Shaw, C. J.
This case comes before the court upon a bill of exceptions, and the question is, whether, in a criminal prosecution against the defendant for an alleged violation of the license laws, his counsel have a right to address the jury upon the questions of law embraced in the issue. The effect of the argument for the defendant, when analyzed, appears to be this; that in criminal prosecutions, it is within the legitimate right and proper duty of juries, to adjudicate and decide on questions of law as well as questions of fact; and that although the judge may instruct and direct them upon a question of law, and they fully comprehend and understand those directions, in their application to the facts of the case, yet that they axe invested by law with a legitimate power and authority, if their judgments do not coincide with that of the judge, to disregard it, and decide in conformity with their own views of the law. If this were a correct view of the law, it would undoubtedly follow, as a necessary consequence, that in such appeal from the court to the jury, the counsel on both sides would have a right to argue the questions of law to the jury. But if this proposition is not correct, it does not follow, we think, as a necessary consequence, that the counsel cannot address the jury upon the law, under the direction of the court. They are, in our view, separate and distinct questions, to be separately considered.
[276]*276We consider it a well settled principle and rule, lying at the foundation of jury trial, admitted and recognized ever since jury trial has been adopted as an established and settled mode of proceeding ih courts of justice, that it is the proper province and duty of judges to consider and decide all questions of law which arise, and that the responsibility of a correct decision is placed finally on them ; that it is the proper province and duty of the jury, to weigh and consider evidence, and decide all questions of fact, and that the responsibility of a correct decision is placed upon them. And the safety, efficacy and purity of jury trial depend upon the steady mainte7 nance and practical application of this principle. It would be alike a usurpation of authority and violation of duty, for a court, on a jury trial, to decide authoritatively on the questions of fact, and for the jury to decide ultimately and authoritatively upon the questions of law. And the obligations of each are of a like nature, being that of a high legal and moral obligation to the performance of an important duty, enforced and sanctioned by an oath.
This, as a general principle, is applicable alike to civil and criminal cases, though in both it must be varied in its practical application, according to the forms of proceeding and the mode in which the question arises. If the form of proceed.ing is such, that the law and the fact can be distinctly presented, then, after the fact is established, either by the pleadings or by a special verdict, the court decide the law and pronounce the judgment, without the further intervention of a jury ; as in case of a demurrer or special verdict. Indeed, the whole system of special pleading, which, though now disused in this Commonwealth by a recent statute, is intimately intenyoven with the whole texture of the common law, was founded upon an apparently anxious desire of the common law so to separate questions of fact from questions of law, as to enable courts to pronounce on matter of law, leaving contested facts only to be put in issue, and to be tried and decided by the jury.
The whole doctrine of bills of exception, now in such gen[277]*277eral and familiar use, both in civil and criminal proceedings, is founded upon the same great and leading idea. It presupposes that it is within the authority, and that it is the duty of the judge to instruct and direct the jury authoritatively, upon such questions of law as may seem to him to be material for the jury to understand and apply, in the issue to be tried; and he may also be required so to instruct upon any pertinent question of law within the issue, xxpon which either party may request him to instruct. The doctrine also assumes that the jury understand and follow such instruction in matter of law. This resxxlts from the consideration, that if such instruction be either given or refused, it is the duty of the judge to state it in a bill of exceptions, so that it may be placed on the record ; and if the verdict is against the party who took the exception, and it appears, upon a revision of the point of law, that the decision is incorrect, either in giving or refusing sxxch instruction, the verdict is set aside, as a matter of course. To this conclusion the law could come, only on the assumption that it was the right and duty of the court to instruct the jury in matter of law, that the jury understood it, and, as a matter of dixty, were bound to follow it; so that, if the instruction was wrong, the law assumes, as a necessary legal consequence, that the verdict was wrong, and sets it aside. The law could only assume this, upon the strength of the well known and reasonable presumption, that all persons, in the absence oí proof to the contrary, do that which it is their duty to do. It is presumed that the jury followed the instruction of the court in matter of law, because it was their duty so to do, and therefore, if the instruction was wrong, the verdict is wrong. But if the jury coxxld rightly exercise their own judgment, and decide contrary to the direction of the court, as they unquestionably may do, in regard to questions of fact, no such presumption would follow; it would be left entirely in doxxbt, whether the jury had been misled or influenced by the incorrect direction in matter of law, and therefore this would alone be no sufficient groxmd for setting aside the verdict. But entirely otherwise it is in regard to a matter of [278]*278fact, in respect to which it is within the proper authority, and is the duty of the jury to exercise their judgment authoritatively-and definitively. And should a judge express or intimate any opinion upon a question of fact, however incorrect it might be afterwards found to be, upon a revision by a higher court, it would not necessarily afford a ground for a new trial; for, it not being the duty of the jury to follow it, there would be no presumption that they had followed it, and therefore it would not, of itself, show conclusively that the verdict was wrong.
