Jury having been fined for its Verdict'. It is fair to attribute this consequence, in a great degree, to what passed on the occasion of Bushell's liberation, especially to those forcible arguments of Chief Justice Vaughan, which are of general application to all verdicts of all Courts. Erskine, in his famous speech for the Dean of St Asaph, after observing that the Country was almost as much indebted to Bushell, as to Hampden in resisting Ship-money, states, that the determination of Chief Justice Vaughan and his Colleagues was never afterwards questioned by succeeding Judges, not even in the great case of the Seven Bishops, on which, in a great measure, depended the dispensing power, and the personal fate of King James 2.

(y) Attaint.

Whether Juries were entitled to immunity from attaint in criminal cases, in the reign of Charles II., is a question not free from doubt. The proceeding by Attaint against Jurors took place

1 Ten years later, in 1681, Chief Justice Pemberton told Lord Shaftesbury's Grand Jury, "If any of you shall be refractory, and will not find any Bill, where there is a probable ground for an accusation, you do therein undertake to intercept justice, and you thereby make yourselves criminals." The Grand Jury, notwithstanding, ignored the Bill, and were not punished as criminals for it, though the Foreman and others of the Jury were severely treated under other pretexts.

9 Erskine should, perhaps, have said the reasoning, instead of the determination; for the trial of the Seven Bishops was at the bar of the Court of King's Bench, and so, according to Hale, not governed by the determination in Bushell's case. In the case of the Seven Bishops, also, a commitment could scarcely have been framed, like that of Bushell, for finding a verdict "Contra directionem Curiæ in materiâ legis;" for two of the four Judges, Powell and Holloway, were for an acquittal, and were consequently cashiered after the trial. Mr Hallam, after mentioning the ancient notices of the punishment of Juries for their verdicts in Smith's Commonwealth, and the revival of the practice in the reign of Charles II. by Chief Justices Hyde and Keeling, states three cases in that reign prior to Bushell's in which fines upon Juries had been avoided and declared illegal: but he does not advert to the distinction pointed out by Hale, from whose book these three cases are taken, viz. that one of them was before Judges of Nisi Prius; another before Justices of Oyer and Terminer for Gloucestershire; and the third at the Gaoldelivery at Newgate. Hale does not adduce these cases as precedents against the power of the Court of King's Bench of fining Jurors for their verdicts, but as examples of the endeavouring to bring the practice of the King's Bench to fine Jurors for their verdicts into the use of Judges of Nisi Prius and Gaol-delivery.

before a second Jury consisting of twenty-four jurors. If the second Jury found that the first Jury had given a wrong verdict, the first Jury was, anciently, liable to the following punishments. 1. Quod omittant liberam legem. 2. Non trahantur in testimonium. 3. Bona et catalla sua foris faciant Regi. 4. Terræ et tenementa sua capiantur in manus Regis. 5. Uxores et liberi sui amoveantur. 6. Terræ et tenementa sua extirpentur. 7. In gaolam detrudantur1.

With respect to Chief Justice Vaughan's opinion on this subject, Mr Erskine, in the Dean of St Asaph's case, said, "The learned and excellent Chief Justice Vaughan, in Bushell's case, expressed himself thus: 'There is no case in all the law of an attaint for the King nor any opinion but that of Thyrnings, 10th Henry IV., for which there is no warrant in law, though there be other authority against it.'" Lord Mansfield, interposing, said to Mr Erskine, "To be sure it is so."

The following passages, notwithstanding, occur in Sir M. Hale's History of the Pleas of the Crown, "But what if a Jury give a verdict against all reason, convicting or acquitting a person indicted against evidence, what shall be done?......As to the acquittal of a person against full evidence, it is certain that the Court may send the Jury back again, to consider better of it before they record their verdict; but, if they are peremptory in it, and stand to their verdict, the Court must take their verdict, and record it, but may respite judgment upon the acquittal. But, as touching punishing the Jury, I think the King may have an attaint; for although a man convicted upon

1 There is no statute against the perjury of a witness till the 5th Eliz. c. 9; but the perjury of Jurors is the subject of many earlier statutes. It was a common article in an attorney's bill to charge pro amicitia Vicecomitis. It appears from the Paston Letters, that it was not unusual to procure a King's Letter to obtain the Sheriff's favour on an approaching trial, the price of which is stated to be a noble. The 18th Hen. VI. c. 14, was passed for recovering bribes from the Sheriff given him to return Juries. See concerning the corruption of Sheriffs and Jurors ancient notices of law and literature, in the Author's Notes on Fortescue, and Barrington's Ancient Statutes.

an indictment can have no attaint, because the guilt is affirmed by two inquests', the grand inquest, that presents the offence upon their Oaths, and the petit jury that agrees with them; yet, where the petit Jury acquits, they stand as a single verdict, for they disaffirm what the grand inquest have upon their oaths presented, and with this agrees the book 10. H. 4. Attaint 60, 64, per Thyrnings." We here observe that the opinions of Hale and Vaughan upon the subject of Attaint are frontibus adversis pugnantia; but Hale's reason that a convicted prisoner's guilt "is affirmed by two inquests," may not appear satisfactory, for the Grand Jury only finds a probable cause for prosecution, and does not affirm the prisoner's guilt. As for Thyrnings, like other authorities for Common Law, he was liable to be stuck up or bowled down as he suited or not the opinions of his suc

cessors.

