thority which in common sense he certainly would have, if the jury had no higher jurisdiction in the one case than in the other. The general plea thus sanctioned by immemorial custom, so blends the law and the fact together, as to be inseparable but by the voluntary act of the jury in finding a spe. cial verdict: the general investigation of the whole charge is therefore before them, and although the defendant admits the fact laid in the information or indictment, he, nevertheless, under his general plea, gives evidence of others which are collateral, referring them to the judgment of the jury, as a legal excuse or justification, and receives from their verdict a complete, general, and conclusive deli

verance.

Mr. Justice Blackstone, in the fourth volume of his Commentaries, page 339, says: "The traitorous or felonious intent are the points and very gist of the indictment, and must be answered directly by the general negative, not guilty, and the jury will take notice of any defensive matter, and give their verdict accordingly, as effectually as if it were specially pleaded."

This, therefore," says Sir Matthew Hale, in his pleas of the crown, page 258, "is, upon all accounts, the most advantageous plea for the defendant: it would be a most unhappy case for the judge himself if the prisoner's fate depended upon his directions; unhappy also for the prisoner; for if the judge's opinion must rule the verdict, the trial by jury would be useless"

My lord, the conclusive operation of the verdict when given, and the security of the jury from all consequences in giving it, renders the contrast between criminal and civil cases striking and complete.. No new trial can be granted as in a civil action. Your lordships, however you may disapprove of the acquittal, have no authority to award one; for there is no precedent of any such upon record, and the discretion of the court is circumscribed by the law.

Neither can the jurors be attainted by the crown.

In Bushel's case, Vaughan's reports, page 146, that learned and excellent judge, expressed himself thus: "There is no case in all the law of an attaint for the king, nor any opinion but that of Thyrning's, 10th of Henry IVth, title attaint, 60 and 64, for which there is no warrant in law, though there be other specious authority against it, touched by none that have argued this case."

Lord Mansfield. To be sure it is so.

Mr. Erkine. Since that is clear, my lord, I shall not trouble the court further upon it; indeed I have not been able to find any one authority for such an attaint but a dictum in Fitzherbert's Natura Brevium, page 107; and on the other hand, the doctrine of Bushel's case is expressly agreed to in very modern times, vide lord Raymond's reports, first volume, page 469.

If then your lordships reflect but for a moment upon this comparative view of criminal and civil cases which I have laid before you; how can it be seriously contended, not merely that there is no differ. ence, but that there is any, the remotest similarity between them? In the one case, the power of accusation begins from the court; in the other, from the people only, forming a grand jury. In the one, the defendant must plead a special justification, the merits of which can only be decided by the judges; in the other, he may throw himself for general deliverance upon his country. In the first, the court may award a new trial, if the verdict for the defendant be contrary to the evidence or the law; in the last, it is conclusive and unalterable; and to crown the whole, the king never had that process of attaint which belonged to the meanest of his subjects.

When these things are attentively considered, I might ask those who are still disposed to deny the right of the jury to investigate the whole charge, whether such a solecism can be conceived to exist in any human government, much less in the most refined and exalted in the world, as that a power of supreme judicature should be conferred at random by the

blind forms of the law where no right was intended to pass with it, and which was upon no occasion and under no circumstance to be exercised; which, though exerted notwithstanding in every age, and in a thousand instances, to the confusion and discomfiture of fixed magistracy, should never be checked by authority, but should continue on from century to century, the revered guardian of liberty and of life, arresting the arm of the most headstrong government in the worst of times, without any power in the crown or its judges, to touch without its consent the meanest wretch in the kingdom, or even to ask the reason and principle of the verdict which acquits him. That such a system should prevail in a country like England without either the original institution or the acqui escing sanction of the legislature is impossible. Believe me, my lord, no talents can reconcile, no authority can sanction such an absurdity: the common sense of the world revolts at it,

Having established this important right in the jury beyond all possibility of cavil or controversy, I will now show your lordship that its existence is not merely consistent with theory, but is illustrated and confirmed by the universal practice of all judges; not even excepting Mr. Justice Forster himself, whose writings have been cited in support of the contrary opinion. How a man expresses his abstract ideas is but of little importance when an appeal can be made to his plain directions to others, and to his own particular conduct; but even none of his expressions when properly considered and understood militate against my position.

In this justly celebrated book on the criminal law, page 156, he expresses himself thus: "The construction which the law putteth upon fact STATED AND AGREED OR FOUND by a jury, is in all cases undoubtedly the proper province of the court."

Now if the adversary is disposed to stop here, though the author never intended he should, as is evident from the rest of the sentence, yet I am willing to stop with him, and to take it as a sub

stantive proposition; for the slightest attention must discover that it is not repugnant to any thing which I have said. Facts stated and agreed, or facts found by a jury which amounts to the same thing, constitute a special verdict; and who ever supposed that the law upon a special verdict was not the province of the court? Who ever denied that where upon a general issue the parties choose to agree upon facts and to state them; or the jury choose voluntarily to find them without drawing the legal conclusion themselves, that in such instances the court is to draw it? That Forster meant nothing more than that the court was to judge of the law when the jury thus voluntarily prays its assistance by special verdict, is evident from his words which follow; for he immediately goes on to say, "in cases of doubt and REAL difficulty, it is therefore commonly recommended to the jury to state facts and circumstances in a special verdict." But neither here, nor in any other part of his works, is it said or insinuated that they are bound to do so, but at their own free discretion: indeed, the very term recommended, admits the contrary, and requires no commentary. I am sure I shall never dispute the wisdom or expediency of such a recommendation in those cases of doubt, because the more I am contending for the existence of such an important right, the less it would become me to be the advocate of rashness and precipitation in the exercise of it.

It is no denial of jurisdiction to tell the greatest magistrate upon earth to take good counsel in cases of real doubt and difficulty. Judges upon trials whose authority to state the law is indisputable, often refer it to be more solemnly argued before the court; and this court itself often holds a meeting of the twelve judges before it decides on a point upon its own records, of which the others have confessedly no cognizance till it comes before them by the writ of errour of one of the parties. These instances are monuments of wisdom, integrity, and discretion; but they do not bear in the remotest

degree upon jurisdiction: the sphere of jurisdiction is measured by what may or may not be decided by any given tribunal with legal effect, not by the rectitude or errour of the decision. If the jury according to these authorities may determine the whole matter by their verdict, and if the verdict when given is not only final and unalterable, but must be enforced by the authority of the judges, and executed if resisted by the whole power of the state; upon what principle of government or reason can it be argued not to be law? that the jury are in this exact predicament is confessed by Forster; for he concludes with saying, "that when the law is clear, the jury under the direction of the court in point of law may, and if they are well advised will, always find a general verdict conformably to such di

rections."

This is likewise consistent with my position: if the law be clear, we may presume that the judge states it clearly to the jury; and, if he does, undoubt edly the jury, if they are well advised, will find according to such directions; for they have not a capricious discretion to make law at their pleasure, but are bound in conscience, as well as judges are, to find it truly; and generally speaking, the learning of the judge who presides at the trial affords them a safe support and direction.

The same practice of judges in stating the law to the jury, as applied to the particular case before them, appears likewise in the case of the king against Oneby, 2d lord Raymond, page 1494. On the trial the judge directs the jury thus: "If you believe such and such witnesses who have sworn to such and such facts, the killing of the deceased appears to be with malice prepense; but if you do not believe them, then you ought to find him guilty of manslaughter; and the jury may, if they think proper, give a general verdict of murder or manslaughter; but if they decline giving a general verdict, and will find the facts specially, the court is then to form their judgment from the facts found, whether the defendant be guilty or