant, in like manner as in other criminal cases” “This seems,” Mr. Justice Curtis well said, “ to carry the clearest implication that, in this and all other criminal cases, the jury may be directed by the judge; and that, while the object of the statute was to declare that there was other matter of fact besides publication and the innuendoes to he decided by the jury, it was not intended to interfere with the proper province of the judge to decide all matters of law.” 1 Curtis, 55. And this accords with the views expressed by Lord Abinger in Reeves v. Templar, 2 Jur. 137,138. He said: “ Before that statute a practice had arisen of considering that the question, libel or no libel, was always for the court, independent of the intention and meaning of the party publishing. That statute corrected the error; and now, if the intention does not appear on the body of the libel, a variety of circumstances are to be left to the jury from which to infer it; but it was never intended to take from the court the power of deciding whether certain words are per se libellous or not.” SPARF AND HANSEN v. UNITED STATES. 99 Opinion of the Court. The rule that jurors do not respond to questions of law was illustrated in Bishop of Meath v. Marquis of Winchester, 4 Cl. & Fin. 445, 557, where Lord Chief Justice Tindal, delivering the unanimous opinion of the judges, said : “ With respect to the second question lastly above proposed to us, viz., whether if the fine were received in evidence it ought to be left to the jury to say whether it barred the action of quare impedit, we all think that the legal effect of such fine as a bar to the action of quare i/mpedit is a matter of law merely, and not in any way a matter of fact; and, consequently, the judge who tried the cause should state to the jury whether in point of law the fine had that effect, or what other effect on the rights of the litigant parties, upon the general and acknowledged principle ad qucestion&m juris non respondent juratores^ Briefly stated, the contention of the accused is that although there may not have been any evidence whatever to support a verdict of guilty of an offence less than the one charged — and such was the case here — yet, to charge the jury, as matter of law, that the evidence in the case did not authorize any verdict except one of guilty or one of not guilty of the particular offence charged, was an interference with their legitimate functions, and, therefore, with the constitutional right of the accused to be tried by a jury. The error in the argument, on behalf of the accused, is in making the general rule as to the respective functions of court and jury, applicable equally to a case in which there is some substantial evidence to support the particular right asserted, and a case in which there is an entire absence of evidence to establish such right. In the former class of cases the court may not, without impairing the constitutional right of trial by jury, do what, in the latter cases, it may often do without at all entrenching upon the constitutional functions of the jury. The law makes it the duty of the jury to return a verdict according to the evidence in the particular case before them. But if there are no facts in evidence bearing upon the issue to he determined, it is the duty of the court, especially when so requested, to instruct them as to the law arising out of that state of case. So, if there be some evidence bearing upon a 100 OCTOBER TERM, 1894. Opinion of the Court. particular issue in a cause, but it is so meagre as not, in law, to justify a verdict in favor of the party producing it, the court is in the line of <|uty v^Qten it so declares to the jury. Pleasants v. FantJ^Pw^ll6, 121 ; Montclair v. Dana, 107 ü. S. 162; RavdipU Ncf^alt^ore & Ohio Railroad, 109 ü. S. 478, 482 ; Sq^fieldty. Ch^dgo <& St. Paul Railway, 114 U. S. 615, 619 ; ^tarsfystil ^yHubbard, 117 U. S. 415, 419; Meehan v. Valenti^, 14^Û. S. 611, 625. The&ases^hst cited were, it is true, of a civil nature ; but the nruleî£'they announce are, with few exceptions, applicable to criminal causes, and indicate the true test for determining the respective functions of court and jury. Who can doubt, for instance, that the court has the right even in a capital case to instruct the jury as matter of law to return a verdict of acquittal on the evidence adduced by the prosecution. Could it be said, in view of the established principles of criminal law, that such an instruction entrenched upon the province of the jury to determine from the evidence whether the accused was guilty or not guilty of the offence charged, or of some lesser offence included in the one charged? Under a given state of facts, outlined in an instruction to the jury, certain legal presumptions may arise. May not. the court tell the jury what those presumptions are, and should not the jury assume that they are told truly? If the court excludes evidence given in the hearing of the jury, and instructs them to disregard it altogether, is it not their duty to obey that instruction, whatever may be their view of the admissibility of such evidence ? In Famous Smith v. United States, 151 U. S. 50, 55, which was an indictment for the murder, in the Indian Territory, of one Gentry, “ a white man and not an Indian,” we said : “ That Gentry was a white man, and not an Indian, was a fact which the government was bound to establish, and if it failed to introduce any evidence upon that point, defendant was entitled to an instruction to that effect. Without expressing any opinion as to the correctness of the legal propositions embodied in this charge, we think there was no testimony which authorized the court to submit to the jury the question whether- Gentry was a white man and not an Indian. SPARE AND HANSEN v. UNITED STATES. 101 Opinion of the Court. The objection went to the jurisdiction of the court, and if no other reasonable inference could have been drawn from the evidence than that Gentry was an Indian,, defendant was entitled, as matter of law, to an acquittal ” — citing Pleasants v. Fant, 22 Wall. 116; County Commissioners n'. 94 U. S. 278, and AZar shall v. Hubbard, liî U. S. 415'. '.So, in this case, it was competent for the court to .say -to the jury that on account of the absence of all evidence tending to show that the defendants were guilty of manslaughter, they could not, consistently with law, return a verdict of guilty of that crime. Any other rule than that indicated in the above observations would bring confusion and uncertainty in the administration of the criminal law. Indeed, if a jury may rightfully disregard the direction of the court in matter of law, and determine for themselves what the law is in the particular case before them, it is difficult to perceive any legal ground upon which a verdict of conviction can be set aside by the court as being against law. If it be the function of the jury to decide the law as well as the facts — if the function of the court be only advisory as to the law — why should the court interfere for the protection of the accused against what it deems an error of the jury in matter of law. Public and private safety alike would be in peril, if the principle be established that juries in criminal cases may, of right, disregard the law as expounded to them by the court and become a law unto themselves. Under such a system, the principal function of the judge would be to preside and keep order while jurymen, untrained in the law, would determine questions affecting life, liberty, or property according to such legal principles as in their judgment were applicable to the particular case being tried. If because, generally speaking, it is the function of the jury to determine the guilt or innocence of the accused according to the evidence, of the truth or weight of which they are to judge, the court should be held bound to instruct them upon a point in respect to which there was no evidence whatever, or to forbear stating what the law is upon a given state of facts, the result would be that the enforcement of the law against criminals and the protection of 102 OCTOBER TERM, 1894. Opinion of the Court. citizens against unjust and groundless prosecutions, would depend entirely upon juries uncontrolled by any settled, fixed, legal principles. And if it be true that jurors in a criminal case are under no legal obligation to take the law from the court, and may determine for themselves what the law is, it necessarily results that counsel for the accused may, of right, in the presence of both court and jury, contend that what the court declares to be the law applicable to the case in hand is not the law, and, in support of his contention, read to the jury the reports of adjudged cases and the views of elementary writers. Undoubtedly, in some jurisdictions, where juries in criminal cases have the right, in virtue of constitutional or statutory provisions, to decide both law and facts upon their own judgment as to what the law is, and as to what the facts are, it may be the privilege of counsel to read and discuss adjudged cases before the jury. And in a few jurisdictions, in which it is held that the court alone responds as to the law, that practice is allowed in deference to long usage. But upon principle, where the matter is not controlled by express constitutional or statutory provisions, it cannot be regarded as the right of counsel to dispute before the jury the law as declared by the court. Under the contrary view — if it be held that the court may not authoritatively decide all questions of law arising in criminal cases — the result will be that when a new trial in a criminal case is ordered, even by this court, the jury, upon such trial, may of right return a verdict based upon the assumption that what this court has adjudged to be law is not law. We cannot give our sanction to any rule that will lead to such a result. We must hold firmly to the doctrine that in the courts of the United States it is the duty of juries in criminal cases to take the law from the court and apply that law to the facts as they find them to be from the evidence. Upon the court rests the responsibility of declaring the law; upon the jury, the responsibility of applying the law so declared to the facts as they, upon their conscience, believe them to be. Under any other system, the courts, although established in order to declare the law, would for every practical purpose be eliminated from our system of government as instrumen- SPARE AND HANSEN v. UNITED STATES. 103 Opinion of the Court. talities devised for the protection equally of society and of individuals in their essential rights. When that occurs our government will cease to be a government of laws, and become a government of men. Liberty regulated by law is the underlying principle of our institutions. To instruct the jury in a criminal case that the defendant cannot properly be convicted of a crime less than that charged, or to refuse to instruct them in respect to the lesser offences that might, under some circumstances, be included in the one so charged — there being no evidence whatever upon which any verdict could be properly returned except one of guilty or one of not guilty of the particular offence charged — is not error; for the instructing or refusing to instruct, under the circumstances named, rests upon legal principles or presumptions which it is the province of the court to declare for the guidance of the jury. In the case supposed the court is as clearly in the exercise of its legitimate functions, as it is when ruling that particular evidence offered is not competent, or that evidence once admitted shall be stricken out and not be considered by the jury, or when it withdraws from the jury all proof of confessions by the accused upon the ground that such confessions, not having been made freely and voluntarily, are inadmissible under the law as evidence against the accused. These views are sustained by a very great weight of authority in this country. In People v. Barry, 90 California, 41, which was a criminal prosecution for an assault with intent to commit robbery, the accused having been twice before convicted of petit larceny, it was held not to be error to refuse to instruct the jury that under the charge they might find him guilty of simple assault, because “ the evidence tended to show that he was guilty of the crime charged or of no offence at all,” and, therefore, “ the instruction asked was not applicable to the facts of the case; ” in People N. McNutt, 93 California, 658, the offence charged being an assault with a deadly weapon and with intent to commit murder, that an instruction that the jury might convict of a simple assault could have been properly refused, because “ under the evidence he 104 OCTOBER TERM, 1894. Opinion of the Court. was either guilty of an offence more serious than simple assault or he was not guilty; ” in Clark v. Commonwealth, 123 Penn. St. 81, a case of murder, that the omission of an instruction on the law of voluntary manslaughter, and the power of the jury to find it, was not error, because the murder was deliberate murder, and “ there was no evidence on which it could be reduced to a milder form of homicide;” in State v. Lane, 64 Missouri, 319, 324, which was an indictment for murder in the first degree, that “if the evidence makes out a case of murder in the first degree, and applies to that kind of killing, and no other, the court would commit no error in confining its instructions to that offence and refusing to instruct either as to murder in the second degree or manslaughter in any of its various degrees,” and when an instruction “ is given for any less grade of offence, and there is no evidence upon which to base it,” the judgment should be reversed for error; in McCoy v. State, 27 Texas App. 415, the charge being murder of the first degree, that the refusal to charge the law of murder in the second degree was not error, for the reason that if the defendant was “criminally responsible at all for the homicide, the grade of the offence under the facts is not short of murder of the first degree; ” in State v. McKinney, 111 N. C. 683, a murder case, that as there was no testimony on either side tending to show manslaughter, a charge that there was no element of manslaughter in the case, and that the defendant was guilty of murder or not guilty of anything at all, as the jury should find the facts, was strictly in accordance with the testimony and the precedents ; in State v. Musick, 101 Missouri, 260, 270, where the charge was an assault with malice aforethought, punishable by confinement in the penitentiary, that an instruction looking to a conviction for a lower grade included in the offence charged, was proper where there was evidence justifying it; in State v-Casford, 76 Iowa, 330, 332, that the defendant, so charged in an indictment that he could be convicted of rape, an assault to commit rape, or an assault and battery, was not prejudiced by the omission of the court to instruct the jury that he could be convicted of a simple assault, there being no evidence to au- SPARE AND HANSEN v. UNITED STATES. 105 Opinion of the Court. thorize a verdict for the latter offence; in Jones v. State, 52 Arkansas, 345, a murder case, that it was not error to refuse to charge as to a lower grade of offence, there being “ no evidence of any crime less than murder in the first degree,” and the defendant being therefore guilty of “ murder in the first degree, or innocent; ” in McClevnard v. Commonwealth, (Kentucky,) 12 S. W. Rep. 148, and in O’Brien v. Commonwealth, 89 Kentucky, 354, murder cases, that an instruction as to manslaughter need not be given, unless there is evidence to justify it; in State v. Estep, 44 Kansas, 572,575, a case of murder of the first degree, that there was no testimony tending to show that the defendant was guilty of manslaughter in either the first, second, or fourth degrees, instructions as to those degrees should not have been given; and in Robinson v. State, 84 Georgia, 674, a case of assault with intent to murder, that the refusal to instruct the jury that the defendant could have been found guilty of an assault, or of assault and battery, was not error, “ for there was nothing in the evidence to justify the court in so instructing the jury.” We have said that, with few exceptions, the rules which obtain in civil cases in relation to the authority of the court to instruct the jury upon all matters of law arising upon the issues to be tried, are applicable in the trial of criminal cases. The most important of those exceptions is that it is not competent for the court, in a criminal case, to instruct the jury peremptorily to find the accused guilty of the offence charged or of any criminal offence less than that charged. The grounds upon which this exception rests were well stated by Judge McCrary, Mr. Justice Miller concurring, in United States v. Taylor, 3 McCrary, 500, 505. It was there said: “ In a civil case, the court may set aside the verdict, whether it be for the plaintiff or defendant, upon the ground that it is contrary to the law as given by the court; but in a criminal case, if the verdict is one of acquittal, the court has no power to set it aside. It would be a useless form for a court to submit a civil case involving only questions of law to the consideration of a jury, where the verdict, when found, if not in accordance with the court’s view of the law, would be set aside. The same result 106 OCTOBER TERM, 1894. Opinion of the Court. is accomplished by an instruction given in advance to find a verdict in accordance with the court’s opinion of the law. But not so in criminal cases. A verdict of acquittal cannot be set aside; and therefore, if the court can direct a verdict of guilty, it can do indirectly that which it has no power to do directly.” We are of opinion that the court below did not err in saying to the jury that they could not consistently with the law arising from the evidence find the defendants guilty of manslaughter or of any offence less than the one charged; that if the defendants were not guilty of the offence charged, the duty of the jury was to return a verdict of not guilty. No instruction was given that questioned the right of the jury to determine whether the witnesses were to be believed or not, nor whether the defendant was guilty or not guilty of the offence charged. On the contrary, the court was careful to say that the jury were the exclusive judges of the facts, and that they were to determine — applying to the facts the principles of law announced by the court — whether the evidence established the guilt or innocence of the defendants of the charge set out in the indictment. The trial was thus conducted upon the theory that it was the duty of the court to expound the law and that of the jury to apply the law as thus declared to the facts as ascertained by them. In this separation of the functions of court and jury is found the chief value, as well as safety, of the jury system. Those functions cannot be confounded or disregarded without endangering the stability of public justice, as well as the security of private and personal rights. The main reason ordinarily assigned for a recognition of the right of the jury, in a criminal case, to take the law into their own hands, and to disregard the directions of the court in matters of law, is that the safety and liberty of the citizen will be thereby more certainly secured. That view was urged upon Mr. Justice Curtis. After stating that if he conceived the reason assigned to be well founded, he would pause long before denying the existence of the power claimed, he said that a good deal of reflection had convinced him that the SPARE AND HANSEN v. UNITED STATES. 107 Dissenting Opinion: Brewer, Brown, JJ. argument was the other way. He wisely observed, that “ as long as the judges of the United States are obliged to express their opinions publicly, to give their reasons for them when called upon in the usual mode, and to stand responsible for them, not only to public opinion, but to a court of impeachment, I can apprehend very little danger of the laws being wrested to purposes of injustice. But, on the other hand, I do consider that this power and corresponding duty of the court, authoritatively to declare the law, is one of the highest safeguards of the citizen. The sole end of courts of justice is to enforce the laws uniformly and impartially, without respect of persons or times or the opinions of men. To enforce popular laws is easy. But when an unpopular cause is a just cause; when a law, unpopular in some locality, is to be enforced, there then comes the strain upon the administration of justice; and few unprejudiced men would hesitate as to where that strain would be most firmly borne.” United States n. Morris, 1 Curtis, 23, 62, 63. The questions above referred to are the only ones that need be considered on this writ of error. Mr. Justice Jackson participated in the decision of this case and concurs in the views herein expressed. The judgment of the Circuit Court is affirmed as to Hansen, out is reversed as to Sparf, with directions for a new t/rial as to him. Mr. Justice Brewer, with whom concurred Mr. Justice Brown, dissenting. I concur in the views expressed in the opinion of the court as to the separate functions of court and jury, and in the judgment of affirmance against Hansen; but 1 do not concur in holding that the trial court erred in admitting evidence of confessions, or in the judgment of reversal as to Sparf. The facts briefly stated are these: There was a single indictment charging the defendants jointly with the crime of murder. There was a single case on trial, a case in which the government was the party on one side and the two defendants 108 OCTOBER TERM, 1894. Dissenting Opinion: Brewer, Brown, JJ. the party on the other. These two defendants were represented by the same counsel. Three witnesses testified to confessions of Hansen. Counsel for defendants objected to each of these confessions. These objections were in the same form. They purported to be for the defendants jointly, and not separately for each. Two of the confessions were given in the presence of Sparf, and in admitting them it is not pretended that there was any error. One was made in the absence of Sparf, and it is held that the court erred in overruling the objection to it. The objection was that the testimony offered was “irrelevant, immaterial, and incompetent, and upon the ground that any statement made by Hansen was not and could not be voluntary.” It will be noticed that this objection was both general and special; the special ground, that which would naturally arrest the attention of the court, being that the confession was not voluntary. This ground of objection it is admitted was not well taken. If there was any error it was in overruling the general objection that the testimony was irrelevant, immaterial, and incompetent. But it is conceded that this confession was material, relevant, and competent, was properly admitted in evidence on the single trial then pending, and properly heard by the jury. The real burden of complaint is that when the court admitted the testimony it ought to have instructed the jury that it was evidence only against Hansen, and not against Sparf. But in common fairness ought not the attention of the court to have been called to the difference, and a ruling had upon that difference? Cannot parties present a joint objection to testimony and rest their case upon such objection? Is it the duty of the court to consider a matter which is not called to its attention, and make a ruling which it is not asked to make? Is it not the duty of the court to be impartial between the government and the defendant, and decide simply the questions which each party presents? Is it its duty to watch over the interests of either party, and to put into the mouth of counsel an objection which he .does not make ? To my mind such a doctrine is both novel and dangerous. I do not question the proposition that a confession SPARE AND« HANSEN v. UNITED STATES. 109> Dissenting Opinion: Brewer, Brown, JJ. made by one of two defendants in the absence of the other is to be considered by the jury only as against the one making it, and I admit that if a separate objection had been made by Sparf the court would have been called upon to formally sustain such objection, and instruct the jury that such testimony was to be considered by them only as against Hansen. If an instruction had been asked, as is the proper way, the attention of the court would have been directed to the matter, and an adverse ruling would have rightly presented the error which is now relied upon. But I need not refer to the oft-repeated decisions of this court that there is no error in failing to give an instruction which is not asked, unless it be one of those which a statute in terms requires the court to give, and there is no pretence of any such statute. Lewis v. Lee County,. 66 Alabama, 480, 489, was decided in accordance with the views which I have expressed. The court in that case say : “The witness Frazier’s testimony, as to his conversation with the defendant Lewis, regarding the condition of his accounts as county treasurer, was properly admitted in evidence. It was certainly good as an admission against him, and could not be excluded because not admissible against the sureties,, who were his codefendants in the action. The practice on this point is well settled in this State, that the only remedy of a codefendant, in such a case, is to request a charge from the court to the jury, limiting the operation of the evidence,, so as to confine its influence only to the defendant against whom it is admissible.” So in State v. Brite, T& N. C. 26, 28, a similar ruling was. made, the court saying : “ The defendant’s first exception is that his honor allowed Culpepper, a codefendant, to introduce witnesses to prove his (Brite’s) declarations while in jail, which tended to exonerate Culpepper.” “While these declarations are not evidence, either for or against Culpepper, being, as to him, res inter alios acta, and made by one not under oath, and subject to cross-examination, yet they are clearly admissible against Brite, and it makes nodifference whether they were called forth by the State, or by Iio OCTOBER TERM, 1894. Dissenting Opinion: Gray, Shiras, JJ. Culpepper, without objection, or rather with the sanction of the State.” I have been able to find no case laying down a contrary doctrine. In Mutual Life Ins. Co. v. Millman, 145 U. S. 285, each defendant separately for itself presented the objection, and each, therefore, had the right to avail itself of the ruling made by the court. Indeed, I think this will be found to be the first case in which it has been held that, while the court properly allowed testimony to go to the jury on the trial of a case, the judgment has been reversed because it failed to call the attention of the jury to the bearing of that evidence upon the different parties when such parties never asked the court to so instruct the jury. I am authorized to say that Mr. Justice Brown concurs in these views. Mr. Justice Gray, with whom concurred Mr. Justice Shiras, dissenting. Mr. Justice Shiras and myself concur in so much of the opinion of the majority of the court as awards a new trial to one of the defendants, by reason of the admission in evidence against him of confessions made in his absence by the other. But from the greater part of that opinion, and. from the affirmance of the conviction of the other defendant, we are compelled to dissent, because, in our judgment, the case, involving the question of life or death to the prisoners, was not submitted to the decision of the jury as required by the Constitution and laws of the United States. The two defendants, Herman Sparf and Hans Hansen, together with Thomas St. Clair, seamen on board the brig Hesper, an American vessel, were indicted for the murder of Maurice Fitzgerald, the second mate, on the high seas, on January 13, 1893, by striking him with a weapon and by throwing him overboard and drowning him. St. Clair was separately tried, convicted and sentenced, and his conviction was affirmed by this court at the last term. 154 U. S. 134. SPARE AND HANSEN v. UNITED STATES. Ill Dissenting Opinion: Gray, Shiras, JJ. At the trial of Sparf and Hansen, there was no direct testimony of any eye-witness to the killing, or to any assault or affray. There was evidence that, at ten o’clock in the evening of the day in question, the second mate was at the wheel, in charge of the starboard watch, consisting of St. Clair, Sparf, Hansen and another seaman; and that, when the watch was changed at midnight, the second mate could not be found, and there was much blood on the deck, as well as a bloody broomstick and a wooden bludgeon. The rest of the evidence consisted of testimony of other seamen to acts and statements of each defendant and of St. Clair, before and after the disappearance of the second mate, tending to prove a conspiracy to kill him; and to subsequent confessions of Hansen, tending to show that the killing was premeditated. The judge, in his charge to the jury, gave the following instructions: “ The indictment is based upon section 5339 of the Revised Statutes, which provides, among other things, that ‘ every person who commits murder ’ 1 upon the high seas, or in any arm of the sea, or in any river, haven, creek, basin, or bay, within the admiralty and maritime jurisdiction of the United States, and out of the jurisdiction of any particular State, or who upon any of such waters maliciously strikes, stabs, wounds, poisons, or shoots at any other person, of which striking, stabbing, wounding, poisoning, or shooting such other person dies, either on land or at sea, within or without the United States, shall suffer death.’ ” “ Murder is the unlawful killing of a human being in the peace of the State, with malice aforethought, express or implied.” “ Express malice ” was defined as “ deliberate premeditation and design, formed in advance to kill or to do bodily harm, the premeditation and design being implied from external circumstances capable of proof, such as lying m wait, antecedent threats, and concerted schemes against a victim;” and “implied malice” as “an inference of the aw from any deliberate and cruel act committed by one person against another,” “that is, malice is inferred when one kills another without provocation, or when the provoca-hon is not great.” “ Manslaughter is the unlawful killing of 112 OCTOBER TERM, 1894. Dissenting Opinion: Gray, Shiras, JJ. a human being, without malice, either expressed or implied. I do not consider it necessary, gentlemen, to explain it further; for, if a felonious homicide has been committed, of which you are to be the judges from the proof, there is nothing in this case to reduce it below the grade of murder.” “ Every person present at a murder, willingly aiding or abetting its perpetration, is guilty of murder, and may be indicted and convicted as principal in the first degree.” “ It is not my purpose, nor is it my function, to assume any fact to be proven, nor to suggest to you that any fact has been proven. You are the exclusive judges of the facts.” The defendants requested the judge to instruct the jury that “ under the indictment in this case the defendants may be convicted of murder, or manslaughter, or of an attempt to commit murder or manslaughter; and if, after a full and careful consideration of all the evidence before you, you believe beyond a reasonable doubt that the defendants are guilty either of manslaughter, or of an assault with intent to commit murder or manslaughter, you should so find your verdict.” The judge refused to give this instruction, and the defendants excepted to the refusal. The jury, after deliberating on the case for some time, returned into court, and being asked whether they had agreed upon a verdict, the foreman said that one of the jurors wished to be instructed upon certain points under the laws of the United States as to murder upon the high seas. One of the jurors then said that he “ would like to know, in regard to the interpretation of the laws of the United States in regard to manslaughter, as to whether the defendants can be found guilty of manslaughter, or that the defendants must be found guilty,” evidently meaning “ of murder,” the whole offence charged in the indictment. The judge then read again section 5339 of the Revised Statutes. The juror asked: “Are the two words ( aiding ’ or ‘ abetting ’ defined ? ” The judge replied: “ The words ‘ aiding ’ or ‘ abetting ’ are not defined. But I have instructed you as to the legal effect of aiding and abetting, and this you should accept as law. If I have made an error, there is a higher tribunal to correct it.” The juror SPARE AND HANSEN v. UNITED STATES. 113 Dissenting Opinion : Gray, Shiras, J J. said: “I am the spokesman for two of us. We desire to clearly understand the matter. It is a barrier in our mind to our determining the matter. The question arising amongst us is as to aiding and abetting. Furthermore, as I understand, it must be one thing or the other. It must be either guilty or not guilty.” The judge replied: “Yes; under the instructions I have given you.” The judge then, after repeating the general definitions, as before given, of murder and of manslaughter, said : “ If a felonious homicide has been committed by either of the defendants, of which you are to be the judges from the proof, there is nothing in this- case to reduce it below the grade of murder ; ” and, in answer to further questions of the juror, repeated this again and again, and said: “In a proper case, it may be murder, or it may be manslaughter ; but in this case it cannot properly be manslaughter.” The defendants excepted to these instructions. And finally, in answer to the juror’s direct question, “ Then there is no other verdict we can bring in, except guilty or not guilty?” the judge said : “ In a proper case, a verdict for manslaughter may be rendered, as the district attorney has stated ; and even in this case you have the physical power to do so ; but, as one of the tribunals of the country, a jury is expected to be governed by law, and the law it should receive from the court.” The juror then said : “ There has been a misunderstanding amongst us. Now it is clearly interpreted to us, and no doubt we can now agree on certain facts.” Thereupon a verdict of guilty of murder was returned against both defendants, and they were sentenced to death, and sued out this writ of error. The judge, by instructing the jury that they were bound to accept the law as given to them by the court, denied their right to decide the law. And by instructing them that, if a felonious homicide by the defendants was proved, there was noth-lng in the case to reduce it below the grade of murder, and they could not properly find it to be manslaughter, and by declining to submit to them the question whether the defendants were guilty of manslaughter only, he denied their right to decide the fact. The colloquy between the judge and tha VOL. CLVI—8 114 OCTOBER TERM, 1894. Dissenting Opinion: Gray, Shiras, J J. . jurors, when they came in for further instructions, clearly shows that the jury, after deliberating upon the case, were in doubt whether the crime which the defendants had committed was murder or manslaughter ; and that it was solely by reason of these instructions of the judge, that they returned a verdict of the higher crime. It is our deep and settled conviction, confirmed by a reexamination of the authorities under the responsibility of taking part in the consideration and decision of the capital case now before the court, that the jury, upon the general issue of guilty or not guilty in a criminal case, have the right, as well as the power, to decide, according to their own judgment and consciences, all questions, whether of law or of fact, involved in that issue. The question of the right of the jury to decide the law in criminal cases has been the subject of earnest and repeated controversy in England and America, and eminent jurists have differed in their conclusions upon the question. In this country, the opposing views have been fully and strongly set forth by Chancellor Kent in favor of the right of the jury, and by Chief Justice Lewis against it, in People v. Croswell, 3 Johns. Cas. 337 ; by Judge Hall in favor of the right, and by Judge Bennett against it, in State v. Croteau, 23 Vermont, 14 ; and by Chief Justice Shaw against the right, and by Mr. Justice Thomas in its favor, in Commonwealth v. Anthes, 5 Gray, 185. The question of the right of the jury under the Constitution of the United States cannot be usefully or satisfactorily discussed without examining and stating the authorities which bear upon the scope and effect of the provisions of the Constitution regarding this subject. In pursuing this inquiry, it will be convenient to consider, first, the English authorities; secondly, the authorities in the several Colonies and States of America ; and lastly, the authorities under the national government of the United States. By Magna Charta, no person could be taken or imprisoned, or deprived of his freehold or of his liberties or free customs, unless by the lawful judgment of his peers, or the law of the SPARE AND HANSEN v. UNITED STATES. 115 Dissenting Opinion: Gray, Shiras, JJ. land — nisi per legale judicium pa/rium suorum, vel per legem terras. Accordingly, by the law of England, at the time of the discovery and settlement of this country by Englishmen, every subject (not a member of the House of Lords) indicted for treason, murder or other felony, had the right to plead the general issue of not guilty, and thereupon to be tried by a jury; and, if they acquitted him, the verdict of acquittal was conclusive, in his favor, of both the law and the fact involved in the issue. The jury, in any case, criminal or civil, might indeed, by finding a special verdict reciting the facts, refer a pure question of law to the court; but they were not bound and could not be compelled to do so, even in a civil action. By the statute of Westm. 2, (13 Edw. I,) c. 30, “it is ordained, that the justices assigned to take assizes shall not compel the jurors to say precisely whether it be disseisin or not, so that they do shew the truth of the fact, and require aid of the justices; but if they of their own head will say, that it is or is not disseisin, their verdict shall be admitted at their own peril.” 1 Statutes of the Realm, 86. That statute, as Lord Coke tells us, was declaratory of the common law; and before its enactment some justices directed juries to return general verdicts, thus subjecting them to the peril of an attaint if they mistook the law. 2 Inst. 422, 425. Littleton, speaking of civil actions in which the jury, upon the general issue pleaded, might return a special verdict, says that “ if they will take upon them the knowledge of the law upon the matter, they may give their verdict generally, as is put in their charge.” Lit. § 368. And accordingly Lord Coke says: “ Although the jury, if they will take upon them (as Littleton here saith) the knowledge of the law, may give a general verdict, yet it is dangerous for them so to do, for if they do mistake the law, they run into the danger of an attaint; therefore to find the special verdict is the safest where the case is doubtful.” Co. Lit. 227 6. Lord Coke elsewhere says that “the jury ought, if they will not find the special matter, to find ‘ at their peril ’ according to law.” liawlyns’s case, 4 Rep. 52 a, 53 5. And Lord Chief Justice Hobart says: “ Legally it will be hard to quit 116 OCTOBER TERM, 1894. Dissenting Opinion: Gray, Shiras, JJ. a jury that finds against the law, either common law or several statute law, whereof all men were to take knowledge, and whereupon verdict is to be given, whether any evidence be given to them or not,” and “though no man informed them what the law was in that case.” Needier v. Bishop of Winchester, Hob. 220, 227. The peril or danger, above spoken of, into which the jury ran by taking upon themselves the knowledge of the law, and undertaking to decide by a general verdict the law involved in the issue of fact submitted to them, was the peril of an attaint, upon which their verdict might be set aside and themselves punished. Upon the attaint, however, the trial was not by the court, but by a jury of twenty-four; it was only by a verdict of the second jury, and not by judgment of the court only, that the first verdict could be set aside; and, if not so set aside, the second verdict was final and conclusive. Co. Lit. 293 a, 294 I); Vin. Ab., Attaint, A. (6); Com. Dig., Attaint, B. Moreover, no attaint lay in a criminal case. BushelVs case, Vaughan, 135, 146; The King v. Shipley, 4 Doug. 73, 115. Lord Bacon, in his History of Henry VII, (originally written and published in English, and afterwards translated into Latin by himself or under his supervision,) speaking of the Parliament held in the eleventh year of his reign, says: “ This Parliament also made that good law, which gave the attaint upon a false verdict between party and party, which before was a kind of evangile, irremediable — in the Latin, judicia guratorum, quae* veredicto vocantur, quae ante illud tempus evangelii cugusdam instar erant, atque plane irrevocar bilia. It extends not to causes capital; as well because they are for the most part at the King’s suit, as because in them, if they be followed in course of indictment, there passeth a double jury, the indictors and the triers, and so not twelve men, but four and twenty. But it seemeth that was not the only reason; for this reason holdeth not in the appeal — ubi causa capitalis a parte gravata peragitur. [That is, the appeal of murder, brought by the heir of the deceased. See Louisville <& St. Louis Railroad v. Clarke, 152 U. S. 230, SPARF AND HANSEN v. UNITED STATES. 117 Dissenting Opinion: Gray, Shiras, JJ. 239.] But the great reason was, lest it should tend to the discouragement of jurors in cases of life and death — ne forte juratores in causis capitalibus timidius se gererent—if they should be subject to suit and penalty, where the favour of life maketh against them.” 6 Bacon’s Works, (ed. 1858,) 5, 7, 160,161; 5 Bacon’s Works, (ed. 1803,) 117; 9 Id. 483. Lord Bacon was mistaken in assuming that the attaint was introduced by the St. of 11 Hen. VII, c. 24; for it existed at common law in writs of assize, and had been regulated and extended to other civil actions by many earlier statutes. 2 Inst. 130, 237, 427; Finch, Law, lib. 4, c. 47. But the mistake does not diminish the force of Lord Bacon’s statements that, wherever an attaint did not lie, the “ judgment of the jury, commonly called verdict, was considered as a kind of gospel; ” and that the reasons why an attaint did not lie in a capital case were, not only that two juries, the indictors and the triers, had passed upon the case, but chiefly that juries, in cases of life and death, should not be discouraged, or act timidly, by being subjected to suit and penalty if they decided in favor of life. John Milton, in his Defence of the People of England, after speaking of the King’s power in his courts and through his judges, adds: “ Nay, all the ordinary power is rather the people’s, who determine all controversies themselves by juries of twelve men. And hence it is that when a malefactor is asked at his arraignment, How will you be tried ? he answers always according to law and custom, By God and my country • not by God and the King, or the King’s deputy.” 8 Milton’s Works, (Pickering’s ed.) 198, 199. The idea is as old as Bracton. Bract. 119. In the reign of Charles II, some judges undertook to instruct juries that they must take the law from the court, and to punish them if they returned a verdict in favor of the accused against the judge’s instructions. But, as often as application was made to higher judicial authority, the punishments were set aside, and the rights of juries vindicated. In 1665, upon the trial of an indictment against three Quakers for an unlawful conventicle, Wagstaffe and other 118 OCTOBER TERM, 1894. Dissenting Opinion: Gray, Shiras, JJ. jurors were fined by Chief Justice Kelyng for acquitting “ against full evidence, and against the direction of the court in matter of law, in said court openly given and declared ” — contra plenam evidentiam^ et contra directionem curios in materia legis, in dicta curia ibidem aperte datam et declaratam. His reasons for this (as stated in his own manuscript note of the case, not included in the first edition of his reports, published by Lord Holt in 1708) were “ that they and others may know that a wilful jury cannot make an act of Parliament or the law of England of no effect but they are accountable and punishable for it; ” and “ that in criminal cases the court may fine a jury who will give a verdict contrary to their evidence; and the reason (as I take it) is that otherwise a headstrong jury might overthrow all the course of justice, for no attaint lieth in criminal causes, and also one verdict is peremptory, and a new trial cannot be granted in criminal causes, and therefore the judges have always punished such wilful juries by fine and imprisonment, and binding them to their good behaviour.” But at the end of his report is this memorandum : “ Note, the whole case of the Quakers, as to fining jury, now not law.” J. Kei. (3d ed.) 69-75. And Lord Hale, then Chief Baron, tells us that the jurors “ were thereupon committed, and brought their habeas corpus in the Court of Common Bench, and all the judges of England were assembled to consider of the legality of this fine, and the imprisonment thereupon; ” and the jurors were discharged of their imprisonment, for the following reasons: “ It was agreed by all the judges of England (one only dissenting) that this fine was not legally set upon the jury, for they are the judges of matters of fact; and although it was inserted in the fine, that it was contra directionem cunw vn materia legis, this mended not the matter, for it was impossible any matter of law could come in question, till the matter of fact were settled and stated and agreed by the jury, and of such matter of fact they were the only competent judges. And although the witnesses might perchance swear the fact to the satisfaction of the court, yet the jury are judges, as well of the credibility of the witnesses, as of the truth of the SPARF AND HANSEN v. UNITED STATES. 119 Dissenting Opinion: Gray, Shiras, JJ. fact; for possibly they might know somewhat of their own knowledge, that what was sworn was untrue, and possibly they might know the witnesses to be such as they could not believe, and it is the conscience of the jury that must pronounce the prisoner guilty or not guilty. And to say the truth, it were the most unhappy case that could be to the judge, if he at his peril must take upon him the guilt or innocence of the prisoner; and if the judge’s opinion must rule the matter of fact, the trial by jury would be useless.” 2 Hale P. C. 312, 313. Lord Hale’s apparent meaning is that, at a trial upon the plea of not guilty, the jury are the judges of the issue of fact thereby presented, and it is the conscience of the jury that must pronounce the prisoner guilty or not guilty; that, as no matter of law can come in question unless the facts are first found by the jury in a special verdict, it were idle to say that a general verdict was against the judge’s direction or opinion in matter of law; and that if the judge’s opinion in matter of law must rule the issue of fact submitted to the jury, the trial by jury would be useless. The reasons are more fully brought out in Bushell's case, in 1670, not mentioned in the text of Lord Hale’s treatise, and doubtless decided after that was written. William Penn and William Mead having been indicted and tried for a similar offence, and acquitted against the instructions of the court, Bushell and the other jurors who tried them were fined by Sir John Howell, Recorder of London, and Bushell was committed to prison, in like terms, for not paying his fine, and sued out a writ of habeas corpus. Penn <& Mead's case, 6 Howell’s State Trials, 951; Bushell?s case, Vaughan, 135; C. 6 Howell’s State Trials, 999; 1 Freeman, 1; T. Jones, 13. At the hearing thereon, Scroggs, the King’s serjeant, argued: “ It is granted, that in matters of fact only, the jury are to be judges; but when the matter of fact is mixed with matter of law, the law is to guide the fact, and they are to be guided by the court. The jury are at no inconvenience, for if the? please they may find the special matter; but if they will 120 OCTOBER TERM, 1894. Dissenting Opinion: Gray, Shiras, JJ- take upon them to know the law, and do mistake, they are punishable.” 1 Freeman, 3. But Bushell was discharged from imprisonment, for reasons stated in the judgment delivered by Sir John Vaughan, Chief Justice of the Common Pleas, after a conference of all the judges of England, including Lord Hale, and with the concurrence of all except Chief Justice Kelyng. Vaughan, 144,145; 1 Freeman, 5; Lord Holt, in Groenwelt v. Burwell, 1 Ld. Raym. 454, 470. In that great judgment, as reported by himself, Chief Justice Vaughan discussed separately the two parts of the return; first, that the acquittal was “ against full and manifest evidence; ” and, second, that it was “ against the direction of the court in matter of law.” It was in discussing the first part, that he observed “ that the verdict of a jury, and evidence of a witness, are very different things, in the truth and falsehood of them. A witness swears but to what he hath heard or seen; generally or more largely, to what hath fallen under his senses. But a juryman swears to what he can infer and conclude from the testimony of such witnesses, by the act and force of his understanding, to be the fact inquired after, which differs nothing in the reason, though much in the punishment, from what a judge, out of various cases considered by him, infers to be the law in the question before him.” Vaughan, 142. After disposing of that part of the return, he proceeds as follows: “We come now to the next part of the return, viz. That the jury acquitted those indicted, against the direction of the court in matter of law, openly given and declared to them in court. “ The words, that the jury did acquit, against the direction of the court in matter of law, literally taken, and de piano, are insignificant and not intelligible; for no issue can be joined of matter in law, no jury can be charged with the trial of matter in law barely, no evidence ever was, or can be, given to a jury of what is law, or not; nor no such oath can be given to, or taken by, a jury to try matter in law; nor no attaint can lie for such a false oath. SPARE AND HANSEN v. UNITED STATES. 121 Dissenting Opinion: Gray, Shiras, JJ. Therefore we must take off this vail and colour of words, which make a shew of being something, and in truth are nothing. “ If the meaning of these words, finding against the direction of the court in matter of law, be, that if the judge, having heard the evidence given in court (for he knows no other) shall tell the jury, upon this evidence, the law is for the plaintiff, or for the defendant, and you are under the pain of fine and imprisonment to find accordingly, then the jury ought of duty so to do : Every man sees that the jury is but a troublesome delay, great charge, and of no use in determining right and wrong, and therefore the trials by them may be better abolished than continued; which were a strange new-found conclusion, after a trial so celebrated for many hundreds of years. “For if the judge, from the evidence, shall by his own judgment first resolve upon any trial what the fact is, and so knowing the fact, shall then resolve what the law is, and order the jury penally to find accordingly, what either necessary or convenient use can be fancied of juries, or to continue trials by them at all ? “ But if the jury be not obliged in all trials to follow such directions, if given, but only in some sort of trials (as, for instance, in trials for criminal matters upon indictments or appeals) why then the consequence will be, though not in all, yet in criminal trials, the jury (as of no material use) ought to be either omitted or abolished, which were the greater mischief to the people, than to abolish them in civil trials. “ And how the jury should, in any other manner, according to the course of trials used, find against the direction of the court in matter of law, is really not conceptible.” Vaughan, 143,144. He then observes: “This is ordinary, when the jury find unexpectedly for the plaintiff or defendant, the judge will ask, How do you find such a fact in particular? and upon their answer he will say, then it is for the defendant, though they find for the plaintiff, or e contrario, and thereupon they rectify their verdict. And in these cases, the jury, and not the 122 OCTOBER TERM, 1894. Dissenting Opinion: Gray, Shiras, JJ. judge, resolve and find what the fact is. Therefore always, in discreet and lawful assistance of the jury, the judge’s direction is hypothetical, and upon supposition, and not positive and upon coercion, viz.: If you find the fact thus (leaving it to them what to find) then you are to find for the plaintiff; but if you find the fact thus, then it is for the defendant.” But he is careful to add that, “ whatsoever they have answered the judge upon an interlocutory question or discourse, they may lawfully vary from it if they find cause, and are not thereby concluded.” pp. 144, 145. It is difficult to exhibit the strength of Chief Justice Vaughan’s reasoning by detached extracts from his opinion. But a -few other passages are directly in point: “ A man cannot see by another’s eye, nor hear by another’s ear; no more can a man conclude or infer the thing to be resolved by another’s understanding or reasoning; and though the verdict be right the jury give, yet they, being not assured it is so from their own understanding, are forsworn, at least in foro conscientioe” p. 148. “ That decantatv/m in our books, ad quoestionem, facti non respondent judices, ad quastionemlegis non respondent guratoree, literally taken, is true: for if it be demanded, What is the fact ? the judge cannot answer it; if it be asked, What is the law in the case ? the jury cannot answer it.” He then explains this by showing that upon demurrers, special verdicts, or motions in arrest of judgment, “ the jury inform the naked fact, and the court deliver the law.” “ But upon all general issues; as upon not culpable pleaded in trespass, nil debet in debt, nul tort, nul disseisin in assize, ne disturba pas in quare imped'd, and the like; though it be matter of law whether the defendant be a trespasser, a debtor, disseisor, or disturber, in the particular cases in issue, yet the jury find not (as in a special verdict) the fact of every case by itself, leaving the law to the court, but find for the plaintiff or defendant upon the issue to be tried, wherein they resolve both law and fact complicately, and not the fact by itself; so as though they answer not singly to the question what is the law, yet they determine the law m all matters, where issue is joined and tried in the principal SPARF AND HANSEN v. UNITED STATES. 