117. RECORDS OF JUDICIAL CASES (1670-88)
The king's writ of habeas corpus ... issued out of this court, directed to the then sheriffs of London to have the body of Edward Bushell, by them detained in prison, together with the day and cause of his caption and detention ... , before this court, to do and receive as the court should consider.... The writ of habeas corpus is now the most usual remedy by which a man is restored again to his liberty if he have been against law deprived of it....
In the present case it is returned that the prisoner, being a juryman among others charged at the sessions court of the Old Bailey to try the issue between the king and Penn and Mead upon an indictment for assembling unlawfully and tumultuously, "did contra plenam et manifestam evidentiam openly given in court acquit the prisoners indicted, in contempt of the king," etc.
The court hath no knowledge, by this return, whether the evidence given were full and manifest or doubtful, lame, and dark, or indeed evidence at all material to the issue; because it is not returned what evidence in particular ... was given.... Another fault in the return is that the jurors are not said to have acquitted the persons indicted against full and manifest evidence corruptly and knowing the said evidence to be full and manifest against the persons indicted; for, how manifest soever the evidence was, if it were not manifest to them ... , it was not a finable fault, nor deserving imprisonment — upon which difference the law of punishing jurors for false verdicts principally depends....
I would know whether anything be more common than for two men — students, barristers or judges — to deduce contrary and opposite conclusions out of the same case in law. And is there any difference that two men should infer distinct conclusions from the same testimony? ... And this often is the case of the judge and jury.
I conclude, therefore, that this return, charging the prisoners to have acquitted Penn and Mead against full and manifest evidence ... , without saying that they did know and believe that evidence to be full and manifest against the indicted persons, is no cause of fine or imprisonment....
We come now to the next part of the return, viz.: "That the jury acquitted those indicted against the direction of the court in matter of law, openly given and declared to them in court." The words, "that the jury did acquit against the direction of the court in matter of law," literally taken ... , are insignificant and not intelligible. For no issue can be joined of matter in law; no jury can be charged with the trial of matter in law barely; no evidence ever was or can be given to a jury of what is law, or not; nor no such oath can be given to, or taken by, a jury, to try matter in law; nor no attaint can lie for such a false oath. Therefore we must take off this veil and colour of words, which make a show of being something and in truth are 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, "The law is for the plaintiff (or for the defendant) and you are under the pain of fine and imprisonment to find accordingly" — then the jury ought of duty so to do, 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 new-found conclusion, after a trial so celebrated for many hundreds of years. For if the judge, from the evidence, shall by his own judgment first resolve upon any trial what the fact is, and so, knowing the fact, shall then resolve what the law is and order the jury penally to find accordingly, what either necessary or convenient use can be fancied of juries, or to continue trials by them at all? ...
True it is ... , the jury being ready to give their verdict ... , if ... the judge shall declare, "The matter of fact being by you so found to be, the law is for the plaintiff and you are to find accordingly for him," [and] if, notwithstanding, they find for the defendant, this may be thought a finding in matter of law against the direction of the court. For in that case the jury first declare the fact, as it is found by themselves; to which fact the judge declares how the law is consequent. And this is ordinary: when the jury find unexpectedly for the plaintiff or defendant, the judge will ask, "How do you find such a fact in particular?" And upon their answer he will say then it is for the defendant, though they found for the plaintiff (or e contrario); and thereupon they rectify their verdict. And in these cases the jury, and not the judge, resolve and find what the fact is. Wherefore, always in discreet and lawful assistance of the jury, the judge his direction is hypothetical and upon supposition, and not positive and upon coercion.... But in the case propounded by me, where it is possible in that special manner the jury may find against the direction of the court in matter of law, it will not follow they are therefore finable....
No case can be offered ... that ever a jury was punished by fine and imprisonment by the judge for not finding according to their evidence.... Sure this latter age did not first discover that the verdicts of juries were many times not according to the judge's opinion and liking. But the reasons are, I conceive, most clear that the judge could not nor can fine and imprison the jury in such cases....
Howell, State Trials, VI, 999-1010.