Blackstone, in his Commentaries, lays down the law as it stood in his day, agreeably to Hale, thus, "If the verdict be notoriously wrong, the Jury may be punished and the verdict set aside by attaint at the suit of the King, but not at the suit of the Prisoner;" the inequality of which rule does not appear to have struck him as remarkable. A statute of the 5th of George IV. has abolished the odious proceedings by Attaint, the apprehension of which, in State Prosecutions, whether Hale were right or wrong, must have made a Jury tremble at an acquittal.

IV. Counsel and Attornies.

The full defence of prisoners by Counsel and Attornies, and liberty of speech when pertinent to a client's vindication, are first principles in the administration of justice, the absence of which denotes a very despotic Constitution, or one, the improvement of which has been shamefully neglected, owing

1 Another reason has been given, viz. that the person obtaining a false verdict was joined as a defendant with the Jury in the attaint, which the King could not be.-Barrington's Ancient Statutes.

to lethargy, or an overweening prejudice in favour of the past, amounting to what Lord Bacon calls a morosa morum retentio.

The assistance of Counsel to cross-examine witnesses and address the Jury was denied to persons accused of treason and felony, throughout the reign of Charles II. This was a signal defect in the Constitution, which has now, though recently, been eradicated; and although full defence by Counsel was not allowed, except in cases of treason, and offences inferior to felony, until within living memory, counsel were much earlier permitted to examine witnesses, to confer with a prisoner under trial, and even to hand him a written speech, to which transaction most Judges, ashamed of the law, were mercifully blind. In the trials for the Popish Plot, and for that of which Russell and Sydney were accused, the infamy of the witnesses, the enormous quantity of irrelevant and hearsay evidence adduced on the part of prosecutions, the browbeating and tricks of the King's Counsel, and the wicked practices of corrupt Judges, made the assistance of Counsel for prisoners indispensable to the vindication of innocence. Without the aid of Counsel, trials in Courts of Justice became mere ceremonies in the pageant of a State-sacrifice. Not only were applications for the allowance of Counsel uniformly rejected, but great jealousy was evinced of any species of aid with which a prisoner might be furnished in his defence. At the trial of Algernon Sydney, the SolicitorGeneral said, "I must do my duty; Mr Williams exceeds his liberty, he informs the Prisoner several things;" to which Mr Williams replied, "I only said, If it was a plea, put it in; Mr Attorney can hear all I say." The Report adds, "Whereupon Mr Williams was reproved by the Lord Chief Justice." At Fitzharris's trial it was said by the Solicitor-General, "It is not the duty of a Solicitor to bring papers, or to advise, or furnish matter of defence; he is only appointed by the Court to run of errands."

The seizing and withholding from Colledge, the Protestant Joiner, the papers for his defence in a trial for High Treason, is one of the most infamous proceedings to be found in the State Trials of the reign of Charles II. The following colloquies on the subject occur between the Court and the Prisoner.

Colledge. Pray, my Lord, let me have my papers delivered
I cannot make my defence else.

to me;

Lord Chief Justice North. We are your Counsel in matter of fact, and to give you your papers, were to assign you Counsel against law, they being not your own papers, but coming from a third hand. We know of no Solicitors in cases of treason.

Attorney-General. Here are abundance of niceties proposed for him to move; and these will be a strange sort of proceedings at this rate, if men go about to espouse the cause of traitors.

Colledge. I am no traitor, Mr Attorney.

Att.-Gen. You stand indicted of high treason.

Chief Justice. When a paper is written in the second person, you should do so and so, it is an ill precedent to permit such things; that were to give Counsel in an indirect way, which the law does not give directly. The speech is not fit for you, we have read enough to suppress it.

Colledge. Another paper there is, that is something of law.
Justice Jones. Nothing but what is scandalous to the Go-

vernment.

Serjeant Jeffreys. To allow you these papers is to allow you Counsel by a side wind......It is assigning Counsel with a witness......If Mr Colledge have such a thing as a Solicitor, I shall crave leave to put that Solicitor in mind of the case of one that was indicted for high treason. (Aaron Smith, the Solicitor, was afterwards sentenced, for supplying Colledge with scandalous instructions, to pay a fine of £500, and to stand for two hours in the pillory before Westminster Hall gate, and, for the same time, at the Royal Exchange.)