to be according to the evidence, and the opinion of the judge. Upon motion for a new trial, it was agreed that the verdict be set aside; but the question was, whether the defendant should pay costs; the court inclined to give the plaintiff costs, comparing it to the case of a verdict against evidence; but at last it was agreed, that the costs should wait the event of a trial. Str. 642.

11. The jury may give a verdict without testimony, when they themselves have cognizance of the fact. Tr. p. pais 179. 1 Ventr.

97.

12. But if they give a verdict on their own knowledge, they ought to tell the court so: but they may be sworn as witnesses; and the fair way is to tell the court, before they are sworn, that they have evidence to give. (1 Salk. 405.) And this they are now bound to do. See 1 Rev. Code, p. 101, sect. 14.

For certainly it is of dangerous consequence, to receive a verdict against evidence given, on supposal that some of the jury knew otherwise, or on private information given by any juryman to the rest, where he cannot be cross examined. Tr. p. pais 209.

13. After they be agreed they may, in cases between party and party, if the court be risen, give a private verdict, before any of the judges of the court; and then they may eat and drink; and the next morning, in open court, they may either affirm or alter their private verdict; and that which is given in court shall stand. 1 Inst. 227.

But in criminal cases of life or member, the jury can give no private verdict, but they must give it openly in court. Ibid.

14. In all causes, and in all actions, the jury may give either a general or special verdict, as well in causes criminal as civil, and the court ought to receive a special verdict, if pertinent to the point in issue. 3 Salk. 373.

Thus if one be indicted for grand larceny, that is, for stealing goods above the value of twelve pence, yet the jury may find specially, that he is guilty, but that the goods are not above the value of twelve pence. In which case he shall only have judgment of petit larceny. 1 Saw. 95.

15. Jurors are to try the fact, and the judges ought to judge according to the law that ariseth upon the fact. 1 Inst. 226.

But if they will take upon them the knowledge of the law upon the matter, they may, yet it is dangerous, for if they mistake the law, they run into the danger of an attaint; therefore to find the special matter is the safest way, where the case is doubtful. Ibid. 228.

But if the jury find according to the direction of the judge, in matter of law, although the judge be mistaken, yet the jury shall not be liable to attaint. L. Raym. 470.

But the sufficiency of the evidence must be left wholly to the consideration of the jury. 1 H. & M. 564.

16. It hath been adjudged, that if the jury acquit a prisoner of an indictment of felony against manifest evidence, the court may, before the verdict is recorded, but not after, order them to go out again, and re-consider the matter; but this by many is thought hard, and seems not of late years to have been so frequently practised as formerly. However, it is settled, that the court cannot set aside a verdict which acquits a defendant of a prosecution properly criminal, as it seems that

they may a verdict that convicts him for having been given contrary to evidence and the direction of the judge, or any verdict whatsoever for a mistrial. 2 Haw. 442.

17. After the verdict recorded, the jury cannot vary from it; but before it be recorded, they may vary from the first offer of their verdict, and that verdict which is recorded shall stand. 1 Inst. 227.

18. A verdict finding an impossible matter shall not be void, if at 'the same time it find the substance of the indictment; but the surplus shall be rejected. 1 Haw. 77.

19. Verdicts shall not be taken so strictly as pleadings; but the substance of the thing in issue ought to be always found. 3 Salk. 373. 20. It is said, that if the jurors agree not, before the departure of the justices of jail delivery into another county, the sheriff must send them along in carts, and the judge may take and record their verdict in a foreign county. 2 H. H. 297. Tr. p. pais 274, 285. 1 Vent.

97.

But if the case so happen, that the jury can in no wise agree, as if one of the jurors knoweth in his own conscience the thing to be false, which the other jurors affirm to be true, and so he will not agree with them in giving a false verdict, and this appeareth to the justices by examination; the justices (as it seemeth) in such case may take such order in the matter, as shall seem to them by their discretion to stand with reason and conscience, by awarding a new inquest, or otherwise, as they shall think best by their discretion, like as they may do, if one of the jury die before the verdict. Dr. & Stud. 158.

VI. OF THE INDEMNITY AND PUNISHMENT OF

JURORS.

