Page:Harvard Law Review Volume 5.djvu/397

381 THE JURT A ND ITS DE VEL OP ME NT. 3 8 1 set upon the jury, for they are the judges of matters of fact, and although it was inserted in the fine that it was contra directionem curia in materia legis, this mended not the matter, for it was im- possible any matter of law could come in question till the matters of fact were settled, and stated, and agreed by the jury, and of such matters of fact they were the only competent fudges." 1 This appears not to have been an actual decision, for the thing continued. The dissenting judge was probably Kelyng. Had the judges met a little earlier there would have been another dis- senter, viz., Chief Justice Hyde, who died on the first of the same May wherein Wagstaffe was punished. What his opinions were may be seen in a civil case just before, on "Friday, April 14" (1 Keble, 864), where in arranging for a new trial in a case where a verdict had been given contrary to evidence, he "ordered the sheriff should return a good jury in the new trial;" and the re- porter adds, " Hyde, Chief Justice, conceived jurors ought to be fined if they would go against the Hare [law ?] and direction, take bit in mouth and go headstrong against the Court ; and said, that by the grace of God he would have it tried, seeing the attaint is now fruitless." The ardor of these expressions may be under- stood from what this same judge had done before, and the recep- tion his action had met with. He had, in fact, in a civil case, fined the jurors five pounds apiece three years before, but the exchequer judges had refused to enforce the fine as being illegal, and "the greater part of the rest of the judges" had agreed with them. 2 The doctrine that wherever an attaint will lie upon a verdict (i.e., in all civil cases, at any rate) it is illegal to fine or imprison, is laid down in Bushel's Case in 1670, 3 and is re- ferred to the case where Hyde had fined the jury "All the judges have agreed upon a full conference at Serjeant's Inn in this case. And it was formerly so agreed by the then judges in a case where Justice Hyde, etc.,. . . that a jury is not finable for going against their evidence where an attaint lies . . . for it may be affirmed and found upon the attaint a true verdict." 1 Hale's book is supposed to have been written in 1660-1676. It was not printed for sixty years after his death. a Hale, P. C. ii. 160, 311. Certain distinctions between the authority of different judges and different courts, I do not consider; see Hale, P. C. ii. 310-13. 8 Vaughan, pp. 144-5.