much as he could, he procured references to the judges. Though in his nature he had not only a firm gravity, but a severity, and even some morosity; yet it was so happily tempered, and his courtesy and affability towards all men so transcendent, and so much without affectation, that it marvellously recommended him to men of all degrees, and he was looked upon as an excellent courtier, without receding from the native simplicity of his own manners.

"He had, in the plain way of speaking and delivery, without much ornament of elocution, a strange power of making himself believed-the only justifiable design of eloquence: so that, though he used very frankly to deny, and would never suffer any man to depart from him with an opinion that he was inclined to gratify, when in truth he was not, holding that dissimulation to be the worst of lying; yet the manner of it was so gentle and obliging, and his condescension such, to inform the persons whom he could not satisfy, that few departed from him with ill will and ill wishes. But then, this happy temper and these good faculties rather preserved him from having many enemies, and supplied him with some well wishers, than furnished him with any fast and unshaken friends, who are always procured in courts by more ardour and more vehement professions and applications than he would suffer himself to be entangled with. So that he was a man rather exceedingly liked, than passionately loved; insomuch that it never appeared that he had any one friend in the court of quality enough to prevent or divert any disadvantage he might be exposed to. And therefore it is no wonder, nor to be imputed to him, that he retired within himself as much as he could, and stood upon his defence, without making desperate sallies against growing mischiefs; which, he knew well, he had no power to hinder, and which might probably begin in his own ruin. To conclude; his security consisted in his having but little credit with the King; and he died in a season most opportune, in which a wise man would have prayed to have finished his course, and which in truth crowned his other signal prosperity in the world."

We have already mentioned Lord Coventry's first marriage, of which his successor was the only issue. By his second lady, (the city widow, whose perfections are so eulogized in

the MS.,) who was of the ancient family of the Alderseys, in Cheshire, he had four sons, three of whom attained high distinction in the service of the Crown after the Restoration; and four daughters, all of considerable celebrity for excellence and talent, and to the youngest of whom, Dorothy, belongs the best title to the authorship of that pious and well known manual, the "Whole Duty of Man," as well as of other valuable treatises on religious subjects. From the union of another daughter, Mary, with Henry Thynne, of Longleat, Esq., descend the present Marquisses of Bath.

ART. III.-THE PROVINCE OF JUDGE DISTINGUISHED FROM THE PROVINCE OF JURY.

1

IN an article1 of one of our Numbers, published in the year 1831, we examined the division of presumptions, which English lawyers have generally made, into presumptions of law and presumptions of fact; and we added a short summary of the meaning of several terms which are connected with the subject. We there stated that "presumptions of law are legal rules determining the quantity of evidence requisite to the support of a particular averment," and that " presumptions of fact are arguments of which the major premiss is not a rule of law." According to these definitions, the difference between these two classes of presumptions turns entirely upon the existence of a rule of law, in the absence of which the matter to be investigated consists entirely of fact, and the investigation is to be conducted upon those general rules which are suggested by our experience of the affairs of life. Closely akin to the distinction between these two classes of presumptions, is the distinction between the respective provinces of judge and jury; and we shall find after a little examination, that the principle, upon which in most cases it is and in all cases ought to be founded, is the existence of a bio for 201 1 Vol. vi. (No. 14.) p. 348.

rule of law; that if such a rule exists, the judge ought to lay it down to be applied by the jury, but that in every other case the decision ought to be left entirely to their discretion.

We are well aware how many important considerations are involved in this question, how closely it is connected with the constitutional privileges of the subject, with the administration of criminal justice, and with the commercial intercourse of the different classes of society. Mr. Starkie concludes his observations upon this subject with the following remark :1— "These observations may not perhaps be deemed to be altogether unimportant, when it is considered how essential it is to preserve the distinction between law and fact, and to pre- . vent any misconception as to the relative functions of courts and juries." To the justice of this remark we fully assent, though we shall presently endeavour to explain why Mr. Starkie has not drawn the distinction with all the clearness of which the subject admits, and has fallen into errors which a little more precision would have enabled him to avoid.