123 Dissenting Opinion: Gray, Shiras, JJ. 9 case, but [i.e. except] where the verdict is special.” pp. 149, 150. He then observes that “ to this purpose the Lord Hobart in Needier's case against the Bishop of Winchester is very apposite,” citing the passage quoted near the beginning of this opinion; and concludes his main argument as follows: “The legal verdict of the jury, to be recorded, is finding for the plaintiff or defendant; what they answer, if asked, to questions concerning some particular fact, is not of their verdict essentially, nor are they bound to agree in such particulars ; if they all agree to find their issue for the plaintiff or defendant, they may differ in the motives wherefore [therefor], as well as judges, in giving judgment for the plaintiff or defendant, may differ in the reasons wherefore they give that judgment, which is very ordinary.” p. 150. That judgment thus clearly appears to have been rested, not merely on the comparatively technical ground, that upon the general issue no matter of law could come in question until the facts have been found by the jury; nor yet upon the old theory that the jurors might have personal knowledge of some facts not appearing in evidence; but mainly on the broad reasons, that if the jury, especially in criminal trials, were obliged to follow the directions of the court in matter of law, no necessary or convenient use could be found of juries, or to continue trials by them at all; that though the verdict of the jury be right according to the law as laid down by the court, yet if they are not assured by their own understanding that it is so, they are forsworn, at least inforo conscientice ; and that the decan-tatv/m in our books, ad quaestionemfacti non respondent judices, ad quaestionem juris non respondent juratores, means that issues of law, as upon demurrers, special verdicts, or motions in arrest of judgment, are to be decided by the court; but that upon general issues of fact, involving matter of law, the jury resolve both law and fact complicately, and so determine the law. Notwithstanding that authoritative declaration of the right of the jury, upon the general issue, to determine the law, Chief Justice Scroggs, upon the trial of Harris for a seditious libel in 1680, (7 Howell’s State Trials, 925, 930,) insisted that 124 OCTOBER TERM, 1894. Dissenting Opinion: Gray, Shiras, JJ. the jury must take the law from the court; and Chief Justice Jeffreys, presiding at the trial of Algernon Sidney in 1683, charged the jury as follows: “ It is our duty upon our oaths to declare the law to you, and you are bound to receive our declaration of law, and upon this declaration to inquire whether there be a fact, sufficiently proved, to find the prisoner guilty of the high treason of which he stands indicted.” And Sidney was convicted, sentenced, and executed. 9 Howell’s State Trials, 817, 889. In the last year of the reign of James II, the Trial of the Seven Bishops, reported 12 Howell’s State Trials, 183, took place upon an information for a seditious libel contained in their petition to the King, praying that he would be pleased not to insist on their distributing and reading in the churches his declaration dispensing with the penal statutes concerning the exercise of religion. The trial was at bar before all the Justices of the King’s Bench, upon a general plea of not guilty. A principal ground of defence was, that the King had no dispensing power, and therefore the petition of the bishops to him was an innocent exercise of the right of petition, and was not a libel. In support of this defence, ancient acts of Parliament were given in evidence; and, upon the offer of one in Norman French, the Chief Justice said, “Read it in English, for the jury to understand it,” and it was so read by a sworn interpreter, pp. 374, 375. And when the Attorney General argued that these matters were not pertinent to the case, the Chief Justice, interrupting him, said: “Yes, Mr. Attorney, I’ll tell you what they offer, which it will lie upon you to give an answer to; they would have you show how this has disturbed the government, or diminished the King’s authority.” p. 399. At the close of the arguments, each of the four judges in turn charged the jury. Lord Chief Justice Wright said: “ The only question before me is, and so it is before you, gentlemen, it being a question of fact, whether here be a certain proof of a publication? And then the next question is a question of law indeed, whether if there be a publication proved, it be a libel?” “Now, gentlemen, anything that SPARE AND HANSEN v. UNITED STATES. 125 Dissenting Opinion: Gray, Shiras, J J. shall disturb the government, or make mischief and a stir among the people, is certainly within the case of Libellis Fa/mo-sis; and I must in short give you my opinion, I do take it to be a libel. Now this being a point of law, if my brothers have anything to say to it, I suppose they will deliver their opinions.” Mr. Justice Holloway said: “If you are satisfied there was an ill intention of sedition, or the like, you ought to find them guilty; but if there be nothing in the case that you find, but only that they did deliver a petition to save themselves harmless and to free themselves from blame, by showing the reason of their disobedience to the King’s command, which they apprehended to be a grievance to them, and which they could not in conscience give obedience to, I cannot think it is a libel. It is left to you, gentlemen, but that is my opinion.” Mr. Justice Powell also expressed his opinion that the paper was not a libel; and said: “Now, gentlemen, the matter of it is before you; you are to consider of it, and it is worth your consideration.” He then expressed his opinion that the King had no dispensing power; and concluded: “ If this be once allowed of, there will need no Parliament; all the legislation will be in the King, which is a thing worth considering,, and I leave the issue to God and your consciences.” Mr. Justice Allybone, after saying, “The single question that falls to my share is, to give my sense of this petition, whether it shall be in construction of law a libel in itself, or a thing of great innocence,” expressed his opinion that it was a libel. The jury on retiring, requested, and were allowed by the-court, to take with them the statute book, the information, the petition of the bishops, and the declaration of the King; and they returned a verdict of not guilty, whereat there was-great popular rejoicing in London and throughout England. 12 Howell’s State Trials, 425-431; 1 Burnet’s Own Time, 744. It thus clearly appears that upon that trial, one of the most important in English history, deeply affecting the liberties of the people, the four judges of the King’s Bench, while differ-mg among themselves upon the question whether the petition 126 OCTOBER TERM, 1894. Dissenting Opinion: Gray, Shiras, JJ. of the bishops was a libel, concurred in submitting that question, as a question of law, to the decision of the jury, not as umpires between those judges who thought the paper was a libel and those judges who thought it was not, but as the tribunal vested by the law of England with the power and the right of ultimately determining, as between the Crown and the accused, all matters of law, as well as of fact, involved in the general issue of guilty or not guilty. Upon the accession of William and Mary, Parliament declared the King’s power of dispensing with the laws to be unlawful; and reversed the conviction of Algernon Sidney, “for a partial and unjust construction of the statute” of treasons in the instructions by which his conviction had been procured. Stat. 1 W. & M. sess. 2, c. 2; 6 Statutes of the Realm, 143, 155 ; 9 Howell’s State Trials, 996. And early in the new reign Holt was appointed Lord Chief Justice, and Somers, Lord Keeper. Lord Somers, in the opening pages of his essay on The Security of Englishmen’s Lives, or the Trust, Power and Duty of the Grand Juries of England, (first published in 1681, and republished in 1714, towards the end of his life, after he had been Lord Chancellor,) lays down in the clearest terms the right of the jury to decide the law, saying : “ It is made a fundamental in our government, that (unless it be by Parliament) no man’s life shall be touched for any crime whatsoever, save by the judgment of at least twenty-four men; that is, twelve or more, to find the bill of indictment, whether he be peer of the realm, or commoner; and twelve peers or above, if a lord, if not, twelve commoners, to give the judgment upon the general issue of not guilty joined.” “The office and power of these juries is judicial, they only are the judges from whose sentence the indicted are to expect life or death: Upon their integrity and understanding, the lives of all that are brought into judgment do ultimately depend; from their verdict there lies no appeal; by finding guilty or not guilty, they do complicately resolve both law and fact. As it hath been the law, so it hath always been the custom and practice of these juries, upon all general issues, pleaded SPARF AND HANSEN v. UNITED STATES. 127 Dissenting Opinion: Gray, Shiras, JJ. in cases, civil as well as criminal, to judge both of the law and fact.” “ Our ancestors were careful, that all men of the like condition and quality, presumed to be sensible of each other’s infirmity, should mutually be judges of each other’s lives, and alternately taste of subjection and rule, every man being equally liable to be accused or indicted, and perhaps to be suddenly judged by the party, of whom he is at present judge, if he be found innocent.” Lord Chief Justice Holt declared that “ in all cases and in all actions the jury may give a general or special verdict, as well in causes criminal as civil, and the court ought to receive it, if pertinent to the point in issue, for if the jury doubt they may refer themselves to the court, but are not bound so to do.” Anon. (1697) 3 Salk. 373. And upon the trial of an information for a seditious libel, while he expressed his opinion' that the paper was upon its face a criminal libel, he submitted the question whether it was such to the jury, saying, “ Now you are to consider whether these words I have read to you do not tend to beget an ill opinion of the administration of the government.” Tutchiris case, (1704) 14 Howell’s State Trials, 1095, 1128. Although he concluded his charge with the words, “ If you are satisfied that he is guilty of composing and publishing these papers at London, you are to find him guilty,” yet, as Mr. Starkie well observes, “ these words have immediate reference to the ground of defence upon which Mr. Tutchin’s counsel meant to rely, namely, that the offence had not been proved to have been committed in London; and cannot be considered as used for the purpose of withdrawing the attention of the jury from the quality of the publication, upon which they had just before received instructions; and indeed to suppose it had so meant would prove too much, since, if so, the jury were directed not to find the truth of the innuendoes.” Starkie on Slander, 56. Some decisions, often cited as against the right of the jury by a general verdict to determine matter of law involved in fne general issue of guilty or not guilty, were upon special verdicts presenting pure questions of law. Such were Townes case, (1554) 1 Plowd. Ill; and The King v. Onety, 128 OCTOBER TERM, 1894. Dissenting Opinion: Gray, Shiras, JJ. (1726) 2 Ld. Raym. 1485; & C. 2 Stra. 766; 1 Barnard. 17; 17 Howell’s State Trials, 29. After the accession of George II, Lord Chief Justice Raymond, on trials at nisi prius for seditious libels, (ignoring the cases of Tutchin and of The Seven Bishops,) told juries that they were bound to take the law from the court, and that the question, whether the paper which the defendant was accused of writing and publishing was a libel, was a mere question of law with which the jury had nothing to do. Clarke's case, (1729) 17 Howell’s State Trials, 667, note; & C. 1 Barnard. 304; Franckliris case, (1731) 17 Howell’s State Trials, 625, 672. In 1734, upon an information in the nature of a quo warranto against the defendant to show cause by what authority he acted as mayor of Liverpool, his motion for a new trial, because the jury had found a general verdict for the Crown against the instructions of the judge, and notwithstanding he ordered them to return a special verdict, was granted by the Court of King’s Bench, Lord Chief Justice Hardwicke saying: “ The general rule is, that if the judge of nisi prius directs the jury on the point, of law, and they think fit obstinately to find a verdict contrary to his direction, that is sufficient ground for granting a new trial; and when the judge upon a doubt of law directs the jury to bring in the matter specially, and they find a general verdict, that also is a sufficient foundation for a new trial.” “ The thing that governs greatly in this determination is, that the point of law is not to be determined by juries; juries have a power by law to determine matters of fact only; and it is of the greatest consequence to the law of England and to the subject, that these powers of the judge and jury are kept distinct; that the judge determines the law, and the jury the fact; and if ever they come to be confounded, it will prove the confusion and destruction of the law of England.” The King v. Poole, Cas. temp. Hardw. 23, 26, 28; 8:C. Cunningham, 11, 14, 16. But such an information to try title to a civil office (though it had some of the forms of a criminal prosecution) was brought for the mere purpose of trying a civil right, and was consid- SPARF AND HANSEN v. UNITED STATES. 129 Dissenting Opinion: Gray, Shiras, JJ. ered as in the nature of a civil proceeding. 3 Bl. Com. 263 ; The King v. Francis, 2 T. R. 484; Ames v. Kansas, 111 U. S. 449, 460, 461. And, as appears by the first passage above cited from Lord Hardwicke’s opinion, it was evidently so treated by the court, under the practice of granting new trials on motion of either party to a civil case, which had gradually grown up within the century preceding, as a substitute for attaints. Bell v. Wardell, (1740) Willes, 204, 206; Witham v. Lewis, (1744) 1 Wilson, 48, 55; Bright n. Eynon, (1757) 1 Burrow, 390, 394. In a criminal case, certainly, the court could not compel the jury to return a special verdict. Nothing, therefore, was adjudged in Poole's case as to the right of the jury to decide the law in prosecutions for crime. And it is significant that, although both reports of that case were published in 1770, it was not cited by Lord Mansfield, in 1784, when collecting the authorities against the right of the jury in criminal cases. The King v. Shipley, 4 Doug. 73, 168. Lord Hardwicke’s own opinion, indeed, may be presumed to have been against the right of the jury; for when Attorney General he had so argued in Franckli/n? s case, above cited, 17 Howell’s State Trials, 669; and he was, as justly observed by Mr. Hallam, “ a regularly bred crown lawyer, and in his whole life disposed to hold very high the authority of government.” 3 Hallam’s Const. Hist. (9th ed.) 287. His opinion, therefore, is of less weight upon a constitutional question affecting the liberty of the subject, than upon other questions of law or of equity. The later history of the law of England upon the right of the jury to decide the law in criminal cases is illustrated by a long conflict between the views of Mr. Murray, afterwards Lord Mansfield, against the right, and of Mr. Pratt, afterwards Lord Camden, in its favor, which, after the public sentiment had been aroused by the great argument of Mr. Erskine in The Dean of St. Asaph’s case, was finally settled, in accordance with Lord Camden’s view, by a declaratory act of Parliament. Upon the Trial of Owen, in 1752, for publishing a libel, Mr. Murray, as Solicitor General, argued to the jury that if VOL. CLVI—9 130 OCTOBER TERM, 1894. Dissenting Opinion: Gray, Shiras, JJ. they determined the question of fact of publication, the judge determined the law. But Mr. Pratt, of counsel for the defendant, argued the whole matter to the jury; and, although the publication was fully proved, and Chief Justice Lee told the jury that, this being so, they could not avoid bringing in the defendant guilty, they returned and persisted in a general verdict of acquittal. 18 Howell’s State Trials, 1203, 1223, 1227, 1228; 29 Pari. Hist. 1408. In the like case of Nutt, in 1754, (Starkie on Slander, 615,) conducted by Mr. Murray as Attorney General, the like direction was given to the jury by Chief Justice Ryder. Lord Mansfield, in The King v. Shipley, 4 Doug. 168. In the similar case of Shebbeare, in 1758, (Starkie on Slander, 56, 616,) Mr. Pratt, as Attorney General, when moving before Lord Mansfield for leave to file the information, said: “ It is merely to put the matter in a way of trial; for I admit, and his lordship well knows, that the jury are judges of the law as well as the fact, and have an undoubted right to consider whether, upon the whole, the pamphlet in question be or be not published with a wicked, seditious intent, and be or not a false, malicious, and scandalous libel.” Second Postscript to Letter to Mr. Almon on Libels, (1770) p. 7; 4 Collection of Tracts 1763-1770, p. 162. And at the trial, as he afterwards said in the House of Lords, he “ went into court predetermined to insist on the jury taking the whole of the libel into consideration,” and, “ so little did he attend to the authority of the judges on that subject, that he turned his back on them, and directed all he had to say to the jury.” 29 Pari. Hist. 1408. And see 20 Howell’s State Trials, 709. But Lord Mansfield instructed the jury that the question whether the publication was a libel was to be determined by the court. 4 Doug. 169. Lord Camden, when Chief Justice of the Common Pleas, presiding at criminal trials, instructed the jury that they were judges of the law as well as the fact. Pettingal on Juries (1769) cited in 21 Howell’s State Trials, 853; 29 Pari. Hist. 1404, 1408. In the prosecutions, in the summer of 1770, of Miller and SPARE AND HANSEN v. UNITED STATES. 131 Dissenting Opinion: Gray, Shiras, JJ. Woodfall for publishing the letter of Junius to the King, Lord Mansfield instructed the jury in the same way as in Shebbeare’s case. In Miller’s case, the jury returned a verdict of not guilty. In WoodfaWs case, the jury returned a verdict of “ guilty of printing and publishing only; ” and the court therefore granted a motion for a new trial. But Lord Mansfield, on November 20,1770, in delivering a judgment upon that motion, took occasion to say that the court was of opinion “ that the direction is right and according to law.” Miller’s case, 20 Howell’s State Trials, 869, 893, 895 ; WoodfaWs case, Id. 895, 901-903, 918, 920 ; & C. 5 Burrow, 2661, 2666, 2668. On December 5, 1770, in the House of Lords, the judgment in WoodfaWs case was attacked by Lord Chatham, and defended by Lord Mansfield, in replying to whom Lord Chatham said: 11 This, my lords, I never understood to be the law of England, but the contrary. I always understood that the jury were competent judges of the law as well as the fact; and, indeed, if they were not, I can see no essential benefit from their institution to the community.” And Lord Camden, after observing that it would be highly necessary to have an authentic statement of the direction to the jury in that case laid before the House, said : “ If we can obtain this direction, and obtain it fully stated, I shall very readily deliver my opinion upon the doctrines it inculcates, and if they appear to me contrary to the known and the established principles of the constitution, I shall not scruple to tell the author of his mistake in the open face of this assembly.” 16 Pari. Hist. 1302-1307. On the next day, a warm debate took place in the House of Commons upon a motion by Serjeant Glynn for a committee to inquire into the administration of criminal justice, and the proceedings of the judges in Westminster Hall, particularly in cases relating to the liberty of the press and the constitutional power and duty of juries,” in the course of which Mr. Dun-ning, then the leader of the bar, and afterwards Lord Ashburton, emphatically denied that the doctrine of Lord Raymond and Lord Mansfield was the established law of the land. 16 Pari. Hist. 1212,1276. See also 2 Cavendish’s Debates, 141,369. 132 OCTOBER TERM, 1894. Dissenting Opinion: Gray, Shiras, JJ. Pursuant to a wish expressed by Lord Mansfield on the day after, the House of Lords met on December 10, when he informed the House that he had left with its clerk a copy of the judgment of the court in Woodfall's case. Lord Camden thereupon said that he considered the paper as a challenge directed personally to him, which he accepted, and said: “ In direct contradiction to him, I maintain that his doctrine is not the law of England. I am ready to enter into the debate whenever the noble lord will fix a day for it.” And he proposed questions in writing to Lord Mansfield, framed with the view of ascertaining how far that judgment denied the right of the jury, by a general verdict in a criminal case, to determine the law as well as the fact. Lord Mansfield evaded answering the questions, and, while declaring himself ready to discuss them at some future day, declined to name one. And the matter dropped for the time. 16 Pari. Hist. 1312— 1322. In 1783, after the Independence of the United States had been recognized by Great Britain, came the case of Rex v. Shipley, commonly known as The Dean of St. Asaph's case, fully reported in 4 Doug. 73, and in 21 Howell’s State Trials, 847, and briefly stated in 3 T. R. 428, note, which was a criminal prosecution for a seditious libel contained in a pamphlet written by Sir William Jones. Mr. Justice Buller, at the trial, told the jury that the only questions for them were whether the defendant published the pamphlet, and whether the innuendoes in the indictment were true; and that the question of libel or no libel was a question of law for the court, and not for the jury, upon which he declined to express any opinion, but that it would be open for the consideration of the court upon a motion in arrest of judgment. The jury returned a verdict of “ guilty of publishing only,” but were persuaded by the judge to put it in this form: “ Guilty of publishing, but whether a libel or not the jury do not find. 4 Doug. 81, 82, 85, 86; 21 Howell’s State Trials, 946, 950-955. The effect of all this was that the defendant was found guilty of publishing a paper, which neither the judge nor the jury had held to be a libel; and judgment was ultimately arrested SPABF AND HANSEN v. UNITED STATES. 133 Dissenting Opinion: Gray, Shiras, JJ. upon the ground that, as set out in the indictment, it was not libellous. 21 Howell’s State Trials, 1044. But, before the motion in arrest of judgment was argued, Mr. Erskine obtained a rule to show cause why a new trial should not be granted, principally upon the ground that the judge told the jury that the question whether libel or not was not for their decision; whereas the jury, upon the general issue, had not only the power, but the right, to decide the law. It was upon this rule that Mr. Erskine made his famous argument in support of the rights of juries, and that Lord Mansfield delivered the judgment, in which Mr. Justice Ashurst concurred, which has since been the principal reliance of those who deny the right of the jury to decide the law involved in the general issue in a criminal case. It should not be overlooked, that at the hearing of this motion, Mr. Bearcroft, the leading counsel for the Crown, said he “ agreed with the counsel for the defendant, that it is the right of the jury, if they please, on the plea of not guilty, to take upon themselves the decision of every question of law necessary to the acquittal of the defendant; and Lord Mansfield observing that he should call it the power, not the right, he adhered to the latter expression; and added, that he thought it an important privilege, and which, on particular occasions, as, for instance, if a proper censure of the measures of the servants of the Crown were to be construed by a judge to be libellous, it would be laudable and justifiable in them to exercise.” 4 Doug. 94, note. See also p. 108. Mr. Justice Willes, dissenting from the opinion of the court, said he was sure that these statements of Mr. Bearcroft expressed “ the sentiments of the greater part of Westminster Hall;” and declared: “I conceive it to be the law of this country, that the jury, upon a plea of not guilty, or upon the general issue, upon an indictment or an information for a libel, have a constitutional right, if they think fit, to examine the innocence or criminality of the paper, notwithstanding there is sufficient proof given of the publication.” “ I believe no man will venture to say they have not power, but I mean expressly to say they have the right. Where a civil power of 134 OCTOBER TERM, 1894. Dissenting Opinion: Gray, Shiras, JJ. this sort has been exercised without control, it presumes, nay, by continual usage, it gives the right. It was the right which juries exercised in those times of violence when the Seven Bishops were tried, and which even the partial judges who then presided did not dispute, but authorized them to exercise upon the subject-matter of the libel; and the jury, by their solemn verdict upon that occasion, became one of the happy instruments, under Providence, of the salvation of this country. This privilege has been assumed by the jury in a variety of ancient and modern instances, and particularly in the case of Rex v. Owen, without any correction or even reprimand of the court. It is a right, for the most cogent reasons, lodged in the jury ; as without this restraint the subject in bad times would have no security for his life, liberty, or property.” And he concurred in refusing a new trial, solely because in his opinion neither the counsel for the prosecution, nor the judge presiding at the trial, had impugned these doctrines, and the verdict returned by the jury was in the nature of a special verdict, in effect submitting the law to the court. 4 Doug. 171-175. In 1789, in The King v. Withers, 3 T. R. 428, Lord Kenyon instructed a jury in the same way that Mr. Justice Buller had done in The Dean of St. Asaph's case. In 1791, the declaratory statute, entitled “ An act to remove doubts respecting the functions of juries in cases of libel,” and known as Fox’s Libel Act, was introduced in Parliament, and was passed in 1792. Stat. 32 Geo. Ill, c. 60. By that act, “ the legislature,” as lately observed by Lord Blackburn in the House of Lords, “ adopted almost the words and quite the substance ” of that passage of the opinion of Mr. Justice Willes, first quoted above. Capital and Counties Bank v. Henty, 7 App. Cas. 741, 775. The doubts which the act was passed to remove were, as recited at the beginning of the act, upon the question whether upon the trial of an indictment or information for libel, on the plea of not guilty, “ it be competent to the jury impanelled to try the same to give their verdict upon the whole matter put in issue; ” and it was “ therefore declared and enacted, (not merely enacted, but declared to be the law as already SPARF AND HANSEN v. UNITED STATES. 