withdraw; on which they again retired, and brought in a general ver- 11. Indemnity dict of acquittal: which the Court, considering as a contempt, set a fine &c. of jurors. of forty marks upon each of them, and condemned them to lie in prison till it was paid. Edward Bushel, one of the jurors, (to whom we are almost as much indebted as to Mr. Hampden, who brought the case of ship-money before the Court of Exchequer), refused to pay his fine, and, being imprisoned in consequence of the refusal, sued out his writ of habeas corpus, which, with the cause of his commitment, (viz., his refusing to find according to the direction of the Court, in matter of law), was returned by the sheriffs of London to the Court of Common Pleas; when Lord C. J. Vaughan, to his immortal honour, delivered his opinion as follows:-"We must take off this veil and colour of words, which make a show of being something, but are, in fact, nothing. 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, that the law is for the Crown, and they, under the pain of fine and imprisonment, are to find accordingly, 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 trials by them may be better abolished than continued; which were a strange and new-found conclusion, after a trial so celebrated for many hundreds of years in this country.' then applied this sound doctrine with double force to criminal cases, and discharged the upright juror from his illegal commitment. (Bushell's case, Vaugh. 135; 6 Howell's St. Tr. 989. See Ld. Erskine's Speech on he Trial of the Dean of St. Asaph, 21 Howell's St. Tr. 925; 1 Ld. Ersine's Speeches, p. 202). He "And to say the truth," says Lord Hale, "it would be the most unhappy case that could be to the judge, if he, at his peril, must take upon him the guilt or innocence of the prisoner; and if the judge's opinion nust rule the matter of fact, the trial by jury would be useless." (2 Hale, 315). But if a jury give a verdict against all reason, convicting or acquitting person indicted of felony, what shall be done? If the jury convict a nan against or without evidence, and against the direction of the Court, he Court may reprieve him before judgment, and acquaint the King, nd certify for his pardon: if the jury acquit him, in like manner the Court may send them back again (and so in the former case) to consider etter of it, before they record the verdict; but, if they are peremptory n it, and stand to their verdict, the Court must take their verdict and ecord it. (2 Hale, 309, 310). don, may fine By the 6 Geo. IV. c. 50, s. 51, “Every Court of Nisi Prius, oyer and Courts of Nisi erminer, gaol delivery, and sessions of the peace, held for the city of Prius, &c. in LonLondon, shall and may fine any man duly summoned to attend upon jurors. ny kind of jury in any of such Courts respectively, and making default, or any talesman or viewer making default, in the same manner, to all intents and purposes, as such respective Courts in England and Wales herein before mentioned." Sect. 53. "If any man having been duly summoned and returned to serve as a juror in any county in England or Wales, or in London upon any inquest or inquiry before any sheriff or coroner, or before any of the commissioners aforesaid (a), shall not, after being openly called three times, appear and serve as such juror, every such sheriff, or in his absence the under-sheriff or secondary, and such coroner and commissioners respectively, are hereby authorized and required (unless some reasonable excuse shall be proved on oath or affidavit) to impose such upon every man so making default as they shall respectively think fine (a) Id est, in sect. 52 of the act. But as that section relates only to writs VOL. III. of inquiry, it is not thought worth RRR Sheriffs, coroners, and commissioners may fine jurors for non-attend ance. 6 Geo. IV. c. 50. Persons summoned to serve on juries in inferior to forfeit not more Jurors. XI 11. Indemnity fit, not exceeding 51.; and every such sheriff, under-sheriff, secondary, &c. of jurors. coroner, and commissioners respectively, shall make out and sign a cer tificate, containing the Christian and surname, the residence and tra? or calling of every man so making default, together with the amount the fine imposed, and the cause of such fine, and shall transmit so certificate to the clerk of the peace, for the county, riding, or divis in which every such defaulter shall reside, on or before the first day the quarter sessions next ensuing; and every such clerk of the pea hereby required to copy the fines so certified on the roll on which fines and forfeitures imposed at such quarter sessions shall be cop and the same shall be estreated, levied, and applied in like ma and subject to the like powers, provisions, and penalties, in all respe as if they had been part of the fines imposed at such quarter sessions Sect. 54. "Every man duly summoned and returned to serve any jury for the trial of any cause or criminal prosecution, to be trie courts not attend any Court of record holden within the said city of London, other t ing (a), the Courts herein before respectively mentioned, or in any other liber franchise, city, borough, or town, who shall not appear and serve jury, (after being openly called three times, and on proof being ma oath of the man so making default having been duly summoned), forfeit and less than 20s., as the Court shall deem reasonable to impose, unless for pay every such his default, such fine, not exceeding just cause for such defaulter's absence shall be made appear by affidavit, to the satisfaction of the Court; and that if anyt, whom such fine shall be imposed, shall refuse to pay the to the person who shall be authorized by the Court to receive t shall be lawful for such Court then, or at