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This DEcautatum (or burthen of the fong), as Lord Chief Juftice Vaughan calls it, on account of its frequency in the books, about the respective provinces of judge and jury, hath, fince Lord Coke's time, become the fubject of very heated controverfy, especially on profecutions for ftate-libels, fome aiming to render the jury wholly dependent on the judges for matters of law, and others contending for nearly a complete and unqualified independence. On the trial of John Lilburne for treafon, 1649, high words paffed between the court and him touching this queftion, 2 St. Tr. 4th edit. p. 69. In the cafe of Penn and Meade, indicted 1670, for unlawfully affembling the people, and preaching to them, the Jury gave a verdict against the direction of the court in point of law, and for this were committed to prifon but on a habeas corpus being brought in the court of Common Pleas, the commitment was declared illegal, Lord Chief Juftice Vaughan distinguishing himself on this occafion by a moft profound argument in favour of the rights of a jury. The conteft, however, did not ceafe, as appears by Sir John Hawles's famous Dialogue between a Barrister and a Juryman, publifhed 1680, to affert the claim of the jury against the docrine then current to decry their authority. Since the Revolution, the debate has been renewed in feveral cafes; fee King v. Poole, in the King's Bench, during the time of Lord Hardwicke. See alfo Franklin's cafe, 9 St. Tr. 275.; Peter Zenger's, ibid. ; Owen's cafe, 10 St. Tr. p. 196; and Woodfall's cafe, 5 Burr. 261. By attending to thefe cafes, it will be eafy to trace the progrefs of this controverfy relative to the province of a jury.'

Having thus ftated the difpute, Mr. Hargrave proceeds to give his own opinion. He fays,

In respect to my own ideas on this fubject, they are at prefent to this effect:

On the one hand, as the jury may, as often as they think fit, find a general verdict, I therefore think it unquestionable, that they fo far may decide upon the law as well as fact, fuch a verdict neceffarily involving both. In this I have the authority of Littleton himfelf, who writes, fect. 368. " If the inquest will take upon them the knowledge of the law upon the matter, they may give their verdict generally.

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On the other hand, it feems clear, that questions of law generally belong to the judges, and this for various reafons: I. If the parties agree in their facts, the caufe is tried on a demurrer, it being a rule, that iffues in law are ever determined by the judges, and only iffqes in fact by a jury. II. When an ifue in fact comes before a jury, either party, by demurring to the evidence, which includes an admiffion of the fact, may fo far draw the caufe from the cognizance of the jury. III. The judge is to inform the jury what the law is, and as a check to the judge, either party, under the Stat, of Westminster the 2d, C. 31, may make his exception in writing, to the judge's direction, and thereby render it a part of the record, fo as afterwards to found error upon it. IV. The jury at all times may give a special verdict, leaving the conclufion of law to the court, from which the iffue comes. This was finally fettled in Bowman's cafe, 9 Coke's Reports, and the rule now holds in criREV. April, 1788.

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minal and civil cafes without exception. V. If the jury find the facts specially, and add their conclufion as to the law, it is not binding on the judges. VI. The courts have long exercised the power of granting new trials, where the jury finds against what the judge holds to be law: but in criminal cafes the judges do not claim fuch a difcretion.'

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On the whole, Mr. Hargrave collects his thoughts upon this interefting fubject, and refts in this conclufion, that the immediate and direct power of deciding on queftions of law is intrufted to the judges: but in a jury it is incidental only. To the honour of juries, the examples of their refifting the judge are but rare, except where the groffness of his own mifconduct has provoked them, or they have been led into fome fufpicion of his integrity. In criminal cafes, fpecial verdicts are not frequent; but that arifes from the nature of criminal caufes, which generally depend more on the evidence of facts, than any difficulty in point of law; and both are fo blended together, that they cannot be feparated. Mr. Hargrave concludes his notes with a with, that the diftribution of power between the judges and jury may long continue to flourish, unspoiled either by the PROUD ENCROACHMENT of ILL DESIGNING JUDGES, or the wild prefumption of licentious juries.' In this opinion we think there is both difcretion and ability. The firft paragraph feems to be a full anfwer to the whole of the cafe. Juries may give, whenever to them it feems good, a general verdict, and a general verdict comprizes both the fact, and the law arifing out of it. This, according to Littleton, is the province of a jury. In criminal caufes the law and the fact are fo interwoven, that, as it feems, they may always give a general verdict; and if they do not declare the reafons on which they found their verdict, it is impoffible to make fuch a feparation as fhall, with good fenfe, impeach their judgment. In criminal profecutions this is never attempted, except the cafes wherein the judge's opinion, in point of law, is in favour of life. An inftance of this occurred in Surry fome years ago. The jury, against the opinion of Baron Smythe, were inclined to find that to be MURDER, which was only MANSLAUGHTER. Judge told them, that his report would be in favour of the prifoner, which, of courfe, would produce a pardon: they therefore found a fpecial verdict; and by the determination of the King's Bench, it was a cafe of manslaughter only. Thus we fee, that againit a criminal, juries can do no wrong if they fhould err through heat or party rage, the judge's report protects the prifoner; if they err in favour of life, the verdict can never be called in question. Should a miftake be committed in queftions of property, the power of granting new trials fets every thing right. No inconvenience, therefore, can arise from

