5JS J U 
through an innocent negligence, or inadvertence, they had 
always the power of giving a verdiit of acquittal, which 
could never be called in queftion. Whether that ftatute 
has conferred any further privilege on them is left for the 
reader to determine; after confidering the foregoing ob- 
lervations, and thofe which follow ; extracted from two 
molt learned, ingenious, and conftitutional, writers. 
On the trial of John Lilburne for treafon, in 1649, high 
words pafi'ed between the court and him, in coni'equence 
of his Hating that the jury were judges both of law and 
fact, and citing pafiages in 1 In ft. 228, a, to prove it. 2 St. 
Tr. yed. 69. In the cafe of Penn and Meade, who, in 
1670, were indicted-for unlawfully aflembling the people, 
and preaching to them, the jury gave a verdict again it the 
directions of the court in point of law, and for this were 
committed to prifon. But the commitment was queftion- 
ed 5 and, on a habeas corpus brought into the court of com¬ 
mon pleas, it was declared illegal, Vaughan, Ch. J. diltin- 
guifhing hirnfelf on the occafion by a molt profound ar¬ 
gument in favour of the rights of a jury. Bujkeil’s Ca. 
1 Freem. 1. Vaug/i: 155. However, the conteft did not 
ceafe, as appears by fir John Havvles’s famous Dialogue 
between a Barrifter and a Juryman, which was publifhecl 
in 1680, to aflert the claims of the latter, againft the then 
current doctrine, decrying their authority. Since the re¬ 
volution alfo, many cafes have occurred, in which there 
has been much debate on the like topic. 
Mr. Hargrave, the author of the above note, then pro¬ 
ceeds to give his own ideas on the fubjeCt; which from 
the known learning and probity of the writer, are d'eferv- 
ing very ferious attention. “On the one hand, fays he, 
as the jury may, as often as they think fit, find a general 
verditt, I theref ore think it unqueftionable that they fo far 
may decide upon the law as well as fait ; fuch a verdift 
necefl'arily involving both. For this, there is the autho¬ 
rity of Littleton hirnfelf, who writes, that, ‘ If the inqueft 
will take upon them the knowledge of the law upon the 
matter, they may give their verdift generally,’ §. 368. 228, 
a. But, on the other hand, it feems clear, that questions 
of law generally, and more properly, belong to the judges ; 
and that, exclufively of the fitnefs of having the law ex¬ 
pounded by thofe who are trained to the knowledge of it 
by long Itudy and practice, this appears from various con- 
iiderations. Firft, If the parties litigating agree in their 
fads, the caufe can never go to a jury, but is tried on a 
demurrer; it being a rule, apparently without exception, 
that ifiues in law are ever determined by the judges, and 
only ifiues of faff are tried by a jury. 1 Injl. 71. b. Se¬ 
condly, Even when an iffue of faft is joined, and conies 
before a'jury for trial, either party, by demurring to evi¬ 
dence, which includes an admilfibn of the faff to which 
the evidence applies, may fo far draw the caufe from the 
cognizance of the jury ; for. in that cafe the law is refer¬ 
red for the decilion of the court, from which the iffue of 
the fact comes ; and the jury is either difcharged, or, at 
the utmoft, only afcertains the damages. 1 Injl. 72, a. 
Thirdly, The jury is fuppofed to be fo inadequate to find¬ 
ing out the law, that it is incumbent on the judge who 
prefides at the trial to inform them what the law is; and, 
as a check to the judge in the difcharge of this duty, ei¬ 
ther party may, under ftat. Weftm. 2. c. 31, make his ex¬ 
ception in writing to the j udge’s direction, and enforce its 
being made a part of the record, foas afterwards to found 
error upon it. 2 Injl. 426. Fourthly, The jury is ever at 
liberty to give a fpecial verdict, the nature of which is to 
find the facts at large, and leave the conclufion of law to 
the judges of the court from which the iffue comes. For¬ 
merly, indeed, it was doubted whether in certain cafes, in 
which the iffue was of a very limited and reftrained kind, 
the jury was not bound to find a general verdift ; but the 
contrary was fettled in Dowman’s cafe, 9 Co. 11, b ; and the 
rule now holds both in criminal and civil cafes without 
exception. 1 Injl. 227, b. Fifthly, Whilft attaints, which 
ftill fubfilt in law, were in ufe, it was hazardous in a jury 
to find a general verdift where the cafe was doubtful, and 
R Y. 
they were apprifbd of it by the judges; becaufe, if they 
miftook the law, [againfi the direction of the judge,] they 
were in danger of an attaint. 1 Injl. 228; a. Sixthly, If 
the jury find the fails fpecialiy, and add their conclufion 
as to the lav/, it is not binding on the judges ; but they have 
a right to controul the verdict, and declare the law as they 
conceive it to be. At leaft this is the language of fome 
molt refpeitable authorities. Staunf. P. C. 165. a. Plowd. 
