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1. 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 matter in Law, no jury can be charged with the tryal 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.

Therefore we must take off this veil and colour of words, which make a shew of being something and in truth are nothing.

a If the meaning of these 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 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; Every man sees that the jury is but a troublesome delay, great charge, and of no use in determining Right and Wrong, and therefore the Tryals by them may be better abolish'd than continued; which were a strange new found conclusion, after a Tryal so celebrated for many hundreds

of years.

For if the Judge, from the Evidence, shall by his own judgment first resolve upon any Tryal 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 use can be fancied of Juries, or to continue Tryals by them at all?

But if the jury be not obliged in all Tryals to follow such Directions, if given, but only in some sort of Tryals (as, for instance, in Tryals for Criminal matters upon Indictments or Appeals) why then the consequence will be, tho' not in all, yet in Criminal Tryals 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 Tryals.'

Part of Erskine's paraphrase of this memorable passage (some of which he cited) is :

'. . . Let us get rid of the fallacy of applying a maxim 1 which truly describes the jurisdiction of the courts over issues of law, to destroy the jurisdiction of jurors, in cases where law and fact ? are blended together upon a trial.'



i. e. that the jury have not to answer questions of law.

A verdict is in truth always a finding of law and fact; the ordinary formula = "We find such and such facts and therefore believe that the prisoner is guilty (or not] in law;' when any actual legal distinction has to be attended to, e.g. manslaughter or murder ? the reference to the law is conscious and expressed. One of the latest inquirers into the subject says : “From the beginning, indeed, it was perceived that any general verdict such as no disseisin or not guilty involved a conclusion of law and that the jury did, in a sense, in such cases answer a question of law'(Thayer, Evidence at Common Law, c. 5, Law and Fact Jury Trials). He cites (ibid., p. 194) : . It is not because facts are admitted that it is therefore for the judge to say what the decision upon them should be. If the facts which are admitted are capable of two equally possible views which reasonable people may take and one of them is more consistent with the case for one party than for the

Previously he had said :

Every person charged with any crime by an indictment or information, has been in all times, from the Norman Conquest to this hour, not only permitted, but even bound to throw himself upon his country for deliverance by the general plea of Not Guilty ; and may submit his whole defence to the jury, whether it be a negation of fact or a justification of it in law. ... 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 special verdict: the general investigation of the whole charge is therefore before them.'

Later on he gave a striking object-lesson of his view. Recently Colonel Gordon had been indicted for killing a man in a duel ; whether it was murder or manslaughter was, 'according to [Mr. Justice] Foster, as much a question of law as libel or no libel': nevertheless the judge at the trial did not withdraw the question from the jury, he laid it down of this law and of the facts as you shall find them, your verdict must be compounded'; he told them that'a duel however fairly and honourably fought was a murder by the law of England' and left them to find a general verdict; he did not tell them that the question of murder or manslaughter was one with which they had nothing to do or direct them to find 'guilty of killing in a deliberate duel' and to leave the rest to the Court. "By this direction ... the judges, not the jury, would have decided upon the life of Colonel Gordon.'

Even Lord Mansfield, who was against Erskine, had to admit It is almost peculiar to the form of the prosecution for a libel, that the question of law remains entirely for the Court upon record?'; he evidently knew of no other instance ?, he does not even suggest that in the infinite variety of the common law there may be other trials in which the jury are not allowed to say in a word, guilty or not guilty. And there seem to be none.

Enough, perhaps, has been said to show that, in libel, at any rate no part of the indictment may be withdrawn from the jury-and this not upon any special consideration of that charge but as a fundamental principle of criminal law. But libel is not fraud.




other, it is the duty of the judge to let the jury decide between such conflicting views' (per Bowen L. J. in Davey v. L. & S. W. Ry. (1883) 12 Q. B. D. 70, 76).

It is not open to doubt that a jury may insist on returning “a short general verdict' if they will. (See, for instance, Thayer, p. 219).

21 State Trials, 1035. · Nor does Sir James Stephen. Speaking of this case, he says : the words of Fox's Act · are to the effect that the whole matter in issue upon a plea of not guilty to an indictment for libel is to be left to the jury as in other criminal casos, but they do not say what is in issue on such a plea. The general principle is that a plea of not, guilty in a criminal case puts in issue all the material averments in the indictment' (2 History of Criminal Law, c. 24, P: 359). Apparently he thinks the law of libel is anomalous in some respects not affecting the argument here.

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Is there, then, anything in the nature of the common law misdemeanour now in question why the rule should be different? It is submitted that there is not.

It is nothing more nor less than a question of common sense. If a jury may roundly determine whether a writing justly or unjustly holds a man up to hatred, ridicule, or contempt in private life---or if the document deal with politics, society or the like, whether its tendency be for or against public morality or loyalty, whether it be . seditious' or not, surely they may with equal reason -aye, and equal safety to the Commonwealth-pronounce broadly whether certain acts tend to the public mischief or not. For this purpose, what special advantage has the judge over them? or, indeed, what special facility or training has he for deciding such a point? There is nothing technical about it. Is it not peculiarly a case in which, as Demosthenes ? put it, every citizen is patriotic because every individual's welfare is involved in that of the State ? This is a topic which requires no learning and which every one can decide for himself.

The truth is that there is a danger that a judge-not, indeed, this judge—may veil under a ruling that it is not for the jury to say whether certain acts tend to the public mischief, a fear that they would say they do not. Herein, of course, is the gravity of the matter, and this has been thoroughly recognized by some of the judges themselves.