1. If a man assault, or threaten a juror, for giving a verdict against him, he is highly punishable by fine and imprisonment; and if he strikes him in the court, in the presence of the judge of assize, he shall lose his hand and his goods, and profits of his lands during life, and suffer perpetual imprisonment. 1 Haw. 57, 58.

2. Where more than one of the persons returned upon a jury do appear, but not a sufficient number to take an inquest, and some of the others come within view of the court, or into the same town in which the court is holden, but refuse to come into the court to be sworn; upon proof of such matter, the court may, at the prayer of the parties, order the jurors who appeared to inquire what is the yearly value of such defaulter's lands, and after such inquiry made, either summon them to appear, on pain of forfeiting such sums as their lands have been found to be worth by the year, or some lesser sum, or impose a fine of the like sum upon them, without any farther proceeding. But it seems, that such juror shall be liable to lose his issues only for such default, and not the yearly value of his lands, unless the party pray it. But a juror who hath actually appeared, and after makes default, is said to be subject to such forfeiture of the yearly value of his lands, whether the party pray it or not; because his contempt appears to the court by its own record; yet even in this case, the court in discretion will sometimes only impose a small fine. Also, it seems that a juror who makes default, without ever coming into the town wherein

the court is holden, is liable only to lose his issues, or to be amerced, but not to be fined. 2 Haw. 146.

3. "Any juror guilty of a contempt to the court may be fined by such court in any sum not exceeding thirty dollars." Rev. Code, p. 101, sect. 15.

4. If the grand jury at the assizes or sessions will not find a bill, the court may impannel another inquest (by the 3 H. 7. c. 1.) to inquire of their concealments, and thereupon set fines upon them. But it seemeth that fines set upon grand inquests in any other manner are not warrantable by law; for the privilege of a citizen of the commonwealth is, that his life shall not be drawn in danger without due presentment or indictment, and this would be but a slender screen or safe guard, if every justice of the peace, or judge of assize, may make the grand jury present what he pleases, or otherwise fine them. (2 H, H. 160, 1.) But the above statute is not now in force in this country. See 1 Rev. Code, p. 291.

5. It seems to be certain, that no one is liable to any prosecution whatsoever, in respect of any verdict given by him in a criminal matter, either upon a grand or petit jury; for, since the safety of the innocent, and punishment of the guilty, doth so much depend upon the fair and upright proceedings of jurors, it is of the utmost consequence, that they should be as little as possible under the influence of any passion whatsoever. And therefore, lest they should be biassed with the fear of being harrassed by a vexatious suit, for acting according to their conscience, the law will not leave any possibility for a prosecution of this kind. And as to the objection, that an attaint lie against a jury for a false verdict in a civil cause, and that there is as much reason to allow of it in a criminal one; it may be answered, that in an attaint in a civil cause, a man's property is only brought into question a second time, and not his liberty or life. 1 Haw. 191. L. Raym. 469.

6. But where the jurors give a false verdict upon an issue joined in any court of record, and judgment thereupon, the party grieved may bring his writ of attaint. Upon which twenty-four of the best men of the county are to be jurors, who are to hear the same evidence which was given to the petit jury, and as much as can be brought in affirmance of the verdict, but no other against it. And if these twenty-four who are called the grand jury find it a false verdict, then followeth this terrible judgment at the common law upon the petit jury; that the party shall be infamous, so as never to be received to be a witness, or a juror; shall forfeit his goods and chattels; and his lands and tenements shall be taken into the commonwealth's hands, his wife and children cast out of doors; his houses prostrated; his trees rooted up; his meadows ploughed up; and his body imprisoned. And seeing all trials of real, personal, and mixt actions depend upon the oaths of twelve men, prudent antiquity inflicted a severe and strange punishment upon them, if they were attainted of perjury. 1 Inst. 294. Read Jur.

But this proceeding seems to be entirely disused at this day, and in the place of attaint, motions are now usually made for new trials, when a verdict is against evidence. Wood b. c 4.

7. It seems to be the current opinion of the old books, that jurors

are not subject to any prosecution for a false verdict, except by way of attaint; and there seems to be very few ancient precedents for the punishment, either for grand or petit juries, merely for giving a verdict against evidence, or the direction of the court, either in a capital or civil matter. 2 Haw. 147.

