Star Chamber to call juries to account for their verdicts; for it is recorded in the "Case of Conspiracy," that the Chief-Justices, Popham and Coke, and the Lord Chancellor Egerton,† decided that when a party indicted is found guilty on the trial the jury were not to be questioned; "but when a jury hath acquitted a felon or traitor against manifest evidence, there they may be charged in the Star Chamber for their partiality in finding a manifest offender not guilty, ne malefacia remanerent impunita.” The jurisdiction exercised by the Star Chamber, of calling juries to account for verdicts against the Crown, did not cease until the court itself was abolished, in 1641. During the Commonwealth we find but one instance of a jury being questioned for their verdict. This took place on the trial of John Lilburn, in 1653, for returning to England after having been banished by Act of Parliament. The jury having acquitted him were, by an order of Parliament, ordered to appear before the Council of State to answer for their conduct; they did so, and, upon being questioned, their foreman answered, “that he did discharge his conscience in what he did, and that he would give no other answer to any questions which should be asked him upon the matter;" whereupon the Council, which included many who had formerly denounced the Star Chamber for its illegal acts, did not venture to imitate its arbitrary proceedings, but dismissed the jury without imposing upon them any fine or imprisonment. After the Restoration, those judges who were creatures of the Court, acting upon the precedents set during the reign of the Tudors, began to exercise the power of fining juries for bringing in verdicts contrary to their direction. This was, doubtless, done either with the object of restoring to the Crown the authority over juries which it had lost by the abolition of the Star Chamber, or for the purpose of enlarging the powers of the judges themselves. † Lord Ellesmere. 12 Co. Rep., 23. How. Sta. Tr., Vol. V., 445. Six years after the Restoration, occurred a case which is deserving of attention, not only as illustrating the arbitrary conduct of a Chief-Justice of England, and his manifest misdirection, for not following which he imposed a fine upon the jury, but also as exhibiting the difference between the temper of the Parliaments of Charles II., and of those which had sat. before the Long Parliament of 1640. Chief-Justice Kelyng, of the King's Bench, gives the following report of his own proceedings in this case. "At Lent Circuit, at Winchester (18 Car. 2), one Henry Hood was indited for the murder of John Newen, and, upon the evidence, it appeared that he killed him without any provocation; and thereupon I directed the jury that it was murder, for the law in that case intended malice; and I told them they were judges of the matter of fact, viz., whether Newen died by the hand of Hood; but whether it was murder or manslaughter was matter of law, in which they were to observe the direction of the court. But, notwithstanding, they would find it only manslaughter, whereupon I took the verdict and fined the jury, of which John Goldwier was the foreman, £5 apiece, and committed them to gaol till they found sureties to appear at the next assizes, and, in the meantime, to be of good behaviour; but after, upon the petition of the jurors, I took down their fines to 40s. a-piece, which they all paid and entered into recognizance."* It is worthy of observation that in this case the ChiefJustice's direction, upon his own showing, was wrong, for he only left to the jury the question whether Newen died by the hand of Hood, while the circumstances of intention on the part of Hood, and of provocation on the part of the prisoner, were as much questions of fact for the jury; for although the law defines the distinction between murder and manslaughter, yet it was for the jury from the evidence to have said whether the facts constituted the greater or less offence. Attempts were even made to call grand juries to account * Kelyng, 50. for their conduct in the finding of bills of indictment, and it appears that such proceedings did not meet with the disapproval of the superior courts of law, for Kelyng having bound over the grand jury of Somersetshire to appear before the Court of King's Bench for having found a bill for manslaughter instead of murder, the jury was discharged by that court, only because it appeared to the judges," that it was a mistake in their judgments rather than an obstinacy.' » Proceedings such as these, which before the civil war would have excited no attention in Parliament, now attracted the notice of the legislature. The conduct of Kelyng having been brought under the notice of the House of Commons, strong resolutions were passed against him, his proceedings were deemed unconstitutional, and it was at first contemplated to proceed against him by impeachment; but the Chief-Justice having extenuated his conduct at the bar of the House, the Commons were satisfied by resolving, "That the precedents and practice of fining or imprisoning jurors for verdicts are illegal.” † Although the Court of King's Bench