man should think a difference might arise thence.

The reason of discharging the prisoners upon those returns, was the generality of them being for contempts to the court, but no particular of the contempt exprest, whereby the King's Bench could judge, whether it were a cause for commitment or not.

And was it not as supposeable, and as much to be credited, that the lord keeper and court of Chancery, did well understand what was a contempt deserving commitment, as it is now to be credited, that the court of sessions did understand perfectly what was full and manifest evidence against the persons indicted at the sessions, and therefore it needed not to be revealed to us upon the return?

Hence it is apparent, that the commitment and return pursuing it, being in itself too general and uncertain, we ought not implicitly to think the commitment was re vera, for cause particular and sufficient enough, because it was the act of the court of sessions.

And as to the other part, that the court of sessions in London is not to be resembled to other inferior courts of oyer and terminer, because all the judges are commissioned here (which is true) but few are there, at the same time, and as I have heard, when this trial was, none of them were present. How ever persons of great quality are in the commissions of oyer and terminer, through the shires of the kingdom, and always some of the judges; nor doth one commission of oyer and terminer differ in its essence, nature, and power from another, if they be general commissions; but all differ in the accidents of the commissioners, which makes no alteration in their actings in the eye of law.

juraverit quam res in veritate se habuerit 'secus enim propter factum quamvis falsum ;' Fleta, 1. 5, c. 22, f. 336, n. 9. and lest any should think that these passages are to be understood only of jury-mens perjuries in foro conscientiæ, it is clearly otherwise by both those books, which shew how, by the discreet examination of the judge, the error of the jury not wilful, may be prevented and corrected, and their Verdict rectified.

And in another place of Bracton, in the same chapter: Judex enim sive Justiciarius ad quem pertinet examinatio, si minus diligen'ter examinaverit, occasionem prebet perjurii 'Juratoribus.' And after, Et si examinat 'cum justo deducantur errore dictum suum ' emendaverint, hoc bene facere possunt, ante judicium et impune, sed post judicium non sine pœnâ.' Bract. 1. 4. f. 289. a.

After these Authorities,

I would know whether any thing be more common, than for two men students, barristers, or judges, to deduce contrary and opposite conclusions out of the same case in law? And is there any difference that two men should infer distinct conclusions from the same testimony? Is any thing more known than that the same author, and place in that author, is forcibly urged to maintain contrary conclusions, and the decision hard, which is in the right? Is any thing more frequent in the controversies of re ligion, than to press the same text for opposite tenets? how then comes it to pass that two persons may not apprehend with reason and honesty, what a witness, or many, say, to prove in the understanding of one plainly one thing, but in the apprehension of the other, clearly the contrary thing? Must therefore one of these merit fine and imprisonment, because he doth that which he cannot otherwise do, preserving his oath and integrity? And this often is the case of the judge and jury.

A passage in Bracton is remarkable to this purpose concerning attainting inquests. Committit Jurator per jurium propter falsum Sacramentum, ut ex certa scientia aliter juraverit quam res veritate se habuerit, si autem ⚫ Sacramentum fatuum fuerit licet falsum, tamen non committit perjurium licet re vera ⚫ res aliter se habeat quam juraverat, et quia jurat secundum conscientiam eo quod non vadit contra mentem. Sunt quidam qui verum ⚫ dicunt'. mentiendo, sed se perjerant quia ⚫ contra menten vadunt.' Bracton, 1. 4, c. 4, f. 288, b.

The same words, and upon the same occaion, are in effect in Fleta. 'Committit enim jurator perjurium quandoque propter falsum < Sacramentum, ut si ex certa scientia aliter

and Mead, against full and manifest evidence, first and next, without saying that they did know and believe that Evidence to be full and manifest against the indicted persons, is no cause of fine or imprisonment.*

And by the way I must here note, That the Verdict of a Jury, and Evidence of a Witness are very different things, in the truth and falshood of them: A witness swears but to what he hath heard or seen, generally or more largely, to what bath fallen under his senses. But a jury-man swears to what he can infer and conclude from the testimony of such witnesses, by the act and force of his understanding, to be the fact inquired after, which differs nothing in the reason, though much in the punishment, from what a judge, out of various cases considered by him, infers to be the law in the question before him. Therefore Bracton, Es

* Of this mind were 10 judges of 11, the Chief Baron Turnor gave no opinion, because not at the arguments.

licet narratio facti contraria sit sacramento, et dicto præcedenti, tamen falsum non faciunt Sacramentum licet faciunt fatuum Judicium, quia loquuntur secundum conscientiam quia falli possunt in Judiciis suis, sicut ipse Justi'tiarius.' Bract. f. 289. a.

