C O M P A R AT I V E S T U D Y punishments. Quakers resisted this prohibition and continued to gather, which led to their prosecution. When jurors delivered not guilty verdicts despite incriminating evidence, it called into question whether judges had the disciplinary powers to fine and imprison juries that refused to convict as directed.110 The King v. Wagstaffe and Others (1664) settled the matter, at least temporarily. The King’s Bench decided that it was well-established authority to fine jurors who refused to enter guilty verdicts as directed. Wagstaffe and other London citizens were sworn in as jurors at the Old Bailey111 to try Quakers indicted under the Statute of Conformity (part of the Conventicles Act).112 Wagstaffe and the other jurors refused to find the accused guilty, despite the judge’s opinion that a not guilty verdict was contrary to the evidence.113 The jurors were fined and put in prison until the payment of the fine. Wagstaffe and other jurors brought a habeas corpus writ (a claim of unlawful detention).114 The King’s Bench rejected the petition and sent them back to prison. The King’s Bench reasoned that “the jurors are not judges of fact, so as to go clearly against it.”115 It further reasoned that “also in civil causes, if the jury misbehave themselves, they may be fined … if the Court cannot fine, the law would be very defective.”116 With its decision, the King’s Bench confirmed that judges could fine and imprison jurors until payment of the fine if the jurors refused to enter guilty verdicts as directed. In response to this case, Matthew Hale (1609 – 1679), an influential English barrister and a famous critic of the practice of fining and imprisoning jurors, laid out his views on the moral responsibility of judges in The History of the Pleas of the Crown (1736).117 Relying on the continental law of conscience of the safer path doctrine “when you are in doubt, do not act, especially in Cases of Life),”118 Hale emphasized: [T]he jury are judges as well of the credibility of the witnesses, as of the truth of the fact, for possibly they might know somewhat of their own knowledge, that what was sworn was untrue, and possibly they might know the witnesses to be such as they could not believe, and it is the conscience of the jury, that must pronounce the prisoner guilty or not guilty.119 Whitman, p. 173. The Central Criminal Court of England and Wales in London. 112 The King v. Wagstaffe and Others, (1664) 83 E.R. 1328 (hereinafter “Wagstaffe”). 113 Wagstaffe, at 1328. 114 Wagstaffe, at 1331. 115 Wagstaffe, at 1331. 116 Wagstaffe, at 1331. 117 Matthew Hale, George Wilson, Thomas Dogherty Payne, the History of the Pleas of the Crown, in two volumes, (1800) (hereinafter “Hale”). See infra subsection Reasonable Doubt in Treatises. 118 Whitman, p.174, n. 9,10, citing Hale, 1 P.C. 300. 119 Whitman, p.174, n.14, citing Hale, 2 P.C. 313. 110 111 33