Arid it is to be considered that this doctrine and practice, in regard to exceptions, apply as well to criminal as to civil trials; at least so far as they can operate for the protection and security of parties accused. Indeed, so solicitous has been the legislature of this Commonwealth, that all persons put- on trial for alleged offences shall have the full benefit of the opinion and judgment of the court upon all questions of law, and a revision thereof by the court of last resort, on suitable occasions, that it has specially provided that if, upon the trial of any person who shall be convicted, any question of law shall arise, which, in the opinion of the presiding judge, shall be so important or so doubtful as to require the decision of the supreme judicial court, although such person has no counsel to defend him, or the counsel have not seen fit to take the exception, the judge may, on his own sense of propriety and duty, reserve it, and thereupon all further proceedings in that court shall be stayed. Rev. Sts. c. 138, § 12.
This leads to another view of this subject, which seems to us to be of great importance, and this is, that every citizen of the Commonwealth has a right to the benefit and protection of the law. Whilst he is liable to its penalties, he has a right to be tried by law, and he is entitled to the authoritative declaration and application of the law to his case, as his best and highest protection. It is manifestly of great importance, in order to effect such protection of the rights of parties, that the laws to which they are amenable shall be [279]*279fixed and permanent, impartially applied to all persons and cases alike, and not fluctuating and variable. This result seems to have been looked to, with great anxiety, by the framers of our constitution, in the declaration of rights. Art. 10. “ Each individual of the society has a right to be protected by it, in the enjoyment of his life, liberty and property, according to standing laws.” Art. 29. “ It is essential to the preservation of the rights of every individual, his life, liberty, property and character, that there be an impartial interpretation of the laAvs and administration of justice. It is the right of every citizen to be tried by judges as free, impartial and independent, as the lot of humanity will admit.” Art. 13. “In criminal prosecutions, the verification of facts in the vicinity where they happen is one of the greatest securities of the life, liberty and property of the citizen.” These seem to be trite, familiar truths; but the declaration of rights itself declares, Art. 18, that a frequent recurrence to them is absolutely necessary to preserve the advantages of liberty, and to maintain a free government And it requires, both of lawgivers and magistrates, an exact and constant observance of them, in the formation and execution of the laws necessary for the good administration of the CommonAvealth.