114. a, b. 4 Co. 42. b. Hal. H. P. C. i. 471, 6, 7. ii. 302. 
Laftly, The courts have long exercifed the power of grant¬ 
ing new trials in civil cafes, where the/jury finds againft 
that which the judge trying the caufe, or the court at 
large, holds to be law; or where the jury finds a general 
verdiil, and the court conceives that on account of diffi¬ 
culty of law there ought to have been a fpecial one. Hardw. 
26. And the court will grant fuch new trial, even a fe- 
cond and a third time, till the jury gave a general verdidt 
confonant to law ; or a fpecial verdict, on which the court 
may pronounce the lav/. Tindal, v. Brown 1 Term Rep. 167. 
And though, in criminal and penal cafes, the judges do not 
claim fuch adifcretion againft perlons acquitted, the reafon 
prefumed is in refpedt of the rule, nemo bispunitur autveocatur 
pro eodem deliflo ; or the hardfhip which would arife from 
allowing a perfon to be twice put in jeopardy for one of¬ 
fence ; and, if this be fo, it only fhows, that on that ac¬ 
count an exception is made to a general rule. 4 Comm. 361. 
2 Ld. Raym. 1585. 2 Stra. 899. 4 Co. 40. a. V/idgale's Max¬ 
ims, 695. Upon the whole, (fays Mr. Hargrave,) the re- 
fult is, that the immediate and direft right of deciding 
upon queftions of law is entrulted to the judges ; that in 
a jury it is only incidental ; that, in the exercife of this 
incidental right, the latter are not only placed under the 
fuperintendance of the former, but are, in fome degree, con- 
troulable by them ; and therefore, that, in all points of 
law arifing oh a trial, juries ought to fliow the moft re- 
fpeftful deference to the advice and recommendation of 
judges. Nor is it any linall merit in this arrangement, 
that, in confequence of it, every perfon accufed of a 
crime is enabled, by the general plea of Not guilty, to have 
the benefit of a trial, in which the judge and jury are a 
check upon each other. 1 Injl. 155, a, &c. in n." 
The liudent will perceive from the above extraft, that 
Mr. Hargrave admits the incidental right of the jury to de¬ 
termine queltions of law ; in which he goes further than 
the writer from whom the fubfequent long quotation is 
introduced. Mr. Wynne, in his Euno'mus, or Dialogues 
concerning the Law and Conftitution of England, Dial 3. 
§. 53, & feq. examines the difpute in the following manner: 
“ All that may here be faid uporrthe fubjedt of juries 
is agreeable to the eftablifhed maxim above recognifed, ad 
quajlionem fafti, &c. This is the fundamental maxim ac¬ 
knowledged by the conftitution ; and yet this is the max¬ 
im, which thofe who have advanced doctrines againft .the 
conftitution have ever in their mouths. Fundamental 
maxims of law or government are fo plain and intuitive, 
that every body underftands them ; thofe of the loweft ca¬ 
pacity make them their ftandard in their own breafts to 
judge by. And therefore they who would lead a party in 
a wrong caufe with fuccefs, mult do it, not by difputing 
fundamentals, but by avowing and afterwards perverting 
them. This feems to be much the cafe in the prefent con- 
tefted queftion. 
“ It is undoubtedly true, that the jury are judges, the 
only judges, of the fadt : is it not equally within the fpi- 
rit of the maxim, that judges only have the competent cog- 
nifance of the law ? Can it be contended that the jury 
have, in reality, an adequate knowledge of law ; or that 
the conftitution ever defigned they fliould ? Every coun¬ 
try village has its jurors, whom nobody will fuppofe to ■ 
be lawyers; and it is from the generality that we are to 
form our notions of the nature of a jury, as the law has 
prefcribed it; not from the abilities of any particular man, 
or any particular jury. But it is faid, and it is an argu¬ 
ment not a little infilled upon, that the law and the fafi are 
often complicated. Then it is the province of the judge to- 
i djltinguilh. 
