1861. The QUEEN V. CHARLES WORTH. been given for the prisoners, the prisoners were entitled Suppose the Clerk the prisoners were entitled to judgment. It does not 1861. V. CHARLES appear what the form of the judgment was; probably it The QUEEN was quod eat sine die; but, whatever it was, it would prevent the prisoners being put upon their trial again. Cur. adv. vult. The following judgments were now delivered. COCKBURN C. J. I am of opinion that this rule ought to be discharged. I adhere to the view expressed by the Court in the course of the argument, that if we could see our way clearly to the conclusion that the Judge in discharging the jury had exceeded the limits of his judicial authority, and also could see that the discharge of the jury operated virtually as an acquittal of the defendant, the Court ought not to allow its process to issue with a view to a second trial, and the rule ought to be made absolute to enter final judgment for the defendant, notwithstanding that course might place the Crown in a more disadvantageous position in bringing error on such judgment of this Court. But I am equally clear that unless the Court can see its way conclusively to that result, we ought not to interfere in this stage of the proceedings, but ought to leave the defendant to move in arrest of judgment, or bring his writ of error, if, on the second trial, he should be found guilty. Two questions present themselves:-1. Whether the Judge had authority to discharge the jury under the circumstances of this case. 2. Whether the effect of that discharge of the jury, if done without authority, entitles the defendant at once to the judgment of this Court that he go without day. Upon neither of these propositions is my mind in such a state of conviction and WORTH certainty as to induce me to think that the Court ought to interfere by making this rule absolute. On the contrary, I am bound to say, though I am by no means desirous that this should be considered a definite opinion, that the inclination of my mind is adverse to the defendant on both points. First, as to the authority of the Judge to discharge the jury. It is impossible, after the argument which we have heard, and the authorities which have been brought before us, not to feel that the law on that subject is, to a certain extent, in an undefined condition. I apprehend that in no part of our procedure has the practice of the Courts more fluctuated than in relation to the practice of the discharge of the jury in criminal trials. If we go back to the authority of Lord Coke, he states, in most positive and unqualified terms, that "a jury sworn and charged in case of life or member, cannot be discharged by the Court or any other, but they ought to give a verdict" (a). It is clear that does not embrace several of the cases in which it is admitted, on all hands, that according to modern practice a jury may be discharged. Lord Coke notices neither the death nor the illness of a juror. It was pointed out by Mr. Mellish, in his lucid and able argument, that Lord Coke must be considered as not including those cases, because the jury would be considered as discharged by the force of circumstances, inasmuch as it would be reduced by the loss of one of its members below the lawful number. But it is further to be observed that Lord Coke takes no notice of other cases in which it is admitted now that a jury would be properly discharged, e. g., at the desire of the accused, with the consent of the prosecution, or the case (now of common occurrence) of an impossibility (a) Co. Litt. 227 6. of their agreeing on their verdict. And if we go back to the period at which Lord Coke wrote, we see that the object of the coercion to which juries were then subjected was, by duress, to enforce unanimity. Hence the practice even of taking juries in carts to the confines of the county, and keeping them together for the purpose of compelling them to give a verdict, no matter at how much personal inconvenience and suffering, and not discharging them until the jurisdiction of the Judge was at an end (a). If then this was the law at the time of Lord Coke, it has undergone many most important (a) It is commonly believed that the object of the law in enabling a Judge to take a jury about with him in carts is to inflict a punishment and indignity on them for not giving a verdict. This, however, has been disputed by Lord Lyndhurst in the debate which took place in the House of Lords, March 29, 1859 (Hansard's Parliamentary Debates, 3rd series, vol. 153, p. 1020), on a bill brought in by Lord Campbell to render unanimity in the jury unnecessary in civil cases. After observing that the impression arose from a note to a case in the Year Book, where eleven jurymen had agreed and one dissented, his Lordship proceeds as follows: "The person who reports what took place on that occasion has a note saying, that in the course of the discussion the Judges said that if the jury could not agree the Judges should have taken them with them in a 'carr' until they agreed. The word mentioned is a French word abbreviated, which has been mistranslated. What, let me ask, was the mode of travelling in those days? On horseback, or, if not on horseback, in covered waggons. Coaches and carriages were not in use for 200 years afterwards. The proper translation of this word was, that it was the duty of the Judges to have carried those gentlemen with them in covered waggons until they came to an agreement. . . . The word is carr. an abbreviation for carreo, which means a waggon going on four wheels, and covered with a cloth." The passage here alluded to is to be found in 41 Assis. pl. 11, and is as follows: "Nota, q les Justic dis. qu'ils duissent av carrie l'Assize ove eux en charr tanq ils fussent accord, &c." It is worthy of observation that the report of the same case, when it was afterwards moved in banc 41 Ed. 3. 31 A, makes no allusion to the subject. Lord Lyndhurst also states that "There is no instance to be found in the judicial history of this country in which a jury have been carried round a circuit in a cart." According to the statement of counsel, however, in Conway and Lynch v. The Queen, 7 Irish Law Reports, 149, 156, it has been done in Ireland within living memory, 1861. The QUEEN V. CHARLES WORTH. 1861. CHARLES- changes. But perhaps it may be a question whether The QUEEN Lord Coke is well founded in laying down the law in the positive terms in which he stated it. For looking at the passage in Doctor and Student, Dial. ii. ch. 52, referred to in the argument, and at the conclusion of Mansell's Case (a), we are led strongly to surmise that a different practice existed before the time in which Lord Coke wrote. It is observable that he founds his doctrine on a single case; and it is impossible not to think that Mr. Justice Foster was right in saying that that case does not warrant the conclusion of Lord Coke. At all events, it seems that at a comparatively recent period after Lord Coke, the doctrine as laid down by him in 1 Inst. 227 b. and 3 Inst. 110, was not recognised as the true doctrine of the Judges; for we find from the express statement of Lord Hale, 2 Hale, P. C. 294-5, ch. 41, that not only at the Old Bailey, the great criminal Court of this country, but on the circuits, it was the habit and practice of Judges, where the prosecution failed for want of proof, to discharge the jury, in order that an opportunity might be given of supplying the deficiency. One of two things is clear. Either the proposition of Lord Coke on this subject was not considered by the Judges who immediately followed him as the true exposition of the law, or was not considered a rule of positive law, but of practice and procedure, subject to variation by the authority vested in the Courts to regulate their own practice. For there can be no doubt that what has been described in the course of this argument and elsewhere as a tyrannical practice in the time of the Stuarts, was a practice anterior by many years to the time when its abuse caused it to be brought into question. For though, in the case of Whitebread and (a) Anders. 103. |