by John Marshall Harlan

“ 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 question of fact. The judge, 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. ”

“ 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. ”

“ 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 have 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. ”

“ 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 trial 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. ”

“ 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 ”

“ 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. ”

“ Malice, then, is an element in the offense, and discriminates it from the other crime of felonious homicide which I have mentioned, to wit, manslaughter; that is, malice, express or implied, discriminates murder from the offense 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. ”

“ That gentlemen, in a case the most interesting, in the zeal with which they advocate particular opinions, and under the conviction in some measure produeed by that zeal, should on each side press their arguments too far, should be impatient at any deliberation in the court, and should suspect of fear the operation of motives to which alone they can ascribe that deliberation, is perhaps a frailty incident to human nature ”

“ 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. ”

“ 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. ”

“ In cases of doubt and real difficulty, it is commonly recommended to the jury to state facts and circumstances 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.' Fost. ”

“ This is an unbiased 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, Eunomus, Dialogue 3 (5th Ed. 1822) § 53, pp. ”

“ 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. ”

“ 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. ”

“ 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 instrumentalities 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. ”

“ 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 determines the law, and the jury the fact ”

“ 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 dare not usurp power is most true. That this court dare not shrink from its duty is not less true. No man is desirous of placing himself in a disagreeable situation. ”

“ No more can a man decide and infer the thing to be resolved by another's understanding or reasoning.' Id. 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, which serves as a key to the whole judgment. ”

“ 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 of fact, or of ascertaining the grounds upon which their verdicts are based.' See, also, People v. ”

“ 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 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. ”

“ 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 he is sworn to try. This issue is an issue of fact.' 2 Wilson, 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 ”