seems not to have disapproved of the practices of its chief, yet it is gratifying to find that, even in the reign of Charles II., notorious for the subserviency of the judges to the Crown, most of them condemned Kelyng's proceedings, for in two cases in which the fine imposed by that judge had been estreated into the Exchequer, Hale, the Chief-Baron, informs us that he, with the advice of most of the judges, stayed process, ‡ and subsequently, in Wagstaff's case, § it was resolved by all the judges of England, except one, that it was against law to fine a jury for giving a verdict contrary to the court's direction. A jury, of which Wagstaff was one, were fined 100 marks each by Kelyng, for refusing to find certain defendants guilty of keeping a conventicle, under the Act of 16 Charles II. The jury having also been committed till they paid their fines, Harg. MSS., v. 339. † Commons' Journal, 16th Oct., 1667, Hal. Con. Hist. Vol. III., p. 8. § Hardress's Rep., 4,091. Pleas of the Crown, 310. brought their habeas corpus, and were, after the matter had been solemnly argued before the judges, discharged of their imprisonment.* The observations of Sir Matthew Hale upon this case being very pertinent to the distinctive functions of the judges and the jury, and pointing out forcibly the mischief resulting from Kelyng's unconstitutional practices, deserve attentive consideration. "It was agreed by all the judges of England," says Hale (one only dissenting), "that this fine was not legally set upon the jury, for they are the judges of matters of fact, and although it was inserted in the fine, that it was 'contra plenam evidentiam, et contra directionem curiæ in materiâ legis,' this mended not the matter, for it was impossible any matter of law could come in question, till the matter of fact were settled, and stated, and agreed by the jury, and of such matter they were the only competent judges. And although the witnesses might perchance swear the fact to the satisfaction of the court, yet the jury are judges as well of the credibility of the witnesses, as of the truth of the fact, for possibly they might know somewhat of their own knowledge, that what was sworn was untrue, and possibly they might know the witnesses to be such as they could not believe, and it is the conscience of the jury that must pronounce the prisoner guilty or not guilty. And, to say the truth, it were the most unhappy case that could be to the judge, if he at his peril must take upon him the guilt or innocence of the prisoner; and if the judge's opinion must rule the matter of fact, the trial by jury would be useless." † Hale, while abstaining from declaring legal the practice of the Court of King's Bench to fine juries, yet seems to admit that the court possessed such power, founding his opinion solely upon there being precedents warranting this practice. He states that the same course prevailed in the Court of Exchequer, in cases of inquests of office, when jurors did not find title in the king. It is to be remarked that Chief-Justice. * Pleas of the Crown, 312. † Pleas of the Crown, 312. Kelyng's proceedings were an attempt to extend the practice of the King's Bench to Courts of Assize, of Oyer and Terminer, and to inferior courts; thereby assuming as a judge the exercise of powers which had never been ventured upon by any of his predecessors before the Restoration. Hale denies that inferior court ever possessed the power to punish a jury for what it deemed a perverse verdict, and strongly reprobates the attempt then made to bring this practice of the King's Bench into use by the judges at Nisi Prius and gaol delivery. any Notwithstanding the resolution of the House. of Commons, condemning the illegal acts of the judges, and the solemn judgment of Westminster Hall in Wagstaff's case, the practice did not entirely fall into desuetude. Recorders and judges of inferior courts seemed desirous of adopting a practice which had been declared illegal by the superior courts, and it was not till after the celebrated case of Bushell* had occurred, that juries acquired in fact—what they had been entitled to in law-the right to go unquestioned for their verdict. The case of Bushell arose out of the trial of two Quakers, Penn and Mead, who were indicted in 1670 before the Mayor and Recorder of the City of London, at the Old Bailey, for holding an unlawful assembly.† The jury, of which Bushell was the foreman, returned for their verdict against Penn "Guilty of speaking in Gracechurch Street; " Mead they acquitted. The Mayor and Recorder having in vain attempted to induce the jury to alter their verdict, refused to receive it, and adjourned the case to the next morning, when they returned the same verdict. They were again sent back with a fresh charge, and on the third day, after having been locked up for two nights and deprived of sustenance for forty hours, they returned a verdict of not guilty in the case of each of the prisoners; whereupon the court imposed a fine of forty marks on each of the jury, with imprisonment until it was paid.‡ Bushell, the foreman, being Vaughan's Reports, p. 135. † How. Sta. Tr., Vol. VI., 967. |