solve itself as much as
possible into a mere question of law, there is yet no power whatever on
the part of the judge to order a verdict of guilty, but it rests
entirely in the judgment and conscience of the jury what verdict they
will bring in. They may act unwisely and unconscientiously, perhaps by
mere favoritism, or a weak sympathy, or prejudice, or on any other
indefensible ground; but yet they have entire _power_ over the matter.
It is for them finally to say what their verdict shall be, and the judge
has no power beyond that of instruction upon the law involved in the
case.

The proposition laid down by the writer before referred to, that "in
jury trials all questions of law are decided by the judge," is not
unqualifiedly true. It is so in civil causes, but in criminal causes it
has been holden by many of our best courts that the jury are judges of
the law as well as of the facts. Pages could be filled with authorities
in support of this proposition. The courts do hold, however, that the
judges are to _instruct_ the jury as to the law, and that it is their
duty to take the law as thus laid down. But it has never been held that
if the jury assume the responsibility of holding a prisoner not guilty
in the face of a charge from the judge that required a verdict of
guilty, where the question was wholly one of law, they had not full
power to do it.

The question is one ordinarily of little practical importance, but it
here helps to make clear the very point we are discussing. Here the
judge laid down the law, correctly, we will suppose, certainly in terms
that left the jury no doubt as to what he meant; and here, by all the
authorities, the jury ought, as a matter of proper deference in one
view, or of absolute duty in the other, to have adopted the view of the
law given them by the judge. But it was in either case the _jury only_
who could apply the law to the case. The judge could _instruct_, but the
jury only could _apply the instruction_. That is, the instruction of the
judge, no matter how authoritative we may regard it, could find its way
to the defendant _only through the verdict of the jury_.

It is only where the confession of facts is _matter of record_, (that
is, where the plea filed or recorded in the case _admits_ them), that
the judge can enter up a judgment without the finding of a jury. Thus,
if the defendant pleads "guilty," there is no need of a jury finding him
so. If, however, he pleads "not gui