¶1Various exceptions are taken to the decisions of the judge at the trial.
¶2*51. The first is to his instruction that the jury are to be gov erned by the direction of the court in matters of law. This was right. A majority of the court, upon great deliberation, have decided, either that the jury law of 1855 did not change the law as it previously stood, but was merely declaratory; or, if it could be so construed as to change the law, and make the jury judges of the law, it was unconstitutional and void; and in either case, the direction of the judge was right. Commonwealth v. Anthes, 5 Gray, 185. Commonwealth v. Martin, 5 Gray, 303, note.
¶32. The defendant’s counsel further requested the judge to instruct the jury, that the law under which this indictment was found, if it provides for a trial contrary to the course and,usage of the common law, is unconstitutional and no verdict is to be found under it.
¶4Upon this point the court declined to give any instruction to the jury, on the ground that the instructions prayed for were upon a hypothetical case and not upon any point legitimately raised in the case during the trial, and that the proceedings were according to the course of the common law.
¶5We think this right. The case supposed was purely an abstract question, not raised by any facts, or any evidence tending to prove facts, admitted or rejected, and therefore the judge was not legally called upon to give any direction or opinion upon it.
¶6The prosecution against the defendant was for being a common seller. This law and this mode of trial have long been in use, and are according to the course of the common law.
¶7It is not necessary to consider whether other parts of the statute known as the liquor law are or are not constitutional; if part of a statute is good, it will be carried into effect, though other parts, not connected with it, are unconstitutional. Fisher v. McGirr, 1 Gray, 21. Warren v. Mayor & Aldermen of Charlestown, 2 Gray, 99.
¶8 Exceptions overruled.