law is, and order the jury penally to find accordingly, what either necessary or convenient use can be fancied of juries, or to continue trials by them at all? But if the jury be not obliged in all trials to follow such directions, if given, but only in some sort of trials [as, for instance, in trials for criminal matters upon indictments or appeals], why then the consequence will be, though not in all, yet in criminal trials, the jury [as of no material use] ought to be either omitted or abolished, which were the greater mischief to the people, than to abolish them in civil trials.

"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.

"True it is, if it fall out upon some special trial, that the jury being ready to give their verdict, and before it is given the judge shall ask, whether they find such a particular thing propounded by them? or whether they find the matter of fact to be as such a witness, or witnesses, have deposed? and the jury answer, they find the matter of fact to be so; if then the judge shall declare, The matter of fact being by you so found to be, the law is for the plaintiff, and you are to find accordingly for him:

"If notwithstanding they find for the defendant, this may be thought a finding in matter of law against the direction of the Court, for in that case the jury first declare the fact, as it is found by themselves, to which fact the judge declares how the law is consequent.

"And this is ordinary, when the jury find unexpectedly for the plaintiff or defendant, the judge will ask, how do you find such a fact in particular? and upon their answer he will say, then it is for the defendant, though they found for the plaintiff, or e contrario, and thereupon they rectify their verdict.

"And in these cases the jury, and not the judge, resolve and find what the fact is.

(w) See the argument of Messrs. Hill, Falconer, Roebuck and Fry, in the Canadian case Report, by A. A Fry, p. 54.

"Wherefore always in discreet and lawful assistance of the jury, the judge his discretion is hypothetical, and upon supposition, and not positive, and upon coercion, viz., If you find the fact thus, [leaving it to them what to find], then you are to find for the plaintiff; but if you find the fact thus, then it is for the defendant" (w).

From the time (x) when this sound and luminous judgment was delivered, no attempt has ever been made to renew the practice of punishing juries for their verdicts. How it happened that the conduct of the Recorder so completely escaped all punishment, it is difficult to comprehend, but like many other of his most profligate contemporaries, he contributed to the support of the freedom which he laboured, according to the measure of his faculties, to overthrow. Though in cases of libel the judges contrived to obtain exorbitant powers; in all other cases where the quality of an act done, and, therefore, where the intention of the person doing it was to be determined, this question was reserved exclusively for the jury, unless in cases where the law interferes with a presumption of its own, and draws from admitted facts its own conclusion, and where, therefore, if the jury believe the witnesses, they cannot, without a violation of their duty, ascribe any other motive than that which the law has pointed out (y).

(w) State Trials, vol. 6, p. 1009.

(x) Hallam's Const. Hist. vol. 2, p. 168.

(y) "6. But in my opinion fines set upon grand inquests by justices of the peace, oyer and terminer of gaol delivery, for concealments or nonpresentments in any other manner, are not warrantable by law; and though the late practice hath been for such justices to set fines arbitrarily, yea, not only upon grand inquests, but also upon the petit jury in criminal causes, if they find not according to their directions, it weighs not much with me for these reasons: 1. Because I have seen arbitrary practice still go from one thing to another,—the fines set upon grand inquests began, then they set fines upon the petit juries for not finding according to the directions of the Court; then afterwards the judges of nisi prius proceeded to fine jurors in civil causes, if they gave not a verdict according to direction even to points of fact; this was done by a judge of assize [Justice Hyde, at Oxford, Vaugh. 145] in Oxfordshire, and the

The trial of Count Königsmark, Charles Boroski, Christopher Vratz, and John Stern, for the murder of Mr. Thynn, throws another light on the picture of judicial depravity. Powerful to destroy for imputed or imaginary offences, the strange mass of uncouth absurdities, called law by the Cokes, Norths and Saunders's, was impotent to cope with avowed protected crime. Swift to shed the blood of the innocent and to make a man an offender for a word, our judges were slow to punish the guilty, 'even when the foulest crimes were proved against him, if the Crown exhibited any sympathy for them, or sheltered them with its protection. That the law was inadequate to protect innocence, every day brought convincing proof; it was now to be shewn that when guilt was to be punished, the buckler it held before the assassin was impenetrable.