135 Dissenting Opinion : Gray, Shiras, JJ. existing,) “ that on every such trial the jury sworn to try the issue may give a general verdict of guilty or not guilty upon the whole matter put in issue upon such indictment or information ; and shall not be required or directed, by the court or judge before whom such indictment or information shall be tried, to find the defendant or defendants guilty, merely on the proof of the publication by such defendant or defendants of the paper charged to be a libel, and of the sense ascribed to the same in such indictment or information.” The act then provides, first, that the presiding judge may, at his discretion, give instructions to the jury ; second, that the jury may, at their discretion, return a special verdict ; and third, that the defendant, if found guilty, may move in arrest of judgment. The first of these provisos, and the only one requiring particular notice, is that the judge shall, at his discretion, give “ his opinion and directions to the jury on the matter at issue,” “ in like manner as in other criminal cases.” His “ opinion and directions ” clearly means by way of advice and instruction only, and not by way of order or command ; and the explanation, “ in like manner as in other criminal cases,” shows that no peculiar rule was intended to be laid down in the case of libel. And that this was the understanding at the time is apparent from the debate on the proviso, which was adopted on the motion of Sir John Scott, (then Solicitor General, and afterwards Lord Eldon,) just before the bill passed the House of Commons in 1791. 29 Pari. Hist. 594-602. The clear effect of the whole act is to declare that the jury (after receiving the instructions of the judge, if he sees fit to give any instructions) may decide, by a general verdict, ‘ the whole matter put in issue,” which necessarily includes all questions of law, as well as of fact, involved in the general issue of guilty or not guilty ; and to recognize the same rule as existing in all criminal cases. Not only is this the clear meaning of the words of the act ; but that such was its intent and effect is shown by the grounds, taken by its supporters and its opponents in Parliament, as well as by subsequent judicial opinions in England. 136 OCTOBER TERM, 1894. Dissenting Opinion: Gray, Shiras, J J. Mr. Fox, upon moving the introduction of the bill in the House of Commons in 1791, after observing that he was not ignorant that power and right were not convertible terms, said that, “ if a power was vested in any person, it was surely meant to be exercised;” that “there was a power vested in the jury to judge the law and fact, as often as they were united; and if the jury were not to be understood to have a right to exercise that power, the constitution would never have entrusted them with it; ” “ but they knew it was the province of the jury to judge of law and fact; and this was the case not of murder only, but of felony, high treason, and of every other criminal indictment; ” and that “ it must be left in all cases to a jury to infer the guilt of men, and an English subject could not lose his life but by a judgment of his peers.” 29 Pari. Hist. 564, 565, 597. And Mr. Pitt, in supporting the bill, declared that his own opinion was against the practice of the judges, “ and that he saw no reason why, in the trial of a libel, the whole consideration of the case might not go precisely to the unfettered judgment of twelve mbn, sworn to give their verdict honestly and conscientiously, as it did in matters of felony and other crimes of a high nature.” 29 Pari. Hist. 588. In the debate in the House of Lords, on a motion of Lord Chancellor Thurlow to put off the reading of the bill, Lord Camden said, “ He would venture to affirm, and should not be afraid of being contradicted by any professional man, that by the law of England as it now stood, the jury had a right, in deciding on a libel, to judge whether it was criminal or not; and juries not only possessed that right, but they had exercised it in various instances.” He added, as “ a matter which he conceived should be imprinted on every juror’s mind, that if they found a verdict of the publishing, and left the criminality to the judge, they had to answer to God and their consciences for the punishment that might, by such judge, be inflicted on the defendant, whether it was fine, imprisonment, loss of ears, whipping, or any other disgrace, which was the sentence of the court.” After further enforcing his opinion, he said: “ I will affirm that they have that right, and that there is no SPARE AND HANSEN v. UNITED STATES. 137 Dissenting Opinion: Gray, Shiras, JJ. power by the law of this country to prevent them from the exercise of that right, if they think fit to maintain it; and when they are pleased to acquit any defendant, their acquittal will stand good until the law of England is changed.” “ My lords,” said he, “ give to the jury or to the judge the right of trial of the subjects of this country; you must give it to one of them, and I think you can have no difficulty which to prefer.” And he concluded by saying that “ he did not apprehend that the bill had a tendency to alter the law, but merely to remove doubts that ought never to have ■ been entertained, and therefore the bill had his hearty concurrence; but, as he was assured that the proposed delay was not hostile to the principle of the bill, but only to take it into serious consideration, and to bring it again forward, he had no objection to the motion of the Lord Chancellor.” 29 Pari. Hist. 729, 730, 732. In the House of Lords in 1792, the bill having again passed the House of Commons, Lord Loughborough, for many years Chief Justice of the Common Pleas, said that he “ had ever deemed it his duty, in cases of libel, to state the law as it bore on the facts, and to refer the combined consideration to the jury;” and that “their decision was final. There was no control upon them in their verdict. The evident reason and good sense of this was, that every man was held to be acquainted with the criminal law of the land. Ignorance was no plea for the commission of a crime; and no man was therefore supposed to be ignorant of judging upon the evidence adduced of the guilt or innocence of a defendant. It was the admitted maxim of law, ad qu&stionemJuris respondeant Judices, ad qucestion&m facti Juratores ; but when the law and the fact were blended, it was the undoubted right of the jury to decide. If the law was put to them fairly, there was undoubtedly not one case in a thousand on which they would not decide properly. If they were kept in the dark, they were sometimes led into wrong, through mere jealousy of their own right.” 29 Pari. Hist. 1296,1297. Pending the debate, the House of Lords put questions to the judges, who returned an opinion, in which, after saying that “the general criminal law of England is the law of 138 OCTOBER TERM, 1894. Dissenting Opinion: Gray, Shiras, JJ. libel,” they laid down, as a fundamental proposition, applicable to treason as well as to other crimes, “ that the criminality or innocence of any act done (which includes any paper written) is the result of the judgment which the law pronounces upon that act, and must therefore be in all cases, and under all circumstances, matter of law and not matter of fact.” With such a basis, it is hardly to be wondered at that they “ conceived the law to be that the judge is to declare to the jury what the law is,” and “ that it is the duty of the jury, if they will find a general verdict upon the whole matter in issue, to compound that verdict of the fact as it appears in evidence before them, and of the law as it is declared to them by the judge.” The judges, however, “ took this occasion to observe ” that they had “ offered no opinion which will have the effect of taking matter of law out of a general issue, or out of a general verdict; ” and “ disclaimed the folly of undertaking to prove that a jury, who can find a general verdict, cannot take upon themselves to deal with matter of law arising in a general issue, and to hazard a verdict made up of the fact, and of the matter of law, according to their conception of that law, against all direction by the judge.” 29 Pari. Hist. 1361-1369. On Lord Camden’s motion, the bill was postponed, in order to enable the House to consider the opinion of the judges; and was then proceeded with, when Lord Camden “ exposed the fallacy of the pretended distinction between law and fact, in the question of guilty or not guilty of printing and publishing a libel; they were united as much as intent and action in the consideration of all other criminal proceedings. Without an implied malice a man could not be found guilty, even of murder. The simple killing a man was nothing, until it was proved that the act arose from malice. A man might kill another in his own defence, or under various circumstances which rendered the killing no murder. How were these things to be explained ? by the circumstances of the case. What was the ruling principle ? the intention of the party. Who were the judges of the intention of the party; the judge. No; the jury. So that the jury were allowed to judge of the SPARE AND HANSEN v. UNITED STATES. 13$ Dissenting Opinion: Gray, Shiras, JJ. intention upon an indictment for murder, and not to judge of the intention of the party upon libel.” And Lord Loughborough, as well as Lord Camden, distinctly affirmed, and Lord Thurlow as distinctly denied, that upon the general issuein criminal cases, after the judge had stated the law to the jury, the jury were to decide both the question of law and the question of fact. 29 Pari. Hist. 1370, 1405, 1406, 1426, 1429. Towards the close of the debate, Lord Thurlow moved to-amend the bill by inserting the words “ that the judge state to the jury the legal effect of the record.” Lord Camden successfully opposed the amendment, “as an attempt indirectly to convert the bill into the very opposite of what it was intended to be, and to give the judges a power ten times greater than they had ever yet exercised; ” and said, “ He must contend, that the jury had an undoubted right to form their verdict themselves according to their consciences, applying the law to the fact; if it were otherwise, the first principle of the law of England would be defeated and overthrown. If the twelve judges were to assert the contrary again and again, he would deny it utterly, because every Englishman was to be tried by his country; and who was his country but his twelve peers, sworn to condemn or acquit according to their consciences ? If the opposite doctrine were to obtain, trial by jury would be a nominal trial, a mere form; for, in fact, the judge, and not the jury, would try the man. He would contend for the truth of this argument to the latest hour of his life, manibus pedxbusque. With regard to the judge stating to the jury what the law was upon each particular case, it was his undoubted duty so to do; but having done so, the jury were to take both law and fact into their consideration, and to exercise their discretion and discharge their consciences.” 29 Pari. Hist. 1535, 1536. The first ground of the protest of Lord Thurlow, Lord Bathurst, Lord Kenyon and three other lords against the passage of the act was “ because the rule laid down by the k’ll * 0111, contrary to the determination of the judges and the unvaried practice of ages, subverts a fundamental and important principle of English jurisprudence, which, leaving to the jury 140 OCTOBER TERM, 1894. Dissenting Opinion: Gray, Shiras, JJ. the trial of the fact, reserves to the court the decision of the law.” 29 Pari. Hist. 1537. Lord Brougham, in his sketch of Lord Camden, declares that “the manly firmness which he uniformly displayed in maintaining the free principles of the constitution, wholly unmixed with any leaning towards extravagant popular opinions, or any disposition to court vulgar favour, justly entitles him to the very highest place among the judges of England;” and, speaking of his conduct in carrying the libel bill through •the House of Lords, says that “ nothing can be more refreshing to the lovers of liberty, or more gratifying to those who venerate the judicial character, than to contemplate the glorious struggle for his long-cherished principles with which Lord Camden’s illustrious life closed; ” and quotes some of his statements, above cited, as passages upon which “the mind fondly and reverently dwells,” “ hopeful that future lawyers and future judges may emulate the glory and the virtue of this great man.” 3 Brougham’s Statesmen of George III, (ed. 1843,) 156, 178, 179. In the well known case of The King v. Burdett^ 3 B. & Aid. 717, and 4 B. & Aid. 95; & C. 1 State Trials (K. S.) 1; for publishing a seditious libel, Mr. Justice Best (afterwards Chief Justice of the Common Pleas, and Lord Wynford) told the jury that in his opinion the publication was a libel; that they were to decide whether they would adopt his opinion; but that they were to take the law from him, unless they were satisfied that he was wrong. 4 5. & Aid. 131, 147, 183. The defendant having been convicted, the Court of King’s Bench, upon a motion for a new trial, held, after advisement, that this instruction was correct. Mr. Justice Best said: “ It must not be supposed that the statute of George III made the question of libel a question of fact. If it had, instead of removing an anomaly, it would have created one. Libel is a question of law, and the judge is the judge of the law in libel as in all other cases, the jury having the power of acting agreeably to his statement of the law or not. All that the statute does is to prevent the question from being left to the jury in the narrow way in which SPARE AND HANSEN v. UNITED STATES. 14T Dissenting Opinion: Gray, Shiras, JJ. it was left before that time. The jury were then only to find the fact of the publication, and the truth of the innuendoes; for the judges used to tell them that the intent was an inference of law, to be drawn from the paper, with which the jury had nothing to do. The legislature has said that that is not so, but that the whole case is to be left to the jury. But judges are in express terms directed to lay down the law as in other cases. In all cases the jury may find a general verdict; they do so in cases of murder and treason, but there the judge tells them what is the law, though they may find against him, unless they are satisfied with his opinion. And this is plain from the words of the statute.” 4 B. & Aid. 131, 132. Justices Holroyd and Bayley and Chief Justice Abbott (afterwards Lord Tenterden) expressed the same view. 4 B. & Aid. 145-147, 183, 184. Mr. Justice Bayley said: “The old rule of law is, ad quuestionem juris respondent judices, ad quwstionem facti respondent juratores; and I take it to be the bounden duty of the judge to lay down the law as it strikes him, and that of the jury to accede to it, unless they have superior knowledge on the subject: and the direction in this case did not take away from the jury the power of acting on their own judgment.” And the Chief Justice said: “If the judge is to give his opinion to the jury, as in other criminal cases, it must be not only competent but proper for him to tell the jury, if the case will so warrant, that in his opinion the publication before them is of the character and tendency attributed to it by the indictment; and that, if it be so in their opinion, the publication is an offence against the law.” The statute was not intended to confine the matter in issue exclusively to the jury without hearing the opinion of the judge, but to declare that they should be at liberty to exercise their own judgment upon the whole matter in issue, after receiving thereupon the opinion and directions of the judge.” The weight of this deliberate and unanimous declaration of the rightful power of the jury to decide the law in criminal cases is not impaired by the obiter dictum hastily uttered and promptly recalled by Chief Justice Best in the civil case, sum-marily decided upon a narrower point, of Levi v. Milne, and 142 OCTOBER TERM, 1894. Dissenting Opinion: Gray, Shiras, J J. reported so differently in 4 Bing. 195, and in 12 J. B. Moore, 418, as to leave it doubtful what he really said. And according to later English authorities, even in civil actions, the question of libel or no libel may be submitted by the judge to the jury without expressing his own opinion upon it. Parmiter w Coupland, 6 M. & W. 105,108; Baylis v. Lawrence, 11 Ad. El. 920; & C. 3 Per. & Dav. 526; Cox v. Lee, L. R. 4 Ex. 284. It is to be remembered, that by the law of England, a person convicted of treason or felony could not appeal, or move for a new trial, or file a bill of exceptions, or in any other manner obtain a judicial review of rulings or instructions not appearing upon the record, unless the judge himself saw fit to reserve the question for the opinion of all the judges. In short, as observed by Dr. Lushington in delivering judgment in the Privy Council, “ The prisoner has no legal right, in the proper sense of the term, to demand a reconsideration, by a court of law, of the verdict, or of any legal objection raised at the trial.” The Queen v. Edulgee Byramfa, 5 Moore P. C. 276, 287; The Queen v. Bertrand, L. B. 1 P. 0. i520; 1 Chit. Crim. Law, 622, 654 ; 3 Russell on Crimes, (9th ed.,) 212. Consequently, a prisoner tried before an arbitrary, •corrupt or ignorant judge had no protection but in the conscience and the firmness of the jury. There is no occasion further to pursue the examination of modern English authorities, because in this country, from the time of its settlement until more than half a century after the Declaration of Independence, the law as to the rights of juries, as generally understood and put in practice, was more in accord with the views of Bacon, Hale, Vaughan, Somers, Holt and Camden, than with those of Kelyng, Scroggs, Jeffreys, Raymond, Hardwicke and Mansfield. Upon a constitutional question, affecting the liberty of the subject, there nan be no doubt that the opinions of Somers and of Camden, especially, were of the very highest authority, and were so considered by the founders of the Republic. In Massachusetts, the leading authorities upon the question, nearest the time of the Declaration of Independence and the SPARF AND HANSEN v. UNITED STATES. 143 Dissenting Opinion: Gray, Shiras, JJ. adoption of the Constitution of the United States, are John Adams and Theophilus Parsons, each of whom was appointed, with the general approval of the bar and the people, Chief Justice of the State ; the one, appointed to that office by the revolutionary government in 1775, resigning it the next year, remaining in the Continental Congress to support the Declaration of Independence, and afterwards the first Vice-President and the second President of the United States; the other, a leading supporter of the Constitution of the United States in the convention of 1788 by which Massachusetts ratified the Constitution, appointed by President Adams in 1801 Attorney General of the United States, but declining that office, and becoming Chief Justice of Massachusetts in 1806. John Adams, writing in 1771, said: “ Juries are taken, by lot or by suffrage, from the mass of the people, and no man can be condemned of life, or limb, or property, or reputation, without the concurrence of the voice of the people.” “The British empire has been much alarmed, of late years, with doctrines concerning juries, their powers and duties, which have been said, in printed papers and pamphlets, to have been delivered from the highest tribunals of justice. Whether these accusations are just or not, it is certain that many persons are misguided and deluded by them to such a degree, that we often hear in conversation doctrines advanced for law, which, if true, would render juries a mere ostentation and pageantry, and the court absolute judges of law and fact.” “Whenever a general verdict is found, it assuredly determines both the fact and the law. It was never yet disputed or doubted that a general verdict, given under the direction of the court in point of law, was a legal determination of the issue. Therefore the jury have the power of deciding an issue upon a general verdict. And, if they have, is it not an absurdity to suppose that the law would oblige them to find a verdict according to the direction of the court, against their own opinion, judgment and conscience ? ” “ The general rules of law and common regulations of society, under which ordinary transactions arrange themselves, are well enough known to ordinary jurors. The great principles of the constitution 144 OCTOBER TERM, 1894. Dissenting Opinion: Gray, Shiras, JJ. are intimately known; they are sensibly felt by every Briton; it is scarcely extravagant to say they are drawn in and imbibed with the nurse’s milk and first air. Now, should the melancholy case arise that the judges should give their opinions to the jury against one of these fundamental principles, is a juror obliged to give his verdict generally, according to this direction, or even to find the fact specially, and submit the law to the court ? Every man, of any feeling or conscience, will answer, No. It is-not only his right, but his duty, in that case, to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.” “ The English law obliges no man to decide a cause upon oath against his own judgment.” 2 John Adams’s Works, 253-255. Theophilus Parsons, in the Massachusetts convention of 1788, answering the objection that the Constitution of the United States, as submitted to the people for adoption, contained no bill of rights, said: “ The people themselves have it in their power effectually to resist usurpation, without being driven to an appeal to arms. An act of usurpation is not obligatory ; it is not law; and any man may be justified in his resistance. Let him be considered as a criminal by the general government, yet only his fellow-citizens can convict him; they are his jury, and if they pronounce him innocent, not all the powers of Congress can hurt him; and innocent they certainly will pronounce him, if the supposed law he resisted was an act of usurpation.” 2 Elliot’s Debates, 94; 2 Bancroft’s History of the Constitution, 267. In 1808, Chief Justice Parsons, in delivering judgment in a civil action for slander, said: “ Both parties have submitted the trial of this issue to a jury. The issue involved both law and fact, and the jury must decide the law and the fact. To enable them to settle the fact, they were to weigh the testimony ; that they might truly decide the law, they were entitled to the assistance of the judge. If the judge had declined his aid in a matter of law, yet the jury must have formed their conclusion of law as correctly as they were able.” And, as the reporter states, “ In this opinion of the SPARF AND HANSEN v. UNITED STATES. 145 Dissenting Opinion: Gray, Shiras, JJ. Chief Justice, the other judges, viz. Sedgwick, Sewall, Thatcher and Parker, severally declared their full and entire concurrence.” Coffin n. Coffin, 4 Mass. 1, 25, 37. In 1816, upon the trial of an indictment for murder, the Supreme Judicial Court of Massachusetts, held by Chief Justice Parker and Justices Jackson and Putnam, instructed the jury as follows: “ In all capital cases, the jury are the judges of the law and fact. The court are to direct them in matters of law, and although it is safer for them to rely on the instructions derived from that source, still, gentlemen, they are to decide for themselves.” Bowen’s Trial, 51. In 1826, Mr. Justice Wilde, speaking for the whole court, assumed, as unquestionable, that “in criminal prosecutions the jury are the judges of both law and fact.” Commonwealth v. Worcester, 3 Pick. 462, 475. In 1830, in a celebrated trial for murder, before Justices Putnam, Wilde and Morton, the right and duty of the jury to decide the law as well as the fact involved in the general issue were recognized and affirmed in the charge to the jury, and were distinguished from the right of deciding questions of evidence, as follows: “ As the jury have the right, and if required by the prisoner are bound, to return a general verdict of guilty or not guilty, they must necessarily, in the discharge of this duty, decide such questions of law, as well as of fact, as are involved in this general question; and there is no mode in which their opinions upon questions of law can be reviewed by this court or by any other tribunal. But this does not diminish the obligation resting upon the court to explain the law, or their responsibility for the correctness of the principles of law by them laid down. The instructions of the court in matters of law may safely guide the consciences of the jury, unless they know them to be wrong. And when the jury undertake to decide the law (as they undoubtedly have the power to do) in opposition to the advice of the court, they assume a high responsibility, and should be very careful to see clearly that they are right. Although the jury ave the power, and it is their duty, to decide all points of aw which are involved in the general question of the guilt or VOL. CLVI—io 146 OCTOBER TERM, 1894. Dissenting Opinion: Gray, Shiras, JJ. innocence of the prisoner, yet when questions of law arise in the arraignment of the prisoner, or in the progress of the trial, in relation to the admissibility of evidence, they must be decided by the court, and may not afterwards be reviewed by the jury.” Commonwealth v. Knapp, 10 Pick. 477, 496. Many other Massachusetts authorities, from the earliest times to the date last mentioned, tending to maintain the right of the jury to decide the law involved in the general issue, are collected in the opinion of Mr. Justice Thomas in 5 Gray, 275-280, and in a note to Quincy’s Reports, 558-560, 563-567. To that date, or later, the right of the jury in criminal cases to decide both the law and the fact, even against the directions of the court, was certainly recognized and acted on throughout New England, unless in Rhode Island. State v. Snow, (1841) 18 Maine, 346; Doe, C. J., in State v. Hodge, 50 N. H. 510, 523; State v. Wilkinson, (1829) 2 Vermont, 480, 488; State v. Croteau, (1849) 23 Vermont, 14; Witter v. Brewster (1788) Kirby, 422; Bartholomew n. Clark, (1816) 1 Connecticut, 472, 481; State v. Buckley, (1873) 40 Connecticut, 246. See Laws of 1647 in 1 Rhode Island Col. Rec. 157, 195, 203, 204. In the Province of New York, in 1702, on the trial of Colonel Nicholas Bayard for high treason, it was argued by his counsel, and not denied by the court, that the jury, upon the general issue of not guilty, were judges as well of matter of law as of matter of fact. 14 Howell’s State Trials, 471, 502, 503, 505. In the same Province, in 1735, upon the trial of John Peter Zenger, for a seditious libel, his counsel, Andrew Hamilton, of Philadelphia, while admitting that the jury might, if they pleased, find the defendant guilty of printing and publishing, and leave it to the court to judge whether the words were libellous, said, without contradiction by the court: “ But I do likewise know they may do otherwise. I know they have the right, beyond all dispute, to determine both the law and the fact; and where they do not doubt of the law, they ought to do so.” The court afterwards submitted to the jury, in the SPARE AND HANSEN v. UNITED STATES. 