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they run into the danger of an attaint; therefore to find the fpecial matter is the fafeft way, where the cafe is doubtful. This caution appears to refer to very abftrufe points of law, and is not justly applicable to the cafe of libels. But the right of the jury to determine the LAW, as well as the FACT, even in the moft difficult cafes, is not here difputed.

LORD-CHIEF-JUSTICE Vaughan obferves, that upon all general iffues, as upon not culpable, pleaded in trespass, nil debet in

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⚫ debt, nul tort, nul diffeifin in affize, ne difturba pas in quare impedit, and the like; though it be matter of law, whether the defendant be a trefpaffer, a

debtor, diffeizer, or difturber in the par⚫ticular cafes in iffue; yet the jury find

not (as in a special verdict) the fact of every cafe by itself, leaving the law to

• Įnstitutes, Part I. Lib. III. §. 368.

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the court, but find for the plaintiff, or • defendant upon the iffue to be tried, • wherein they refolve both law and fact complicately, and not the fact by itfelf; fo as though they anfwer not fingly to the question what is the law, yet they determine the law in all matters, where iffue is joined, and tried in the principal • cafe, but where the verdict is special

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SIR Matthew Hale fays, The jury may find a special verdict, or may find the defendant guilty of part, and not guilty of the reft, or may find the defendant guilty of the fact, but vary in the manner. If a man be indicted of burglary, “quòd felonicè et burglariter cepit et afportavit," the jury may find him guilty of the fingle felony, and acquit him of the burglary and the "burglariter." So if a man be indicted of

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7 Vaughan's Reports, p. 150.

'robbery

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robbery with putting the party in fear, ⚫ the jury may find him guilty of the felony, but not guilty of the robbery. The like where the indictment is "clàm et "secretè a perfonâ "."

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In an indictment for murder, suppose the prisoner killed the party, but yet in • fuch a way as makes no felony, as if he were of NON SANE memory, or if a man kills a thief, that comes to rob him, or to • commit a burglary, or if an officer in • his own defence kills one, that affaults ⚫ him in the execution of his office, which are neither felony nor forfeiture, whether is it neceffary to find the fpecial matter, or may the party be found NOT GUILTY? • I think, and fo I have known it con• ftantly practised, the party in these cases may be found NOT GUILTY, and the jury ⚫ need not find the special matter "."

• Hiftoria Placitorum Coronæ, vol. II. p. 301, 302

• Ibid. p. 303.

HALE

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INDEED, the right of the jury to deters mine the law, as well as the fact, or to bring in a general verdict, appears to be clearly ascertained by exprefs ftatute. In the ftatute of the 13th of king Edw. I. Westm. cap. 30. it is faid: All juftices of

the benches from henceforth fhall have in ⚫ their circuits clerks to enrol all pleas plead

ed before them, like as they have used to 4 ́have in time paffed. And also it is or ◄ dained, that the juftices affigned to take

affizes fhall not compel the jurors to fay precisely whether it be diffeizin, or not, fo that they do fhew the truth of the deed, and require aid of the juftices. But if * they of their own head will fay, that it is • diffeizin, their verdict fhall be admitted 4 at their own peril.' It appears from the marginal notes to the Statutes, Cay's edi tion, that this claufe is confidered as declaratory of the right of juries to bring in a general

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