(B) The King v. Henry Carr (1680)[2]
... The present case it stands thus. Mr. Carr, here is an information brought against him for publishing a printed pamphlet called The Packet of Advice from Rome; and in it there are recited some particulars which were observed to you before.... The question is whether he was the author or publisher of this. You hear he is thought the author; but, say his counsel, it is not plain — and that is true. But it seems by their own witnesses, to any man's understanding, that they looked upon him as the author.... Now it remains for you to consider what proofs you have as to this particular book against which the information lies.... Even for men's lives, you have very often not a direct proof of the fact, of the act, or of the actual killing; but yet you have evidence by presumption as seems reasonable to conscience. If there be a known case in men's lives, certainly that should govern in offences ... of a nature that reflect upon the government.
As for those words, "illicite, maliciose, unlawful," for that I must recite ... what all the judges of England have declared under their hands.... When, by the king's command, we were to give in our opinion what was to be done in point of the regulation of the press, we did all subscribe that [without licence] to print or publish any newsbooks or pamphlets of news whatsoever is illegal; that it is a manifest intent to the breach of the peace; and they may be proceeded against by law for an illegal thing. Suppose now that this thing is not scandalous, what then? If there had been no reflection in this book at all, yet it is illicite, and the author ought to be convicted for it. And that is for a public notice to all people, and especially printers and booksellers, that they ought to print no book or pamphlet of news whatsoever, without authority. So as he is to be convicted for it as a thing illicite done, not having authority.
And I will assure you, if you find any of those papers, I shall be more merciful in the consideration of their punishment, if it be inoffensive. But if so be they will undertake to print news foolishly, they ought to be punished; and shall be punished if they do it without authority, though there is nothing reflecting on the government as an unlawful thing. The reason is plain: so fond are men in these days that, when they will deny their children a penny for bread, they will lay it out for a pamphlet.... And the temptations were so great that no man could keep two-pence in his pocket because of the news. But still they never repented of laying out their money till they found there was nothing against the government. "This is not worth a farthing; there is nothing of treason in it; we will not give a farthing for it." Therefore this book, if it be made by him to be published, it is unlawful, whether it be malicious or not....
Now we come to the more principal matter of fact according to reason and the probable evidence of things: that this person is taken to be the author, and that it was his boy that brought these papers to be printed.... The printer says he had been often discoursing with him; that his boy brought them, and that he knew no other person in the world that had any pretensions to be the author; and if he were the author, no doubt but he is the publisher. Whether or no anybody else had an hand in this we do not know. If you are satisfied in your consciences that you believe he is not the author, you must acquit him....
Ibid., VII, 1126-30.
(C) The King v. The City of London (1682)[3]
Mr. Attorney General hath exhibited an information in this court against the mayor, commonalty, and citizens of London, and thereby charges them for usurping upon the king without any warrant or royal grant ... divers liberties and franchises within the city of London: namely, to be of themselves a body corporate and politic by the name of Mayor, Commonalty, and Citizens of the City of London, and by that name to plead and be impleaded, with several other liberties which, because not now expressly in judgment before us, I shall not mention.
To this the defendants plead that the city of London is and was, time out of mind, an ancient city, and that the citizens of that city are and, for the time aforesaid, have been a body corporate in deed and name.... Then they plead the confirmation of their liberties by Magna Carta and other charters of several kings, and amongst others of his majesty that now is; and conclude by that warrant they claim and have used for all the time in the information that liberty and franchise to be a body politic by that name....
To this Mr. Attorney, taking by protestation that the citizens were not a corporation time out of mind ... , says that the mayor, commonalty, and citizens, assuming upon themselves to be a body politic ..., did upon pretext thereof ... assume an unlawful power to levy money of the king's subjects to their own use ...; that, by pretext of this law, they have for their own private lucre exacted and levied yearly £5000 of the king's subjects and converted the same to their own use, and this is alleged to be in subversion of the good government of the city, to the oppressing and impoverishing of the king's subjects coming to the markets, to the raising of the prices of necessary provisions, and the disinheriting of the king and his crown, and contrary to the trust reposed in them as a body politic.