its next sitting, and is hereby authorized and required, by order of the Court, size proper officer thereof, to cause every such fine to be levied br and sale of the goods and chattels of the person on whom such in have been imposed; and the overplus money, if any, which sha after payment of such fine, and deducting the reasonable chargs distress and sale, shall be rendered to the person whose goods and tels shall have been so distrained and sold; and that every fine shall be so imposed, shall, when received or levied, be paid by son who shall receive or levy the same to the proper officer berty, franchise, city, borough, or town in which the Court wherein such fine was imposed, to be applied to such uses on jurors, or other fines set in Courts holden within such liber chise, city, borough, or town, are by charter, prescription, or plicable."" than 40s., nor less than 208,, unless the Court be satis fied with the cause of absence. Fine leviable by distress and sale. Fine to be paid to the proper officer of the Court, to be disposed of as other fines of Court. How fines to be plied. Sic. The 6 Geo. IV. c. 50, s. 55, enacts, "All fines to be imp recovered and ap- this act by any of the King's Courts of record at Westminster the superior Courts, civil or criminal, or the three counties pa by any Court of assize, Nisi Prius, oyer and terminer, or gai or by any Court of sessions of the peace in England, or by any great sessions, or sessions of the peace in Wales (6), shall be applied in the same manner as any other fines imposed by Court; and that all other penalties hereby created (for which remedy is given) shall, on conviction of the offender before any of the peace within his jurisdiction, be levied, unless such penalty with paid, by distress and sale of the offender's goods and chatte rant under the hand and seal of such justice, who is hereby " to hear and examine witnesses on oath or affirmation on any a and to determine the same, and to mitigate the penalty, if fit, to the extent of one moiety thereof; and all penalties, the tion whereof is not hereinbefore particularly directed, shall be (a) See 29 Geo. II. c. 19, repealed. the Welch judicature, &c. "Wales," Vol. VI.) the complainant; and for want of sufficient distress, the offender shall 11. Indemnity be committed, by warrant under the hand and seal of such justice, to the &c. of jurors. common gaol or house of correction, for such term, not exceeding six calendar months, as such justice shall think proper, unless such penalty be sooner paid." A fine for not attending as a special juror at the Court of C. P. at Decisions as to Westminster, having been imposed upon a person having a house in fining. Brighton and one in London, but who had resided for the last twelve months at Brighton; Hullock, B., refused to remit the fine, on the ground, that if the excuses for non-attendance were sufficient, they ought to have been urged upon, and allowed by the judge at Nisi Prius. (Ex parte Sir Thomas Clarges, Bart., 1 Younge & J. Rep. 399). The following note, however, is added to the report: "Since this case occurred, the Court has granted several applications to remit fines imposed on persons summoned as special jurors, upon affidavits stating that the party summoned was absent from his usual place of residence, or at his country seat, from before the delivery of the summons until after the time to which the summons applied had expired, and that he had had no intimation of his services being required before the fine was imposed. This opinion of Mr. B. Hullock, in this the first application under the statute, is inserted, the editor, with great deference to subsequent decisions, conceiving it to be the true construction of the act of Parliament. Upon either construction, however, the act is obviously imperfect; for, if the Court have no power to remit the fine, it is contrary to the principle of legislative justice, that a party should be liable to a fine for the infringement of an order of which he had, and in many cases could have had no notice; (for the act, as applicable to special jurors requires three days' notice only); and if, on the other hand, the Court have power in such cases to remit the fine, the entertaining of the application is an admission that the fine was in the first instance mistakenly imposed; and yet the Court and office fees, exclusive of poundage, if the order be obtained, amount to the sum of 37. 5s. 2d., which, if deducted from the sum of 107., the fine usually imposed on special jurors, leaves a balance, after paying the attorney's and counsel's fees, too trifling to encourage applications to the Court. This defect, for it undoubtedly is one, might be obviated by requiring personal service, or the deposition of the summoning officer to facts, from which the Court might infer, that the juror personally had notice that his services would be required." Where the party summoned had let his house and was abroad, which fact was communicated to the summoning officer, the Court remitted the fine. (Ex parte Ford, Id. 401). So, likewise, where the summons had by mistake been left at a wrong house, the Court remitted the fine, but required the affidavit of the sunmoning officer to that fact. (Ex parte Brown, Id. 401). By the 6 Geo. IV. c. 50, s. 60, “From and after the passing of this writs of attaint act, it shall not be lawful either for the King, or any one on his behalf, abolished. or for any party or parties, in any case whatsoever, to commence or prosecute any writ of attaint against any jury or jurors, for the verdict by them given, or against the party or parties who shall have judgment upon such verdict; and that no inquest shall be taken to inquire of the concealments of other inquests; but that all such attaints and