were found guilty by the jury of manslaughter only, against clear evidence and the direction of the Court: upon which,' says the reporter,* the Judges Popham, Gawdy, and Fenner, were very angry (valdè fuerunt irati), and all the jurors were committed and fined, and bound for their good behaviour.' In another report of the same case, it is stated that several of the jurors, who were the principal leaders of the others, and were suspected of being corrupted by the friends of the prisoners, were not only imprisoned and fined, and bound for their own good behaviour, but were compelled to give security for the good behaviour of the prisoners acquitted by them. They were so punished,' it is said, 'by the advice of all the Justices;' and Chief-Justice Popham affirmed that there were precedents for this course, which he cited, declaring that such an offence was not to be suffered.' In the reign of James I, it was held by the Lord Chancellor Egerton, afterwards Lord Ellesmere, together with the two Chief Justices, Sir John Popham and Sir Edward Coke, and the Lord Chief Baron Sir Thomas Fleming, that when a party indicted is found guilty on the trial, the jury shall not be questioned; but on the other side, when a jury hath acquitted a felon or traitor against manifest proof, they may be charged in the Star-Chamber for their partiality in finding a manifest offender not guilty.' After the abolition of the Star-Chamber, there were several instances, in the beginning of the reign of Charles II, in which it was resolved that both grand and petit juries might be fined for giving verdicts against plain evidence and the directions of the Court.

The practice of fining juries for their verdicts was,

* Yelverton's Reports, p. 23.

† Noy's Reports, p. 48. 12 Coke's Reports, p. 23, 24.

§ See Hawkins's Pleas of the Crown, Book ii, c. xxii, sect. 20.

however, at all times considered a grievous injustice; and soon after the Commonwealth, Lord Hale and some other Judges expressed a decided opinion against its legality. An instance in which Chief Justice Kelyng had fined a grand jury of the county of Somerset being mentioned in Parliament, excited very general reprobation; and at length, in the year 1670, this important subject was fully considered and discussed upon a return to a habeas corpus brought by one Bushell, who had been committed by the Recorder of London at the Old Bailey Sessions, as the foreman of a jury who had acquitted persons charged on an indictment for an unlawful assembly. Upon this occasion it was solemnly determined by all the Judges of England, with only one dissentient voice, that petit jurors are in no case finable for giving a verdict against the evidence delivered to them in court; and the principal reason assigned for this decision was that juries are the proper judges of matters of fact, and ought to be perfectly free in the exercise of their judgment. The effect of this decision has been to make jurors, in criminal cases, responsible to their own consciences alone for the verdicts which they fairly and faithfully give upon matters of fact, and thus to render the trial by jury, for the first time, an efficient security for the subject against the power of the Crown. Still in some extreme cases, where juries obstinately persist in giving a verdict contrary to the direction of the Court in matters of law, they are, even at the present day, liable to be fined; Mr Serjeant Hawkins * says, 'it seems agreeable to the general reason of the law, that they should be finable by the Court in such a case, for otherwise they would be dispunishable for so palpable a partiality, in taking upon them to judge of matters of law, which they have nothing to do with, and are presumed to be ignorant of, contrary

* Pleas of the Crown, book ii, c. xxii, s. 21, 22.

to the express direction of one who, by the law, is appointed to direct them in such matters, and is to be presumed of ability to do so."

The practice of fining juries may possibly have arisen out of that system of trial which we have alluded to in the Introduction, as the probable origin of the Trial by Jury. When the jury were witnesses, speaking from their own knowledge of the fact, and sworn to speak the truth, the delivery of a palpably false verdict was a contempt of court, and punishable as such. The practice might not, therefore, in its inception, have been altogether unreasonable, being in truth analogous to the power of Judges at the present day, to punish gross and wilful perjury committed in their presence by imprisonment of the offender; though, as the character of the jury became changed from witnesses to judges of the fact, upon the testimony of others, it was not only absurd and unjust, but in its operation totally subversive of the value of trial by jury, as a protection to the liberty of the subject.

Upon a review of the whole of this proceeding, the reader will probably be of opinion that, as an historical fact, even though it rested upon no evidence but that contained in the trial, there is strong presumptive proof that Throckmorton was actively concerned in Wyatt's rebellion. Admitting the full force of the objections made by the prisoner to Vaughan's credibility, his testimony cannot be altogether disbelieved; and it shows indisputably that Throckmorton was in communication with the rebels, that he had engaged to accompany the Earl of Devonshire into the West, and was privy to and actually invited the advance of Wyatt with his armed followers. If, in addition to this, we consider the character of the man, which was decidedly turbulent and intriguing, and remember that his early friend and

patroness the Princess Elizabeth was supposed to encourage this insurrection, that Wyatt, Carew, Crofts, Winter, and Vaughan were political friends of Throckmorton, and that all of them, with the single exception of Wyatt, who was executed, were promoted as well as himself, immediately upon Elizabeth's accession, to offices of great trust and importance in her government, we shall find abundant reason to believe that he was an active agent in the conspiracy.

6

MEMOIR OF THE DUKE OF NORFOLK.

THOMAS HOWARD, designated in history as the fourth Duke of Norfolk, was the eldest son of the accomplished Earl of Surrey, who is said by Camden to be the first of the English nobility that did illustrate his high birth by the beauty of learning,' and who was executed in 1546, upon one of those arbitrary charges of treason which disgraced the reign of Henry VIII. His whole offence, as appears by his indictment lately published,* consisted in his having borne the arms of Edward the Confessor quartered with his own; and for this offence he was executed, though it was notorious, and was proved on his trial, that his ancestors had been expressly authorized by former kings to bear their arms in this form, and had in fact borne them for centuries. The third Duke of Norfolk, father of the Earl of Surrey, and grandfather of the subject of the following trial, whose long services as a soldier and a statesman deserved a very different acknowledgement, was sent to the Tower at the same time with his son, and narrowly escaped the same fate; for as soon as an Act of Parliament for his attainder was passed, a warrant was sent to the Lieutenant of the Tower to cut off his head the next morning; but the King dying in the night, the Lieutenant could do nothing upon that warrant, and it was not thought advisable to begin the new King's reign with such an odious execution.† Having always been, however, the head and avowed supporter of the Catholic party, he remained a prisoner in the Tower during the whole reign of Edward VI, and was liberated

*Nott's Life of Surrey.

+ Burnett's History of the Reformation.

VOL. XVI.

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