all the law in the land; there was never such damnable. heresy broached in this nation before."

The Crier cried out, "Hear the Court."

"Lilburne. Do your pleasure, then here I'll die: Jury, take notice of their injustice; but seeing they will not hear me, I will appeal to you, and say, It is an easy matter for an abler man than I am, in so many interruptions as I meet with, to mistake Plowden for Littleton. I am sure, here are Coke's Commentaries upon Littleton (366) and these be his [Littleton's] words: In this case the recognitors may say and render to the justices their verdict at large upon the whole matter.' Which I am sure is good law, for as much as we see it continually done in all actions of trespass or assault, where the jury doth not only judge of the validity of the proof of the fact, but also of the law, by assigning what damages they think is just. And in section 368, Littleton hath these words: 'If the inquest [jury] will take upon them the knowledge of the law upon the matter, they may give their verdict generally.' Coke's commentary upon this is- Although the jury, if they will take upon them (as Littleton here saith), the knowledge of the law, may give a general verdict.' I am sure this is pertinent to my purpose, and now I have done, sir."1

Although Lilburne stopt his quotation from Coke's Commentary in the middle of a sentence, his statement of the law generally as then in operation appears to have been correct. The sentence in Coke's Commentary concludes thus: "Yet it is dangerous for them [the jury] so to do, for, if they do mistake the law, they run into the danger of an attaint; therefore to find the special matter " (i. e. the fact without applying the law to it) "is the safest way where the case is doubtful."2 Originally the consequences,

1 State Trials, vol. iv. pp. 1379-1381.

2 Co. Litt. 228, a.

implied in the word " attaint," of the jury's mistaking the law consisted of penalties so heavy that they must have deterred the jury in most cases from giving a verdict involving the law of the case. But the severity of the old law was mitigated by various statutes and the practice established by this time, as indicated by a case in Moore's Reports, appears to have been that the jury had a right to give a verdict involving both the law and the fact, subject however to revision and correction as to law where they had mistaken the law. But long after the right of the jury to return a verdict involving the law as well as the fact was admitted in other cases; their right to do so in the special case of libel, particularly political libel, was questioned and more than questioned by judicial authority, as will appear from the following scene that occurred in 1784, in a case of trial for libel where the Dean of St. Asaph was indicted for publishing the "Dialogue between a Gentleman and a Farmer," written by Sir William Jones-a case remarkable for the eloquent speech of Erskine which Charles James Fox repeatedly declared he thought the finest argument in the English language, and which is considered to have prepared the way for the introduction of Mr. Fox's Libel Bill.

"Mr. Erskine. Is the word only to stand as part of your verdict?

"A Juror.

"Mr. Erskine.

Certainly.

Then I insist it shall be recorded. "Mr. Justice Buller. Then the verdict must be misunderstood. Let me understand the jury.

1 Lee v. Lee, Moore, 268. "Et les justices diont que lou les jurors trove matter encounter ley, les justices ne pideront notice de ceo, mes adjudgeront comme le ley voit." "And the

justices said that, when the jurors find matter contrary to law, the justices will not take notice of that, but will give judgment according to law." See also 15 Vin. Abr. 523.

"Mr. Erskine. "Mr. Justice Buller. Sir, I will not be interrupted. "Mr. Erskine. I stand here as an advocate for a brothercitizen, and I desire that the word only may be recorded. "Mr. Justice Buller. Sit down, sir; remember your duty, or I shall be obliged to proceed in another manner. "Mr. Erskine. Your lordship may proceed in what manner you think fit. I know my duty as well as your lordship knows yours. I shall not alter my conduct.'

The jury do understand their verdict.

By the word "only," the jury meant to find, as Mr. Erskine observed, that there was no sedition. In the course of his speech Mr. Erskine cited the case of Penn and Mead, two Quakers, who in the year 1670 being indicted for seditiously preaching to a multitude tumultuously assembled in Gracechurch Street, were tried before the Recorder of London, who told the jury that they had nothing to do but to find whether the defendants had preached or not; for that whether the matter or the intention of their preaching were seditious were questions of law, and not of fact, which they were to keep to at their peril. The jury found Penn guilty of speaking to people in Gracechurch Street; and on the Recorder's telling them that they meant, no doubt, that he was speaking to a tumult of people there, he was informed by the foreman that they allowed of no such words in their finding, but adhered to their former verdict. The Recorder refused to receive it, and desired them to withdraw, on which they again retired, and brought a general verdict of acquittal, which the Court considering as a contempt, set a fine of forty marks upon each of them, and condemned them to lie in prison till it was paid. Edward Bushel, one of the jurors, refused to pay his fine, and, being imprisoned in

1 State Trials, vol. xxi. pp. 950, 951,

consequence of his refusal, sued out his writ of habeas corpus, which, with the cause of his commitment, viz. his refusing to find according to the direction of the Court in matter of law, was returned by the Sheriffs of London to the Court of Common Pleas, when Lord Chief Justice Vaughan delivered his opinion as follows:-"We must take off this veil and colour of words, which make a show of being something, but are in fact nothing. If the meaning of these words, finding against the direction of the Court in matter of law, be, that the judge, having heard the evidence given in Court (for he knows no other), shall tell the jury, upon this evidence, that the law is for the Crown, and they, under the pain of fine and imprisonment, are to find accordingly, 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 and new-found conclusion, after a trial so celebrated for many hundreds of years in this country." He then applied the doctrine with double force to criminal cases, and discharged the juror from his commitment.' However Lord Mansfield in delivering the judgment of the Court in the Dean of St. Asaph's case made some observations to the effect that from the Revolution down to that time, nearly a hundred years, the direction of every judge, as far as it could be traced, had been consonant to the doctrine of Mr. Justice Buller, viz. that the matter for the jury to decide was, whether the Defendant was guilty of the fact or not.2 It will appear however that in the case

1 Penn and Mead. vol. vi. p. 999.

State Trials,

2 In 1791 Mr. Fox brought in a bill, which was finally passed in 1792, and became the statute 32 Geo. 3, c. 60,

that on trial for libel the jury may give a general verdict upon the whole matter put in issue, and shall not be required by the Court to find a verdict merely on the matter of fact.

of Lilburne, though the presiding judge in his charge to the jury told them that they were the proper judges of the "matter of fact," and though notwithstanding this, the jury brought in a verdict of "Not Guilty of Treason," the Court took no exceptions to their verdict.

Lilburne now proceeded to make his answer to the proof of the indictment in the same order in which the several witnesses had given their evidence. The principal points on which he insisted were, that there were not two witnesses, as required by law, to any one fact sworn against him; and that his "Agreement of the People" was before the new law of treason of May and July of that year, 1649.

The circumstances attending the conclusion of Lilburne's defence are very characteristic both of the man and of the time. The Lord Commissioner Keble having interrupted him, saying "do not tell us a story, but go on to finish the matter of fact," and again "what is material, you shall not be debarred in it," Lilburne thus went on and concluded his long defence. "O Lord, sir! what strange judges are you, that you will neither allow me counsel to help me to plead, nor suffer me myself to speak for my own life! Is this your law and justice, sir? I have no more to say but this, seeing you straiten me; although you said you would hear me till midnight. I hope I have made it evident to all rational men, that all or any part of the testimony given in against me does not in the exact eye of the law in the least touch me, although I have been most unjustly imprisoned, and most barbarously used, and tyrannized over; yea, and my estates by will and power taken from me; that should have kept me and mine alive, and the legal and customary allowance of the Tower denied me to this day. And although I have used all Christian and fair