There is one objection which hath been made by none, as I remember, to justify this general Return, I would give answer to.

A man committed for treason or felony, and bringing a Habeas Corpus, hath returned upon it, That he was committed for High Treason or Felony; and this is a sufficient return to remand him, though in truth this is a general return: for if the specifical fact for which the party was committed, were expressed in the Warrant, it might then perhaps appear to be no treason or felony, but a trespass, as in the Case of the earl of Northumberland, 5 H. 4. questioned for Treason in raising power. The Lords adjudged it a trespass; for the powers raised were not against the king, but some subjects.

Why then by like reason may not this return be sufficient, though the fact for which the prisoners stood committed particularly expressed, might be no cause of commitment?

The cases are not alike; for upon a general commitment for treason or felony, the prisoner (the cause appearing) may press for his trial, which ought not to be denied or delayed, and upon his indictment and trial, the particular cause of his imprisonment must appear, which proving no treason or felony, the prisoner shall have the benefit of it. But in this case, though the evidence given were no full nor manifest evidence against the persons indicted, but such as the jury upon it ought to have acquitted those indicted, the prisoner shall never have any benefit of it, but must continue in prison, when remanded, until he hath paid the fine unjustly imposed on him, which was the whole end of his imprisonment.

is for the plaintiff, or for the defendant, and you are under the pain of fine and imprison. ment to find accordingly, then the jury ough of duty so to do; Every man sees that the jury is but a troublesome delay, great charge, and of no use in determining right and wrong, and therefore the trials by them may be better abolished than continued: which were a strange new-found conclusion, after a trial so celebrated for many hundreds of years.

For if the judge, from the evidence, shall by his own judgment first resolve upon any tra what the fact is, and so knowing the fact, shal then resolve what the law is, and order the jury penally to find accordingly, what either necessary or convenient use can be fancied of juries, or to continue trials by them at all?

But if the jury be not obliged in all trials to follow such directions, if given, but only in some sort of trials (as for instance, in trials for criminal matters upon indictments or appeals why then the consequence will be, though not in all, yet in criminal trials, the jury (as of no material use) ought to be either omitted or abolished, which were the greater mischief to the people, than to abolish them in civil trials.

And how the jury should, in any other manner, according to the course of trials used, find against the direction of the court in matter of law, is really not conceptible.

True it is, if it fall out upon some special trial, that the jury being ready to give their Verdict, and before it is given, the judge shall ask, whether they find such a particular thing propounded by him? or whether they find the matter of fact to be as such a witness, or wit nesses have deposed? and the jury answer, they find the matter of fact to be so; if then the judge shall declare, The matter of fact being by you so found to be, the law is for the plaintiff, and you are to find accordingly for him.

1. The words, That the jury did acquit, against the direction of the court, in matter of law, literally taken, and de plano, are insignificant and not intelligible, for no issue can be joined of matter in law, no jury can be charged with the trial of matter in law barely, no evidence ever was, or can be given to a jury of what is law, or not; nor no such oath can be given to, or taken by, a jury, to try matter in law; nor no attaint can lye for such a false

oath.

Therefore we must take off this vail and colour of words, which make a shew of being something, and in truth are nothing.

If the meaning of these words, finding against the direction of the court in matter of law, be, That if the judge having heard the evidence given in court (for he knows no other) shall tell the jury, upon this evidence, The law

that case the jury first declare the fact, as it is found by themselves, to which fact the judge declares how the law is consequent.

And this is ordinary, when the jury find unexpectedly for the plaintiff or defendant, the judge will ask, how do you find such a fact in particular? and upon their answer he will say, then it is for the defendant though they found for the plaintiff, or è contrario, and thereupon they rectify their verdict.

And in these cases the jury, and not the judge, resolve and find what the fact is.

Wherefore always in discreet and lawful as sistance of the jury, the judge his direction is hypothetical, and upon supposition, and not positive, and upon coercion, viz. If you find the fact thus (leaving it to them what to find) then you are to find for the plaintiff; but if you find the fact thus, then it is for the defendant.