inquests shall henceforth cease, become void, and be utterly abolished; any law, statute, or usage to the contrary notwithstanding." Sect. 61. "Notwithstanding any thing herein contained, every person who shall be guilty of the offence of embracery, and every juror who shall wilfully or corruptly consent thereto, shall and may be respectively proceeded against, by indictment or information, and be punished by fine or imprisonment, in like manner as every such person and juror might have been before the passing of this act." (And see further as to the offence of embracery, tit. "Maintenance," Vol. V.) Embracers and corrupt jurors puand imprisonment. nishable by fine 12. Recovery of penalties, XII. Provisions of Jury Act as to Recovery of Penalties, actions, &c. Form of conviction. Conviction not to be quashed for want of form. Remedy for irregularity causing damage. Persons sued may plead the general issue. Costs. Actions, &c. By 6 Geo. IV. c. 50, s. 56, “for the more easy and speedy convicti of offenders against this act," it is enacted, "That the justice bein whom any person shall be convicted of any offence against this shall and may cause the conviction to be drawn up in the follow form of words, or in any other form of words to the same effect, as case shall happen; viz.:— 2 "Be it remembered, that, on in the year of our Lord, at —, 4. & is convicted before me C. D., one of his Majesty's justices of the peace for the of, for that he the said A. B. did [specifying the offence, and the time place where the same was committed, as the case shall be]; and the said 1.1. is, for his said offence, adjudged by me the said justice to forfeit and pay the of- Given under my hand and seal the day and year first above mentiones Sect. 57. "No such conviction shall be quashed for want of form." be removed or removable by certiorari, or by any other writ or pr whatsoever, into any of his Majesty's Courts of record at Westmins and that where any distress shall be made for any penalty to be by virtue of this act, the distress itself shall not be deemed to be ful, nor the party making the same be deemed a trespasser, on act of any defect or want of form in the summons, conviction, war distress, or other proceedings relating thereto, nor shall such pa deemed a trespasser ab initio on account of any irregularity wh be afterwards done by him; but the person aggrieved by suc larity shall and may recover full satisfaction for the special d any) in an action upon the case, first giving notice in writ cause of action to the opposite party one calendar month be commencement of such action; but no plaintiff shall recover in tion for such irregularity, if tender of sufficient amends shall ha made before such action brought, or if a sufficient sum of money have been paid into Court after such action brought, by or on the party distraining." Sect. 58. "If any suit or action shall be prosecuted against son, for any thing done in pursuance of this act, such person m the general issue, and give this act and the special matter in e any trial to be had thereupon; and if a verdict shall pass for the ant, or the plaintiff shall become nonsuit, or discontinue his tion after issue joined, or if upon demurrer or otherwise judg be given against the plaintiff, the defendant shall recover do and have the like remedy for the same as any defendant hath b other cases; and though a verdict shall be given for the plainti such action, such plaintiff shall not have costs against the de unless the judge before whom the trial shall be shall certify h bation of the action, and of the verdict obtained thereupon." as to double costs, the 5 & 6 Vict. c. 97, post, tit. "Justices." Sect. 59. "All actions, suits, and prosecutions, to be co menced within six against any person for any thing done in pursuance of this act laid and tried in the county where the fact was committed, and commenced within six calendar months after the fact commits not otherwise; and that notice in writing of such cause of sett be given to the defendant or defendants one calendar month st fore the commencement of the action." Actions to be com months, with one month's notice. XIII. Sabing Clauses in Jury Act. By the 6 Geo. IV. c. 50, s. 63, "Nothing herein contained shall be construed to affect or alter any part of an act passed in the seventh and eighth years of the reign of King William the Third, intituled 'An Act that the solemn affirmation and declaration of the people called Quakers hall be accepted instead of an oath in the usual form;' nor any part of an act passed in the twenty-second year of the reign of King George the Second, intituled An Act for encouraging the people known by the name Unitas Fratrum, or United Brethren, to settle in his Majesty's colonies in America." Sect. 64. "Nothing herein contained shall extend or be construed to xtend to alter, abridge, or affect any power or authority which any ourt or judge now hath, or any practice or form in regard to trials by ry, jury process, juries, or jurors, except in those cases only where any ch power or authority, practice or form, is repealed or altered by this t, or is or shall be inconsistent with any of the provisions thereof, nor abridge or affect any privilege of parliament." nty of to wit. -} XIV. Forms. To the high constable [or, "to, one of the high constables"] hese are to require you, within fourteen days after the receipt hereof, to issue in the Clerk of the peace, for the said county [“riding," or, "division."] of- to wit. To the churchwardens and overseers of the poor of the See tit. "Oaths," Vol. V. form. (c) The act gives this form. 14. Forms. Not to affect the Not to affect powers unrepealed. (1). Warrant for returning lists of jurors (b). (2). Precept for returning lists of jurors (c). |