Mr. Attorney further charges that, whereas the king, the 10th of January in the thirty-second year of his reign, had prorogued the parliament then sitting to the 20th of the same January ... , the mayor, commonalty, and citizens of the city of London in common council assembled, the 13th of the same January, unlawfully, maliciously, advisedly, and seditiously took upon them to censure the king ...; that they ordered a petition to be presented to the king containing this malicious, seditious, and scandalous matter.... And this Mr. Attorney alleges to be done in contempt and scandal of the king and his government ... , and concludes that for these crimes the mayor, commonalty, and citizens of the city of London have forfeited the liberty and franchise of being a body politic and yet since have usurped the franchise upon the king....
I shall therefore briefly deliver the resolution of us all upon all or the most material points debated in the arguments of this case. First, then, as to the great preliminary point — whether a corporation aggregate, such as the city is, may be forfeited or seized into the king's hands — we are of opinion that it may, upon breach of that condition which the law annexes to it, which is a trust for the good government of the king's subjects committed by the king to the corporation....
To the second point, we are of opinion that the assuming a power by the mayor, commonalty, and citizens of London to make by-laws to levy money upon the subject, and the levying vast sums of money thereby, is a great oppression upon the people; and consequently a breach of that trust in law, which is reposed in a body politic for the welfare of the people, and so a just cause of forfeiture.
Thirdly, we are of opinion that the charge touching the ordering, exhibiting, and printing the petition, so scandalous to the king and government, so dangerously tending to the seduction of his subjects to a dislike and hatred of his person and government, and so evidently tending to sedition thereby and rebellion, is another just cause of forfeiture....
And, lastly, [we are of opinion] that upon this whole record, both for the matter and substance of it and the form of pleading, judgment ought to be given, and it is the judgment of this court, that the franchise and liberty of London be taken into the king's hands.
Ibid., VIII, 1268 f.
... In the case of Godden and Hales, wherein the defendant pleads a dispensation from the king, it is doubted whether or no the king had such a prerogative. Truly, upon the argument before us, it appeared as clear a case as ever came before this court; but, because men fancy I know not what difficulty when really there is none, we were willing to give so much countenance to the question in the case as to take the advice of all the judges of England. They were all assembled at Serjeants' Inn, and this case was put to them.... And I must tell you that there were ten upon the place that clearly delivered their opinions.... My brother Powell said he was inclined to be of the same opinion, but he would rather have some more time to consider of it. But he has since sent by my brother Holloway to let us know that he does concur with us. To these eleven judges there is one dissenter, brother Street, who yet continues his opinion that the king cannot dispense in this case. But that's the opinion of one single judge against the opinion of eleven.
We were satisfied in our judgments before and, having the concurrence of eleven out of twelve, we think we may very well declare the opinion of the court to be that the king may dispense in this case. And the judges go upon these grounds: — (1) that the kings of England are sovereign princes; (2) that the laws of England are the king's laws; (3) that therefore 'tis an inseparable prerogative in the kings of England to dispense with penal laws in particular cases and upon particular necessary reasons; (4) that of those reasons and those necessities, the king himself is sole judge; and then, which is consequent upon all, (5) that this is not a trust invested in, or granted to, the king by the people, but the ancient remains of the sovereign power and prerogative of the kings of England; which never yet was taken from them, nor can be. And therefore, such a dispensation appearing upon record to come [in] time enough to save him from the forfeiture, judgment ought to be given for the defendant.
Ibid., XI, 1197 f.
(E) The Case of the Seven Bishops (1688)[5]
To the king's most excellent majesty: The humble petition of William, archbishop of Canterbury, and of divers of the suffragan bishops of that province, now present with him, in behalf of themselves and others of their absent brethren, and of the clergy of their respective dioceses, humbly showeth that the great averseness they find in themselves to the distributing and publishing in all their churches your majesty's late declaration for liberty of conscience proceedeth neither from any want of duty and obedience to your majesty ... , nor yet from any want of due tenderness to dissenters, in relation to whom they are willing to come to such a temper as shall be thought fit, when the matter shall be considered and settled in parliament and convocation; but, amongst many other considerations, from this especially, because that declaration is founded upon such a dispensing power as hath been often declared illegal in parliament, and particularly in the years 1662 and 1672, and in the beginning of your majesty's reign, and is a matter of so great moment and consequence to the whole nation, both in church and state, that your petitioners cannot in prudence, honour, or conscience, so far make themselves parties to it as the distribution of it all over the nation and the solemn publication of it once and again, even in God's house and in the time of His divine service, must amount to, in common and reasonable construction. Your petitioners therefore most humbly and earnestly beseech your majesty that you will be graciously pleased not to insist upon their distributing and reading your majesty's said declaration. And your petitioners, as in duty bound, shall ever pray, etc.
