Page:Harvard Law Review Volume 5.djvu/396

380 38o HAR VARD LA W RE VIE W. c. i). If, he says, a jury improperly find a man guilty, the judges moderate this by reprieving and recommending a pardon. " If, having pregnant evidence, nevertheless, the twelve do acquit the malefactor, which they will do sometime, . . . the prisoner es- capeth, but the twelve not only rebuked by the judges, but also threatened of punishment. . . . But this threatening chanceth oftener than the execution thereof. Yet I have seen in my time, but not in the reign of the queen now, 1 that an inquest for pro- nouncing one not guilty of treason contrary to such evidence as was brought in, were not only imprisoned for a space, but an huge fine set upon their heads ; . . . another inquest for acquitting another, beside paying a fine of money, put to open ignominy and shame. But these doings were even then by many accounted very violent, tyrannical, and contrary to the liberty and custom of the realm of England. Wherefore it cometh very seldom in use ; yet so much at a time the inquest may be corrupted that the prince may have cause with justice to punish them, for they are men and subject to corruption and partiality as others be." We are told (Moore, 730-1) of many precedents in the Court of Wards for punishing juries who refused to find as directed by the Courts, and the reporter specifies five of them running from 1571 down to 1597, "this Easter term 39 Eliz." In 1600, 2 in an appeal of death, the foreman and seven others of the jury were heavily fined, but there was here an element of real misconduct, besides going against the instructions of the Court. In 1602, 3 for acquitting of murder, the jury were "com- mitted and fined and bound to their good behavior," and the re- porter does not omit to mention that Popham, Gawdy, and Fen. ner (the judges) fiiemnt valde irati. In 1654, 4 six of a jury were fined for refusing " to find certain Quakers guilty according to their evidence." In 1665, 5 we are told that the twelve were fined one hundred marks apiece for acquitting certain persons of un- lawfully attending conventicles. Hale (P. C. ii. 312) makes it five marks apiece, and states that "it was agreed by all the judges of England (one only dissenting) that this fine was not legally 1 He was writing in Elizabeth's seventh year. Throckmorton's trial was in Queen Mary's first year. 'Watts v. Braines, Cro. El. 778. 8 Wharton's Case, Yelverton 243, s. C. Noy, 48. 4 Leach's Case, T. Raymond, 98. 6 Wagstaffe's Case, Hardres, 409; s. c. I Sid. 272.