147 Dissenting Opinion: Gray, Shiras, JJ. words of Lord Chief Justice Holt, in Tutchirts case, 14 Howell’s State Trials, 1128, above cited, the question.whether the words set forth were libellous. And Zenger was acquitted by the jury. 17 Howell’s State Trials, 675, 706, 716, 722. Upon the trial in the Supreme Court of the State of New York, in 1803, of an indictment for a libel on the President of the United States, Chief Justice Lewis instructed the jury, among other things, that the question of libel or no libel was an inference of law from the fact, and that the law as laid down by Lord Mansfield in The Dean of St. Asaph? s case was the law of this State. The defendant was convicted, and brought the question of the correctness of these instructions before the full court in 1804 upon a motion for a new trial. People v. Croswell, 3 Johns. Cas. 337, 341, 342. Alexander Hamilton was of counsel for the defendant. Two reports of his argument upon that motion have come down to us, the one in 3 Johns. Cas. 352-362, the other in a contemporary pamphlet of the speeches in the case, pp. 62-78, and reprinted in 7 Hamilton’s Works, (ed. 1886,) 336-373. But the most compact and trustworthy statement of his position upon the general question, unsurpassed for precision and force by anything on the subject to be found elsewhere, is in three propositions upon his brief, (7 Hamilton’s Works, 335, 336,) read by him in recapitulating his argument, (3 Johns. Cas. 361, 362,) which were as follows : “ That in the general distribution of powers in our system of jurisprudence, the cognizance of law belongs to the court, of fact to the jury; that as often as they are not blended, the power of the court is absolute and exclusive. That in civil cases it is always so, and may rightfully be so exerted. That m criminal cases, the law and fact being always blended, the jury, for reasons of a political and peculiar nature, for the security of life and liberty, is entrusted with the power of deciding both law and fact. “ That this distinction results: 1, from the ancient forms of pleading in civil cases, none but special pleas being allowed in matter of law; in criminal, none but the general issue; 2, from the liability of the jury to attaint in civil cases, and the 148 OCTOBER TERM, 1894. Dissenting Opinion: Gray, Shiras, JJ. general power of the court as its substitute in granting new trials, and from the exemption of the jury from attaint in criminal cases, and the defect of power to control their verdicts by new trials, the test of every legal power being its capacity to produce a definitive effect, liable neither to punishment nor control. “That in criminal cases, nevertheless, the court are the constitutional advisers of the jury in matter of law; who may compromit their conscience by lightly or rashly disregarding that advice, but may still more compromit their consciences by following it, if exercising their judgments with discretion and honesty they have a clear conviction that the charge of the court is wrong.” The court was equally divided in opinion, Judge Kent (afterwards Chief Justice and Chancellor) and Judge Thompson being in favor of a new trial, and Chief Justice Lewis and Judge Livingston against it. Judge Kent drew up a careful opinion, in which he reviewed the leading English authorities, and from which the following passages are taken: “In every criminal case, upon the plea of not guilty, the jury may, and indeed they must, unless they choose to find a special verdict, take upon themselves the decision of the law, as well as the fact, and bring in a verdict as comprehensive as the issue; because, in every such case, they are charged with the deliverance of the defendant from the crime of which he is accused.” “The law and fact are so involved, that the jury are under an indispensable necessity to decide both, unless they separate them by a special verdict. This right in the jury to determine the law as well as the fact has received the sanction of some of the highest authorities in the law.” “ But while the power of the jury is admitted, it is denied that they can rightfully or lawfully exercise it, without com-promitting their consciences, and that they are bound implicitly, in all cases, to receive the law from the court. The law must, however, have intended, in granting this power to a jury, to grant them a lawful and rightful power, or it would have provided a remedy against the undue exercise of it. The true criterion of a legal power is its capacity to produce SPARE AND HANSEN v. UNITED STATES. 149 Dissenting Opinion: Gray, Shiras, J J. a definitive effect, liable neither to censure nor review. And the verdict of not guilty, in a criminal case, is, in every respect, absolutely final. The jury are not liable to punishment, nor the verdict to control. No attaint lies, nor can a new trial be awarded. The exercise of this power in the jury has been sanctioned, and upheld in constant activity, from the earliest ages.” 3 Johns. Cas. 366-368. “ The result from this view is, to my mind, a firm conviction that this court is not bound by the decisions of Lord Raymond and his successors. By withdrawing from the jury the consideration of the essence of the charge, they render their function nugatory and contemptible. Those opinions are repugnant to the more ancient authorities which had given to the jury the power, and with it the right, to judge of the law and fact, when they were blended by the issue, and which rendered their decisions, in criminal cases, final and conclusive. The English bar steadily resisted those decisions, as usurpations on the rights of the jury. Some of the judges treated the doctrine as erroneous, and the Parliament, at last, declared it an innovation, by restoring the trial by jury, in cases of libel, to that ancient vigour and independence, by which it had grown so precious to the nation, as the guardian of liberty and life, against the power of the court, the vindictive persecution of the prosecutor, and the oppression of the government. “ I am aware of the objection to the fitness and competency of a jury to decide upon questions of law, and, especially, with a power to overrule the directions of the judge. In the first place, however, it is not likely often to happen, that the jury will resist the opinion of the court on the matter of law. That opinion will generally receive its due weight and effect; and in civil cases it can, and always ought to be ultimately enforced by the power of setting aside the verdict. But in human institutions, the question is not, whether every evil contingency can be avoided, but what arrangement will be productive of the least inconvenience. And it appears to be most consistent with the permanent security of the subject, that in criminal cases the jury should, after receiving the 150 OCTOBER TERM, 1894. Dissenting Opinion: Gray, Shiras, JJ. advice and assistance of the judge as to the law, take into their consideration all the circumstances of the case, and the intention with which the act was done, and to determine upon the whole, whether the act done be, or be not, within the meaning of the law. This distribution of power, by which the court and jury mutually assist, and mutually check each other, seems to be the safest, and consequently the wisest arrangement, in respect to the trial of crimes. The constructions of judges, on the intention of the party, may often be (with the most upright motives) too speculative and refined, and not altogether just in their application to every case. Their rules may have too technical a cast, and become, in their operation, severe and oppressive. To judge accurately of motives and intentions does not require a master’s skill in the science of the law. It depends more on a knowledge of the passions, and of the springs of human action, and may be the lot of ordinary experience and sagacity.” 3 Johns. Cas. 375, 376. In April, 1805, the legislature of New York passed a statute, very like Fox’s Libel Act, declaring that upon an indictment or information for libel, “the jury who shall try the same shall have a right to determine the law and the fact, under the direction of the court, in like manner as in other criminal cases.” And the reporter notes that, “ in consequence of this declaratory statute, the court, in August term, 1805, (no motion having been made for judgment on the verdict,) unanimously awarded a new trial in the above cause.” 3 Johns. Cas. 412, 413. In 1825, Judge Walworth (afterwards Chancellor) presiding in a court of oyer and terminer, at trials of indictments for murder, instructed the jury “ that in criminal trials, they had a right to decide both as to the law and the facts of the case; that the court was bound, by the oaths of office of its judges, honestly and impartially to decide the questions of law arising in the case, and state them to the jury ; but the jury had a right to disregard the decision of the court upon questions of law, especially in favor of life, if they were fully satisfied that such decision was wrong.” People v. Thayers, 1 Parkers Crim. Cas. 595, 598 ; People v. Videto, Id. 603, 604. SPARE AND HANSEN v. UNITED STATES. 151 Dissenting Opinion: Gray, Shiras, JJ. In New Jersey, by Provincial laws of 1676 and 1681, it was not only enacted “ that the trial of all causes, civil and criminal, shall be heard and decided by the verdict of twelve honest men of the neighbourhood ;” but also “ that there shall be, in every court, three justices or commissioners, who shall sit with the twelve men of the neighbourhood, with them to hear all causes, and to assist the said twelve men of the neighbourhood in case of law; and that they the said justices shall pronounce such judgment as they shall receive from, and be directed by the said twelve men, in whom only the judgment resides, and not otherwise; and, in case of their neglect and refusal, that then one of the twelve, by consent of the rest, pronounce their own judgment as the justices should have done.” Learning & Spicer’s Laws, pp. 396-398, 428, 429. How far, under the present constitution and laws of the State, juries, in criminal cases, have the right to decide the law for themselves, disregarding the instructions of the judge presiding at the trial, does not appear to be settled. State v. Jay, (1871) 5 Vroom, (34 N. J. Law,) 368; Drake v. State, (1890) 24 Vroom, (53 N. J. Law,) 23. In Pennsylvania, Chief Justice Sharswood said: “ No one acquainted with the life of the founder of this Commonwealth can entertain any doubt of his opinion or that of his friends and followers” — referring to the case of Penn and Mead before the .Recorder of London, and to that of Bushell upon habeas corpus, cited in the earlier part of. this opinion, as well as to the argument of Andrew Hamilton, of Philadelphia, “ certainly the foremost lawyer of the Colonies,” in Zenger's case, above cited. And the right of the jury in criminal cases to decide both law and fact (notwithstanding opinions to the contrary, expressed near the end of the last century by a judge of a county court in charging juries and grand juries, Addison’s Reports, pp. 160, 257, and Charges, pp. 57-63) was long and generally recognized in that State. Kane v. Com-monwealth, 89 Penn. St. 522, 526; Testimony of William Lewis and Edward Tilghman, Chase’s Trial, (Evans’s ed.) 20, In Maryland, the provision of the constitution of 1851, art. 152 OCTOBER TERM, 1894. Dissenting Opinion: Gray, Shiras, JJ. 10, sec. 5, repeated in the constitutions of 1864, art. 12, sec. 4, and of 1867, art. 15, sec. 5, that “ in the trial of all criminal cases the jury shall be the judges of law as well as fact,” has been held by the Court of Appeals to be merely declaratory of the preexisting law, but not applicable to the question of the constitutionality of a statute. 1 Charters and Constitutions, 858, 885, 918; Franklin v. State, (1858) 12 Maryland, 236, 249. As has been said by, that court, speaking by Mr. Justice Alvey, “ the jury are made the judges of law as well as of fact, in the trial of criminal cases, under the constitution of this State; and any instruction given by the court, as to the law of the crime, is but advisory, and in no manner binding upon the jury, except in regard to questions as to what shall be considered as evidence.” Wheeler v. State, (1875) 42 Maryland, 563, 570. See also Broil v. State, (1876) 45 Maryland, 356; Bloomer v. State, (1878) 48 Maryland, 521, 538, 539 ; World v. State, (1878) 50 Maryland, 49, 55. In Virginia, the doctrine that the jury, upon the general issue in a criminal case, had the right, as well as the power, to decide both law and fact, appears to have been generally admitted and practised upon until 1829, when, to the surprise of the bar, it was treated by the Court of Appeals as doubtful. Dancds case, (1817) 5 Munf. 349, 363; Baker v. Preston, (1821) Gilmer, 235, 303; Davenport v. Commonwealth, (1829) 1 Leigh, 588, 596; Commonwealth v. Garth, (1831) 3 Leigh, 761, 770; 3 Rob. Va. Pract. (1839) c. 23. In Georgia, Alabama and Louisiana, the right of the jury was formerly recognized. McGuffie v. State, (1855) 17 Georgia, 497, 513; McDaniel v. State, (1860) 30 Georgia, 853; State n. Jones, (1843) 5 Alabama, 666; Bostwick v. Gasguet, (1836) 10 Louisiana, 80; State v. Scott, (1856) 11 La. Ann. 429; State v. Jurche, (1865) 17 La. Ann. 71. The Ordinance of the Continental Congress of 1787 for the government of the Northwest Territory provided that the inhabitants of the Territory should always be entitled to the benefit of the trial by jury, and that no man should be deprived of his liberty or property, but by the judgment of his peers or the law of the land; and the constitutions of the SPARE AND HANSEN v. UNITED STATES. 153 Dissenting Opinion: Gray, Shiras, JJ. State of Indiana in 1816, and of Illinois in 1818 and 1848, contained similar provisions. 1 Charters and Constitutions, 431, 446, 447, 466, 500, 501. In Indiana, the Supreme Court, under the constitution of 1816, having alternately denied and affirmed the right of the jury in criminal cases to decide the law, the people, by the constitution which took effect in November, 1851, declared that “ in all criminal cases whatever the jury shall have the right to determine the law and the facts ; ” and this right has since been maintained by that court, even when the constitutionality of a statute was involved. Townsend v. State, (1828) 2 Blackford, 151; Warren v. State, (1836) 4 Blackford, 150 ; Carter v. State, (May, 1851) 2 Indiana, 617; 1 Charters and Constitutions, 513, 526; Lynch v. State, (1857) 9 Indiana, 541; McCarthy v. State, (1877) 56 Indiana, 203 ; Hudelson v. State, (1883)94 Indiana, 426; Blake v. State, (1891) 130 Indiana, 203. In Illinois, the criminal code having declared that “ juries in all cases shall be judges of the law and the fact,” the jury at a trial for murder, after being out for some time, came into •court, and through their foreman suggested that a juror maintained that he was competent to judge of the correctness of the instructions of the judge as the juror’s opinion of the law might dictate. The judge instructed the jury that they must take the law as laid down to them by the court, and could not determine for themselves whether the law so given to them was or was not the law. Upon exception to the instructions, the Supreme Court of Illinois, speaking by Judge Breese, granted a new trial and said: “Being judges of the law and the fact, they are not bound by the law as given to them by the court, but can assume the responsibility of deciding, each juror for himself, what the law is. If they can say, upon their oaths, that they know the law better than the court, they have the power so to do. If they are prepared to say the law is different from what it is declared to be by the court, they have a perfect legal right to say so, and find the verdict according to their own notions of the law. It is a matter between their consciences and their God, with which no power can interfere.” 'Fisher v. People, (1860) 23 Illinois, 283, 294. See 154 OCTOBER TERM, 1894. Dissenting Opinion: Gray, Shiras, JJ. also Mullinix n. People, (1875) 76 Illinois, 211; Spies n. Illinois, (1887) 122 Illinois, 1, 252. In the Declaration of Rights unanimously adopted October 14, 1774, by the Continental Congress, of which John Adams, Samuel Adams, Roger Sherman, John Jay, Samuel Chase, George Washington and Patrick Henry were members, it was resolved “that the respective Colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law.” 1 Journals of Congress, 28. The Constitution of the United States, as framed in 1787 and adopted in 1788, ordained, in art. 3, sect. 3, that “ the trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the said crime shall have been committed;” and, in the Fifth, Sixth and Seventh Amendments adopted in 1791, “ nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb,” “nor be deprived of life, liberty or property, without due process of law; ” “ in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law; ” and “ in suits at common law, where the value in controversy shall exceed twenty dollars,, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.” Within six years after the Constitution was established, the right of the jury, upon the general issue, to determine the law as well as the fact in controversy, was unhesitatingly and unqualifiedly affirmed by this court, in the first of the very few trials by jury ever had at its bar, under the original jurisdiction conferred upon it by the Constitution. That trial took place at February term, 1794, in Georgia v. Brailsford, 3 Dall. 1, which was an action at law by the State of Georgia against Brailsford and others, British subjects. The pleadings, as appears by the files of this court, were as SPARE AND HANSEN v. UNITED STATES. 155 Dissenting Opinion: Gray, Shiras, JJ. follows: The declaration was in assumpsit for money had and received; the defendants pleaded non assumpsit, and “put themselves upon the country; ” and the replication was, “ And the said State of Georgia also putteth herself upon the country.” The action, as the report shows, was brought to recover moneys received by the defendants upon a bond of a citizen of ' Georgia to them, to which the State of Georgia claimed title under an act of confiscation passed by that State in 1782, during the Revolutionary War, under circumstances which were agreed to be as stated in the suit in equity between the same parties, reported in 2 Dall. 402, 415. After the case had been argued for four days to the court and jury, Chief Justice Jay, on February 7, 1794, as the report states, “ delivered the following charge: ” “ This cause has been regarded as of great importance, and doubtless it is so. It has accordingly been treated by the counsel with great learning, diligence and ability; and on your part it has been heard with particular attention. It is, therefore, unnecessary for me to follow the investigation over the extensive field into which it has been carried; you are now, if ever you can be, completely possessed of the merits of the cause. “ The facts comprehended in the case are agreed; the only point that remains is to settle what is the law of the land arising from those facts; and on that point, it is proper that, the opinion of the court should be given. It is fortunate on the present, as it must be on every occasion, to find the opinion of the court unanimous; we entertain no diversity of sentiment; and we have experienced no difficulty in uniting in the charge which it is my province to deliver.” The Chief Justice, after stating the opinion of the court in favor of the defendants upon the questions of law, proceeded as follows: “ It may not be amiss, here, gentlemen, to remind you of the good old rule, that on questions of fact it is the province of the jury, on questions of law it is the province‘of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon your- 156 OCTOBER TERM, 1894. Dissenting Opinion : Gray, Shiras, JJ. selves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt you will pay that respect which is due to the opinion of the court ; for, as on the one hand, it is presumed that juries are the best judges of facts ; it is, on the other hand, presumable that the court are the best judges of law. But still both objects are lawfully within your power of decision.” Then, after telling the jury that they should not be influenced by a consideration of the comparative situations and means of the parties, he concluded the charge thus: “Go, then, gentlemen, from the bar, without any impressions of favor or prejudice for the one party or the other ; weigh well the merits of the case, and do on this, as you ought to do on every occasion, equal and impartial justice.” The jury, after coming into court, and requesting and receiving further explanations of the questions of law, returned a verdict for the defendants, without going again from the bar. 3 Dall. 3-5. The report shows that, in a case in which there was no controversy about the facts, the court, while stating to the jury its unanimous opinion upon the law of the case, and reminding them of “ the good old rule, that on questions of fact it is the province of the jury, on questions of law it is the province of the court to decide,” expressly informed them that “by the same law, which recognizes this reasonable distribution of jurisdiction,” the jury “ have nevertheless a right to take upon themselves to judge of both, and to determine the law as well as the fact in controversy.” The court at that time consisted of Chief Justice Jay, and Justices Cushing, Wilson, Blair, Iredell and Paterson, all of whom, (as appears by its records,) except Justice Iredell, were present at the trial. The doubts which have been sometimes expressed of the accuracy of Mr. Dallas’s report are unfounded, as is apparent from several considerations. He was of counsel for the plaintiff. The court was then held at Philadelphia ; and there is no reason to doubt that the practice mentioned in the preface to his first volume containing reports of cases in the courts of SPABF AND HANSEN v. UNITED STATES. 157 Dissenting Opinion: Gray, Shiras, JJ. Pennsylvania only, by which “ each case, before it was sent to the press, underwent the examination of the presiding judge of the court in which it was determined,” was continued in his succeeding volumes containing “ reports of cases ruled and adjudged in the several courts of the United States, and of Pennsylvania, held at the seat of the Federal Government.” The charge contains internal evidence of being reported verbatim, and has quotation marks at the end, although they are omitted at the beginning. And the charge, in the same words, with the prefix that it “ was delivered by Jay, Chief Justice, on the 7th of February, in the following terms,” is printed in Dunlop and Claypole’s American Daily Advertiser of February 17, 1794. That was not a criminal case, nor a suit to recover a penalty ; had it been, it could hardly have been brought within the original jurisdiction of this court. Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 294, 295. But it was a suit by a State to assert a title acquired by an act of its legislature in the exercise of its sovereign powers in time of war against private individuals. As the charge of the court dealt only with the case before it, without any general discussion, it does not appear whether the opinion expressed as to the right of the jury to determine the law was based upon a supposed analogy between such a suit and a prosecution for crime, or upon the theory, countenanced by many American authorities of the period, that at the foundation of the Republic, as in early times in England, the right of the jury extended to all cases,, civil or criminal, tried upon the general issue. However that may have been, it cannot be doubted that this court, at that early date, was of opinion that the jury had the right to decide for themselves all matters of law involved in the general issue in criminal cases; and it is certain that in the century that has since elapsed there has been no judgment or opinion of the court, deciding or intimating, in. any form, that the right does not appertain to the jury in such cases. And the opinions expressed by individual justices of the court upon the subject, near the time of the decision in Georgia v. Brailsford, qy within forty years afterwards, of 158 OCTOBER TERM, 1894. Dissenting Opinion: Gray, Shiras, J J. which any reports are known to exist, tend, more or less •directly, to affirm this right of the jury. That there is not a greater accumulation of evidence to this effect is easily accounted for when it is remembered that comparatively few reports of trials were printed, and that the right of the jury was considered to be so well settled, that it was seldom controverted in practice, or specially noticed in reporting trials. Upon the trial of Gideon Henfield in the Circuit Court of the United States for the District of Pennsylvania in 1793, before Justices Wilson and Iredell and Judge Peters, for illegal privateering, Mr. Justice Wilson told the jury that “the questions of law coming into joint consideration with the facts, it is the duty of the court to explain the law to the jury and give it to them in direction; ” and, after expressing the •unanimous opinion of the court upon the questions of law involved in the case, “ concluded by remarking that the jury, in ¡a general verdict, must decide both law and fact, but that this ■did not authorize them to decide it as they pleased; they were as much bound to decide by law as the judges : the responsibility was equal upon both.” Wharton’s State Trials, 49, 84, 87, 88. This statement that the jury, in a general verdict, must decide both law and fact, and were as much bound to decide by law as the judges, and under an equal responsibility, is quite inconsistent with the idea that the jury were bound to accept the explanation and direction of the court in matter of law as controlling their judgment. That neither Mr. Justice Wilson nor Mr. Justice Iredell entertained any such idea is ■conclusively disproved by authentic and definite statements of their views upon the question. Mr. Justice Iredell, speaking for himself only, in a civil case before this court at February term, 1795, said : “ It will not be sufficient, that the court might charge the jury to find for the defendant; because, though the jury will generally respect the sentiments of the court on points of law, they are not bound to deliver a verdict conformably to them.” Bingham n. Cabot, 3 Dall. 19, 33 [see Appendix]. Mr. Justice Wilson, in his lectures on law at the Philadel- SPARF AND HANSEN v. UNITED STATES. 