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the jury's taking upon them to give a general verdict, which, as Mr. Hargrave has obferved, always involves the law as well as

the fact.

It is now time that we advert to Mr. Butler, and the share he has taken in this Edition. It has been already mentioned, that more than half of the work has been executed by this gentleman. To his own acquired learning, and great induftry, he has been enabled to add the notes of Lord Chancellor Nottingham and Lord Hale on this work. With this valuable acquifition he was favoured by the executors of the late Lord Chief Baron Parker, who left in his own hand-writing a memorandum, dated 1758, vouching for the authenticity of the notes; thofe of Lord Nottingham being then in the poffeffion of the Honourable Mr. Legge, and thofe of Lord Hale in the cuftody of Mr. Gybbon, 1 befides a copy in the poffeffion of the Honourable Charles York. With this treasure Mr. Butler has enriched his part of this edition. We have obferved on a former occafion*, that the Preface written by this gentleman, and prefixed to the work, has the merit of being at once fcientific and elegant. Of the old law, or at leaft fome of its moft important principles refpecting land property, we have in that performance a fhort, yet claborate delineation: and we fee by what an easy and natural procefs the whole has been melted down into that fyftem of law and equity which prevails at prefent. Befide this tract, Mr. Butler has given a great number of notes, all drawn up with accuracy, and fome of great importance to the profeffors of the law. From thefe we should be willing to give copious extracts, if the limits of our work afforded room to do ample juftice to fo meritorious an editor. But this article has extended itself to three of our Reviews, and requires now to be clofed. We cannot, however, difmifs thefe obfervations, without pointing out to the Reader fome paffages that deferve his attention. The notes, page 244, b, and 245, a, on bastardy and legitimacy, contain a history of the law on that fubject. We there find, that by the civil and canon law, children born before marriage are made legitimate by the fubfequent marriage of their parents. Mr. Butler tells us, that this rule was established in the civil law by the Emperor Conftantine, and confirmed by Juftinian. In the canon law it was adopted by Pope Alexander III. in the year 1160, in all cafes where marriage was at the specific time competent to the parties. If the father, at the birth of the child, was actually married to another woman, and afterwards, on the death of his wife, married the mother of the baftard, this fubfequent marriage would not legitimate the child. But this doctrine of legitimacy by a fubfequent marriage, was never admitted into the English law.

*See Review for February laft.

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Till the statute of Merton, the queftion, whether born before or after marriage, was examined before the ecclefiaftical judge; but after the folemn protest made by the barons against the introduction of the civil and canon law in this refpect, Special baftardy has always been triable at common law, and general baftardy alone has been left to the judgment of the ecclefiaftical judge, who in this cafe agrees with the temporal courts. It was at Merton, as we apprehend, that the barons exclaimed with one voice, "Nolumus leges Anglia mutari ;" and the fame, it is hoped, will be the maxim of their pofterity in all inftances, except fome obfole:e ftatutes, and fome cafes of fummary power given to juftices of the peace, where the regular courfe of proceeding before a judge and jury would be better for the fubject. We fhall only mention two other notes of Mr. Butler's, on the nature of the estate which the bufband takes in the wife's lands of freehold or inheritance, and also upon his intereft in her chattels real and things in aliion. The fe notes will be found, page 325, b, and 351, a. In these paffages there is much curious matter relating to the condition of women in feudal times, the operations of the Salic law, the exclufion of women from the throne of France, and the right of the Duke of Richmond to the peerage of Aubigny, granted in 1684 to the Dutchefs of Portsmouth, and the Duke of Richmond her fon. To the book itself we refer the inquifitive reader; and we congratulate the public, that two gentlemen of diftinguished ability have exerted their labours to give a moft excellent edition of Coke's Commentary on Littleton.