Jealousy of leaving the law to the Court,' said Lord Mansfield in the Dean of St. Asaph's case 3, 'as in other cases, so in the case of libels, is now in the present state of things, puerile rant and declamation'; i.e. he recognized that it was due to other than purely lawyers' points of view. But said his colleague Willes on the same occasion 4. '... But the jury are not so restrained, because they resort to evidence, as by law they have a right; that is, to go according to their own knowledge, and therefore they may find that which by the indictment is called false and seditious not to be so; they may indirectly say, “We know it to be true, and written for the most salutary purposes."

So Cockburn C.J. writing to the Attorney-General in 1879 (on another subject) says :

• The question is essentially one of fact and ought not, because it may be one which it may be better to leave to the judge to decide than to submit to a jury, to be, by a fiction, converted



They are already ex post facto censors of the press,' according to Sir James Stephen, 2 Hist. Cr. Law, c. 34, p. 366.

• De Cor. 158.
* Report in 4 Doug. at 172.

3 1. c. 1040.

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into a question of law. The right mode of dealing with a
question of fact which it is thought desirable to withdraw from
the jury is to say that it shall, though a question of fact, be deter-
mined by the judge 1.'
In other words, if you want to retain certain powers in the hands
of the Bench, do not pretend that they are exercised on matters of
law but say openly that it is expedient that they should be decided
by the one and not by the many.

The same point essentially, as is in question here, arose in the Queen v. Farnborough ([1895] 2 Q. B. 484). On a charge of larceny, the jury being unable to agree, the learned Chairman of Middlesex Quarter Sessions asked them whether they believed the evidence for the prosecution, they said that they did, whereupon he directed them that this was a verdict of guilty. In stating a case, he says, * The question is, Had I the power to put the question and direct such verdict to be recorded, the facts in the judgment of the Court clearly constituting in law the offence charged, if proved to the satisfaction of the jury?' Counsel for the prosecution 'threw up the sponge' in the Court for Crown Cases Reserved and the five judges there quashed the conviction. Lord Russell of Killowen C.J. said :

• It is easy to see that the facts might be such as to justify the jury in believing the evidenco, and yet declining to draw the inference that the prisoner had any animus furandi. The chairman in effect drew that inference himself and found that the prisoner had acted with a guilty intent-a fact essential to be found before his guilt could be established; in doing so he went beyond his function, &c.' The plain English of the whole matter is put by Mr. Thayer ?

Logic and neatness of legal theory have always called loud, at least in recent centuries, for special verdicts, so that the true significance of ascertained facts might be ascertained and declared by the one tribunal fitted to do this finally and with authority. But considerations of policy have called louder for leaving to the jury a freer hand. The working out of the jury system has never been shaped merely by legal or theoretical considerations. That body always represented the people and came to stand as the guardian of their liberties ; so that whether the Court or the jury should decide a point could not be settled on merely legal grounds;


a question deeply tinged with political considerations. While it would always have been desirable, from a legal point of view to require from the jury special verdicts and answers to special questions, that course would have given more power to the King and less to the people.'


it was


Cited, Thayer, p. 202.

2 Ibid., pp. 218-19.

The people of this country, as legislators, have always reserved to themselves, as juries, the right of impressing their view—the popular view-on their verdicts. The common law of this country expresses the politics of the people as well as their morals. Indeed, morals include politics. In short, the jury is a political power .

There are, perhaps, other objections to allowing the judge to withdraw from the jury the question whether given acts tend to public mischief or not.

It is obvious that if a judge may decide this question entirely off bis own bat' there is no need at all for any positive criminal law. For crime is wrong-doing from the public point of view (as distinguished from the private). It is impossible to conceive any of the familiar offences in this country which an average respectable and educated man would not declare of evil example and a public mischief. The inquiry would then be purely moralexpressly and nominally so instead of as now implicitly and only ultimately so. There may be something to be said for this system, but it is not our system. The common law means the morals of the people at any given time; the judges interpret it, not because they are lawyers, but because they are members of the people, born and bred among them and, therefore, sharing the mind of the people. Hence they are as well fitted as any one else to pronounce on new cases or new offences-i. e. not covered by precedentswhen they arise. But a difficulty has always been felt about new offences, as in the present case.

'The class of offences,' says Sir James Stephen ?, of which nuisance may be taken as the type and which consists of acts injurious to the public as a whole and in particular of offences relating to religion and morals, is composed partly of common law and partly of statutory enactments. To this class must be referred the power which has in some instances been claimed for the judges of declaring anything to be an offence which is injurious to the public, although it may not have been previously regarded as such. This power, if it exists at all, exists at common law.'

· This is admirably put by Earl Russell : 'Thus, not only are juries in fact the real judges in England, but they possess a power no judge would venture to exercise, namely, that of refusing to put the law in force. Undoubtedly this is a very dangerous authority, more especially as juries, consulting in secret, deciding without reason assigned, and separating without being afterwards responsible, are free from all control but that of their own consciences; yet exercised as it has been with temper and moderation the discretion of juries has proved extremely salutary. It has been the cause of amending many bad laws, which judges would have administered with exact severity and defended with professional bigotry; and above all, it has this important and useful consequence, that laws totally repugnant to the feelings of the community for which they are made cannot long exist in England.

... It is to trial by jury, as much perhaps as even to representation, that the people owe the share they have in the government of the country.' Essay on the English Government and Constitution, c. 33 (written about 1820: the author was then Lord John Russell).

2 History of Criminal Law, c. 20, p. 190.

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