to give evidence, whereupon the learned judge fined him and committed him to prison for contempt of court, and the jury were discharged from giving a verdict.

Subsequently the court refused to allow the defendant to plead those facts, but directed that they should be set out on the record. The defendant then obtained a rule, calling on the Crown to show cause why judgment should not be entered for the defendant, that he be dismissed or discharged of and from the premises in the information in this prosecution specified and charged upon him, and that he depart without day in that behalf, and why the award of jury process and all other proceedings in this prosecution should not be stayed.

The Solicitor-General, Overend, Cleasby and Welsby showed cause on behalf of the Crown, and Sir F. Kelly, Bovill, Mellish, and Maule supported the rule. Authorities cited:-Kinloch's case, Foster's C. C. 16; R. v. Wade, 1 Moo. C. C. 86; 18 State Trials, 414 (1698); Conway and Lynch v. The Queen, 1 Cox, Crim. Cas. 210; 7 Ir. L. Rep. 149, 169; Newton's case, 13 Q. B. 716, 721, 722, 733; Reg. v. Davison, 8 Cox, Crim. Cas. 360; 2 Fos. & Fin. 250; Co. Litt. 227 e; 4 Bla. Com. 360; Ferrar's case, Sir T. Ray. 84 (15 Car. 2); 2 Hale's P. C. 294; Doctor and Student, 271; R. v. Edwards, Rus. & Ry. 224; R. v. Stevenson, Leach, C. C. 546; R. v. Stalvert, Id. 620; R. v. Jane D——, 1 Vent. 69 (22 Car. 2); R. v. Stokes, 6 Car. & P. 151; 2 Bac. Abr. "Error;" Metcalfe's case, 11 Co. 70; 2 Lilly's Entries, 489; R. v. Watson, 3 Ld. Raym. 489; Vent. 489; 4 Hawk. P. C. 459; Beckham v. Knight, 7 Dowl. 409; Carden v. General Cemetery Company, 7 Dowl. 425; Campbell v. Reg. 2 Cox C. C. 476; 7 State Trials; Whitbread v. Fenwick, Foster C. C. 30; Kelyng, 25; Gardner's case, Ib. 46, 47; Jones and Bever, Ib. 52; Foster C. L. 25, 26, 30; 2 Hallam's Constitutional History, 575; 3 Ib. 10; Bac. Abr. "Juries," G., "How to be Kept and Discharged;" R. v. Gould, 3 Burn's J. P. 395; Co. Litt. 227; Campbell v. Reg. 2 Cox C. C. 476; R. v. Perkins, Carth. 465; R. v. Jeffs, 2 Str. 984; R. v. Neville, Fos. 76; Swan v. Jeffries, 18 State Trials, 1197-8; R. v. Edwards, 4 Taunt. 309, 311; R. v. Wade, 1 Moo. C. C. 86; Stone's case, 1794; Hardy's case, 1796; C. L. P. A. 1854, s. 19; R. v. Wellborn, 6 Jur.; R. v. Bourne, 7 Ad. & El. 58; R. v. Trafford, 8 Bing. 204; Campbell v. R. 11 Q. B. 799; Taverner's case, 3 Bul. 173; Livingstone's case, Vent. 97; Lord Delamere's case, 4 State Trials; Horne Tooke's case, 25 State Trials; Lord George Gordon's 24 State Trials.

COCKBURN, C. J.-I am of opinion that this rule must 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 learned Judge, in discharging the jury in this case, 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

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be further issued with the view to the prosecution of a second trial, but ought to make this rule absolute to enter final judgment for the defendant, notwithstanding that course might place the Crown in a more disadvantageous position with reference to the bringing error upon such judgment of this court. But I am Discharge of equally clear that, unless the court can see its way conclusively jury without to that result, it ought not to interfere in the present stage of the proceedings, but ought to leave the defendant, if on the second trial he should have the misfortune to be found guilty, to move in arrest of judgment or bring his writ of error as he may be advised. Two questions present themselves-the one whether the learned Judge had authority to discharge the jury under the circumstances of this case; the second, 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 those propositions is my mind at the present moment in that state of conviction and certainty that I feel that the court ought to interpose in the manner prayed. On the contrary, I am bound to say, although I by no means desire that this should be considered to have the character of a definite opinion and judgment, that the present inclination of my mind is adverse to the defendant upon both those points. In the first place, with reference to the question of the authority of the judge to discharge the jury, I think it is impossible, after the argument that we have heard, and the authorities which have been brought to our notice, not to feel that the law is, to a certain extent, in an unsatisfactory condition. I apprehend that in no part of our procedure has the practice of the courts more fluctuated than with reference to the question of the discharge of juries on criminal trials. If we go back to my Lord Coke we shall find him stating, in the most positive and unqualified terms, that a jury once sworn and charged in the case of life or member cannot be discharged by the court or any other, but must give a verdict. Now it is plain that that does not embrace several of those cases in which it is admitted on all hands that a jury may, according to modern practice, be discharged. My Lord Coke takes notice neither of the case of the death of a juryman, nor of the illness of a juryman, rendering it imperatively necessary that the trial should be stopped. It was pointed out, indeed, by Mr. Mellish, in his most lucid and able argument, that my Lord Coke must be considered as not comprehending that case, simply because the jury would, ipso facto, be discharged, in such cases, by the mere force of circumstances, inasmuch as either by death or by such illness as rendered his departure from the court a matter of absolute necessity the jury would be reduced below the lawful number, and would, therefore, be dissolved. But it must further be observed that, Lord Coke takes no notice of cases in which it is admitted now that a jury would be properly discharged, as in the case of a discharge at the desire of the accused with the assent of the prosecution, or the