An inquiry into the original establishment of juries would throw but little light upon the point which we are about to investigate; but still is so far necessary as it will prove that juries have always had the power of deciding upon law as well as upon fact. They have been required to answer the whole question, whether A. B. was or was not seised, whether A. B. did or did not commit murder; and they have had the power of deciding in defiance of the judge's charge, and of setting at defiance the established rules of law. 2In the Statute of Northampton, A. D. 1176, the justices are directed, in case a lord should deny to the heir the seisin of his deceased ancestor, faciant fieri recognitionem per duodecium legales homines, qualem seisinam defunctus inde habuit, &c.; thus the authority of the recognitio is vested exclusively in the duodecim legales homines, while the judge is but as the commissioner who shall take their verdict. 3 When the verdict was given, judgment was delivered according to it;" "When the assize failed to give a plain and intelligible verdict, it was the office of the justices to endeavour to elucidate it by interrogation and discussion." "They were to

Starkie on Evid. i. 458, 2d ed. 2 Reeves' Hist. of Eng. Law, i. 87. 3 Ibid. 330.

elucidate it, but they had no right to alter it or to substitute any other verdict." "Though it was commonly said that truth was the province of the juror, and justice and judgment that of the judge, it seems (says Bracton, 185, b. 186, b.) that judgment belongs to the jurors, inasmuch as they are to say upon their oath whether one man disseised another. But yet, as the judge is to give a just judgment, it becomes him diligently to weigh and examine what is said by the jurors, to see whether it contains any truth, that he may not himself be misled by their mistakes." The expedients to be adopted in civil causes for effecting unanimity among jurors are additional testimonies to their omnipotence. "Fleta lays it down for law, that, when there is a difference of opinion among the jurors, it was at the election of the judge, either to afforce the assize by adding others till twelve were found who were unanimous, or to compel the assize to agree among themselves, by directing the sheriff to keep them without meat or drink till they all agreed in their verdict." Another method was, to enter the verdict of the major and lesser part of the jurors, and then judgment was given ex dicto majoris partis juratorum. The remedy did not consist in empowering the judge to return a verdict, nor in transferring the authority of the jury to any other tribunal, but merely in finding a second jury, who should correct the errors of the first. But perhaps the most conclusive evidence of the complete omnipotence of juries, may be extracted from the stat. of Westminster, passed for the purpose of relieving them from the responsibility of deciding points of law :-" That the justices for taking assizes shall not compel the jurors to say precisely, whether it was a disseisin or no, so as they are willing to speak the truth of the fact, and require aid of the justices; but if they, of their own head, will say that it is a disseisin, their verdict shall be admitted at their own peril."

Our object in quoting these passages has been to mark the great extent of the jurisdiction which juries have the power of assuming; to show that the authority of the judge does not extend beyond an admonition, which the jurors may or may not receive, and to remind our readers, that when a person declares this or that point to be matter for the Court, he is

I Reeves' Hist. ii. 267.

subject to the onus probandi, that an authority formerly vested in the jury has, upon principle or practice, been transferred to the judge. We do not contemplate a case in which the jury choose to transgress the powers generally exercised by them," and in which it is matter of regret that the power of attainting them no longer exists.1 The usurpation which is practised in such a case prevents the distinction between the provinces of judge and jury from taking effect at all. But we wish to distinguish the several cases in which an upright jury, confining themselves within the limits of their proper jurisdiction, ought or ought not to follow implicitly the directions of the judge.

If the rule to be laid down upon this subject depends on no determinate principle, the trial by jury affords a very precarious protection to the public. A judge of consummate talent will engross to himself the whole authority of the jury; or if amongst the "twelve honest men" there should be seated one man of great abilities, and of little scruple in the exercise of them, he might persuade his fellow jurymen that the judge's influence is a mere usurpation, and that in vindication of public privileges they are bound to resist it. To prevent the occurrence of evils of this description, the true principle of distinction ought to be so clearly ascertained as to defy mistake; and indeed it has been so frequently laid down in works of the highest authority, that the existence of any doubt may seem at first sight to be a matter of surprise. Mr. Bentham says, "The question of law is decided by the text of the

1 Respecting the extensive power of juries, see Bushell's case, Vaughan's Rep. 141. We quote the following argument of the Chief Justice, upon the principle of which the authors of every verdict, however much opposed to common sense, may be defended. "I would know whether any thing 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? Is any thing more known than that the same author, and place in that author, is forcibly urged to maintain contrary conclusions, and the decision hard which is in the right? Is any thing more frequent in the controversies of religion, than to press the same text for opposite tenets? How then comes it to pass, that two persons may not apprehend with reason and honesty, what a witness or many say, to prove in the understanding of one plainly one thing, but in the apprehension of the other clearly the contrary thing? Must, therefore, one of these merit fine and imprisonment, because he doeth that which he cannot otherwise do, preserving his oath and integrity? And this often is the case of the judge and jury."

2 Bentham on Judicial Evidence, p. 9.