159 Dissenting Opinion: Gray, Shiras, J J. phia College in 1790 and 1791, discussing the maxim that the judges determine the law and the jury determine the fact, made the following observations: “ This well known division between their provinces has been long recognized and established. When the question of law and the question of fact can be decided separately, there is no doubt or difficulty in saying by whom the separate decision shall be made. If, between the parties litigant, there is no contention concerning the facts, but an issue is joined upon a question of law, as is the case in a demurrer, the determination of this question, and the trial of this issue, belongs exclusively to the judges. On the other hand, when there is no question concerning the law, and the controversy between the parties depends entirely upon a matter of fact, the determination of this matter, brought to an issue, belongs exclusively to the jury. But, in many cases, the question of law is intimately and inseparably blended with the question of fact; and when this is the case, the decision of -one necessarily involves the decision of the other. When this is the case, it is incumbent on the judges to inform the jury concerning the law; and it is incumbent on the jury to pay much regard to the information, which they receive from the judges. But now the difficulty m this interesting subject begins to press upon us. Suppose that, after all the precautions taken to avoid it, a difference of sentiment takes place between the judges and the jury, with regard to a point of law; suppose the law and the fact to be so closely interwoven, that a determination of one must, at the same time, embrace the determination of the other; suppose a matter of this description to come in trial before a jury — what must the jury do? The jury must do their duty and their whole duty; they must decide the law as well as the fact. This doctrine is peculiarly applicable to criminal cases ; and from them, indeed, derives its peculiar importance.” “ Juries undoubtedly may make mistakes: they may commit errors: they may commit gross ones. But changed as they constantly are, their errors and mistakes can never grow mto a dangerous system. The native uprightness of their sentiments will not be bent under the weight of precedent and 160 OCTOBER TERM, 1894. Dissenting Opinion: Gray, Shiras, JJ. authority. The esprit de corps will not be introduced among them; nor will society experience from them those mischiefs of which the esprit de corps, unchecked, is sometimes productive. Besides, their mistakes and their errors, except the venial ones on the side of mercy made by traverse juries, are not without redress. The court, if dissatisfied with their verdict, have the power, and will exercise the power, of granting a new trial. This power, while it prevents or corrects the effects of their errors, preserves the jurisdiction of juries unimpaired. The cause is not evoked before a tribunal of another kind; a jury of the country — an abstract, as it has been called, of the citizens at large — summoned, selected, impanelled, and sworn as the former, must still decide.” “ One thing, however, must not escape our attention. In the cases and on the principles which we have mentioned,, jurors possess the power of determining legal questions. But they must determine them according to law.” 2 Wilson’s Works, 371-374. In closing his discussion of the subject, and reviewing the principles before stated, he said: “ With regard to the law in criminal cases, every citizen, in a government such as ours, should endeavor to acquire a reasonable knowledge of its principles and rules, for the direction of his conduct, when he is called to obey, when he is called to answer, and when he is called to judge. On questions of law, his deficiencies will be supplied by the professional directions of the judges, whose duty and whose business it is professionally to direct him. For, as we have seen, verdicts, in criminal cases, generally determine the question of law, as well as the question of fact. Questions of fact, it is his exclusive province to determine. With the consideration of evidence unconnected with the question which he is to try, his attention will not be dis* tracted; for everything of that nature, we presume, will be excluded by the court. The collected powers of his mind, therefore, will be fixed, steadily and without interruption upon the issue which he is sworn to try. This issue is an issue of fact.” 2 Wilson’s Works, 386, 387. These passages, taken together, clearly evince the view oi SPARE AND HANSEN v. UNITED STATES. 161 Dissenting Opinion: Gray, Shiras, JJ. Mr. Justice Wilson to have been that, while an issue of law is to be tried and decided by the judge, an issue of fact, although it involve a question of law blended and interwoven with the fact, is to be tried and decided by the jury, after receiving the instructions of the court; and, if a difference of opinion arise between them and the judge upon the question of law, it is their right and their duty to decide the law as well as the fact; that a reasonable knowledge of the principles and rules of law is important to the citizen, not only “ when he is called to obey ” as an individual, and “when he is called to answer ” as a defendant, but also “ when he is called to judge ” as a juror; and that the general issue which the jury in a criminal case are sworn to try, and which it is their duty to decide, even if it involve questions of law, is “ an issue of fact.” The provision of section 3 of the act of Congress of July 14,1798, c. 74, for punishing seditious libels, that “ the jury who shall try the cause shall have a right to determine the law and the fact, under the direction of the court, as in other cases,” (1 Stat. 597,) is a clear and express recognition of the right of the jury in all criminal cases to determine the law and the fact. The words “direction of the court,” as here used, like the words “ opinion and directions ” in the English libel act, do not oblige the jury to adopt the opinion of the court, but are merely equivalent to instruction, guide or aid, and not to order, command or control. The provision is in affirmance of the general rule, and not by way of creating an exception; and the reason for inserting it probably was that the right of the jury had been more often denied by the English courts in prosecutions for seditious libels than in any other class of cases. Upon the trial of John Fries for treason, in 1800, before Mr. Justice Chase and Judge Peters, in the Circuit Court of t e United States for the District of Pennsylvania, the district attorney having quoted from English law books defini-Jons of actual and constructive treason, Mr. Justice Chase said: « They may, any of them, be read to the jury, and the ecisions thereupon — not as authorities whereby we are 0Und, but as the opinions and decisions of men of great VOL. CLVI—11 162 OCTOBER TERM, 1894. Dissenting Opinion: Gray, Shiras, J J. legal learning and ability. But, even then, the court would attend carefully to the time of the decision, and in no case must it be binding upon our juries.” Trials of Fries, 180. And he afterwards instructed the jury as follows: “ It is the duty of the court in this case, and in all criminal cases, to state to the jury their opinion of the law arising on the facts; but the jury are to decide, on the present and in all criminal cases, both the law and the facts, on their consideration of the whole case.” And he concluded his charge in these words: “ If, upon consideration of the whole matter, (law as well as fact^) you are not fully satisfied, without any doubt, that the prisoner is guilty of the treason charged in the indictment, you will find him not guilty; but if upon the consideration of the whole matter, (law as well as fact() you are convinced that the prisoner is guilty of the treason charged in the indictment, you will find him guilty.” These instructions, with words italicized as above, are in the exhibits annexed by Mr. Justice Chase to his answer upon the impeachment in 1805. Chase’s Trial, (Evans’s ed.,) appx. 44, 45, 48. See also Trials of Fries, 196, 199 ; Wharton’s State Trials, 634, 636. In 1806, at the trial of William S. Smith in the Circuit Court of the United States for the District of New York, upon an indictment for setting out a military expedition against a foreign country at peace with the United States, Judge Talmadge said to the jury: “ You have heard much said upon the right of a jury to judge of the law as well as the fact.” “ The law is now settled that this right appertains to a jury in all criminal cases. They unquestionably may determine upon all the circumstances, if they will take the responsibility and hazard of judging incorrectly upon questions of mere law. But the jury is not therefore above the law. In exercising this right, they attach to themselves the character of judges, and as such are as much bound by the rules of legal decision as those who preside upon the bench.” Trials of Smith and Ogden, 236, 237. In prosecutions in the District Court of the United States for the District of Massachusetts, under the act of Congress of January 8, 1808, c. 8, laying an embargo, (2 Stat. 453,) SPARF AND HANSEN v. UNITED STATES. 163 Dissenting Opinion: Gray, Shiras, JJ. Samuel Dexter argued the unconstitutionality of the act to the jury, and they acquitted the defendant, although the evidence of the violation of the act was clear, and the court held, and instructed the jury, that the act was constitutional. 3 Bradford’s Hist. Mass. 108, note ; 3 Webster’s Works, 329, 330; United States v. The William, 2 Hall’s Law Journal, 255; Sigma’s Reminiscences of Dexter, 60, 61. In 1812, at the trial of an action in the District Court of the United States for the District of New York, upon a bond given under the Embargo Act, Judge Van Ness instructed the jury that “ this was in its nature and essence, though not in its form, a penal or criminal action; and they were, therefore, entitled to judge both of the law and the fact.” United States v. P oilion, 1 Carolina Law Repository, 60, 66. In 1815, at the trial of John Hodges in the Circuit Court of the United States for the District of Maryland for treason, William Pinkney, for the defendant, argued: “ The best security for the rights of individuals is to be found in the trial by jury. But the excellence of this institution consists in its exclusive power. The jury are here judges of law and fact, and are responsible only to God, to the prisoner, and to their own consciences.” And Mr. Justice Duvall of this court, after expressing his opinion upon the law of the case, said, with the concurrence of Judge Houston: “ The jury are not bound to conform to this opinion, because they have a right, in all criminal cases, to decide on the law and the facts.” Hall’s Law Tracts, III, 19, 28; & Opinion of the Court. words, “all the testimony,” were used as synonymous with “all the evidence.” This conclusion is strengthened by the fact that the bill was settled contradictorily, and no reservation as to its incompleteness was made. Coming then to consider the record, we find that the assignments of error here are of a threefold nature: (a) those which relate to the conclusions of law reached by the court upon the merits of the controversy; (6) those which complain of perversion and misuse by counsel of evidence admitted, which it is alleged were so serious that they must have affected the minds of the jury, to such an extent as to render the verdict and judgment necessarily reversible; and (c) those which rest upon the alleged rejection of legal and admission of illegal evidence. We will first approach the investigation of the matters mentioned under the second heading, since if the complaint of perversion and misuse of evidence is justified, it is not necessary to consider whether the rulings on the admissibility of testimony or the final conclusions of law, upon the merits, were-correct. The complaint of the conduct of counsel in argument is. substantially predicated upon the following analysis of the facts, which we find borne out by the record. In the opening statement of counsel for plaintiff, portions of the divorce proceedings were read to the jury, counsel saying, among other things: “ Here was an allegation that she has enticed him from his home, and the divorce was granted upon that ground among others; that is, the decree finds that the facts in the complaint were proved and that the divorce was granted upon that ground.” When the record of the divorce proceedings, was offered by the plaintiff objection was made thereto, and thereupon the court admitted it to prove the fact of the divorce alone, expressly limiting it to such purpose, and forbidding the reading or stating to the jury any of the averments found in the petition which in any way reflected upon the defendant. When the statute of Indiana was admitted, over objection, its introduction was allowed solely for the purpose of showing the law under which the divorce was granted. 380 OCTOBER TERM, 1894. Opinion of the Court. Having thus obtained the admission of the record and the statute for qualified and restricted purposes, plaintiff’s counsel, in their closing argument to the jury, used these instruments of evidence for the general purposes of their case, repeated to the jury some of the averments in the petition which assailed the plaintiff’s character, and put those allegations in juxtaposition with the statute of Indiana on 'the subject of divorce and the testimony of certain witnesses, in order to produce the impression upon the minds of the jury that the decree of divorce had been granted on the ground of adultery between the defendant and Waldron. Indeed, the fact is that the counsel after referring the jury to the evidence which was not in the record stated to them, in effect, that it established the fact, or authorized the fair inference that the decree of divorce had been rendered on the ground of adultery with Mrs. Alexander, and therefore conclusively established the right of the plaintiff to recover in the present case. It is unnecessary to say that all this is ground for reversal, unless its legal effect be in some way overcome. It is elementary that the admission of illegal evidence, over objection, necessitates reversal, and it is equally well established that the assertion by counsel, in argument, of facts, no evidence whereof is properly before the jury, in such a way as to seriously prejudice the opposing party, is, when duly excepted to, also ground therefor. Farman v. Lanman, 73 Indiana, 568; Brow n. State, 103 Indiana, 133; Bullock v. Smith, et al., 15 Georgia, 395; Dickerson v. Burke, 25 Georgia, 225; Lloyd v. H. & St. J. Bailroad, 53 Missouri, 509; Wightman v. Providence, 1 Cliff. 524; Martin v. Orndorff, 22 Iowa, 504; Tucker v. Henniker, 41 N. H. 317; Jenkins v. N. C. Ore Dressing Co., 65 N. C. 563; State v. Williams, 65 N. C. 505; Hoff v. Crafton, 79 N. C. 592; Yoe v. People, 49 Illinois, 410; Saunders v. Baxter, 53 Tennessee, 369. The foregoing conclusions are not disputed by the defendant hiere, but she seeks to avoid their application as follows: First, by denying the right of the plaintiff in error to raise the question, upon the ground that no exception was reserved to the misuse by counsel of the evidence which is complained of; WALDRON v. WALDRON. 381 Opinion of the Court. secondly, by asserting that the misuse did not take place, and that the assertion thereof in the bill of exceptions is erroneous and “ inadvertent; ” thirdly, by admitting that use was made of the various items of evidence mentioned in argument, and contending that this was not a misuse, because the evidence was legally admissible for all the purposes of the cause, and was therefore properly so used; and, finally, by insisting that, even if use was made of alleged facts, evidence whereof had been expressly excluded, and which were not, therefore, before the jury, the wrong thus committed by counsel was cured by the final charge of the court, and therefore does not give rise to reversible error. Without pausing to consider the palpable inconsistency of these various contentions, we pass to the consideration of their correctness. The claim that no exception was reserved to the misuse of testimony is founded on the proposition that, as the objection, made by defendant, to the record and statute was to their admissibility in any form or for any purpose, and as they were admissible to show the fact of divorce, the objection, being general, was not well taken. To state this argument is to answer it. It is clear that where evidence is admitted for one certain purpose, and that only, the mere fact that its admission was not objected to at the time, does not authorize the use of it for other purposes for which it was not, nor could have been legally introduced. The right of the defendant below to object to the perversion and misuse of the evidence depends upon whether objection was duly reserved thereto and not upon whether exception was taken to the admissibility of the evidence which, it is asserted, was misused. That exception was here taken to the misuse of the evidence is plain. At the close of the case, when reference was made by one of the counsel for the plaintiff to the record and to the Indiana statute, and the other matters connected therewith, the following exception was reserved: “ Mr. McCoy, counsel for defendant, further objected to the statements of counsel for the plaintiff to the jury as to the laws of Indiana and the suit for divorce, and the argument that it must have been granted upon the grounds alleged in the com- 382 OCTOBER TERM, 1894. Opinion of the Court. plaint in the divorce proceedings which reflected upon the character of the defendant Josephine P. Alexander, and then and there duly excepted to such statements.” It is true that when, in the closing argument for the plaintiff, made by other counsel, similar language was used and objected to, no exception was reserved. This, however, is immaterial, as exception was reserved to the language, first used, and this one exception, if well taken, must lead to reversal. The contention that the prejudicial averments in the petition for divorce were not conveyed to the jury is thus argued: True, the bill of exceptions shows that they were so conveyed, but, because this statement is in direct conflict with the rulings of the court, therefore the statement, in the bill of exceptions, would seem to be an inadvertence. In other words, the argument is that the bill of exceptions must be disregarded on the theory that, if the facts stated in the bill be true, error results, and error is not to be presumed. The remaining suggestions are quite as unsound as the specious one we have just considered. The divorce proceeding and statute, it is asserted, were admissible for all purposes, because there was evidence tending to show that the divorce was inspired by Waldron in connivance with the defendant below, and because such proceedings were part of the res gestae, etc., etc. Whatever weight these propositions may intrinsically possess need not be considered, since the question we are examining is, not whether the divorce proceedings should have been admitted, for the general purposes of the cause, but whether, having been rejected by the court for such purposes, it was competent for the plaintiff to use them in direct violation of the restriction placed upon their use. If error was committed in restricting the use of the evidence, the plaintiff’s remedy was to except thereto, and not to disregard the ruling of the court and use the evidence in violation of the conditions under which its admission was secured. We come now to the last contention, which is this, that, conceding misuse was made of the record and other evidence, yet, as the misuse was corrected by the final charge of the court, WALDRON v. WALDRON. 383 Opinion of the Court. therefore the error was cured. Undoubtedly it is not only the right but the duty of a court to correct an error arising from the erroneous admission of evidence when the error is discovered, and when such correction is made, it is equally clear that, as a general rule, the cause of reversal is thereby removed. State v. Hay, 4 Dev. (Law) 330 ; Goodnow v. Hill, 125 Mass. 587, 589 ; Smith v. Whitman, 6 Allen, 562 ; Hawes v. Gustin, 2 Allen, 402, 406 ; Dillin n. People, 8 Michigan, 357, 369 ; Specht v. Howard, 16 Wall. 564. There is an exception, however, to this general rule, by virtue of which the curative effect of the correction, in any particular instance, depends upon whether or not, considering the whole case and its particular circumstances, the error committed appears to have been of so serious a nature that it must have affected the minds of the jury despite the correction by the court. The rule and its exception were considered in Hopt v. Utah, 120 U. S. 430, 438, where the foregoing authorities were cited, and the principle was thus stated by Mr. Justice Field: “But, independently of this consideration as to the admissibility of the evidence, if it was erroneously admitted its subsequent withdrawal from the case with its accompanying instruction cured the error. It is true that in some instances there may be such strong impressions made upon the minds of the jury by illegal and improper testimony that its subsequent withdrawal will not remove the effect caused by its admission ; and in that case the original objection may avail on appeal or writ of error. But such instances are exceptional.” The case here, we think, comes within the exception. Thè charge made in the complaint was a very grave one, seriously affecting the character of the defendant below. The record which was admitted for a limited purpose had no tendency to establish her guilt of that charge, if used only for the object for which it was allowed to be introduced. This is also true of the Indiana statute, and of the other testimony relating to the divorce proceeding. The admission of the record and other testimony having been thus obtained, in the closing argument for plaintiff, all the restrictions imposed by the court were transgressed, and the evidence was used by counsel 384 OCTOBER TERM, 1894. Opinion of the Court. in order to accomplish the very purpose for which its use had been forbidden at the time of its admission. Indeed, when the statements made by plaintiff’s counsel in opening are considered, it seems clear that the failure to obtain the admission of the divorce proceedings in full left the case in such a condition that much of the subsequent testimony introduced, while it proved nothing intrinsically, was well adapted to fortify unlawful statements which might thereafter be made in reference to those proceedings. Thus, the case in its entire aspect was seemingly conducted in such a manner as to render the illegal use of evidence possible and to cause the harmful consequences arising therefrom to permeate the whole record and render the verdict erroneous. Our conviction in this regard is fortified by the fact that although the unauthorized use of the evidence occurred in the final argument of the counsel for plaintiff, who first addressed the jury, and was then and there objected to and exception reserved, the same line of argument, in an aggravated form, was resorted to by the counsel who followed in closing the case. Indeed, the language of this counsel invited the jury to disregard the finding of the court, by looking beneath the facts which were lawfully in evidence. As the fact of divorce was confessed by the pleadings, and, besides, was admitted by counsel for defendant in open court, we are of opinion that the divorce record was inadmissible, because of irrelevancy. We also consider that the statute of Indiana was not admissible for any purpose. We have not rested our decree upon the question of the admissibility of this evidence, because the mere illegal introduction of irrelevant evidence does not necessarily constitute reversible error, and hence we have been compelled to consider, not alone the admission of the irrelevant evidence, but also the illegal use which was made of it. Judgment reversed, and cause remanded, with directions to set aside the verdict and grant a new trial. WINTER v. MONTGOMERY. 385 Statement of the Case. WINTER v. MONTGOMERY. ERROR TO THE SUPREME COURT OF THE STATE OF ALABAMA, No. 533. Submitted February 4, 1895. —Decided March 4, 1895; Eustis v. Bolles, 150 U. S. 361, affirmed and followed. Motion to dismiss, coupled with which was a motion to affirm. The grounds for the motion, as stated by the counsel for the defendant in error, were substantially as follows : The plaintiff in error filed in the chancery court of Montgomery County, Alabama, an original and amended bill against the defendant in error. The defendant made no answer to these bills, but moved their dismissal on the ground that they were “without equity.” This motion was sustained, and decrees rendered by the chancery court dismissing the bills. On appeal to the Supreme Court of Alabama the decrees were affirmed by the judgment. It is alleged by the complainant in substance that the pavement adjacent to certain property in the city of Montgomery, Alabama, held by him as trustee of his wife, Mary E. Winter, had been taken up by him, the entire sidewalk excavated, apartments for business purposes constructed in the excavation so made, and a new pavement laid, and that this was done by permission of the city council of Montgomery (defendant in error) as evidenced by a report of a special committee, dated July, 1870. It is further set forth that after the complainant had been for many years in the use of the improvements so made, the city authorities removed the pavement and the structure underneath, filled in the excavation, put down a new and different kind of pavement, known as the “ Schillinger pavement,” and have since excluded the complainant from the use of the space underneath the pavement in connection with the building adjacent, and that great damage has resulted from these acts of the city authorities. It appears, also, from the original bill that the city autbor-ities committed the alleged wrongs complained of on the VOL. CLVI—25 386 OCTOBER TERM, 1894. Syllabus. ground, as they claimed, that the sidewalk was out of repair and dangerous for passengers, and that it could only be properly repaired in the way they had done; that complainant had several times during a period of more than a year attempted to make the suggested repairs, but that the authorities had prevented his doing so, and had insisted on replacing the old pavement by the Schillinger pavement. Among the errors assigned on the appeal to the Supreme Court of Alabama from the decrees of the chancery court were the following: “ 3. The court erred in not holding that the ordinance of the city council of Montgomery, as set out as Exhibit ‘C’ to the original bill, impaired the obligation of the contract set out as Exhibit ‘ B ’ to the bill. “ 4. The court erred in not holding that the acts of the city council, respondent, as set out in said bill, deprived the complainant and Mary E. Winter, the owner of the corpus, of the interest and property described ‘ without due process of law.’ ” JZr. Edward A. Graham and Air. L. A. Shaver for the motions. Air. II. E. Paine and Air. J. S. Winter opposing. The Chief Justice: The writ of error is dismissed on the authority of Eustis v. Bolles, 150 U. S. 361, and cases cited. Dismissed. ILLINOIS CENTRAL RAILROAD COMPANY v. BROWN. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF TENNESSEE. No. 632. Submitted February 4, 1895. — Decided March 4,1895. McLish v. Roff, 141 U. S. 661, and Chicago, St. Paul &c. Railway v. Roberts, 141 U. S. 690, affirmed to the point that this Court has no jurisdiction to HAYS v. STEIGER. 