Page:Harvard Law Review Volume 5.djvu/398

382 382 HAR YARD LA W RE VIE W. In criminal cases, fining was still kept up. In 1666 (Kelyng, 50) Kelyng, the new Chief Justice, fined a jury five pounds apiece for a verdict of manslaughter where he had directed them that it was murder; "but after, upon the petition of the jurors, I took down their fines to 40 s. apiece, which they all paid." In 1667, 1 Kelyng fined eleven of the grand jury 20 pounds apiece for refusing to indict for murder, and the Judges of the King's Bench held this good. The reporter makes the judges add, " And when the petty jury, contrary to directions of the Court, will find a murder manslaughter . . . yet the Court will fine them. But," adds the reporter, " because they were gentlemen of repute in the country, the Court spared the fine ; yet in Parliament the Chief Justice was fain to submit, being by Sir H. W[indham] accused." 2 And finally at the old Bailey, in 1670, the jurors who acquitted William Penn and William Mead on a charge of taking part in an unlawful assembly, etc., were fined and imprisoned. But on habeas corpus in the Common Pleas, 3 they were discharged, and Vaughan, C.J., pronounced that memorable opinion which ended the fining of jurors for their verdicts, and vindicated their character as judges of fact. "A witness," he says, "swears to but what he hath heard or seen ; generally or more largely to what hath fallen under his senses. But a juryman swears to what he can infer and conclude from the testimony of such witnesses by the act and force of his understanding to be the fact inquired after." 4 As regards the charge that the jury went against the instruction of the Court in law, — a court, Vaughan says, does not charge a jury with matter of law in the abstract, but only upon the law as growing out of some supposition of fact. This matter of fact is for the jury ; it is not for the judge, " having heard the evidence given in court (for he knows no other)," to order the jury to find the 1 King v. Windham, 2 Keble, 180. 2 For the proceedings in the House of Commons see 6 How. State Trials, 993. The House appears to have passed a resolution (after hearing the Chief Justice in his own de- ft nee) condemning the fining or imprisoning of jurors as illegal. But a bill which was brought in to the same effect did not pass the House. 8 Bushel's case, Vaughan, 135. S.C. 6 How. St. Tr. 999; for Penn and Mead's Case see ib. 951. Vaughan's opinion, as it has come down to us, is evidently in the form of an unfinished draft. "is only a judgment given upon a comparison of proofs." When we read that, we are aware of a wholly modern atmosphere.
 * "A verdict," says Lee, C. J., in 1738 (Smith d. Dormer v. Parkhurst, Andrews, 322) f