Note 13 — Chapter XIII · ON THE STATE OF THE CONSTITUTION UNDER CHARLES II.

"Sir Hugh Wyndham and others of the grand jury of Somerset were at the last assizes bound over, by Lord Ch. J. Keeling, to appear at the K. B. the first day of this term, to answer a misdemeanour for finding upon a bill of murder, 'billa vera quoad manslaughter,' against the directions of the judge. Upon their appearance they were told by the court, being full, that it was a misdemeanour in them, for they are not to distinguish betwixt murder and manslaughter; for it is only the circumstance of malice which makes the difference, and that may be implied by the law, without any fact at all, and so it lies not in the judgment of a jury, but of the judge; that the intention of their finding indictments is, that there might be no malicious prosecution; and therefore, if the matter of the indictment be not framed of malice, but is verisimilis, though it be not vera, yet it answers their oaths to present it. Twisden said he had known petty juries punished in my lord Chief Justice Hyde's time, for disobeying of the judge's directions in point of law. But, because it was a mistake in their judgments rather than any obstinacy, the court discharged them without any fine or other attendance." Pasch. 19 Car. 2; Keeling; Ch. J. Twisden, Wyndham, Morton, justices; Hargrave MSS. n. 339.