bushel case on habeas corpus whether the court of c b may grant a habeas  corpus for person not within the privilege of the court Mod keb Mod Vaugh  state trial vol the case be that bushel and other juror in London for the  trial of a traverse on a indictment against several person for conventicling  against the form of the statute late make be fine and imprison at the session  in the old Baily because they give their verdict against full evidence and the  direction of the court in matter of law and so acquit the prisoner in this  case it be first debate at the bar and on the bench whether the common plea  can award a habeas corpus in this case wile archer and tyrel justice this  court may well award it and for this cite Anderson part Inst more Rep Brownl  part Vaughan chief justice on the contrary and he say that some habeas  corporas be grant of course other not without motion and for this reason on  motion because it be not of necessity to be do of course therefore there be no  necessity for the grant it for the court ought to be satisfy that the party  have probable cause to be deliver this court have not power to grant it in  general but only in case of privilege or excess of jurisdiction of a inferior  court in which case every one have the privilege of be discharge by the court  of Westminster this court do not grant because they have cognizance of the  cause but because it be a probable suggestion that this court can deliver the  party if on the return the cause be express just the party ought to be remand  if express unjust this Jones t charge if doubtful bail the writ be ad  subjiciend recipiend quoth cur consideraveri ut cur our men visa causan that  or quoth de jure experience royal power our men to be faciend c but this court  in criminal cause can do this he urge that the want of precedent in this court  be a great argument that such writ be not grantable here the writ moreover  require that the body One cum die caption to have by which the court ought to  be certify how long the party have be in custody for if for a long a time and  no procedure against he the court ought to bail the prisoner though commit for  felony or treason which be improper for this court that have no cognizance of  crime for this court be for common plea between subject and subject but in a  criminal case the plea be between the king and his prisoner he cite in this  case Inst in margin Westminster cap and as to the authority cite on the other  side out of Anderson he say that all the four cause there mention be of person  under Jones t er p the protection and of this court and conclude that this  court ought not to grant the writ in this case but on the opinion of the other  judge the writ be grant and on another day the sheriff of London to who the  writ be direct return it with the cause as above and Maynard sergeant argue  that the cause be sufficient or at least that the prisoner ought to be remand  for he say that the imposition of the fine be a judgement in a court of record  which ought to be defeat by writ of error only and not otherwise as to the  power of fill juror be cite ass p where eleven juror be fine Yelv p wharton  case Leonard part and Wagstaffs case car b r he deny that all attaint lie for  the king on a false verdict in assize but that it lie on a false verdict in a  information for the king only and not for the king and the informer cro and  thereupon he pray that the prisoner may be remand Ellis sergeant for the  prisoner good cause ought to appear to the court or the prisoner shall be  discharge general cause be not sufficient as in the petition of right here be  no certainty on the body of the return which ought to be as certain as plead e  f it do not appear here what matter or law there be in the case generale perit  in incertitudine ex facto jusoritur this fact whereon the law seem to arise  perhaps be not find by the jury neither be the time of the offence return as  it ought for it may be be Jones t before the Act of oblivion as to the matter  in law he say that a juror can be fill for a verdict give accord to his  conscience No fine on judge for error therefore none on the jury which have  division command and this pretend power of fine will confound the course of  trial h f pi Com partridge case rawlins case in   he say also that a attaint  lie in this case f attaint f n b b and if a attaint lie and a fine may also be  impose the jury will be twice punish for the same offence e f ult in capital  case a attaint lie not for the king in favor vit otherwise in criminal he deny  Wagstaffs case to be law and say that in mich car it be adjudge in the  exchequer against this case of Wagstaff on a fine impose by justice of peace  and pray that the prisoner may be deliver on another day Vaughan chief justice  deliver the opinion of the court and as to the first point whether the cause  return be sufficient in all return bon trust the cause ought to appear as  certain to the judge as to the person who commit in the present return that  the juror acquit the prisoner contra full evidence the court here have