There is one paragraph in this 1839 case which is key in the support of my position that the original standard for what a criminal jury trial was included arguing issues of law in the presence of the jury:
It is admitted by all who have advocated the right of the jury to decide the law in criminal cases, that that right extends only to the finding of a general verdict upon the general issue. When the issue is on some collateral point, it involves no question of law, but is confined exclusively to facts. When the verdict was upon such a collateral issue, there was no attaint. That process lay only in cases where the jury undertook to decide the law by a general verdict on the general issue. Whenever, by the pleadings, the law was separated from the fact, so that each could be seen and considered by itself, no [**15] pretence that the jury had a right to decide the pure unmixed question of law, has ever been set up by the wildest advocate of the rights of juries. In the trial of the impeachment of Judge Chase, Mr. Randolph, one of the managers of the prosecution, in speaking of this right of juries to decide the law, calls it "their undeniable right of deciding upon the law as well as the fact necessarily involved in a general verdict." He said, also, "There is, in my mind, a material difference between a naked definition of law, the application of which is left to the jury, and the application, by the court, of such definition to the particular case upon which the jury are called upon to find a general verdict. Surely, there is a wide and evident distinction between an abstract opinion upon a point of law, and an opinion applied to the facts admitted by the party accused, or proven against him." Speaking of the prior decisions of the same points of law in some former cases by other judges, Mr. Randolph said, "They exercised the acknowledged privilege of the bench in giving an opinion to the jury on the question of law after it had been fully argued by counsel on both sides." Again, he said, [**16] "I do not deny the right of the court to explain their sense of the law to the jury, after counsel have been heard, but I do deny that the jury are bound by such exposition." Mr. Early, another of the managers of that impeachment, said, "It is no part of my intention to deny the right of judges to expound the law in charging juries; but it may be safely affirmed that such right is the most delicate they possess, and the exercise of which is to be guarded by the utmost caution and humanity." Mr. Edward Tilghman, who was examined as a witness in the trial of that impeachment, testified, that in Pennsylvania, the judges, "in their charge to the jury, state the law and the evidence, and apply the law [*1328] to the evidence. The court generally hear the counsel at large on the law; and they are permitted to address the jury on the law and the fact; after which the counsel for the state concludes. The court then states the evidence to the jury, and their opinion of the law, but leaves the decision of both law and fact to the jury." In Croswell's Case, 3 Johns. Cas. 346, the counsel for the defendant admitted it "to be the duty of the court to direct the jury as to the law; and it [**17] is advisable for the jury, in most cases, to receive the law from the court, and in all cases they ought to pay respectful attention to the opinion of the court; but it is also their duty to exercise their judgments upon the law as well as the fact; and if they have a clear conviction that the law is different from what it is stated to be by the court, the jury are bound, in such cases, by the superior obligations of conscience, to follow their own convictions." The same counsel said further, that "in civil cases, the power of the court to decide the law, is absolute and conclusive, and may be rightfully so exerted. That in criminal cases, the law and the fact being always blended, the jury, for reasons of a political and peculiar nature, for the security of life and liberty, are intrusted with the power of deciding both law and fact." Judge Chase, in his answer to one of the articles of impeachment, says, "He well knows that it is the right of juries in criminal cases, to give a general verdict of acquittal, which cannot be set aside on account of its being contrary to law; and that hence results the power of juries to decide on the law as well as on the facts in criminal cases." [**18] "But he also knows, that in the exercise of this power, it is the duty of the jury to govern themselves by the laws of the land, over which they have no dispensing power; and their right to expect and receiver from the court all the assistance which it can give for rightly understanding the law. To withhold this assistance in any manner whatever; to forbear to give it in that way which may be most effectual for preserving the jury from error and mistake; would be an abandonment, or a forgetfulness of duty, which no judge could justify to his conscience, or the laws." And in the opinion which the court had prepared in the Case of John Fries [Case No. 5,126], they said: "It is the duty of the court, in all criminal cases, to state to the jury their opinion of the law arising on the facts; but the jury are to decide in this, and in all criminal cases, both the law and the facts, on their consideration of the whole case."
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Now the above is not a holding, in that it was not the basis on which the case was decided (in favor of Stettinius, on the grounds the statute did not apply to the facts in the case). However. it does contain undisputed assertions that can be reasonably treated as declaratory of the law, and such dictum cited as such, just as the dictum in Marbury v. Madison
An earlier case, United States v. Fenwick, 25 F. Cas. 1062 (1836); 4 Cranch C.C. 675, makes a similar point, that the defense in a criminal trial has the right to argue the law to the jury (along with the bench and rest of the court), up to the point where the bench rules on the motion, and that such ruling is not to be made until all parties have concluded their arguments.
Sparf v. Hansen, 156 U.S. 51, 64 (1895), http://www.constitution.org/ussc/156-051jr.htm , did not overturn Stettinius. It only briefly mentions the case and does not contradict it:
These principles were applied by Judge Shipman in United States v. Riley, 5 Blatchf. 204, 27 F. Cas. 810, and by Judge Cranch, upon an extended review of the authorities, in Stettinius v. United States, 5 Cranch C.C. 573, 22 F. Cas. 1322. They were also applied by Judge Jackson, in the District of West Virginia, in United States v. Keller, 19 F. 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.
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Shepardizing the case finds no other cases which could be construed as overturning Stettinius, so it may still be cited in court.
The URL for Stettinius is http://www.constitution.org/usfc/fc/22/Stettinius_v_US.htm and for Fenwick is http://www.constitution.org/usfc/fc/25/US_v_Fenwick.htm .
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