proposition of the syllogism, which every litigated case contains, can be extracted from the particular circumstances to which it is supposed to apply, the court pronounce their own determination, without reference to a jury. The province of the latter, however, though it properly extend not to any general decision of the law, is certainly not bounded, at least in modern times, to a mere estimate of the truth of testimony. The intention of the litigant parties in civil matters, of the accused in crimes, is in every case a matter of inference from the testimony or from the acknowledged facts of the case; and wherever that intention is material to the issue, is constantly left for the jury's deliberation. There are indeed rules in criminal proceedings which supersede this consideration; and where, as it is expressed, the law presumes the intention in determining the offence. Thus, in the common instance of murder or manslaughter, the jury cannot legally determine that provocation to be sufficient, which by the settled rules of law is otherwise; nor can they, in any case, set up novel and arbitrary constructions of their own without a disregard of their duty. Unfortunately it has been sometimes the disposition of judges to claim to themselves the absolute interpretation of facts, and the exclusive right of drawing inferences from them, as it has occasionally, though not perhaps with so much danger, been the failing of juries to make their right of returning a general verdict subservient to faction or prejudice. Vaughan did not of course mean to encourage any petulance in juries that should lead them to pronounce on the law, nor does he expatiate so largely on their power as has sometimes since been usual; but confines himself to a narrow, though conclusive line of argument, that as every issue of fact must be supported by testimony, upon the truth of which the jury are exclusively to decide, they cannot be guilty of any legal misdemeanour in returning their verdict, though apparently against the direction of the court in point of law; since it cannot ever be proved that they believed the evidence upon which that direction must have rested.[17]

Habeas corpus act passed.—I have already pointed out to the reader's notice that article of Clarendon's impeachment which charges him with having caused many persons to be imprisoned against law.[18] These were released by the Duke of Buckingham's administration, which in several respects acted on a more liberal principle than any other in this reign. The practice was not however wholly discontinued. Jenkes, a citizen of London on the popular or factious side, having been committed by the king in council for a mutinous speech in Guildhall, the justices at quarter sessions refused to admit him to bail, on pretence that he had been committed by a superior court; or to try him, because he was not entered in the calendar of prisoners. The chancellor, on application for a habeas corpus, declined to issue it during the vacation; and the chief justice of the king's bench, to whom, in the next place, the friends of Jenkes had recourse, made so many difficulties that he lay in prison for several weeks.[19] This has been commonly said to have produced the famous act of habeas corpus. But this is not truly stated. The arbitrary proceedings of Lord Clarendon were what really gave rise to it. A bill to prevent the refusal of the writ of habeas corpus was brought into the house on April 10, 1668, but did not pass the committee in that session.[20] But another to the same purpose, probably more remedial, was sent up to the Lords in March 1669-70.[21] It failed of success in the upper house; but the Commons continued to repeat their struggle for this important measure, and in the session of 1673-4 passed two bills, one to prevent the imprisonment of the subject in gaols beyond the seas, another to give a more expeditious use of the writ of habeas corpus in criminal matters.[22] The same or similar bills appear to have gone up to the Lords in 1675. It was not till 1676 that the delay of Jenkes's habeas corpus took place. And this affair seems to have had so trifling an influence that these bills were not revived for the next two years, notwithstanding the tempests that agitated the house during that period.[23] But in the short parliament of 1679, they appear to have been consolidated into one, that having met with better success among the Lords, passed into a statute, and is generally denominated the habeas corpus act.[24]

It is a very common mistake, and that not only among foreigners, but many from whom some knowledge of our constitutional laws might be expected, to suppose that this statute of Charles II. enlarged in a great degree our liberties, and forms a sort of epoch in their history. But though a very beneficial enactment, and eminently remedial in many cases of illegal imprisonment, it introduced no new principle, nor conferred any right upon the subject. From the earliest records of the English law, no freeman could be detained in prison, except upon a criminal charge or conviction, or for a civil debt. In the former case, it was always in his power to demand of the court of king's bench a writ of habeas corpus ad subjiciendum, directed to the person detaining him in custody, by which he was enjoined to bring up the body of the prisoner, with the warrant of commitment, that the court might judge of its sufficiency, and remand the party, admit him to bail, or discharge him, according to the nature of the charge. This writ issued of right, and could not be refused by the court. It was not to bestow an immunity from arbitrary imprisonment, which is abundantly provided in Magna Charta (if indeed it were not much more ancient), that the statute of Charles II. was enacted; but to cut off the abuses, by which the government's lust of power, and the servile subtlety of Crown lawyers, had impaired so fundamental a privilege.

There had been some doubts whether the court of common pleas could issue this writ; and the court of exchequer seems never to have done so.[25] It was also a question, and one of more importance, as we have seen in the case of Jenkes, whether a single judge of the court of king's bench could issue it during the vacation. The statute therefore enacts that where any person, other than persons convicted or