no  light to judge whether the evidence be full or sufficient because the evidence  it self be not express or expose to the judgement of the court for though the  return of all evidence will be prolix yet it ought to be return otherwise the  remedy give by the judgement in habeas corpus will be take away and defeat non  are longan who nothing be quod demere to be able he confess that all the  evidence be not necessary but some sufficient particular matter ought to be  return by which it may appear quod minus just contra sacrament to hand over  veredictum the stamp of authority give by the king ought to silence any  inquiry in the discretion of a judge the king alone be the proper judge of the  ability of his minister and the Ch justice be within the statute of scandal  great man but this do not place the judge out of a possibility of error and  for dishonest judgement judge may be punish mirror of justice report that be  ban age for this cause reason it do not appear by this return that the juror  acquit the prisoner corrupt or that the evidence against they be manifest to  the juror bract Flet b will it be the duty of a judge to examine the jury and  of a juror to answer and if he will not answer or shall give a for Jones t  dict contrary to their answer in either case he be finable bract and he say  that in this all the judge except one be unanimous he put this difference  between the oath of a witness and that of a juror the witness swear more  general on his sensors the juror by collection and inference by the act and  force of his understanding he agree the earl of Northumberland case h whereof  mention be make in coke jurisdict cap parliament p that a return in general  that he be commit for treason be admit on this reason that in cause capital  the prisoner may demand his trial which ought not to be deny and then the  particular fact ought to be put in the indictment otherwise it be where the  party be only to be remand as to the second part of the return because to hand  over veredictum contra direct cur in means law he say that this be whole  insensible for no jury can be charge in matter of Jones t er p law and if this  return shall be good there will be no use of a jury the direction of the judge  in civil plead ought to be hypothetic if the fact be find such then for the  plaintiff or defendant but never positive or coercive nor be the jury finable  for perhaps in attaint the first verdict shall be affirm and he say that all  the judge agree that in all the case where a attaint lie no fine ought to be  impose but be hold that a attaint do not lie in this case though only criminal  and not capital and that there be no case at commonlaw where a attaint have be  bring against any particular person   Inst W cap and he also say that no  attaint be at commonlaw only in assize bract and no statute of attaint ought  to be to ken by equity king a which book be affirm to be of the great  authority in the law No attaint on indictment or appeal which in former time  be more frequent in capital case than indictment in his opinion a jury be not  finable at commonlaw for thereof be nec vela nec vestigium in the old book  before the statute of attaint and if the judge can fine by the commonlaw the  power be not lose for no statute have take it away Plato say all men knowledge  be qucedam reminiscent therefore without a know fact it be impossible to know  the law on that fact the judge can know the fact but by the evidence which the  jury have and all their evidence he can know for they may have other evidence  than be depose in open court for they may Jones t have evidence of their  personal knowledge which may be direct contrary to the evidence depose they  may also know the witness to be infamous also evidence may arise on their view  in all these case the jury can be coercive direct by the court a fine impose  by the judge do not take away a attaint which perhaps may affirm the verdict  dyer the jury be perjure if the verdict be against their own judgement though  by direction of the court for their oath oblige they to their own judgement  hob cro Elizabeth h c as to the objection out of ass the fine there be for a  misdemeanour of a jury not for their verdict which be a judicial act Br juror  and as to ass he deny it to be law Fitzherbert Coron hob in the case of Watts  and brain cro Elizabeth the jury be fine for a manifest combination but be  deny the case of wharton Yelv Lannois more to be law as to the second point  whether this court can discharge the prisoner he cite the case of sir Anthony  roper   Rep as without any cause of privilege and say though perhaps we may  deny a habeas corpus yet when it be grant we ought to deliver the prisoner if  the cause return be not sufficient or perhaps the prisoner I never will be  discharge for it may be that other insufficient cause will be still return h h  h e and he hold there be no necessity to quash the order on which the  commitment be make for this court can deliver without quash it   mag chart and  thereupon the prisoner be discharge by judgement of the court