And in Bushel's case, it was resolved by all the judges, upon a full conference together, that a jury is not fincable for going against their evidence, where an attaint lies. And where an attaint doth not lie. L. Vaughan says thus: "That the court could not fine a juryman at the common law, where attaint did not lie, I think it to be the clearest position that I ever considered, either for authority or reason of law." And one reason for this is, because the judge cannot fully know upon what evidence the jury give their verdict; for they may have other evidence, than what is shewed in court; they are of the vicinage, the judge is a stranger; they may have evidence from their own personal knowledge that the witnesses speak false, which the judge knows not of; they may know the witnesses to be stigmatized and infamous, which may be unknown to the parties or court. And if the jury knew no more than what they heard in court, and so the judge knew as much as they, yet they might make different conclusions, as often times two judges do; and therefore, as it would be a strange and absurd thing to punish the judge for differing with another in opinion or judgment, so it would be worse for the jury, who are judges of the fact, to be punished for finding against the direction of him who is not judge of the fact. Tr. per pais 224. Vaugh. 135.

And to say the truth, says lord Hale, it would be the most unhappy case that could be to the judge, if he at his peril must take upon him the guilt or innocence of the prisoner; and if the judge's opinion must rule the matter of fact, the trial by jury would be useless. 2 H. H,

315.

But what if a jury gave a verdict against all reason, convicting or acquitting a person indicted of felony, what shall be done? If the jury convict a man, against or without evidence, and against the direction of the court, the court may reprieve him before judgment, and acquaint the executive, and certify for his pardon; if the jury acquit him in like manner, the court may send them back again (and so in the former case) to consider better of it, before they record the verdict; but if they are peremptory in it, and stand to their verdict, the court must take their verdict and record it. 2 H. H. 309, 310.

(A) Challenge to the array, because the sheriff is of kindred to one of the parties: from Coke's entries.

And now at this day, to wit: came the aforesaid A, the plaintiff, and B, the defendant, by their attornies, and the jurors were impannelled and demanded, and came, and thereupon the aforesaid B challengeth the array of the pannel aforesaid, because he said that that pannel was arrayed by one J Z, now and at the time of making the array aforesaid, sheriff of the said county of D), which said sheriff is a kinsman of the aforesaid J M (the plaintiff) to wit, the son of G Z, the son of J Z, the son of J Z, k. &c. (state the pedigree.) And this he is ready

to verify, whereupon he prayeth judgment, and that the said pannel may be quashed. Which said challenge by

and by

triers

to this chosen and sworn is found true. And therefore let the pannel aforesaid be quashed and amoved, &c. Tr. per pais 160.

(B) Challenge because the pannel was returned at the instance of the party.

And upon this, the said challenges the array of the said pannel, because he says, that that pannel was arrayed by J S, late sheriff of the county of aforesaid, at the nomination of the said and in

his favour; which said challenge, by triers thereof sworn, is found

true.

For other forms of challenges, and proceedings thereupon, see Tr. per pais 159, 184.

JUSTICES OF THE PEACE.

1

1. THE term 'Justices of the Peace,' though familiar in England long before the settlement of Virginia, was not introduced into the laws of the colony until the year 1661. From the earliest period of our settlement (in 1607) to the year 1629, commanders of plantations' are alone mentioned in our laws, as persons authorised to exercise civil jurisdiction. They also possessed the supreme military command of the settlement. (See 1 vol. Hen. St. Large, 125, 127.) A commission expressing their powers and jurisdiction, may be seen in the 1st vol. of the Statutes at Large, page 131. In the year 1629,' commissioners of monthly courts' were appointed by commission from the governor, and had jurisdiction in civil cases and petty offences only. (See the form of the commission, 1 vol Stat. Large, 132) In 1632, similar commissions issued to different parts of the colony, styling the persons appointed commissioners,' for the places to which they were assigned; and after specifying their jurisdiction, in matters civil and criminal, they were moreover empowered to do and execute whatever a justice of the peace or two or more justices of the peace might do,' according to the laws of England. (See I vol. Stat. Large, 168, 9.) The term commissioners' was, however, generally used in our ancient statutes, till by degrees that of Justices of the Peace' was adopted. See Stat. at Large passim, from 1629 to 1665, act 1.

2. By the fifteenth article of the constitution of Virginia, The governor, with the advice of the privy council, shall appoint justices of the peace for the counties; and in case of vacancies, or a necessity of