387 Opinion of the Court. review in error or on appeal, in advance of the final judgment in the cause on the merits, an order of the Circuit Court of the United States remanding the cause to the state court from which it had been removed to the Circuit Court. Motion to dismiss. J/ir. Josiah Patterson for the motion. Jfr. H. W. He Corry opposing. The Chief Justice: The writ of error is dismissed upon the authority of Railway Company v. Roberts, 141 U. S. d90, and McLish n. Roff, 141 U. S. 661. Dismissed. HAYS v. STEIGER. ERROR TO THÈ SUPREME COURT OF THE STATE OF CALIFORNIA. No. 67. Submitted November 9,1894. — Decided March 4,1895. The grant of the Agua Caliente to Lazaro Pina by Governor Alvarado in 1840 was a valid grant, and embraced the tract in controversy in this action. The case is stated in the opinion. Mr. Frederic Hall and Hr. James A. Way mire for plaintiffs in error. No appearance for defendant in error. Mr. Justice Field delivered the opinion of the court. This case comes before us on writ of error from the Supreme Court of California. It was an action originally brought by the plaintiff in the Superior Court of one of the counties of that State, claiming an equitable right to 110.80 acres of land which is part of 160 acres of public land for which a preèmp- 388 OCTOBER TERM, 1894. Opinion of the Court. tion claim was filed by one John Mann, through whom, the plaintiffs in error claim as heirs at law, charging the defendant as trustee of the legal title, and praying that he be compelled to transfer it to them as the true owners thereof. The defendant demurred to the complaint and had judgment thereon. The plaintiffs stood upon the sufficiency of their complaint, and appealed from the judgment of the inferior court, which was, however, affirmed. From the latter judgment the case is brought to this court on a writ of error. Mann, through whom the plaintiffs in error claim as heirs, was a qualified preemptor on one hundred and sixty (160) acres of unsurveyed public land in Sonoma County, California, which embraced the 110.80 acres in controversy here. He made improvements upon the land and resided upon it until his death, which took place in July, 1872. He died intestate. The township in which the one hundred and sixty (160) acres were situated was afterwards surveyed, and an approved plat thereof was filed in the United States land office in San Francisco in August, 1880. In October following one of the plaintiffs, on behalf of the heirs of Mann, filed with the register and receiver of the land office a declaratory statement claiming the right to preempt, for the benefit and use of the heirs, one hundred and sixty (160) acres of land. In November, 1880, the defendant in error filed in the land office an application claiming, as a homestead, a certain portion of the land which included the 110.80 acres. The defendant had entered upon the land in dispute in 1870, without the consent of Mann or the plaintiffs. No entry of any kind was made by the defendant prior to 1870 upon the premises. He claimed the right to purchase the land under the provisions of section seven of the act of Congress of July 23, 1866, entitled “An act to quiet land titles in California.” The object of that section was to withdraw from the general operation of the preemption laws lands continuously possessed and improved by a purchaser under a Mexican grant, which was subsequently rejected, or limited HAYS v. STEIGER. 389 Opinion of the Court. to a less quantity than that embraced in the boundaries designated, and to give to him, to the exclusion of all other claimants, the right to obtain the title. The land applied for by both parties, to the extent of 110.80 acres, was within the exterior boundary of the Mexican grant known as Agua Caliente, but which was excluded by the final survey of the United States. The defendant was a purchaser of the land thus excluded, for a valuable consideration, from parties who purchased from the original grantee. The record contains a description of the grant and sets forth the various proceedings for its recognition and confirmation and survey, which we follow in the history of the proceedings as substantially correct. The grant was made to Lazaro Pina by Alvarado, as governor of California, in October, 1840, and was approved by the departmental assembly in October, 1845. The claim of title to the grant was confirmed by the United States District Court and by this court. The description of the land in the decree of confirmation is as follows: The land of which confirmation is made is situated in the present county of Sonoma, and is of the extent of two leagues and a half in length by a quarter of a league in width, and known by the name of Agua Caliente, and is bounded on the southwest by the arroyo of the Rancho of Petaluma, on the southeast by the town of Sonoma, on the north by the hills and mountains which intervene and separate the rancho of Mr. John Wilson, being the same land which was granted to Lazaro Pina by Governor Alvarado.” The parties proved their respective claims to enter the land before the register and receiver, who decided in favor of the defendant in error. An appeal was taken to the Commissioner of the General Land Office from the decision of the register and receiver. That officer reversed their decision and rendered one in favor of the plaintiffs. A further appeal was taken to the Secretary of the Interior, who reversed the decision of the Commissioner and affirmed. 390 OCTOBER TERM, 1894. Opinion of the Court. that of the register and receiver. Subsequently a patent was regularly issued to the defendant by the United States for a tract of land embracing the 110.80 acres in dispute. An official survey of the grant to Pina had been made in December, 1870, which was approved. By the survey adopted the arroyo mentioned in the grant was made a fixed boundary on the westerly side. The survey embraced two and one-half leagues in length and nearly parallel to the general course of the arroyo, and one-quarter of a league in width on the easterly side of the arroyo. The easterly side was situated to the west of the so-called Napa Hills. Upon the publication of the survey objections were filed thereto by the defendant and others, claiming that the eastern boundary did not extend far enough to the east to protect them. In February, 1878, the Commissioner of the General Land Office decided that the grant of Agua Caliente was a grant limited in quantity by the calls of the title papers and decree of the United States courts to two and one-half leagues in length by one-quarter of a league in width; that the arroyo was the westerly boundary; and that the survey contained the quantity ; that the eastern line was the exterior boundary, according to the calls of the grant; that of the boundary described in the decrees the northern must be regarded as the eastern boundary, and that where hills or mountains are described as the location calls of a grant the boundary must follow the foot or base of the hills or mountains. The Commissioner approved the survey, and on appeal to the Secretary of the Interior the decision was affirmed. One of the questions involved was as to the construction of the eastern boundary of the Pina grant and whether the land in dispute was within the exterior boundaries. The grant was for a fixed quantity of land, with the arroyo for the westerly boundary and with the southeast boundary of the town of Sonoma. It was contended that the land was not within the exterior boundary of the grant, and that the register and receiver and Secretary of the Interior erred in holding that it was> MATHER v. RILLSTON. 391 Statement of the Case. and awarding it to the defendant, but this contention was not sustained. Conceding that the hills or mountains mentioned in the decree of confirmation as the northern boundary are really upon the east and form the eastern boundary, and that where a grant is described as bounded by hills and mountains the line runs along the base and not the summit of the hills, it does not appear that the land in controversy was not within the boundaries of the grant as originally made and confirmed. It was held that it might be, and that it was in fact. It follows that the defendant should have received as his preemptive right the whole of the 160 acres claimed by him, the whole amount being within the limits of the grant finally confirmed to the grantee from whom he purchased, and the judgment in his favor should be, therefore, Affirmed. MATHER v. RILLSTON. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF MICHIGAN. No. 139. Argued January 22, 23, 1895. — Decided March 4, 1895. Occupations which cannot be conducted without necessary danger to life, body, or limb, should not be prosecuted without taking all reasonable precautions against such danger afforded by science. Neglect in such case to provide readily attainable appliances known to science for the prevention of accidents, is culpable negligence. If an occupation attended with danger can be prosecuted by proper precaution without fatal results, such precaution must be taken, or liability for injuries will follow, if injuriés happen; and if laborers, engaged in such occupation, are left by their employers in ignorance of the danger, and suffer in consequence, the employers are chargeable for their injuries. This was an action to recover damages for injuries sustained oy the plaintiff from an explosion in an iron mine at Ironwood, in Michigan, alleged to have been caused through the care-lessness and negligence of the defendants. It was commenced 392 OCTOBER TERM, 1894. Statement of the Case. in the Circuit Court for one of the counties of that State, and on motion of the defendants was removed to the Circuit Court of the United States for the Western District of Michigan. The declaration sets forth that the defendants were, in May, 1888, and had been for some time previously, operating at Bessemer, in the county mentioned, an iron mine, called the “ Colby Mine.” It then describes the general nature and mode of their mining, the use by them of giant powder or dynamite, of great explosive power, in blasting rock, boulders, and ore, the manner of its use, and the dangers attending it from explosion, to which it is liable from great heat or concussion with hard substances in working the mine; and alleges carelessness and negligence in handling the same, causing the explosion, destroying the eyes of the plaintiff and grievously injuring him in different parts of his body, for which injuries damages are claimed in the present action. A more detailed account of the operation of the mine is given in the declaration, and the defendants demanded a trial of the matters set forth, ■which, under the laws of Michigan, is equivalent to a plea of the general issue in the cause. The plaintiff was a young man of only twenty-four years of age, and he was not a miner by occupation, nor had he any experience as a miner. He was employed by the defendants chiefly in loading tram cars in their service, and knew little of the different explosives used in the mines. In further history of the operation of the mine, and of the condition of the engine-house at the time of the explosion complained of, and its probable cause, the declaration alleges that the mining was carried on by sinking shafts, driving drifts, stoping and excavating in the manner usual in the business of iron mining; that in performing that work, rock, boulders, iron ore, gravel, sand, and earth were encountered and removed; that in removing them and other hard substances it became necessary to blast the same away by employing giant powder or dynamite of great explosive force; that the powder or dynamite thus used was put up in what were called “ sticks,” each stick being circular or nearly so, of a diameter of about one and one-half inches and about eight inches long, wrapped in a paper MATHER v. RILLSTOK 393. Statement of the Case. covering; that the sticks were packed in sawdust in wooden boxes, there being about fifty in each box; that giant powder or dynamite similar in kind or character to that thus used by the defendants, and also caps similar to those hereinafter mentioned, had been in general use in the mines of the upper peninsula of Michigan for twenty years previously; that the powder or dynamite during cold weather became frozen or hard, and in that condition would not explode readily, and it was therefore necessary or at least advisable before using it to soften or thaw it, which was usually done by means of warm water, that being the safest means for that purpose, and when thus thawed or softened it was exceedingly sensitive and liable to explosion from heat or concussion, a fact well known to the defendants; that the usual manner in which explosions were effected in blasting in the mine was by placing at the end of a stick or piece thereof a cap attached to a fuse, which was ignited, and then solid rock and ore could be blasted out by it; that the caps were shaped like ordinary percussion caps and partly filled with a fulminate, which were then exceedingly sensitive and more powerful and more explosive than the dynamite; that they were liable to explosion from heat or by concussion against each other or against any other resisting substance, and were put up in tin boxes, each containing about one hundred, lightly packed in sawdust, and were always ready for use, not requiring any thawing before affixing the fuse and powder. And the declaration further set forth that on the day of the explosion, hereafter mentioned, there was situated on the surface of the mine a house about twenty feet long by eighteen feet wide and one story high, which was primarily intended for a dry or changing house for the captains and bosses of the mine, of which there were about thirteen; that there were in the house two drums, used mainly for lowering timber into the mine; that these drums were circular and about three and one-half and four feet in diameter, respectively, and were operated by steam power, the steam being supplied through a pipe or pipes from a boiler about fifty feet distant; that eighteen inches from one of the drums was a steam heater, consist- 394 OCTOBER TERM^ 1894. Statement of the Case. ing of about sixty coils of pipe, receiving steam from the boiler, intended to heat the house and dry the clothes of the men who changed their clothing there when they had become wet from the waters of the mine; that about a foot away from the heater and against a wall of the house was a shelf, consisting of a board fastened to the wall; that the drums and machinery in the house were in constant motion day and night, the machinery being kept running even when the drums were not in use hoisting or lowering in the mine, in order to keep the exhaust pipe from freezing; that the action of the machinery produced a constant jar in the building; that there was standing near the shelf and heater a barrel partly filled with ordinary lime; and that on the day of the explosion there was in the engine-house, placed there by the direction of the defendants, for the purpose of storing and thawing or softening the same, twelve boxes of giant powder or dynamite, a box and a half lying loose on the shelf, a box about half filled on the floor and against the heater, and, scattered loosely on the floor, about twenty sticks or parts of sticks, some lying against or upon the iron pipe of the heater, a large quantity of powder lying between the heater and the nearest drum, occupying nearly the entire space between them, and about three sticks or parts of sticks resting on the lime, and a small quantity of the lime scattered on the floor and upon some of the powder, and on the shelf was a full box of caps, and in the engine-house and near the heater was a box partly filled with caps ; that during the day of the explosion, and while the powder and caps were located as stated, the machinery was in full operation, pounding and jarring, and the atmosphere of the room in the immediate vicinity of the powder and caps was heated from the heater and steam pipes to about 300°Fahrenheit, and the steam pipes were heated to the same degree, and the room being hot the plaintiff was obliged to open the door of the house when the ground was covered with snow to a depth of about a foot lying immediately in front of it and on the walks leading to the house, and several individuals who came into the house on the day of the explosion brought more or less snow on their feet and MATHER v. RILLSTON. 395 Statement of the Case. persons, which melted and left water therefrom on and about the floor of the house and on the lime. And it was averred that the powder or dynamite, when thawed out or softened, was very sensitive, and liable to explosion from the jarring of the drums and machinery, and the constant jarring of the building, and that the powder was liable to explosion from the. heat of the steam heater and steam pipes and by the slacking of the lime in the lime barrel or on the powder ; that the caps were more sensitive than the powder or dynamite, and more apt than the powder or dynamite to be exploded by the jarring and by the heat from the steam pipes and steam heater, all of which particulars were well known to the defendants. And the plaintiff further averred that he was hired by the defendants to run and operate the drums in the house, and that then the powder and caps wrere stored and kept in the powder house of the defendants, and that afterwards they were stored in the engine-house; and that he was at the time wholly ignorant that the powder or dynamite was liable to explosion from the jarring of the machinery, or by becoming overheated by the steam heater, or by the heat generated by the lime when slacking, or that the caps were also liable to ex plosion by such jarring of the machinery, or collision against any other resisting substance in the box, or by the heat from the steam pipes or steam heater ; that he had never used the powder or the caps or any other powder or caps similar in kind or character, and was entirely ignorant of their very sensitive character, and that when they were placed in the house he was not, nor was he at any time thereafter and before the accident, informed by the defendants, or any other person, of their sensitive and dangerous character, or that they were liable to be exploded, and that he continued to work in the house entirely ignorant of the danger to which he was thereby subjected. And the plaintiff further averred that on the day of the explosion, while he was engaged about his business in the house, and while the machinery and the steam heater and steam pipes were in operation, and while the powder and caps 396 OCTOBER TERM, 1894. Statement of the Case. and all the other articles and things were situated in the house as stated, and while he was conducting himself in a careful and prudent manner and not touching, handling, or in any manner whatsoever meddling or interfering with the powder and caps or either thereof, and when he was about two feet distant therefrom, a part of the powder and of the caps, caused by being jarred as mentioned by the machinery and overheated by the steam and steam pipes and by the lime, suddenly, and without any warning whatsoever, exploded with great force and violence, throwing pieces of tin and other hard substances into his eyes and into his body, and throwing him out through the open door about fifty feet distant therefrom, and that he was then and thereby grievously bruised, maimed, and injured, and his eyes were permanently injured and destroyed, and he thereby became totally and permanently blind, and his body in other respects was maimed, mutilated, and injured. And the plaintiff further averred that the explosion and the blinding and maiming and injury of himself were caused through the carelessness and negligence of the defendants in storing the powder and caps in the house without informing him of the increased risk and danger of his remaining in employment therein ; in thawing and softening the powder by means of steam heat, instead of hot water; in thawing and storing the powder and caps in the house where the machinery was in operation, and where the steam heater and steam pipes ■were situated, and the lime was kept and used, as stated, and in placing, or permitting to be placed, the powder and the caps near or around the steam heater, as stated, for all of which the plaintiff claimed damages. The substantial facts thus stated in the first count are set forth with more or less detail in the other counts of the complaint, of which there are several, and the allegations of negligence and carelessness on the part of the defendants are repeated, from which the explosion is alleged to have followed, and the dreadful injuries stated to have been caused to the plaintiff, and by which he was also deprived of all means of earning a livelihood. The jury found for the plaintiff and MATHER v. RILLSTON. 397 Opinion of the Court. assessed his damages in ten thousand dollars, upon which verdict judgment was entered in his favor, and the defendants brought the case to this court by writ of error. Mr. A. G. Dustin and Mr. George F. Edmunds for plaintiff in error. Mr. James H. Hoyt and Mr. George Hayden were on Mr. Dustin’s brief. Mr. F. O. Clark, with whom was Mr. R. C. Flannigan on the brief, for defendant in error. Mr. Justice Field, after stating the case, delivered the opinion of the court. The testimony produced on the trial by the plaintiff and the defendants corroborated in all essential particulars the facts set forth in the declaration. It is not, however, as definite in its statement of the extent of the heat of the room on the day of the explosion. The declaration puts it at a very high degree Fahrenheit, and the plaintiff, who was examined on the subject, while he does not designate it by any thermometrical measurement, states that the heat from the heater and boiler was more than he could stand; and that the room was hotter than anything he had ever known before. He also testified that the machinery in the enginerhouse was in operation all the time in order to keep the steam in the pipes and prevent them from freezing on the outside, and that the building was always shaking, so much so that a man’s hat would not stay hung up when the machinery was in motion. He also added that he was not a miner and did not know the first part of mining; that he had never handled any powder in blasting, or handled or worked with the caps used; that he did not know what dynamite or giant powder was made of, and never had any knowledge or experience in the use or handling of explosives, and he never was informed by the defendants or any one else of the danger he incurred in handling the powder and caps, or the danger of explosion of either from the great heat in the engine-house, or from the concussion of the caps caused by its constant jarring. It is clear from the whole evidence in the case, that there 398 OCTOBER TERM, 1894. Opinion of the Court. was constant danger of explosion from the great heat produced in the operation of the mine and from the concussion of the caps by collision between themselves and with other hard substances in the engine-house and the powder scattered on the floor. The heat and concussion were a continuing danger to the safety of the persons employed in the mine, and of the existence of that danger the defendants were fully aware. Rillston, the plaintiff, who was sworn as a witness in the case, testified that at the time of the explosion there was in the engine-house a coil of pipe, five barrels of oil, fourteen boxes of powder, a box and a half on the shelf, about half a box on the floor, a barrel of lime, several sticks in the lime, two boxes of caps, nine rings of fuse, and that there was powder on the floor thrown around in all directions. Mr. Sellwood, the general manager of the mine for the defendants, testified that the caps and powder were put in the engine-house by his orders, and admits that the usual place previously for keeping them was at the powder magazine. Notwithstanding the continuing danger of explosion, both from the heat in the engine-house and its constant jarring, and the confused and disorderly position in which the powder and caps were placed in the engine-house, it does not appear that there was any effort made by the defendants, or others acting for them, to lessen either the heat or the jarring. The court instructed the jury that it was a question for them whether there was negligence in the conduct of the defendants in reference to the use of the exploding caps, that is, in putting them in the engine-house and in failing to give the plaintiff due warning of their dangerous character ; and the jury found against the defendants on the question thus presented to them. All occupations producing articles or works of necessity, utility, or convenience may undoubtedly be carried on, and competent persons, familiar with the business and having sufficient skill therein, may properly be employed upon them, but in such cases where the occupation is attended with danger to life, body, or limb it is incumbent on the promoters thereof and the employers of others thereon to take all reason- MATHER v. RILLSTON. 399 Opinion of the Court. able and needed precautions to secure safety to the persons engaged in their prosecution, and for any negligence in this respect, from-which injury follows to the persons engaged, the promoters or the employers may be held responsible and mulcted to the extent of the injury inflicted. The explosive nature of the materials used in this case, and the constant danger of their explosion from heat or collision, as already explained, was well known to the employers, and was a continuing admonition to them to take every precaution to guard against explosions. Occupations, however important, which cannot be conducted without necessary danger to life, body, or limb should not be prosecuted at all without all reasonable precautions against such dangers afforded by science. The necessary danger attending them should operate as a prohibition to their pursuit without such safeguards. Indeed, we think it may be laid down as a legal principle that in all occupations which are attended with great and unusual danger there must be used all appliances readily attainable known to science for the prevention of accidents, and that the neglect to provide such readily attainable appliances will be regarded as proof of culpable negligence. If an occupation attended with danger can be prosecuted by proper precautions without fatal results, such precautions must be taken by the promoters of the pursuit or employers of laborers thereon. Liability for injuries following a disregard of such precautions will otherwise be incurred and this fact should not be lost sight of. So, too, if persons engaged in dangerous occupations are not informed of the accompanying dangers by the promoters thereof, or by the employers of laborers thereon, and such laborers remain in ignorance of the dangers and suffer in consequence, the employers will also be chargeable for the injuries sustained. Both of these positions should be borne constantly in mind by those who engage laborers or agents in dangerous occupations, and by the laborers themselves as reminders of the duty owing to them. These two conditions of liability of parties employing laborers in hazardous occupations are of the highest importance, and should be in all cases strictly enforced. 