well-grounded apprehension of a republican conspiracy.[10] Another, immediately after the fire of London, directed the mode in which houses should be rebuilt, and enjoined the lord mayor and other city magistrates to pull down whatsoever obstinate and refractory persons might presume to erect upon pretence that the ground was their own; and especially that no houses of timber should be erected for the future.[11] Though the public benefit of this restriction, and of some order as to the rebuilding of a city which had been destroyed in great measure through the want of it, was sufficiently manifest, it is impossible to justify the tone and tenor of this proclamation; and more particularly as the meeting of parliament was very near at hand. But an act having passed therein for the same purpose, the proclamation must be considered as having had little effect. Another instance, and far less capable of extenuation, is a proclamation for shutting up coffee-houses, in December 1675. I have already mentioned this as an intended measure of Lord Clarendon. Coffee-houses were all at that time subject to a licence, granted by the magistrates at quarter sessions. But, the licences having been granted for a certain time, it was justly questioned whether they could in any manner be revoked. This proclamation being of such disputable legality, the judges, according to North, were consulted, and intimating to the council that they were not agreed in opinion upon the most material questions submitted to them, it seemed advisable to recall it.[12] In this essential matter of proclamations, therefore, the administration of Charles II. is very advantageously compared with that of his father; and considering at the same time the entire cessation of impositions of money without consent of parliament, we must admit that, however dark might be his designs, there were no such general infringements of public liberty in his reign as had continually occurred before the long parliament.

One undeniable fundamental privilege had survived the shocks of every revolution; and in the worst times, except those of the late usurpation, had been the standing record of primeval liberty—the trial by jury: whatever infringement had been made on this, in many cases of misdemeanour, by the pretended jurisdiction of the star-chamber, it was impossible, after the bold reformers of 1641 had lopped off that unsightly excrescence from the constitution, to prevent a criminal charge from passing the legal course of investigation through the inquest of a grand jury, and the verdict in open court of a petty jury. But the judges, and other ministers of justice, for the sake of their own authority or that of the Crown, devised various means of subjecting juries to their own direction, by intimidation, by unfair returns of the panel, or by narrowing the boundaries of their lawful function.

Juries fined for verdicts.—It is said to have been the practice in early times, as I have mentioned from Sir Thomas Smith in another place, to fine juries for returning verdicts against the direction of the court, even as to matter of evidence, or to summon them before the star-chamber. It seems that instances of this kind were not very numerous after the accession of Elizabeth; yet a small number occur in our books of reports. They were probably sufficient to keep juries in much awe. But after the restoration, two judges, Hyde and Keeling, successively chief justices of the king's bench, took on them to exercise a pretended power, which had at least been intermitted in the time of the commonwealth. The grand jury of Somerset having found a bill for manslaughter instead of murder, against the advice of the latter judge, were summoned before the court of king's bench, and dismissed with a reprimand instead of a fine.[13] In other cases fines were set on petty juries for acquittals against the judge's direction. This unusual and dangerous inroad on so important a right attracted the notice of the House of Commons; and a committee was appointed, who reported some strong resolutions against Keeling for illegal and arbitrary proceedings in his office, the last of which was, that he be brought to trial, in order to condign punishment, in such manner as the house should deem expedient. But the chief justice, having requested to be heard at the bar, so far extenuated his offence that the house, after resolving that the practice of fining or imprisoning jurors is illegal, came to a second resolution to proceed no farther against him.[14]

Question of their right to return a general verdict.—The precedents, however, which these judges endeavoured to establish, were repelled in a more decisive manner than by a resolution of the House of Commons. For in two cases, where the fines thus imposed upon jurors had been estreated into the exchequer, Hale, then chief baron, with the advice of most of the judges of England, as he informs us, stayed process; and in a subsequent case it was resolved by all the judges, except one, that it was against law to fine a jury for giving a verdict contrary to the court's direction. Yet notwithstanding this very recent determination, the recorder of London, in 1670, upon the acquittal of the quakers, Penn and Mead, on an indictment for an unlawful assembly, imposed a fine of forty marks on each of the jury.[15] Bushell, one of their number, being committed for non-payment of this fine, sued his writ of habeas corpus from the court of common pleas; and on the return made that he had been committed for finding a verdict against full and manifest evidence, and against the direction of the court, Chief Justice Vaughan held the ground to be insufficient, and discharged the party. In his reported judgment on this occasion, he maintains the practice of fining jurors, merely on this account, to be comparatively recent, and clearly against law.[16] No later instance of it is recorded; and perhaps it can only be ascribed to the violence that still prevailed in the House of Commons against nonconformists, that the recorder escaped its animadversion.

In this judgment of the Chief Justice Vaughan, he was led to enter on a question much controverted in later times, the legal right of the jury, without the direction of the judge, to find a general verdict in criminal cases, where it determines not only the truth of the facts as deposed, but their quality of guilt or innocence; or as it is commonly, though not perhaps quite accurately worded, to judge of the law as well as the fact. It is a received maxim with us, that the judge cannot decide on questions of fact, nor the jury on those of law. Whenever the general principle, or what may be termed the major