and that verdict which is recorded shall stand. Special ver- But they may give a special verdict in dict. Cannot cast lots for ver dict. Jurors when for other any cri minal case, whether capital or not capital, as well as in a civil. As if one be indicted for grand larceny, that is for stealing goods above the value of 12d. yet the jury may find specially that he is guilty, but that the goods are not above the value of 12d. in which case he shall only have judgment for petit larceny.† If the jurors differ and cast lots for their verdict, although it may be according to the evidence, and the opinion of the judge, they shall be fined for the contempt. But the Court cannot receive an affidavit from any of the jurymen, that the jury were divided in opinion, and tossed up, in all of whom such conduct is a very high misdemeanor; but in every such case the Court must derive their knowledge from some other source; such as from some persons having seen the transaction through a window, or by some such other means.§ Jurors are likewise punishable for sending punishable for, or receiving instructions from, the parties, contempts. concerning the matter in question, and therefore much more for receiving a bribe. So if a juryman have a piece of evidence in his pocket, and after the jury sworn and gone *Co. Lit. 227. † 2 Hawk, c. 47. § 1 Term R. 11. together, hesheweth it to them to influence their verdict, it is a misdemeanor fineable in the Jury; but it avoids not the verdict.* able in cri rect con But it is no offence in a juror merely to exhort his companions to join him in such a verdict as he thinks right; and generally, it seems Not puuishcertain, that no one is liable to any prosecution minal cases, or punishment whatsoever, in respect of ahy but for diverdict given by him in a criminal matter, ad- tempt. hering only to these plain rules, of justice and decency. For since the safety of the innocent, and punishment of the guilty, 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 harassed by a vexatious suit, for acting according to their conscience, the law will not leave any possibility for a prosecution.† When the Jury are agreed on the verdict, the Recording clerk calls them by their names, and asks them the verdict. "if they are agreed in their verdict, and who shall say for them?" and calls the first Prisoner to the bar, and bids him hold up his hand. Then says to the Jury, "Look upon the Prisoner, you that are sworn, what say you, is A. B., guilty of the felony whereof he stands indictor not guilty?" If they say guilty, then the 66 *Hale's Hist. 306, † 2 Hawk. 22. Sentence passed. clerk asks them, "what lands or tenements, "goods or chattels, he, the Prisoner, had at the time of the felony committed, or at any time "since?" The Jury's common answer is, "None to our knowledge." When the Jury say, "not guilty," then the clerk asks if he, the Prisoner, "did fly for it, or not?" If they find a flight, it is recorded; but their common answer is, "Not to our knowledge."* And so the clerk proceeds to every Prisoner particularly, which the Jury hath in charge, writing after the words po. se. over the several names of the Prisoners, guilty or not guilty, as the verdict is; and then says to the Jury, "Hearken to your verdict as the Court record"eth it; you say A. B. is guilty of the felony "whereof he stands indicted, and that he hath no goods nor chattels; that C. D. is not guilty," and so of the rest; and then conludes, " and so you say all."† 66 Then make a proclamation thrice, beginning with O yez, and say "all manner of persons are "commanded to keep silence whilst judgment is given against the Prisoner at the bar, upon "pain of imprisonment;" then set the Prisoner to the bar, and give the sentence.‡ *Cro. Cir. Comp. 15. † Ibid. In a book professedly compiled for the use of persons who have not been in the habit of considering such kinds of subjects, it may, perhaps, be deemed at least a pardonable piece of When the trials of felonies, trespasses, &c. Vagrants. are concluded, it is usual to dispose of the vagrants, and those who are to be conveyed by vagrant passes. presumption in its author, if he throw out a few suggestions on that portion of the Justice's public duty, in the exercise of which, the law has left the most to his discretion, with the fewest means of regulating his judgement, viz. the punishment of those offences, which are the usual subjects of trials before a Court of Quarter Session. Where statutes have conferred upon individual magistrates, or even upon Sessions, the authority of summary convictions without the intervention of jurors, they have limited the penalties for the offences created, or punished, by them, within narrow generally, but always within prescribed bounds; while with respect to fines, imprisonment, pillory, and even transportation, they have, of necessity perhaps, left to them the same latitude of apportionment, as to the judges of the superior Courts, although persons. without the same professional experience, the same familiar acquaintance with the multiplied inducements to the commission of crimes, or the same means of discrimination respecting the effects of punishment. The present purpose is therefore to impress upon the minds of those who are only commencing their career in the public duties of magistracy, not merely the Justice and humanity, and therefore the duty, but even the policy also of exercising the most unprejudiced and temperate discrimination in the distribution of punishments, on account of the salutary consequences which may reasonably be expected from it, The punishments ordained by municipal regulations, may not improperly be designated by the epithets admonitory," "exemplary," and "vindictive." To discriminate further than this might perhaps incur the imputation of fanciful refinement; but thus far, it may not be too much to insist, the first suggestions of common sense, and common benevolence need not wait for the sauction of experiment; When any vagrant shall be committed to the House of Correction "till the next Session,' and the Justices at such Session shall, on the examination of the circumstances of the case, adjudge such person to be a rogue and vagabond, or an incorrigible rogue, they may order such rogue cr vagabond to be detained in the House. for they are to be found in the very rudiments of civilization. To the novice in delinquency, punishment is intended pri marily to operate as an in dividual admonition; and where the heart has not been absolutely depraved, but only the passions excited, or the temerity of youth stimulated by excessive tempe tation, or the influence of bad example; it will frequently have its due effect, if administered with that moderation, which corrects, without degrading. Nemo repentè turpissimus, is an adage, as true in point of fact, as necessary to be kept in mind by those, whose rank and duties call upon them to mark with precision of punishment, the deviation of ignorance and frailty from the path of rectitude. On a repetition of offences, where it is ascertained, indeed, that admonition has failed to correct, to deter, by making the culprit an example becomes a duty to society: for compassion to the individual may then well give way to the general protection of the social system, Nevertheless, till amendment has become entirely hopeless, the severity of punishment should be short of that which cuts. off all retreat from an association with the vicious. The third, and last, stage of depravity is that alone in which moderation may cease to be considered as an attribute of Justice. In that extremity, society has an ample right to manifest its resentment; and the administrators of its laws are justified in becoming the ministers of its wrath; because cutting off (by death or disgrace), the morbid member from the general body, becomes the only method of preventing the communication of contagion. |