ment, but must bring a writ of error in Parliament in the King's name, and under the King's seal to authorise the party's complaint, and the jurisdiction of the Lords, and of the Court. . . . This is not a formality only, but the ill inferences and consequences drawn from the neglect of it go farther than at first sight appears, viz. that the subject, on original petition to him, should have jurisdiction over the estate and person of his fellow-subject. . . . Now the question in the writ of error before the Lords is this regularly, viz. admitting all facts to be as they are alleged, whether the Law be as is adjudged in the inferior Courts, or that the proceedings have been otherwise than by Law they ought to have been. . . . It is considerable to the Lords themselves, whether this jurisdiction be not as disadvantageous to themselves as to the Commoners; let them consider whether it be not most for the interest and safety of their estates for them to be tried by Jurors sworn . . to be tried there, where if injustice be done, redress may be had, or there where, if wrong be done, it shall be to the day of doom. . . Last of all, it is clear that where the jurisdiction is changed, the Law is changed, as appears by all the instances of trial, appeal, proceeding, judgment, and execution, fact and law, equity and law, all blended together, and indifferent and arbitrary.

(From Serjeant Maynard's Speech, to the Lords on behalf of the Commons. C.J. Ap. 17, 1671, and Grey's Debates, i. 446-462.)

II

BUSHELL'S CASE

22 Charles II., 1670.

[Edward Bushell had been one of a jury who acquitted William Penn and William Mead at the Old Bailey Sessions, and had been fined by the Recorder 40 marks, and committed in default of payment to prison. The return to a writ of habeas corpus stated that the prisoner was committed for finding "contra plenam et manifestam evidentiam, et contra directionem curiæ in materia legis." Chief Justice Vaughan, in a luminous and historic judgment, the salient passages of which are given in the excerpt, ruled that the return was insufficient and thereby established the immunity of the jury from fines for their verdict. On the importance of the case with reference to the liberty of the subject, and the various legal points arising out of it see Hallam, C.H. iii. 9 et seq.; Broom, C.L. 115 et seq.; S.T. vi. 967 et seq., 999 et seq.; Forsyth, History of Trial by Jury; Hawkins, Pleas of the Crown, ii.]

The king's writ of Habeas Corpus, dat. 9 die Novembris, 22 Car. 2, issued out of this court directed to the then Sheriffs of London, to have the body of Edward Bushell, by them detained in Prison, together with the day and cause of his caption and detention, on Friday then next following, before this court, to do and receive as the court should consider; as also to have then the said writ in court. . .

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In the present case it is returned, That the prisoner, being a juryman, among others charged at the Sessions Court of the Old Bailey, to try the issue between the king, and Penn, and Mead, upon an indictment for assembling unlawfully and tumultuously, did "contra plenam et manifestam evidentiam," openly given in court, acquit the prisoners indicted, in contempt of the king, etc.

The court hath no knowledge by this return, whether the evidence given were full and manifest, or doubtful, lame, and dark, or, indeed, evidence at all material to the issue, because it is not returned what evidence in particular, and as it was delivered, was given. For it is not possible to judge of that rightly, which is not exposed to a man's judgment. But here the evidence given to the jury is not exposed at all to this court, but the judgment of the Court of Sessions upon that evidence is only exposed to us; who tell us it was full and manifest. But our judgment ought to be grounded upon our own inferences and understandings, and not upon theirs.

It was said by a learned judge, If the jury might be fined for finding against manifest evidence, the return was good, though it did not impress what the evidence particularly was, whereby the court might judge of it, because returning all the evidence would be too long. A strange reason: For if the law allow me remedy for wrong imprisonment, and that must be by judging whether the cause of it were good, or not, to say the cause is too long to be made known, is to say the law gives a remedy which it will not let me have, or I must be wrongfully imprisoned still, because it is too long to know that I ought to be freed? What is necessary to amend, the law allows is never too long. "Non sunt longa quibus nihil est quod demere possis," is as true as any axiom of Euclid. Besides, one manifest evidence returned had sufficed, without returning all the evidence. But the other judges were not of his mind.

If the return had been, That the jurors were committed by an order of the Court of Sessions, because they did, "minus juste," acquit the persons indicted. Or because they did, "contra legem," acquit the persons indicted. Or because they did, "contra sacramentum suum," acquit them.

The judges cannot upon the present more judge of the legal cause of their commitment, than they could if any of these causes, as general as they are, had been returned for the cause of their commitment. And the same argument may be exactly made to justify any of these returns, had they been made as to justify the present return, they being equally as legal, equally as certain, and equally as far from possessing the court with the truth of the cause: and in what condition should all men be for the just liberty of their persons, if such causes should be submitted sufficient causes to remand persons to prison.

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I would know whether anything 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 anything 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 anything more frequent in the controversies of religion, 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.

I conclude therefore, That this return, charging the prisoners to have acquitted Penn 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 the Evidence of a Witness are very different things, in the truth and falsehood of them: a witness swears but to what he hath heard or seen, generally or more largely, to what hath fallen under his senses. But a juryman 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. . . . 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 in matter of 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 lie for such a false oath... if the judge having heard the evidence given in court (for he knows no other) shall tell the jury, upon this evidence, The law is for the plaintiff, or for the defendant, and you are under the pain of fine and imprisonment to find accordingly, then the jury ought of duty so to do . . . for if the judge, from the evidence, shall by his own judgment first resolve upon any trial what the fact is, and so knowing the fact, shall then resolve what the law is, and order the jury penally to find accordingly, what either necessary or convenient uses can be fancied of juries, or to continue trials by them at all? . . . 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. . . .

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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, quâ 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.

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 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 views necessarily, in many, by consent, for their better information; as 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 in the King'sBench, 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.

(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 scrupulously to array and pole? To what end must they have such a certain freehold, 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 villainous judgment, if after all this they implicitly must give a verdict by the dictates and authority of another man, under pain of fines and imprisonment, when sworn to do it to the best of their own knowledge?