These provisions manifest an ardent desire and a wise determination, as far as the imperfection of all human things would allow, to make the law paramount and supreme over all the poAvers and influences of will or passion, of interest or prejudice, whether of the feAV or of the many; to render it stable, impartial and equal in its operation, over all who might require its protection or fall under its animadversion. But it appears to us that the principle contended for would be adverse to all these objects. If a jury has a legitimate authority to decide upon all questions of law arising in the cases before them, and that contrary to the instruction of the judge, in cases where such direction of the judge may be supposed adverse to the views of the law relied on by the accused or his counsel, they Avould have the same power to [280]*280decide any question of law, against the opinion and instruction of the judge, when such opinion is in favor of the accused, and find him guilty, where the judge should direct the jury that those facts which the evidence conduces to prove, if proved to their satisfaction, would not warrant a conviction. A case may be supposed, at least for the purpose of illustration, where a high popular excitement should arise and become general, in which large bodies of persons might come to be actuated by feelings of honest but mistaken indignation against some supposed wrong, and earnest in the pursuit of the supposed interests of philanthropy; or perhaps numbers may be influenced by more base, interested and vindictive passions. Under these circumstances, a grand jury, having, as the case supposes, a legitimate and rightful authority to decide on questions of law, contrary to the instructions and charge of the judge, might return an indictment ; a traverse jury, in their turn, might convict upon it, though the court before whom it is tried should give them such directions, in point of law, that if they understood and followed them they must acquit the accused. But the case supposes that the law may be rightfully interpreted by a jury which may shift at every trial. What then becomes of the security which every citizen is entitled to, by a steady and uniform, as well as impartial interpretation of the laws and administration of justice, by judges as free, impartial and independent as the lot of humanity will admit ? The purpose and intent of these provisions, we think, are indicated by the last article of the declaration of rights, which, after having contemplated a distribution of the powers of sovereignty into legislative, executive and judicial departments, and declared that neither should execute the powers assigned to the other, points out the ultimate object, in these em phatic words: “ to the end it may be a government of laws and not of men.”
These provisions were adopted as the fundamental laws upon which the government was to be administered , they have a manifest reference to a favorite maxim of the friends [281]*281of civil liberty, regulated by law, that high powers can be most safely intrusted to public officers, by placing them, when they are capable of distribution, in different departments, to be exercised by concurrent action, so that each shall keep within its own sphere, and the one be a check upon the other. They also regarded another favorite axiom, that facts could he best verified and tried by an impartial jury, drawn from the vicinity, who should consider and weigh the evidence, and thereupon find and declare the facts; and that a steady, uniform interpretation of the laws and administration of justice could best be secured by the establishment of permanent judicial tribunals, as an independent department of government, to whom the judicial power should be intrusted, and who should be rendered, as far as practicable, free and independent.
Whether, therefore, we consider the rules of the common law, or the constitution and law of this Commonwealth, we are of opinion that it is the proper province and duty of the court to expound and declare the law, and that it is the proper province and duty of the jury to inquire into the facts by such competent evidence as may be laid before them, according to the rules of law for the investigation of truth, which may be declared to them by the court, and find, and ultimately decide, on the facts. It may be added that it is the more necessary to adhere to this rule, in the administration of American law, because in these States the government is conducted according to written constitutions, in which the powers even of the legislature are limited and defined; and it is therefore within the province, and it is made the duty of the judicial department, on proper occasions, to decide, not only what is the true interpretation and legal effect of a legislative enactment, but also whether an act, passed with all the forms of legislation, is within the just limits of legislative power, and therefore whether it is constitutional and valid.
But though this rule of law be considered as well established, yet, as we have already said, there are various modes, [282]*282in which it must he practically applied, according to the nature of the proceedings in which it arises. Sometimes, even in criminal cases, the question of law arises upon the record, where there is no controverted fact, and where the court decide definitively, as in case of a demurrer, a motion to quash an indictment, a motion in arrest of judgment, on a bill of exceptions, and the like. But it will most frequently arise, in a trial before a jury, upon the question of guilty or not guilty. In every charge of crime, there must be a question of law and a question of fact, to wit, is there any such rule of law as that on which the indictment is founded ? Has the defendant done the acts charged in the indictment, which amount to a violation of such rule of law, and constitute the offence charged ? The decision of both of these is necessarily involved in a verdict of “ guilty ” or “ not guilty.” The former affirms that there is such a law, and that the accused has violated it; the latter affirms, either that theré is no such rule of law, or, if there is, that the accused has not done any acts which amount to a violation of it.