But in the case propounded by me, where it is possible in that special manner, the jury may find against the direction of the court in matter of law, it will not follow they are therefore

finable; for if an attaint will lie upon the verdict so given by them, they ought not to be fined and imprisoned by the judge for that verdict; for all the judges have agreed upon a full conference at Serjeants-Inn, in this case. And it was formerly so agreed by the then judges in a case where justice Hyde had fined a jury at Oxford, for finding against their evidence in a civil cause. That a jury is not finable for going against their evidence, where an attaint lies; for if an attaint be brought upon that verdict, it may be affirmed and found upon the attaint a true verdict, and the same verdict cannot be a false verdict, and therefore the jury fined for it as such by the judge, and yet uo false verdict, because affirmed upon the attaint.

Another reason that the jury may not be fined in such case, is, because until a jury have consuminated their verdict, which is not done until they find for the plaintiff or defendant, and that also be entered of Record; they have time still of deliberation, and whatsoever they have answered the judge upon an interlocutory question or discourse, they may lawfully have from it if they find cause, and are not thereby concluded.

that

Whence it follows upon this last reason, upon trials wherein no attaint lies, as well as upon such where it doth, no case can be invented; wherein it can be maintained that a jury can find, in matter of law, nakedly against the direction of the judge.

And the judges were (as before) all of opinion that the return in this latter part of it, is also insufficient, as in the former, and so wholly insufficient.

But that this question may not hereafter revive if possible, it is evident by several resolutions of all the judges, that where an attaint lies, the judge cannot fine the jury for going against their evidence or direction of the court, without other misdemeanour.

For in such case, finding against, or following the direction of the court barely, will not barr an attaint, but in some case the judge being demanded by, and declaring to, the jury what is the law. Though he declares it erroneously, and they find accordingly, this may excuse the jury from the forfeitures; for though their verdict be false, yet it is not corrupt, but the judgment is to be reversed howover upon the attaint; for a man loseth not his right by the judge's mistake in the law. Ingeralls C. Cr. 35 El. f. 309, n. 18.

Therefore if an attaint lies for a false verdict upon indictment not capital (as this is) either by the common or statute law, by those resolutions the court would not fine the jury in this case for going against evidence, because an attaint lay. But admitting an attaint did not lie (as I think the law clear it did not) for there is no case in all the law of such an attaint, nor opinion, but that of Thirnings 10 II. 4. Attaint 60. and 64, for which there is no warrant in law, though there be other specious authority against it, touched by none that argued this case. The question then will be, Whether before

VOL. VI.

the several acts of parliament, which granted attaints, and are enumerated in their order in the Register, [f. 122. a.] the judge by the common law, in all cases, might have fined the jury, going against their evidence and direction of the court, where no attaint did lie, or could so do, yet if the statutes which gave the attaints were repealed.

If he could not in civil causes before attaints granted in them, he could not in criminal causes upon indictment (wherein I have admitted attaint lies not) for the fault in both was the same, viz. finding against evidence and direction of the court, and by the common law; the reason being the same in both, the law is the same.

That the court could not fine a jury at the common law, where attaint did not lie (for where it did, is agreed he could not) I think to be the clearest position that ever I considered, either for authority or reason of law.

After attaints were granted by statutes generally; as by Westminster the first c. 38. in pleas real, and by 34 E. 3. c. 7. in pleas personal, and where they did lie at common law (which was only in writs of assise) the examples are frequent in our books of punishing jurors by attaint.

But no case can be offered, either before attaints granted in general, or after, that ever a jury was punished by fine and imprisonment by the judge, for not finding according to their evidence, and his direction, until Popham's time, nor is there clear proof that he ever fined them for that reason, separated from other misdemeanor. If juries might be fined in such case before attaints granted, why not since; for no statute hath taken that power from the judge. But since attaints granted, the judges resolved they cannot find where the attaint lies, therefore they could not fine before. Sure this latter age did not first discover that the verdicts of juries were many times not according to the judge's opinion and liking.

But the reasons are, I conceive, most clear, that the judge could not, nor can fine and imprison the jury in such cases.

Without a fact agreed, it is as impossible for a judge, or any other, to know the law relating to that fact or direct concerning it, as to know an accident that hath no subject.

Hence it follows, that the judge can never direct what the law is in any matter controverted, without first knowing the fact; and then it follows, that without his previous knowledge of the fact, the jury cannot go against his direction in law, for he could not direct.

But the judge, quá judge, cannot know the fact possibly but from the evidence which the jury have, but (as will appear) he can never know what evidence the jury have, and consequently he cannot know the matter of fact, nor punish the jury for going against their evidence, when he cannot know what their evidence is.

