[624] 7 State Trials 106–108.
[625] On April 16, 1679. Ibid. 259–310, and see below.
[626] 7 State Trials 272, 295.
[627] Ibid. 392.
[628] Ibid. 117, 118. Sergeant Baldwin produced the letter, saying, “We do conceive a letter from one of that party, bearing date about the same time, concerning Mr. Whitebread’s summons, who was then master of the company, is very good evidence against them.”
The prosecution was forced to retract, and Mr. Finch, the junior, was made to eat his leader’s words: “My Lord, it can affect no particular person, but we only use it in general.”
[629] 7 State Trials 120.
[630] 7 State Trials 315–317.
[631] Cf. Rookwood’s case 1696. Powell, J.: “Certainly now the jury is charged, they must give a verdict either of acquittal or conviction.” Sir T. Trevor, Att. Gen.: “I know what has been usually thought of Whitebread’s case.” And the trial of Cook, 1696. Powell, J.: “Whitebread’s case was indeed held to be an extraordinary case.” And see 7 State Trials 497–500 n, where many instances and opinions adverse to the decision of the court are collected.
[632] Hale, P.C. ii. 294. “By the ancient law, if the jury sworn had been once particularly charged with a prisoner, it was commonly held they must give up their verdict, and they could not be discharged before their verdict was given up.... But yet the contrary course hath for a long time obtained at Newgate, and nothing is more ordinary than after the jury is sworn and charged with a prisoner and evidence given, yet if it appears to the court that some of the evidence is kept back, or taken off, or that there may be a fuller discovery and the offence notorious, as murder or burglary, and that the evidence, though not sufficient to convict the prisoner, yet gives the court a great and strong suspicion of his guilt, the court may discharge the jury of the prisoner, and remit him to the gaol for further evidence; and accordingly it has been practised in most circuits of England, for otherwise many notorious murders and burglaries may pass unpunished, by the acquittal of a person probably guilty, where the full evidence is not searched out or given.” “The whole law upon this subject,” says Sir James Fitzjames Stephen, “was elaborately considered a few years ago in R. v. Winsor (L.R. 1 Q.B. 289), when it appeared, from many authorities, that the practice had fluctuated.” Hist. Crim. Law i. 397.