How then are these two questions to be decided and combined into one, if one is to be referred exclusively to the court, and the other to the jury ? The jury may, in any case, if they think fit, find a special verdict; that is, they may find and report, in the form of a verdict, all the material facts, which are proved to their satisfaction, and call upon the court to decide whether, in point of law, the accused is guilty or not guilty upon the facts thus found. But this is the privilege of the jury, which ■ they may exercise or not, and in no case are they bound to find a special verdict. Mayor, &c. v. Clark, 3 Adolph. & Ellis, 506. The question then recurs, in case the jury return a general verdict, how is the law to be decided by the court, when, as we have seen, it is to be declared by the jury, as involved in the general verdict. As both questions are involved in the verdict, the appearance on the record is that both are decided by the jury, because both are declared by them. But this is in appearance only, and can scarcely mislead those who are [283]*283acquainted with the practice of courts of justice in criminal trials, though it has sometimes led to the argument, that because they must, in a general verdict, declare the rule of law on which it rests, they have a power to pass upon it, and therefore a rightful authority to decide it. But we think the course of proceeding, in such case, is very clear, is quite consistent with the principle before stated, and is constantly practised upon in such trials. It is the only and proper course which can be adopted, in order that the law may be carried into effect, in its spirit and integrity. That course is, for the judge to direct the jury hypothetically, to declare what the law is, with its exceptions and qualifications, to explain it, and to state the reasons and grounds of it, if, in his judgment, such explanation is necessary to make it clearly intelligible to the minds of men of good judgment and common experience, but without legal knowledge and skill ; then to state to the jury, that if certain facts neces sary to constitute the offence, and which there is evidence tending to prove, are proved to their satisfaction, they are to find the defendant guilty ; but if certain material facts, which there is some evidence tending to prove, are not proved to their satisfaction, they are to find the defendant not guilty.
This is the only mode in which a trial can be conducted, since the jury are not obliged to find a special verdict, and the law confides in the intelligence and integrity of the jury, to understand the rules of law as prescribed to them by the court, to weigh and examine the evidence laid before them, and honestly, according to the conviction of their minds to find whether they are true, and whether such facts, found true by them, do or do not bring the party accused within the operation of the law, as thus prescribed to them, and to find a verdict of guilty or not guilty accordingly.
But in thus conducting a jury trial in a criminal case, with a view to the return of a general verdict, it is obvious that the whole matter of law as well as of fact must be stated and explained to the jury, so that they may fully [284]*284understand and apply it to the facts ; because, as we have seen, in the form of the general verdict, they do declare the law as well as the fact. For this purpose, it seems to be pecessary, and in our State it is the usual practice, for the parties respectively, by their counsel, to state the law to the jury, in the presence, and subject to the ultimate direction of the judge; because, unless the jury understand the rale of law, with its exceptions, limits and qualifications, they cannot know how to apply the evidence, and determine the truth of the material facts necessary to bring the case of the accused within it. In thus presenting their respective views of the law to the jury, under the direction of the court, for the better information of both the judge and jury, great latitude has been allowed in the practice of this Commonwealth, and counsel have been permitted to state and enforce their views of the law, especially in capital cases, by definitions, and cases from such works of established authority as the court may approve. In this, great latitude has been allowed, in tenderness to the accused, and a liberal confidence reposed in counsel called to defend the accused in the hour of his trial. But such an address, whether it be upon the matter of fact or the matter of law, and whether in form it be directed to the court or jury, is in legal effect and actual operation an address to both; not because they have not several duties to perform, and distinct questions to pass upon, but because it is one trial, carried on at once before court and jury, in which the judge must have a clear comprehension of the nature and scope of the evidence, conducing to the proof of facts, which may or may not render the accused amenable to the law, in order that he may give such directions in matter of law as the state of the evidence may require ; and the jury must have a clear comprehension of the rules of law, in order to determine whether the facts proved bring the accused within them; and because the minds of both judge and jury, acting in their respective departments, must result in that general verdict of acquittal 01 conviction, which is the appropriate determination of the [285]*285cause. Considering the latitude which has been allowed in this Commonwealth, by "a long course of practice, and the difficulty of drawing an exact line of distinction between that full statement and exposition of his views of the law, which counsel may properly make in a general address to the court and jury, upon the questions embraced in the issue, and involved in a general verdict, and an address to the jury separately upon questions of law, we are of opinion that a party may by his counsel address the jury upon questions of law, subject to the superintending and controlling power of the court to decide questions of law, by directions to the jury, which it is their duty to follow. In ordinary cases, such directions to the jury, upon the questions arising in the cause, are not given until the parties, by their counsel, have submitted their respective views of the law and the facts, in an argument to the court and jury.
