Third—­That they may also take into consideration, as bearing upon the same question, the fact that the inspectors considered the question, and came to the conclusion that she had a right to vote.

Fourth—­That the jury have a right to find a general verdict of guilty or not guilty, as they shall believe that she has or has not been guilty of the offense prescribed in the statute.

This certainly makes it clear that the question was not “a pure question of law,” and that there was “something to go to the jury.”  And this would be so, even if, as that writer erroneously supposes, Miss Anthony had openly avowed before the Court that she voted.

But even if this point be wholly laid out of the case, and it had been conceded that Miss Anthony had knowingly violated the law, if she should be proved to have voted at all, so that the only questions before the Court were, first—­whether she had voted as charged, and secondly—­whether the law forbade her voting; and if in this state of the case a hundred witnesses had been brought by the government, to testify that she had “openly avowed” in their presence that she had voted, so that practically the question of her having voted was proved beyond all possible question, still, the judge would have no right to order a verdict of guilty.  The proof that she voted would still be evidence, and mere evidence, and a judge has no power whatever to deal with evidence.  He can deal only with the law of the case, and the jury alone can deal with the facts.

But we will go further than this.  We will suppose that in New York, as in some of the States, a defendant in a criminal case is allowed to testify, and that Miss Anthony had gone upon the stand as a witness, and had stated distinctly and unequivocally that she did in fact vote as charged.  We must not forget that, if this had actually occurred, she would at the same time have stated that she voted in the full belief that she had a right to vote, and that she was advised by eminent counsel that she had such right; a state of the case which we have before referred to as presenting a vital question of fact for the jury, and which excludes the possibility of the case being legally dealt with by the judge alone; but this point we are laying out of the case in the view we are now taking of it.  We will suppose that Miss Anthony not only testified that she voted in fact, but also that she had no belief that she had any right to vote; making a case where, if the Court should hold as matter of law that she had no right to vote, there would seem to be no possible verdict for the jury to bring in but that of “guilty.”

Even in this case, which would seem to resolve 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.