3 T

It is true, if the jury were to have no other | evidence for the fact, but what is deposed in court, the judge might know their evidence, and the fact from it, equally as they, and so direct what the law were in the case, though even then the judge and jury might honestly differ in the result from the evidence, as well as two judges may, which often happens. But the evidence which the jury have of the fact is much other than that: for,

1. Being returned of the vicinage, whence the cause of action ariseth, the law supposeth them thence to have sufficient knowledge to try the matter in issue (and so they must) though no evidence were given on either side in court, but to this evidence the judge is a stranger.

2. They may have evidence from their own personal knowledge, by which they may be assured, and sometimes are, that what is deposed in court, is absolutely false but to this the judge is a stranger, and he knows no more of the fact than he hath learned in court, and perhaps by false depositions, and consequently knows nothing.

3. The jury may know the witnesses to be stigmatized and infamous, which may be unknown to the parties, and consequently to the

court.

4. In many cases the jury are to have view necessarily, in many, by consent, for their better information; to this evidence likewise the judge is a stranger.

5. If they do follow his direction, they may be attainted and the judgment reversed for doing that, which if they had not done, they should have been fined and imprisoned by the judge, which is unreasonable.

6. If they do not follow his direction, and be therefore fined, yet they may be attainted, and so doubly punished by distinct judicatures for the same offence, which the common law admits not.

A fine reversed in Banco Regis for infancy,* per inspectionem et per testimonium del. 4. fide dignorum. After upon examination of divers witnesses in chancery, the supposed infant was proved to be of age, tempore finis 'levati,' which testimonies were exemplified, and given in evidence after in Communi Banco in a writ of entry in the quibus there brought. And though it was the opinion of the court, that those testimonies were of no force against the judgment inthe King's-Bench, yet the jury found, with the testimony in chancery, against direction of the court, upon a point in law, and their verdict after affirmed in an attaint brought, and after a writ of right was brought, and battle joined.t

7. To what end is the jury to be returned out of the vicinage, whence the cause of action

ariseth? To what end must hundredors be of the jury, whom the law supposeth to have nearer knowledge of the fact than those of the vicinage in general: To what end are they challenged so serupulously to array and pole? To what end must they have such a certain free-hold, and be probi et legales homines,' and not of affinity with the parties concerned? To what end must they have in many cases the view, for their exacter information chiefly? To what end must they undergo the heavy punishment of the villanous judgment, if after all this they implicitly must give a verdict hy the dictates and authority of another man, under pain of fines and imprisonment, when sworn to do it according to the best of their own knowledge?

A man cannot see by anothers eye, nor hear by anothers ear, no more can a man conclude or infer the thing to be resolved by anothers understanding or reasoning; and though the verdict be right the jury give, yet they being not assured it is so from their own understanding, are forsworn, at least in foro conscientia.

9. It is absurd a jury should be fined by the judge for going against their evidence, when he who fineth knows not what it is, as where a jury find without evidence, in court of either side, so if the jury find, upon their own knowledge, as the course is if the defendant plead solvit ad diem, to a bond proved, and offers no proof. The jury is directed to find for the plaintiff, unless they know payment was made of their own knowledge, according to the plea. [14 H. 7. f. 29 per Vavasor in Camer. Scacc. without contradiction Hob. f. 227.]

And it is as absurd to fine a jury for finding against their evidence, when the judge knows but part of it; for the better and greater part of the evidence may be wholly unknown to him, and this may happen in most cases, and often both, as in Graves and Short's case. [40 El. Cro. f. 616.]

Error of a Judgment in the Common Bench, the error assigned was, The issue being, whe ther a feoffment were made? and the Jurors being gone together to confer of their verdict, one of them shewed to the rest an Escrow pro

petentibus,' not given in evidence by the parties per quod, they found for the demandant, upon demurrer adjudged no error; for it appears not to be given him by any of the parties, or any for them, it must be intended he had it as a piece of evidence about him before, and shewed it to inform himself and his fellows, and as he might declare it as a witness, that he knew it to be true.* They resolved, if that

Chevin and Paramour's Case, 3 El. Dyer. 201. a. n. 63.

