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 (n). 6 "That Decantatum in our books, Ad quæstionem facti non respondent judices ad quæstionem legis non respondent juratores,' literally taken, is true; for if it be demanded, What is the fact? the judge cannot answer it; if it be asked, What is the law in the case? the jury cannot answer it. "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 it be matter of law whether the defendant be a trespasser, a debtor, disseisor, or disturber in the particular cases in issue; yet the jury find not [as in a special verdict] the fact of every case by itself, leaving the law to the Court, but find for the plaintiff or defendant upon the issue to be tried, wherein they resolve both law and fact complicately, and not the fact by itself, so as though they answer not singly to the question what is the law, yet they determine the law in all matters, where issue is joined and tried in the principal case, but where the verdict is special" (0). I have cited these extracts from the judgment of Vaughan, and I wish that my limits would have allowed me to quote from it at much greater length, as both for the manliness of its principles, and the constitutional integrity of its language, it (n) State Trials, vol. 6, p. 1005. is one which deserves the attention of the general reader, and forms a marked contrast with those which many of our modern reporters have sometimes been obliged to encourage litigation by perpetuating. There is one point on which he rests his argument that is purely of a technical nature, it is this: If, he says, "the jury find against the direction of the Court in matter of law, it will not follow they are therefore finable, for if an attaint (p) will lie upon the verdict so given by them, they ought not to be fined and imprisoned by the judge for that verdict. ... 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, though the jury are fined for it as such by the judge, and yet no false verdict, because affirmed upon the attaint." This reasoning is conclusive; but in order to understand it, the reader should understand what "attaint" was. an This I shall endeavour to describe, and when the reader knows that a proceeding so utterly barbarous existed among us in its primitive state, not only down to the reign of Henry the Seventh, but continued to be law in its first shape, and in a shape very little mitigated, down to the year 1826 (7), he will (unless, indeed, he happen to have read any of the subtle ingenious judgments on points of special pleading in Meeson and Welsby) be utterly confounded at the perverse and curious industry with which the framers of our law contrived to block up every avenue to justice, and to common sense. A writ of attaint then was a writ which issued to inquire whether a jury of twelve men gave a false verdict; at the common law it lay upon one species of action, but by the 34 Edw. 3, c. 3, it was extended to all pleas whatever, except a writ of right. The jury who were to try this false verdict consisted of twenty-four men, and if they found the verdict they were convened to (p) It was admitted, that where there was no attaint, the jury were not finable. (q) It was abolished by 6 Geo. 4, c. 50, s. 60. inquire into a false one, that is, if they drew a different conclusion from the evidence than the first jury (an event which, as every body knows, happens three or four times in almost every assizes); the first jurors (s) lost their "liberam legem,” and became for ever infamous, forfeited their goods, and the profits of their lands, were imprisoned themselves, and their wives and children driven out of doors, their houses were razed, their trees cut down, and their meadows ploughed up; so tender of personal liberty, so wise, moderate, humane, and effectual were the laws of England (t), so fully did they deserve the panegyrics of the Fortescues and Cokes and Blackstones, and so justly did those who lived under their beneficial influence boast of the superiority of their condition to that of those who lived where the Roman law had altogether overcome, or in any way controuled, the usages of the Franks and Scandina vians. By the statute 11 Henry 7, made perpetual by the 13 Eliz., a certain remedy concurrent with this law (u), (which, indeed, seems hardly compatible with society) was introduced, and in (s) "For the judgment against them (the jurors convicted on attaint), was,-1. Quod amodo amittant liberam legem inperpetuum. 2. Non trahantur in testimonium veritatis. 3. Bona et catalla sua forisfaciant regi. 4. Terræ et tenementa sua capiantur in manus regis. 5. Quod uxores et liberi sui amodo amoveantur. 6. Quod terræ et tenementa sua extirpentur, &c. 7. Quod cupiantur, et in gaolam detrudantur." Coke, Inst. 3, p. 163. Lord Coke, in his Commentary on Littleton, sect. 368, which is, " Also in such case where the enquest may give their verdict at large, if they will take upon them the knowledge of the law upon the matter, they may give their verdict generally, as is put in their charge; as in the case aforesaid they may well say, that the lessor did not disseise the lessee, if they will," &c., says," Although the juries, if they will take upon them [as Littleton here saith] the knowledge of the law, may give a generall verdict, yet it is dangerous for them so to doe, for if they doe mistake the law, they runne into the danger of an attaint; therefore to find the speciall matter is the safest way where the case is dobtfull." (t) "The judgment in the writ of attaint is fearful and penal." Coke, Inst. 2, p. 130. (u) "This law doth yet remain in force." Coke, Inst. 3, p. 164. the words of Blackstone, "a more moderate punishment was inflicted upon attainted jurors," (who, be it observed, deserved no punishment at all) this more moderate punishment being "perpetual infamy," and a forfeiture of 20l. a piece, or 5l. apiece by each of the jurors, according to the value of the property on which they decided. "So," Blackstone gravely, without smile or sncer, continues, "a man may now bring an attaint either upon the statute (the second form), or at common law, at his election"!!! Now, in most cases, where a new trial is granted, or a verdict set aside upon motion, which is the preliminary business that exclusively occupies the three Courts of Westminster during the first four days of every term, and for which those four days are not always sufficient, a writ of attaint (v) might have been sued out, or proceedings had at common law, such as have been described, by the much boasted law of this country down to the year 1826. 1826. Such are the proofs of foresight, public spirit, and capacity in our legislators, the legislators of a free country, which the English law exhibits. There is one other point closely connected with, perhaps I ought to say quite inseparable from, the main question on which Vaughan insists, and which has added great celebrity to his judgment. The judges had in the last century encroached so completely on the province of the jury in questions of libel, that they would allow the jury only to decide upon the fact of the publication of certain words, and withdrew from their notice in spite of absolute demonstration of the flagrant absurdity and injustice of such a course, all inquiry as to the guilt or innocence of the author, so that if a man had been indicted for a libel for publishing the Bible, the jury, according to settled law, must have found him guilty, leaving it to the Court to act afterwards as they thought proper. And when this (v) I own that the infamous verdict constantly given by Oxford tradesmen make one wish that the writ of attaint was not obsolete. In one case they found, on their oath, that two extra hunters were necessaries for a young man whose father kept two for him. egregious instance of the usurpations to which Englishmen, it certain words and forms are employed, will sometimes submit, (though freedom of the press was the boast of every Briton, while men of learning and eloquence sometimes languishing in pestilential dungeons, sometimes exposed on the pillory to the caprice of the brutal ruffians of whom a London mob consists, for writings often innocent and laudable, had smarted under its oppression, unpitied and unnoticed,) at length, because a man of some quality was concerned, excited the tardy resentment of the public, and was finally repressed by an act of Parliament, this judgment was much quoted and relied upon; nor do I think, though Erskine was the commentator, that the eloquent amplifications of the great advocate, added much to the close and irresistible reasoning of the text. "The words that the jury did acquit against the direction of the Court in matter of law literally taken 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 merely, no evidence ever was or ever can be given to a jury of what is law or not, nor no such vote can be given to or taken by a jury to try matter of law, therefore we must take off this veil and colour of words which make a show of being something and are nothing. "If the meaning of those 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 is for the plaintiff or the defendant, and you are under pain of fine and imprisonment,' or (as the Mansfields and Bullers said of perjury) to find accordingly,' every man sees that a jury is but a troublesome delay, great charge, and of no use in determining right and wrong (w) . . . . 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 (w) A very exact description of a jury in most civil cases. |