Ethelreds Laws In singulis Centuriis c. In every Hundred let there be a Court and let Twelve ancient Free-men together with the Lord or rather according to the Saxon the Greve i. e. the chief Officer amongst them be sworn That they will not condemn any person that is Innocent nor acquit any one that is guilty 3. When the Normans came in William though commonly called the Conquerour Continued by the Normans See Spelmans Glossar in the word Jurata was so far from abrogating this Priviledg of Juries That in the 4th year of his Reign he confirmed all King Edward the Confessors Laws and the ancient Customs of the Kingdom whereof this was an essential and most material part Nay he made use of a Jury chosen in every County to report and certifie on their Oaths what those Laws and Customs were as appears in the Proem of such his Confirmation 4. Confirmed by Magna Charta Afterwards when the Great Charter commonly called Magna Charta which is nothing else than a recital confirmation and corroboration of our Ancient English Liberties was made and put under the Great Seal of England in the 9th year of King Henry the 3d which was Anno Domini 1225. Then was this Priviledg of Tryals by Juries in an especial manner confirmed and establisht as in the 14th Chapter That no Amercements shall be assessed but by the Oath of good and honest men of the Vicinage And more fully in that Gold on Nine and twentieth Chapter No Freeman shall be taken or imprisoned nor be disseized of his Freehold or Liberties or free customs or be out-law'd or exil'd or any other way destroyed nor shall we pass upon him or condemn him but by the lawful judgment of his Peers c. Which Grand Charter having been confirmed by above thirty Acts of Parliament the said right of Juties thereby and by constant usage and common custom of England which is the common Law is brought down to us as our-undoubted Birth-right and the best inheritance of every English man For as that famous Lawyer Chief Justice Cook in the words of Cicero excellently avers 2. Institutes fol. 56. Major Hereditas venit unicuique nostrum a jure legibus quam a parentibus 'T is a greater inheritance and more to be valued which we derive from the fundamental constitution and Laws of our Country than that which comes to us from our respective Parents For without the former we have no claim to the latter J. But has this method of Trial never been attempted to be invaded or justled out of practice B. 'T is but rarely that any have arrived to so great a confidence Essays made to overthrow Trials by Juries always unsuccessful and severely punisht For 't is a most dangerous thing to shake or alter any of the rules or fundamental points of the common Law which in truth are the main pillars and supporters of the fabrick of the Commonwealth These are Judg Cooks words ⋆ 2. Institutes pag. 74. Yet sometimes it has been endeavoured But so sacred and valuable was the Institution in the eyes of our Ancestors and so tenacious were they of their Priviledges and zealous to maintain and preserve such a vital part of their Birth-right and Freedom that no such attempts could ever prove effectual but always ended with the shame and severe punishment of the rash undertakers For example 1. Andrew Horn an eminent Lawyer in his Book Entituled The Mirrour of Justices written in the Reign of K. Edw. 1. now near 400 years ago in the fifth Chapter and first Section records That the renowned Saxon King Alfred caused four and forty Justices to be hang'd in one year as murtherers for their false Judgments And there recites their particular Crimes most of them being in one kind or other Infringements Violations and Encroachments of and upon the Rights and Priviledges of Juries amongst the rest that worthy Author tells us he hanged one Justice Cadwine because he judged one Hackwy to death without the consent of all the Jurors for whereas he stood upon his Jury of twelve men because three of them would have saved him this Cadwine removed those three and put others in their room on the Jury against the said Hackwy 's consent Where we may observe that though at last twelve men did give a Verdict against him yet those so put upon him were not accounted his Jurors by reason all or any of them who were first sworn to try him could not by Law be removed and others put in their stead And that such illegal alteration was then adjudged a Capital Crime and forthwith the said Cadwine was Hang'd 2. A second instance I shall give you in the words of the Lord Chief Justice Cook Against this ancient and fundamental Law and in the face thereof there was in the 11. year of King Henry 7. Cook 2. part of Institutes fol. 51. cap. 3. an Act of Parliament obtained on fair pretences and a specious preamble as to avoid divers-mischiefs c whereby it was Ordain'd That from thenceforth as well Justices Assize as Justices of the Peace upon a bare Information for the King before them made without any finding or presentment by the Verdict of Twelve men should have full power and authority by their discretions to hear and determine all