the rest of the jury, but should state to the court that he had such knowledge, and thereupon

be examined, and subjected to cross examination, as a witness. See too what Chief Justice North says as to sir John Cutler in Reading's Case, A. D. 1679, infra. See also Burn's Justice, “ Of the Demeanour of Jurors in giving their Verdicts." In the trial of an Impeachment, a peer, who is one of the judges, may be examined as a witness. Lord Stafford's Case, A. D. 1680, infra. Upon the Trial of the Earls of Essex and Southampton (ante, vol. 1, p. 1333) the Lord Keeper Egerton, the Earl of Worcester, (one of the Lords Tryers) and the Lord Chief Justice Popham gave evidence x upon their honours' against the prisoners. Upon the trial of Hacker, one of the regicides, Secretary Morrice and Annesley President of the Council, who were both Commissioners for trial of the Prisoners, and as such sat on the bench, came off from the bench and being sworn gave evidence on the part of the Crown, but did not go up to the bench upon that man's trial, ante, vol. 5, p. 1181, and note. Oates in his trial for perjury, May 8th, 1685, infra, proposed that the Chief Justice (Jefferies) who tried him should be sworn to give an account of what had passed at a former trial, to which Jefferies answered, No, there will be no need of that: I will acknowledge any thing I said then.' [For more matter relating to these points, see sir John Hawles's Observation on Lord Shaftesbury's Grand Jury, A. D. 1681, and on Cornish's trial for treason, A. D. 1685; also the speech in the House of Commons of the same sir John Hawles when Solicitor General upon the Bill of Attainder against sir John Fenwick, A. D. 1696, post.]

Mr. Barrington observes on the statute of York (19 Ed. 2.) that the witnesses to a deed seem to have been antiently a necessary part of the Jury, which was to try the validity of such an instrument.

* "The most usual trial of matters of fact," says Lord Coke, (First Inst. 155, b.) "is by twelve such men (liberi et legales homines') for ad quæstionem facti non respondent judices; and matters in law the judges ought to decide and discuss, for ad quæstionem juris non respondent juratores.""

Upon which passage his learned commentator, Mr. Hargrave, has given the following Note:

"This decantatum, as Lord Chief Justice Vaughan calls it on account of its frequency in the books, about the respective provinces of judge and jury, hath, since lord Coke's time, become the subject of very heated controversy,

Therefore the parties agree the fact by their pleading upon Demurrer, and ask the Judgment of the Court for the law.

In special verdicts the Jury inform the naked fact, and the Court deliver the law; and so is it in Demurrers upon evidence, in arrest of judgments upon challenges, and often upon the judge's opinion of the evidence given in Court, the plaintiff becomes nonsuit, when if the matter had been left to the Jury, they might well have found for the plaintiff.

But upon all general issues; as upon not culpable pleaded in trespass, nil debet' in debt, nul tort, nul disseisin' in assize, ne disturba 'pas' in quare impedit,' and the like; though especially on prosecutions for state libels; some aiming to render juries wholly dependent on the judge for matters of law, and others contending for nearly a compleat and unqualified independence. On the trial of John Lilburne for treason in 1619, high words passed between the Court and him, in consequence of his stating to the jury that they were judges both of law and fact, aud citing passages in the Coke upon Littleton to prove it. 2 State Tr. 4th ed. 69 and post. 228, a. In the case of Penn and Meade, who in 1670 were indicted for unlawfully assembling the people and preaching to them, the jury gave a verdict against the directions of the Court in point of law, and for this were committed to prison. But the commitment was questioned; and on a Habeas Corpus brought in the court of Common Pleas, it was declared illegal; Lord Chief Justice Vaughan distinguishing himself on the occasion by a most profound argument in favour of the rights of a jury. Bushell's case 1 Freem. 1, and Vaughan 135. However the contest did not cease, as appears by sir John Hawles's famous Dialogue between a Barrister and a Juryman, which was published in 1680 to assert the claims of the latter against the then current doctrine decrying their authority. Since the Revolution also many cases have occurred, in which there has been much debate on the like topic. See King v. Poole in Cas. B. R. temp. Hardwicke 23. Franklin's case in the St. Tr. Peter Zenger's ibid. Owen's case in the St. Tr. and Woodfall's case 5 Burr. 261. By attending to the cases before referred to, i will be easy to trace the progress of this controversy on the limits of the jury's province.

"In respect to my own ideas on this subject, they are at present to this effect:

"On the one hand, as the jury may, as often as they think fit, find a general verdict, I therefore think it unquestionable, that they so far may decide upon the law as well as fact, such a verdict necessarily involving both. In this I have the authority of Littleton himself, who hereafter writes, That if the inquest will take upon them the knowledge of the law upon the matter, they may give their verdict generally. Post. sect. 368 and fol. 228.

"But on the other hand I think it seems clear, that questions of law generally and more