On the whole subject, the views of the court maybe summarily expressed in the following propositions :
That in all criminal cases, it is competent for the jury, if they see fit, to decide upon all questions of fact embraced in the issue, and to refer the law arising thereon to the court, in the form of a special verdict.
But it is optional with the jury thus to return a special verdict or not, and it is within their legitimate province and power to return a general verdict, if they see fit.
In thus rendering a general verdict, the jury must necessarily pass upon the whole issue, compounded of the law and of the fact, and they may thus incidentally pass on questions of law.
In forming and returning such general verdict, it is within the legitimate authority and power of the jury to decide definitively upon all questions of fact involved in the issue, according to their judgment, upon the force and effect of the competent evidence laid before them; and if in the progress of the trial, or in the summing up and charge to the jury, the court should express or intimate any opinion upon any such question of fact, it is within the legitimate province [286]*286of the jury to revise, reconsider, and decide contrary to such O], inion, if, in their judgment, it is not correct and warranted by the evidence.
But 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 judgment 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. To this duty jurors are bound by a strong social and moral obligation, enforced by the sanction of an oath, to the same extent, and in the same manner, as they are conscientiously bound to decide all questions of fact according to the evidence.
It is no valid objection to this view of the duties of jurors, that they are not amenable to any legal prosecution for a wrong decision in any matter of law; it may arise from an honest mistake of judgment, in their apprehension of the rules and principles of law, as laid down by the court, especially in perplexed and complicated cases, or from a mistake of judgment in applying them honestly to the facts proved. The same reason applies to the decisions of juries upon questions of fact, clearly within their legitimate powers : they are not punishable for deciding wrong. The law vests in them the power to judge, and it will presume that they judge honestly, even though there may be reason to apprehend that they judge erroneously; they cannot therefore be held responsible for any such decision, unless upon evidence which dearly establishes proof of corruption, or other wilful violation of duty.
It is within the legitimate power, and is the duty of the court, to superintend the course of the tria.; to decide upon the admission and rejection of evidence j to decide upon the [287]*287use of any books, papers, documents, cases or works of supposed authority, which may be offered upon either side ; to decide upon all collateral and incidental proceedings"; and to confine parties and counsel to the matters within the issue.
As the jury have a legitimate power to return a general verdict, and in that case must pass upon the whole issue, this court are of opinion that the defendant has a right by himself or his counsel to address the jury, under the general superintendence of the court, upon all the material questions involved in the issue, and to this extent, and in this connexion, to address the jury upon such questions of law as come within the issue to be tried. Such address to the jury, upon questions of law embraced in the issue, by the defendant or his counsel, is warranted by the long practice of the courts in this Commonwealth in criminal cases, in which it is within the established authority of a jury, if they see fit, to return a general verdict, embracing the entire issue of law and fact.
As it appears by the bill of exceptions, that the defendant’s counsel were prohibited from addressing the jury upon questions of law embraced in the issue, the court are of opinion that the verdict ought to be set aside ; and the same is set aside, and a new trial granted, to be had at the bar of the court of common pleas.