400 OCTOBER TERM, 1894. Syllabus. Further than this, it is plain from what has already been stated that the plaintiff knew nothing of the special dangers attending his work, or that he was at all informed by the defendants on the subject. His testimony is positive on this point, and is not contradicted by any one. With that fact shown there was no ground for any charge of contributory negligence on his part; and with the defendants’ negligence established, as stated, there could have been no serious objection to the damages awarded to the plaintiff for the dreadful injuries sustained. The sum recovered was a moderate compensation to be awarded to him. Judgment affirmed. CUNNINGHAM v. MACON & BRUNSWICK RAIL- ROAD COMPANY. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF GEORGIA. No. 91. Argued November 22, 23, 1894. —Decided March 4, 1895. In 1866 the legislature of Georgia enacted a law loaning the credit of the State to a railroad company by endorsing its bonds to the amount of $10,000 per mile, and further providing that the endorsement should operate as a mortgage on all the property of the company. These bonds were issued to the amount of $1,950,000, endorsed and sold. In 1868 the new constitution of the State then adopted provided that the State should not loan its credit to any company without a provision that the whole property of the company should be bound to the State as security prior to any other indebtedness. In 1870 the legislature passed an act “to amend” the act of 1866, authorizing the governor to endorse the company’s bonds to a further extent of $3000 per mile “ in addition to $10,000 as recited in the act of which this is amendatory.” The new bonds were issued, varying in form from the former bonds, were endorsed ' by the State, and were sold. In 1873 the company defaulted in the payment of the bonds of 1866, and the governor’ took possession of the property. The legislature then by joint resolution declared the bonds of 1866 to be valid, and those of 1870 to be unconstitutional. In 1875 the governor ordered the property sold under the provisions of the act of 186 > and the sale took place that year, the State being the purchaser at CUNNINGHAM v. MACON & BRUNSW’K RAILROAD. 401 Statement of the Case; $1,000,000 and taking the conveyance. The bonds issued under the act of 1866 were then taken up and retired. The holders of the bonds issued in 1870 filed a bill in equity to set aside the sale, but the bill was dismissed upon the ground that the State was a necessary party, and could not be brought in without its consent. Meanwhile, the State having sold the whole’property, a supplemental bill was filed in that case by leave of court against the purchasers, attempting to charge the property in their hands with a trust in favor of the holders of the bonds of 1870, charging that the State had been their trustee to enforce their equitable rights, and had been guilty of a breach of its trust by selling the property at a price much below its real value. Held, (1) That the plaintiffs were not entitled to be subrogated to the mortgage security taken by the State, and as such to maintain this suit, because the property had passed out of the possession of the State when this suit was brought, and because the State was a necessary party to the enforcement of such a claim; (2) That the only bonds secured by the statutory mortgage were those issued in 1866, and that those issued in 1870 were not secured by it; (3) That even if they had been secured by it these complainants were junior creditors to those holding the bonds of 1866, with rights subordinate to theirs, and it was their duty to attend the sale and protect themselves by raising the bid to an amount sufficient for that purpose; (4) That they could not avoid the sale without tendering reimbursement to the first mortgage creditors, which they had not done. The Macon and Brunswick Railroad Company was chartered by the legislature of Georgia in 1856. Acts of 1856, No. 119, p. 181. By the act of December 3, 1866, the legislature of the State authorized the governor to endorse the bonds of the road to the extent of $10,000 per mile. The act reads as follows: ‘ An act to extend the aid of the State to the completion of the Macon and Brunswick railroad, and for other purposes. “ Whereas the Macon and Brunswick railroad has been completed to the distance of fifty miles from the city of Macon, and is thoroughly equipped, and daily trains are running thereon, and seventy miles additional are graded and ready for the superstructure; and whereas its completion to Brunswick would greatly inure to the benefit of the State in developing its agricultural, commercial, and manufacturing interests; and whereas, by reason of the financial embarrass-VOL. CLVI—26 402 OCTOBER TERM, 1894. Statement of the Case. ments resulting from the late war, the stockholders of said railroad are unable to supply the capital necessary to the completion of this great work: “ Section 1. Be it enacted, etc., That his Excellency, the Governor, be and he is hereby authorized to place the endorsement of the State on the bonds of the Macon and Brunswick Railroad Company which said company may issue, to the amount of ten thousand dollars per mile for as many miles of said road as are now completed, and the like amount per mile for every additional ten miles, as the same may be completed and placed in running order, on the following terms and conditions, to wit: Before any such endorsement shall be made the governor shall be satisfied that as much of the road as the said endorsement shall be applied for is really finished and in completé running order, and that said road is free from all liens, or mortgages, or other encumbrances, which may in any manner endanger the security of the State: and upon the further condition and express understanding that any endorsement of said bonds, when thus made, shall not only vest the title to all property of every kind which may be purchased with said bonds in the State, until all the bonds so endorsed shall be paid; but the said endorsement shall be, and is hereby understood to operate as a prior lien or mortgage on all of the property of the company, to be enforced as hereinafter provided for. “ Sec. 2. In the event of any bond or bonds endorsed by the State, as provided in the first section of this act, or the interest due thereon, shall not be paid by said railroad company at maturity, or when due, it shall be the duty of the governor, upon information of such default by any holder of said bond or bonds, to seize and take possession of all the property of said railroad company, and apply the earnings of said road to the extinguishment of said bond, or bonds, or coupons, and he shall sell the said road and its equipments, and other property belonging to said company in such manner and at such time * as in his judgment may best subserve the interest of all concerned.” Acts of 1866, No. 178, p. 127. Under this authority the governor endorsed the bonds of CUNNINGHAM v. MACON & BRUNSW’K RAILROAD. 403 Statement of the Case. the company to the extent of $ 1,950,000. The bonds were thus entitled: “ State of Georgia. li United States of America. “ Macon & Brunswick Railroad Company. First and Only Mortgage Bond.” They acknowledged that the Macon and Brunswick Railroad Company was indebted to Charles J. Jenkins, as governor of Georgia, and to his successors in office, or to the bearer thereof, and also recited the statutory mortgage, which was reserved by the State in the act of 1866. In June, 1870, the president of the railroad company executed an instrument in which he stated that these bonds had been issued in conformity with the statute, and that the company was desirous of confirming the lien held by the State to secure their payment, and that, therefore, he, as president, recognized, on behalf of the company, the validity of the statutory mortgage and of the lien created thereby. To this instrument the State was not a party. In October, 1870, the legislature of Georgia passed the following act: 1 An act to amend an act to extend the aid of the State to the completion of the Afacon and Brunswick railroad, and for other purposes. “Whereas the Macon and Brunswick railroad has been completed to Brunswick, requiring a greater outlay of money than was originally contemplated, to place the same in complete running order, and to furnish the necessary cars, engines, and machinery; and whereas the State has, by recent legislation, endorsed the bonds of other railroads to the extent of fifteen thousand dollars per mile: “ Section 1. The general assembly of the State of Georgia do enact, That the above-recited act be so amended as to authorize the governor to place the endorsements of the State, to the extent of three thousand dollars per mile, upon the bonds of said Macon and Brunswick Railroad Company, in addition^ to ten thousand dollars, as recited in the act of which this is amendatory. 404 * OCTOBER TERM, 1894. Statement of the Case. “ Sec. 2. Be it further enacted. That all laws and parts of laws in conflict with this act be, and the same are, hereby repealed.” Under this act bonds to the extent of $600,000 were issued by the railroad and endorsed by the State. These bonds differed in several particulars from those of the first issue. Thus, instead of acknowledging that the corporation was indebted to the governor of the State, they declared that it was indebted to Morris K. Jesup, of the city of New York, or bearer; they made no reference to the mortgage or lien held by the State under the act of 1866, nor did they purport to be secured by mortgage. Each of them contained this recital : “ This is one of a series to the extent of $3000 per mile of the Macon and Brunswick Railroad Company, endorsed by the State of Georgia in accordance with an act of legislature passed October 27, 1870.” At the time this act was passed the constitution of Georgia contained the following provision: “ The general assembly shall pass no law making the State a stockholder in any corporate company ; nor shall the credit of the State be granted or loaned to aid any company without a provision that the whole property of the company shall be bound for the security of the State prior to any other debt or lien, except, to laborers; nor to any company in which there is not already an equal amount invested by private persons; nor for any other object than a work of public improvement.” Constitution of 1868, Art. 3, §5. In August, 1872, the legislature of Georgia passed a resolution declaring that the State’s guaranty placed on the bonds of the Macon and Brunswick Railroad Company was binding. In 1873 the company defaulted in the payment of interest on the bonds issued under the act of 1866, and which bore the State’s endorsement. In July of that year the governor issued a proclamation reciting the passage of the act of 1866, the issue of the bonds thereunder, and the company’s default. He announced also that, in pursuance of the power conferred upon him by that act, he had seized the company s property and had appointed an agent of the State to take possession and control of the same. In March, 1875, the leg18" CUNNINGHAM v. MACON & BRÜNSW’K BAILROAD. 405 Statement of the Case. lature passed a resolution declaring that the 81,950,000 issue of bonds which had been endorsed under the act of 1866 were valid and binding obligations of the State, but that the $600,000 issue under the act of 1870 was unconstitutional, null, and void ; that it was the sense of the general assembly that the railroad, with its franchises, equipments, and appurtenances, should be sold by the governor at an early date, and, if considered practicable, as early as June 1, 1875, at public or private sale, and upon such terms and for such a price in money or first mortgage endorsed bonds of the Macon and Brunswick Railroad Company, or bonds of the State, as in his judgment might be consistent with the interests of the State, and that no commission or percentage should be authorized or allowed under such sale. In April, 1875, the governor issued his executive order for the sale of the railroad property which had been under seizure since 1873. This order, after also reciting the act of 1866, and the endorsement by the State of the bonds issued thereunder, proceeded as follows : “Whereas, among other provisions of said second section of said act, it is expressly provided that after the seizure of all the property of said company, as aforesaid, the governor ‘ shall sell the road and its equipments and other property belonging to said company, in such manner and at such times as, in his judgment, may best subserve the interest of all concerned; ’ and having become satisfied that it will be for the best interest of the State and all concerned that all the property of the company seized under said order be sold at an early day : it is therefore “ Ordered, that all the property seized, as aforesaid, now in the possession of Edward A. Flewellen, receiver of the property of the Macon and Brunswick Railroad Company, under said order, be sold to the highest bidder at public outcry at the depot of the Macon and Brunswick Railroad Company, m the city of Macon, between the hours of 10 o’clock a.mj and 4 o’clock p.m. on the first Tuesday in J une next. “The said sale will be made for cash, for bonds of this State, or the first mortgage bonds of the company, endorsed 406 OCTOBER TERM, 1894. Statement of the Case. in behalf of the State, under the authority of the act approved December 3, 1866. It is further “ Ordered, that the said Edward A. Flewellen, as receiver aforesaid, make out an advertisement under this order, setting forth with requisite particularity all the property to be sold as aforesaid, and publish the same in such public gazettes in this State and in the city of New York as, in his judgment, will give proper publication to said sale.” The sale thus directed took place on the date fixed, and the property was bought in by the governor, on behalf of the State, for $1,000,000, the purchase having been authorized by the legislature of the State. The governor executed a formal conveyance of the purchase to the State on June 3, 1875, and the State subsequently retired the $1,950,000 of bonds, which had been issued and endorsed under the act of 1866. In September, 1877, the complainants-appellants, alleging themselves to be holders and owners of bonds of the Macon and Brunswick Railroad Company, endorsed by the State under the act of 1870, which, they averred, they had acquired in open market after the State had acknowledged her liability thereon, and before the passage of the act declaring the endorsement invalid, filed their bill in the Circuit Court of the United States for the Southern District of Georgia against the company and certain persons named therein, “ styling themselves directors of the Macon and Brunswick Railroad,” and J. W. Renfroe, treasurer, and Alfred H. Colquitt, governor of Georgia. This bill, after setting out the facts substantially as here given, charged that the sale made by the governor was void for the following reasons: “ 1st. Because neither the legislature nor the governor had the right to exclude the $600,000 series of endorsed bonds from being used as so much cash in the purchase of said road at their face value. Certainly they were entitled to be so used in the event of the exhaustion of the $1,950,000, which themselves should have — received as cash at par. “ 2d. Because the governor was not authorized to bid on said property for the State, and the State had no constitutional power to make the purchase, or if said sale is not void CUNNINGHAM v. MACON & BRITNSW’K RAILROAD. 407 Statement of the Case. it is certainly voidable, because under the statutory and executed mortgages the State is the trustee of the property mortgaged for the benefit of the bondholders, and had no right to buy at her own sale as such trustee without incurring the risk of having such sale set aside at the instance of any beneficiary under the trust, and your orator as such beneficiary elects to set said sale aside.” The bill also alleged the taking up by the State of the $1,950,000 of bonds issued under the act of I860, subsequent to her purchase of the property, and averred, in the alternative, that if the sale was not void, because of the fact that the mortgage was solely to indemnify the State, then the holders of the bonds issued under the act of 1870 were entitled to a ratable distribution of the proceeds with the holders of those endorsed under the act of 1866, and therefore should receive an equal pro rata share of all sums paid or to be paid by the State on the retired issue of $1,950,000 under the act of 1866. The bill was demurred to by Renfroe, treasurer, and Colquitt, governor, and after hearing was dismissed. The complainants thereupon prosecuted their appeal to this court, where the decree below was affirmed. Cunningham v. Macon db Brunswick Railroad, 109 IT. S. 446. Meanwhile, subsequent to the decree of dismissal below, the railroad and its appurtenances were sold by the State, under proper legislative authority, for $1,250,000, and through a series of transfers, some of them being the result of judicial foreclosure of mortgages, the road finally became the property of the East Tennessee, Virginia and Georgia Railroad Company. In 1886, after the filing of the mandate of this court, affirming the decree of dismissal, a motion was made below for a decree pro confesso against the Macon and Brunswick Railroad Company, and leave was given to file a supplemental bill making the East Tennessee, Virginia and Georgia Railroad Company a party defendant. The amended bill was duly filed. This bill, after substantially reiterating the averments of the original bill, and charging likewise that the sale at which the governor bought in the property on behalf of the State was null and void, alleged that the East Tennessee, Virginia and 408 OCTOBER TERM, 1894. Statement of the Case. Georgia Railroad Company was a purchaser with notice of the illegality, and then proceeded as follows : “ And your orator charges that the said State of Georgia held the said property after the seizure thereof as a trust for the payment of the obligations of the said the Macon and Brunswick Railroad Company to the extent of the avails of a sale of the said property to be made for the interest of all creditors of said company, with the privilege unto the said State of protection, first, out of said avails, of its own endorsement of the bonds of $aid company ; that the said State, in and by the resolution aforesaid, declared its endorsement of the bonds held by your orator to be not binding on it, and in advance of demand upon it by your orator refused thereby to pay the said endorsement or to enforce its said privilege of protection of said endorsement from the avails of said property so in its hands ; that your orator thereby became at least entitled to the advantage of the said mortgage lien of the said State for his protection ; to have the said property sold with proper regard to his interests and the interests of his fellow-bondholders; to be allowed to participate freely with all other lienors of the said railroad at the sale of the said railroad property by his said trustee, in bidding upon said property and paying therefor in the bonds held by him, hereinbefore mentioned, with due regard to the protection of any and all prior liens and the costs and expenses of sale. “ And your orator shows that in and by the said résolu* tions under which said sale was made, and under color of which the said trustee for your orator became possessed of the said railroad property, the said State of Georgia gave notice of its intention to commit a breach of trust by ex* eluding your orator from participation in said sale on equitable terms with the holders of the first mortgage bonds, by excluding your orator, by the provisions thereof, from participation in the avails of said sale or any benefit therefrom by announcing openly to the world its intention to sell the said road in its own interest rather than in the interest of the creditors of said company, and by divers other acts and announcements,, all concurring to demonstrate positively to CUNNINGHAM vJ MACON & BRUNSW’K RAILROAD. 409 Statement of the Case.' the world that the said trustee had determined to exclude your orator from any benefit under the said trust, and that it would not regard or protect in any respect the interests of your orator and his fellow-bondholders in the said sale or % distribution of avails. “And your orator shows that in point of fact the said State of Georgia, at the said sale, did commit the said breach of trust according to its previously announced intention, did exclude your orator and his fellow-bondholders from their rights of equitable protection on sale by bidding and paying the bonds held by them, did sell the said road in a manner contrary to the interests of the creditors generally of the said road for a very small part of its real value, the price nominally bid therefor being one million dollars and the real value thereof being four million dollars, and did sell the road to itself for said price in its own interest and without regard to the interests of the beneficiaries of the trust, including your orator, and thereupon, in equity, held the said property as a trust for your orator and subject to his lien for the payment of his said bonds. “And your orator avers that the said the East Tennessee, Virginia and Georgia Railroad Company and the East Tennessee, Virginia and Georgia Railway Company had full notice in the purchase of said property made by each of the said breach of trust by said trustee, and took the said property subject to the duties and liabilities of said trustee towards your orator — that is to say, with the lien of your orator unaffected and undischarged by the sale of said property made by said trustee in breach of his fiduciary duty, and that the said last-mentioned company now holds said property as trustee for your orator and subjéct to your orator’s lien for the payment of the said indebtedness to him.” The East Tennessee Company answered the supplemental bill, stating the various conveyances through which the title had finally come to be vested in itself, and asserting thé validity thereof. All the facts above stated appear on the face of the pleadings and exhibits. Before the sale was made by the State, John P. Branch, a holder of bonds of the same series 410 OCTOBER TERM, 1894. Argument for Appellants. as those held by these complainants, had filed a bill in the Circuit Court of the Southern District of Georgia, asking for an injunction to prevent the sale, but the application was denied. Branch v. Macon and Brunswick Railroad, 2 Woods, 385. Branch had also taken a decree pro confesso against the Macon and Brunswick Railroad Company, and he was allowed to intervene below and become a party to the present suit, in which he claims the same rights as those asserted in the original and supplemental bill. The cause was submitted to the court on bill, answer, and exhibits, and resulted in a decree of dismissal. The case was then brought here by appeal. Mr. Charles N. TJW for appellants. Mr. W. W. Montgomery and Mr. Daniel H. Chamberlain, each filed a brief for same. Mr. George Hoadly for the East Tennessee, Virginia and Georgia Railway Company, appellee. Mr. John Howard closed for appellants. I. In respect to the construction of the act of December 4, 1866, there are two classes of cases to be considered : (1) When the State assumes a liability for a corporation, and the corporation conveys its property in trust as an indemnity to the State against loss, and the bondholders of the corporation take nothing. Chamberlain n. St. Paul de Sioux City Railroad, 92 U. S. 299. (2) When the State assumes a liability for a corporation, and the corporation conveys its property in trust as an indemnity to the State, and also in trust to secure its bondholders as its principal debtors. Hand v. Savannah <& Charleston Railroad, 12 S. C. 314, cited and approved in Tennessee Bond Cases, 114 U. S. 688, and also Railroads v. Schutte, 103 U. S. 118. In this last case, it was held that the endorsement by the State of Florida of the bonds of the railroad company was void, because unconstitutional; but it was also held that CUNNINGHAM v. MACON & BRUNSW’K RAILROAD. 411 Argument for Appellants. such fact did not impair the validity of the statutory mortgage and trust in favor of the bondholders of the company. And that case was cited and approved in Supervisors v. Stanley, 105 U. S. 312. Should it be held that the endorsement by the State of Georgia of the bonds of the Macon and Brunswick Railroad Company was unconstitutional and void, Railroads n. Schutte would directly apply in favor of the express statutory trust for the bondholders of this company, whose bonds were thus endorsed. II. And now as to the legal effect and operation of the act of Georgia of October 27, 1870, as an amendment to the original act of December 3, 1866. There appears to be nothing in the constitution of Georgia regulating the manner in which amendments to previous acts shall be made, as is provided in many of the States, and therefore the legal effect of this amendment must be governed by the general law and the unlimited power of the legislature of Georgia to amend its acts of assembly in any manner it may deem proper and efficient for the purpose. The act of 1866 had been in full operation, and its purpose, intendment and effect are presumed to have been fully understood as securing an indemnity to the State for its endorsement of the bonds of the railroad company, and as an express trust for the payment of those bonds, together with ample power and machinery provided for those purposes. In 1870, the construction of the whole road, from Macon to Brunswick, had been completed, but the road was a dead thing, unless it could be furnished with equipments for its operation. The amendatory act was passed to accomplish that object, as its title and its preamble show; and then the act proceeded to amend the original act by authorizing the issue of additional bonds, with the endorsement of the State thereon, and repealed all acts in conflict with that legislation. The two acts must be taken as one act, and as having all of the effect of the terms and provisions of the original act in respect to the protection of the State and the bondholders, as if they were literally incorporated in the amendatory act in totidem verbis. Holbrook v. 412 OCTOBER TERM, 1894. Argument for Appellants. Nichol, 36 Illinois, 161, 167. And if the act were susceptible of two constructions, one of which would so emasculate it as to make it meaningless and useless, and the other would be reasonable, and would vitalize and give it full legal effect and operation, and especially if in harmony with, and in effectuation of, previous legislation and its object and policy, the last should be adopted. Sutherland on Statutory Construction, § 323. The provision of the state constitution in re nata was of course impresssd upon the act, and the question then arises, whose duty was it to see that there was a fulfilment of the constitutional requirements before the endorsement of the State could be validly made upon the new bonds to be issued? And here, again, there are two classes of cases: (