case (one now of every day occurrence), of a jury being discharged on account of the impossibility of their agreeing to their verdict. And, indeed, if we go back to the period at which Lord Coke wrote, the earlier period of our law, one sees that the very object of the coercion to which juries were subjected in those times was to enforce by duress, if necessary, the unanimity of verdict which the law required. Hence the practice of even taking juries in carts to the confines of the county, keeping them together for the purpose of compelling them to give a verdict, at however much of personal inconvenience, sacrifice, and suffering, and not discharg ing them until the commission of the learned judge was at an end, by his ceasing to be within the confines of the county to which he had been sent. If then this was the law at the time Lord Coke wrote, certainly the law has undergone many most important changes at later periods. But I think it may perhaps be questioned, notwithstanding the authority of that great name, whether my Lord Coke was well warranted in laying down the law in the positive form in which he stated it; for if we look to the passage in Doctor and Student which was referred to in the course of the argument, if we look to what was stated at the conclusion of the report of Mansell's case, in Anderson, it would certainly lead one strongly to surmise that a different practice existed in the courts anterior to the day at which Lord Coke wrote. And it is observable that he founds his doctrine on the authority of a single case, and I think it is impossible not to believe that Foster, J., was perfectly right when he said that that case did not warrant the conclusion at which Lord Coke had arrived. At all events it would seem that at a very short period after Lord Coke wrote, the doctrine thus laid down by him in the second and third Institutes was not recognised as the true doctrine by the judges at the time to which I have referred, for we find, from the explicit statement of Lord Hale, who wrote within a comparatively recent period after the publication of Coke's Institute, that the practice not only at the great Criminal Court of this country, the Old Bailey, but upon the circuits, was directly contrary to the doctrine laid down by Lord Coke, and that both at the Old Bailey and on the circuits it was the habit and practice of the judges, in cases where the prosecution appeared about to break down from failure of proof, to discharge the jury in order that an opportunity might be afforded of supplying the deficiency. One of two thingseither the propositions of Lord Coke on this subject were not considered by the judges who immediately followed him as the true exposition of the law, or else this was considered not a rule of positive law, but simply of practice and procedure, subject to variation by the authority vested in the courts of this country to regulate their own practice; because it is quite clear, and there can be no doubt about it, that that which has been ascribed in the course of this argument, and elsewhere, to a tyrannical and oppressive practice which arose in the time of the Stuarts, was in fact a practice which existed for many years anterior to the time when its abuse caused it to be brought into question. For there

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can be no doubt that, although by Chief Justice Scroggs and his fellow-justices in the case of Whitbread and Fenwick, to which so much allusion was made in the course of the argument, this practice of discharging juries for the purpose of furthering the administration of justice and preventing its frustration was converted Discharge of into an engine of party and political oppression, yet when afterjury without wards Whitbread and Fenwick were a second time put on their trial it is a total mistake to say that even Scroggs and his assoEffect of ciates wrested or violated the law; they only held that to be the law which, according to Lord Hale, had been for many years before by the most virtuous judges, himself among the number, treated as the law and administered as such. But I can quite understand this, that in consequence of the scandalous abuse of this judicial power and discretionary authority as an instrument of tyrannical oppression in such a case as the one to which I have been referring, the judges would consider whether the benefit to be obtained in preventing the occasional defeat of justice, owing to defective evidence by the postponement of a trial, was not bought at too dear a cost, seeing the abuses to which such a practice was liable to be exposed, and therefore came, no doubt, the consideration of the judges among themselves, to which Lord Holt referred when in Perkins' case he stated the law as the judges had agreed that it should in future be administered. Whether that was upon a consideration of the authorities and a preference of my Lord Coke's view to that which had been adopted in the period which elapsed between his time and Lord Hale's time, and the time of the Revolution, I know not, or whether it was a matter of arrangement among themselves as a matter of policy and expediency-it is difficult to say. It may have been either. There is a great deal to be said, I think, on both sides of the question. As Lord Hale points out, it is a grave and a lamentable thing, a great scandal sometimes as well as a lamentable thing, that from some defect of evidence which ought to have been forthcoming, and which probably, by a postponement, might easily be supplied, notorious criminals escape the punishment which ought to await them, it being plain that a single case of escape from punishment upon manifest, although not legally proved guilt, is of the most mischievous consequence, one such escape operating to encourage others to commit crimes infinitely more than the conviction and punishment of many guilty men will operate to deter them from so doing. But, on the other hand, there can be no doubt that it may in many instances become the means of imposing great hardship and oppression upon the prisoners, especially of the lower class, as such persons generally may find means on a single occasion to obtain legal assistance, and the presence of witnesses who could speak to their innocence, and on the second occasion might want means to provide those advantages. Therefore, I think, on the balance of good or evil, the law or practice, call it which you please, established after the Revolution, and which has existed from that time to the present, is on the whole by far the better one, and the one which ought to be adhered