Though the iniquity in this case, as it consisted not in procuring a Dissenter to be condemned, but in enabling a murderer to escape, is less shocking than that of which our Courts of justice were at this time usually the scene, it clearly shews that justice in England was at this time a perfect mockery. The principal murderer, Count Königsmark, a foreign nobleman of high rank and illustrious extraction, was

fine estreated; but I, by the advice of most of the judges of England, staid process upon that fine: the like was done by the same judge in a case of burglary, the fine was estreated into the Exchequer; but by the like advice I stayed process; and in the case of Wagstaff [Vaugh. 153] and other jurors fined at the Old Bailey, for giving a verdict contrary to direction, by the advice of all the judges of England [only one dissenting], it was ruled to be against law; but of this hereafter [c. 42]. 2. My second reason is, because the statute of 3 H. 7, c. 1, prescribes a way for their finding, which would not have been if they had been arbitrarily subject to a fine before. 3. It is of very ill consequence, for the privilege of an Englishman is, that his life shall not be drawn in danger without due presentment or indictment, and this would be but a slender screen or safeguard, if every justice of peace, or commissioner of oyer and terminer or gaol delivery, may make the grand jury present what he pleases, or otherwise fine them; and there is no parity of reason or example between inferior judges and the Court of King's Bench, which is the supreme ordinary Court of justice in such cases." Hale's P. C. vol. 2, p. 158.

X

dismissed with impunity by the special contrivance of the Chief Justices North and Pemberton, who were in perpetual communication with the Court; and his agents, far less guilty than their employer, were put to death. They who recollected the fate of Don Pantaleon Sa, whom no solicitations or motives of political interest could induce Cromwell to withdraw from the stroke of justice, must have felt a bitter sense of national degradation. Thomas Thynn, the man murdered in cold blood in the streets of London in open day, was the great partizan of the Duke of Monmouth; and Dryden has preserved his memory, in his immortal poem, under the name of "Issachar." Speaking of the progress of the Duke in the West, he says:

"From east to west his glories he displays,

And like the sun the promised land surveys;
Fame runs before him like the morning star,
And shouts of joy salute him from afar.
Each home receives him as a guardian god,
And consecrates the place of his abode;

But hospitable treats did most commend,

Wise Issachar, his wealthy western friend." (z)

This Mr. Thynn was a man of large estate, and, says Sir John Reresby (who, by the way, calls this transaction the "most barbarous and audacious murder that had almost ever

(z) Such was the "verve" and spirit, incredible as it may appear to us now, with which Englishmen once wrote verses. There was inequality no doubt in their composition, but no paltry trick; they were free from that affectation which of all things most betrays the absence of real genius, and from the mere cant of pompous circumlocution which disgusts us so often now. The very negligence of Dryden is better than the laboured nothings in prose and verse of those whose understandings have never recovered the "cramming" of their youth. Those who are Roscius's when boys, come to be scene shifters when men. Truly may it be said of the school of Dryden and our own, that the gleanings of Ephraim are better than the vintage of Abiezer. It is quite worthy of us, that a committee of taste (Heaven save the mark!) should have divided on the question of assigning Dryden a place among our poets!

been heard of in England"), "lately married to the Lady Ogle, who, repenting herself of the match, fled from him into Holland before they were bedded (a),-was set upon by three ruffians, who shot him as he was going along the streets in his coach" (b). Though there is no reason to ascribe the crime to the Court, as the personal resentment of Königsmark, a disappointed suitor of Lady Ogle, was probably the sole cause of its perpetration, the King was much alarmed lest it should be attributed to his instigation. A strict inquiry was set on foot, and the prisoners were apprehended-Königsmark in disguise, and in the very act of embarking on board a Swedish vessel. The first act of the judges was to overrule a petition of the Count's, that he might be tried separately from his accomplices. If the suppression of the truth had not been their object, they would have insisted upon the mode of trial for which Königsmark petitioned, or have received one of the accomplices as King's evidence, in which case the conviction of Königsmark would have been inevitable, as they would not have dared, at a time when party ran so high, and the minds of men were so much inflamed, openly and in defiance of the evidence to have directed his acquittal. But by contriving that all the prisoners, the agents and the principal, or, in legal language, the accessory before the fact, should be tried together, the statements of the agents became of course evidence against themselves only. The extreme anxiety with which the judges enforce this principle, and the tender humanity they display to prevent Königsmark from being injured by the statement of his associates, are most striking, and prove that the princi

(a) Hence the epitaph,

"Here lies Tom Thynn of Longleat Hall,

Who never would have miscarried,

Had he married the woman he lay withal,

Or lay with the woman he married."

Lady Ogle was the daughter and sole heiress of the Earl of Northumberland.

(b) Reresby's Memoirs, p. 135.