Lord Chief Justice: ... Gentlemen, thus stands the case: it is an information against my lords the bishops, his grace my lord of Canterbury, and the other six noble lords; and it is for preferring, composing, making, and publishing, and causing to be published a seditious libel. The way that the information goes is special, and it sets forth that the king was graciously pleased, by his royal power and prerogative, to set forth a declaration of indulgence for liberty of conscience in the third year of his reign; and afterwards, upon the 27th of April in the fourth year, he comes and makes another declaration; and afterwards, in May, orders in council that this declaration should be published by my lords the bishops in their several dioceses. And after this was done, my lords the bishops come and present a petition to the king, in which were contained the words which you have seen....
Gentlemen, upon the point of the publication, I have summed up all the evidence to you; and if you believe that the petition which these lords presented to the king was this petition, truly, I think, that is a publication sufficient. If you do not believe it was this petition, then my lords the bishops are not guilty of what is laid to their charge in this information, and consequently there needs no inquiry whether they are guilty of a libel. But if you do believe that this was the petition they presented to the king, then we must come to inquire whether this be a libel.
Now, gentlemen, anything that shall disturb the government, or make mischief and a stir among the people, is certainly within the case of Libellis Famosis;[6] and I must in short give you my opinion: I do take it to be a libel. Now this being a point of law, if my brothers have anything to say to it, I suppose they will deliver their opinions.
Justice Holloway: Look you, gentlemen, it is not usual for any person to say anything after the chief justice has summed up the evidence; it is not according to the course of the court. But this is a case of an extraordinary nature and, there being a point of law in it, it is very fit everybody should deliver their own opinion. The question is whether this petition of my lords the bishops be a libel or no. Gentlemen, the end and intention of every action is to be considered; and likewise, in this case, we are to consider the nature of the offence that these noble persons are charged with. It is for delivering a petition, which, according as they have made their defence, was with all the humility and decency that could be; so that, if there was no ill intent and they were not (as it is not nor can be pretended they were) men of evil lives or the like, to deliver a petition cannot be a fault — it being the right of every subject to petition. If you are satisfied there was an ill intention of sedition, or the like, you ought to find them guilty; but if there be nothing in the case that you find but only that they did deliver a petition to save themselves harmless, and to free themselves from blame, by showing the reason of their disobedience to the king's command, which they apprehended to be a grievance to them, and which they could not in conscience give obedience to, I cannot think it is a libel. It is left to you, gentlemen; but that is my opinion....
Justice Powell: Truly I cannot see, for my part, anything of sedition, or any other crime, fixed upon these reverend fathers, my lords the bishops. For, gentlemen, to make it a libel, it must be false, it must be malicious, and it must tend to sedition. As to the falsehood, I see nothing that is offered by the king's counsel, nor anything as to the malice; it was presented with all the humility and decency that became the king's subjects to approach their prince with. Now, gentlemen, the matter of it is before you; you are to consider of it, and it is worth your consideration. They tell his majesty it is not out of averseness to pay all due obedience to the king, nor out of a want of tenderness to their dissenting fellow subjects, that made them not perform the command imposed upon them; but they say that, because they do conceive that the thing that was commanded them was against the law of the land, therefore they do desire his majesty that he would be pleased to forbear to insist upon it, that they should perform that command which they take to be illegal. Gentlemen, we must consider what they say is illegal in it. They say they apprehend the declaration is illegal because it is founded upon a dispensing power, which the king claims, to dispense with the laws concerning ecclesiastical affairs. Gentlemen, I do not remember, in any case in all our law — and I have taken some pains upon this occasion to look into it — that there is any such power in the king, and the case must turn upon that. In short, if there be no such dispensing power in the king, then that can be no libel which they presented to the king, which says that the declaration, being founded upon such a pretended power, is illegal. Now, gentlemen, this is a dispensation with a witness; it amounts to an abrogation and utter repeal of all the laws; for I can see no difference, nor know of none in law, between the king's power to dispense with laws ecclesiastical, and his power to