ART. XIII. Letters to and from Samuel Johnson, LL. D. To which are added fome Poems never before printed. Published from the original MSS. in the Poffeffion of Hefter Lynch Piozzi. 8vo. 2 Vols. 12 s. Boards. Cadell, &c.

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1788.

N this collection we have, in a continued feries, the correfpondence that paffed between Dr. Johnfon and Mrs. Thrale, from the 13th of Auguft 1765 (the date of his first letter), to the 8th of July 1784, in anfwer to one from that Lady, in which the announces herfelf no longer Mrs. Thrale, but the then new-married wife of Mr. Piozzi.

During this whole time, a period of about nineteen years, Dr. Johnfon lived, for the moft part, under Mrs. Thrale's roof. The Lady, and her former husband (who appears to have been a very excellent man), were not only proud to have John fon as their gueft, but they both entertained the warmest friendfhip for him. That friendship is here seen in its first feeds, and its gradual advancement to maturity. On the part of Mr. Thrale it never ceafed, till his heart could beat no more. In Johnson's mind, we fee that it had taken a deep root: he continued to lament the lofs of Mr. Thrale, and he thought of him,

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upon all occafions, with efteem and regret. To the furviving widow, and her children, he appears inviolably attached. His letters to Mrs. Thrale are continued with unremitting attention, and they are often in the language of the heart, full of esteem for her talents, admiration of her wit, and the fincereft gratitude for all her kindness.

Had not Johnfon left a name, that, fince his death, has founded far and near, it is true that this publication might have been spared. For what can be expected in letters, which conveyed the news from Streatham to Bolt-court in Fleet-ftreet, and from Bolt-court back again to Streatham? Sometimes Johnfon wrote from Oxford, and incidentally mentioned Dr. Adams, Dr. Wheeler, Dr. Scott, and a few others; and in the autumn, frequently from Litchfield, and Afhbourne in Derbyshire. When at thofe two laft places, we have heard of Lucy Porter, a little difcoloured by boary virginity, of Mrs. Afton, and Green the apothecary, his topics feem to have been exhausted. At Ahbourne we have a glimpfe of Dr. Taylor; and when we have read about his bull, and his cows, and the heir apparent of the bull, who promifes to inherit all the bulk, and all the virtues of his fire, the place feems to afford, in all the fubfequent years, little more than a repetition of the fame fubject.

At Afhbourne the moft material occurrence feems to be that of the man who wanted to take one of Dr. Taylor's farms; but he told the Doctor, that he had feen a bigger bull than his. Do you think, fays Johnfon to Mrs. Thrale, that he will get the farm? In a fubfequent letter he fays, We yet hate the man who had seen a bigger bull than ours.' This may be a leffon in the practice of life, not to thwart the ruling paffion of those who have favours in their power.

Of letter-writing Johnfon gives his idea, which we shall collect from different paffages':

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We keep writing to each other, when, by the confeffion of both, there is nothing to be faid, and yet I find it pleafing to write.When you read my letter, I fuppofe you are very proud to think how much you excel in the correfpondence; but you must remember, that your materials are better. You have a family, and friends, and hopes and fears, and wishes and averfions, and all the ingredients that are neceffary to the compofition of a letter. Here fit poor I, with nothing but my own folitary individuality; doing little, and fuffering no more than I have often fuffered; hearing nothing that I can repeat; feeing nothing that I can relate; talking, when I do talk, to those whom you cannot regard; and at this moment hearing the curfew, which you cannot hear.-In another place he fays, To fit down so often with nothing to fay; to fay fomething so often, almoft without confcioufnefs of faying, and without any remembrance of having faid, is a power of which I will not violate my modefty by boafting: but I do not believe that every body has it. Some, when they write to their friends, are all affection; fome are wife and fen

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tentious.;

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