2. To declare what constitutes the crime. Then the jury are only to determine whether the prisoner did the deed which the judge says constitutes the crime. He, exclusively, is to decide what is the law, and what deed constitutes the crime; they only to decide if the prisoner did the deed. For example, to take a case which has not happened yet, to my knowledge: John Doe is accused of having eaten a Medford cracker; and thereupon, by direction of the Government, has been indicted by a grand jury for the capital offence of treason, and is brought before a traverse jury for trial. The judge tells the jury, 1. That eating a Medford cracker constitutes the crime of treason. 2. That there is a law denouncing death on that crime. Then the jury are to hearken to the evidence, and if it is proved to their satisfaction that John Doe ate the Medford cracker, they are to return a verdict of guilty. They are only to judge of the matter of fact, and take the law on the judge's authority. II. According to the theory of the People, in order to render their verdict, the jury are to determine three things: 1. Did the man do the deed alleged? 2. If so, Is there a legal and constitutional statute denouncing punishment upon the crime? Here the question is twofold: (_a_) as to the deed which constitutes the crime, and (_b_) as to the statute which denounces the crime. 3. If all this is settled affirmatively, then, Shall this man suffer the punishment thus legally and constitutionally denounced? For example: John Doe is accused of having eaten a Medford cracker, is indicted for treason, and brought to trial; the judge charges as above. Then the jury are to determine: 1. Did John Doe eat the Medford cracker in the manner alleged? 2. If so: (_a_) Does that deed constitute the crime of treason? and (_b_) Is there a legal and constitutional statute denouncing the punishment of death on that crime? 3. If so likewise, Shall John Doe suffer the punishment of death? The first question, as to the fact, they are to settle by the evidence presented in open court, according to the usual forms, and before the face of the prisoner; the testimony of each witness forms one element of that evidence. The jury alone are to determine whether the testimony of the witnesses proves the fact. The second question, (_a_) as to the deed which constitutes the crime, and (_b_) as to the law which denounces the crime, they are to settle by evidence; the testimony of the Judge, of the States' Attorney, of the Prisoner's counsel, each forms an element of that evidence. The jury alone are to determine whether that testimony proves that the deed constitutes the crime, and that there is a law denouncing death against it; and the jury are to remember that the judge and the attorney who are the creatures of the Government, and often paid to serve its passions, may be, and often have been, quite as partial, quite as unjust, as the prisoner's counsel.