dispense with any other laws whatsoever. If this be once allowed of, there will need no parliament; all the legislature will be in the king — which is a thing worth considering, and I leave the issue to God and your consciences. Justice Allybone: ... I think, in the first place, that no man can take upon him to write against the actual exercise of the government unless he have leave from the government, but he makes a libel, be what he writes true or false.... Then, I lay down this for my next position: that no private man can take upon him to write concerning the government at all. For what has any private man to do with the government, if his interest be not stirred or shaken? ... When I intrude myself into other men's business that does not concern my particular interest, I am a libeller.... Now then, let us consider further, whether, if I will take upon me to contradict the government, any specious pretence that I shall put upon it shall ... give it a better denomination. And truly I think it is the worse because it comes in a better dress ...; so that, whether it be in the form of a supplication or an address or a petition, if it be what it ought not to be, let us call it by its true name ... — it is a libel.... Then, gentlemen, consider what this petition is. This is a petition relating to something that was done and ordered by the government. Whether the reasons of the petition be true or false, I will not examine that now; nor will I examine the prerogative of the crown; but only take notice that this relates to the act of the government.... And shall or ought anybody to come and impeach that as illegal which the government has done? Truly, in my opinion, I do not think he should or ought; for by this rule may every act of the government be shaken when there is not a parliament ... sitting.
Ibid., XII, 318 f., 422 f.
[1] In 1670 Edward Bushell, together with eleven other members of a jury, was committed to prison for having acquitted certain persons — among them the famous William Penn — charged with riotous assembly. The legality of this imprisonment then came before the court of king's bench through habeas corpus proceedings (cf. no. 114U), as a result of which the prisoners were discharged. The following excerpts are from the judgment by Chief Justice Vaughan.
[2] In this case Henry Carr was charged with publishing a "false, scandalous, and malicious book" entitled The Weekly Packet of Advice from Rome, in which the government was attacked for failing to enforce the laws against papists. Carr was brought to trial in the court of king's bench and was found guilty by a jury. The following excerpts are from the charge to the jury delivered by Chief Justice Scroggs.
[3] This case came to trial before the court of king's bench on quo warranto proceedings brought against the mayor and citizens of London. As may be seen from the judgment pronounced by Justice Jones, the king's right was upheld and the city was condemned to forfeit all its liberties. As a matter of fact, however, Charles had merely adopted this method of humbling the Londoners and, after forcing them to make complete submission to his mercy, he restored their ancient rights on condition that they should henceforth install no officials without his confirmation in writing. See D. Ogg, Reign of Charles II, II, 636 f.
[4] Sir Edward Hales, a colonel in the royal army, having neglected to take the oaths of supremacy and allegiance prescribed by the Test Act (no. 114R), was duly indicted for such neglect and convicted at the Rochester assizes. Thereupon Arthur Godden brought suit according to the provisions of the act for the sum of £500 forfeited by Hales. Actually the entire affair was prearranged, so that the defendant could plead in defence that he had the king's letters patent dispensing with the oaths in his case. How the matter was decided by the court of king's bench will appear from the judgment delivered by Chief Justice Herbert.
[5] In 1687 James II issued a Declaration of Indulgence modelled on that of his brother (no. 115), and in the next year he commanded all bishops to have copies of the declaration distributed throughout their dioceses, so that it might be publicly read in all churches. As a consequence, the archbishop of Canterbury, together with six bishops of his province, petitioned the king not to insist upon obedience to his command. For this they were arrested on a charge of publishing a seditious libel and brought to trial before a jury in the court of king's bench. Eventually, in the midst of great popular enthusiasm, they were acquitted. The following excerpts from the records are, first, the bishops' petition and, secondly, the charge to the jury by Chief Justice Wright and his fellow justices.
[6] The case De Libellis Famosis in Coke's reports, earlier stated by the chief justice in these words: "If any person have slandered the government in writing, you are to examine the ... slander which it imports to the king or government; and, be it never so true, yet if slanderous to the king or the government, it is a libel and to be punished. In that case the right or wrong is not to be examined, or if what was done by the government be legal or no; but whether the party bave done such an act."