offences and contemts committed or done by any person or persons against the Form Ordinance or effect of any statute made and not repealed c. By colour of which Act saith Cook shaking this Fundamental Law he means touching all Trials to be by Juries it is not credible what HORRIBLE OPPRESSIONS and EXACTIONS to the undoing of MULTITUDES of people were committed by Sir Richard Enipson Knight and Edmund Dudley Esq being Justices of the Peace throughout England and upon this unjust and injurious Act as commonly in like cases it falleth out a new Office was erected and they made Masters of the Kings Forfeitures But not only this Statute was justly soon after the decease of Hen. 7. repealed by the Statute of the 1 Hen. 8. cap. 6. but also the said Empson and Dudley notwithstanding they had such an Act to back them yet it being against Magna Charta and consequently void were fairly executed for their pains and several of their under agents See Sir Rich. Bakers Chron. p. 273. as Promoters Informers and the like severely punisht for a warning to all others that shall dare on any pretence whatsoever infringe our English Liberties For so the Lord ⋆ 4 part Instit fol. 41. Cook having elsewhere with detestation mentioned their story pathetically concludes Qui eorum vestigiis insistant exitus perhorrescant Let all those who shall presume to tread their steps tremble at their dreadful end Other Instances of a latter date might be given but I suppose these may suffice J. Yes surely The benefits of being tried by Juries and by what you have discoursed of the
THE English-mans RIGHT A DIALOGUE BETWEEN A BARRISTER at LAW AND A JURY-MAN Plainly setting forth I. The Antiquity of JURIES II. The excellent designed use of JURIES III. The Office and just Priviledges of JURIES By the Law of England LONDON Printed for Richard Janeway in Queens-head Alley in Paternoster-Row 1680. The English mans RIGHT c. Barrister MY old Client a good morning to you whither so fast The Introduction you seem intent upon some important affair Juryman Worthy Sir I am glad to see you thus opportunely there being scarce any person that I could at this time rather have wisht to meet with Barr. I shall esteem my self happy if in any thing I can serve you The business I pray Jurym. I am summon'd to appear upon a Jury and was just going to try if I could get off Now I doubt not but you can put me into the best way to obtain that favour Barr. 'T is probable I could But first let me know the reason why you desire to decline that service Jurym. You know Sir The Reasons why fit men endeavour sometimes to avoid serving on Juries there is something of trouble and loss of time in it and mens Lives Liberties and Estates which depend upon a Jury's Guilty or Not guilty for the Plaintiff or for the Defendant are weighty things I would not wrong my Conscience for a world nor be accessary to any mans ruin There are others better skill'd in such matters I have ever so loved peace that I have forborn going to Law as you well know many times though it hath been much to my loss Barr. I commend your tenderness and modesty Not sufficient yet must tell you these are but general and weak excuses As for your time and trouble 't is not much and however can it be better spent than in doing justice and serving your Country To withdraw your self in such cases is a kind of Sacriledg a robbing of the publick of those duties which you justly owe it the more peaceable man you have been the more fit you are For the office of a Jury-man is conscientiously to judg his neighbour and needs no more Law than is easily learnt to direct him therein I look upon you therefore as a man well-qualified with estate discretion and integrity and if all such as you should use private means to avoid it how would the King and Country be honestly served At that rate we should have none but Fools or Knaves intrusted in this grand concern on which as you well observe the Lives Liberties and Estates of all Englishmen depend Your Tenderness not to be accessary to any mans being wrong'd or ruin'd is as I said much to be commended But may you not incur it unawares by seeking thus to avoid it Pilate was not innocent because he washt his hands and said He would have nothing to do with the blood of that just one There are faults of Omission as well as Commission When you are legally call'd to try such a cause if you shall shuffle out your self and thereby persons perhaps less conscientious happen to be made use of and so a Villain escapes justice or an innocent man is ruined by a prepossest or negligent Verdict can you think your self in such a case wholly blameless Qui non prohibet cum potest jubet He abets evil that prevents it not when he may Nec caret scrupulo societatis occultae qui evidentèr facinori desinit obviare He deserves not to be free from the suspition of a close society or underhand con piracy in the mischief of subverting the fundamental Laws and Liberties of the Nation who ceases to obviate and oppose it Jurym. Truly I think a man is bound to do all the good he can especially when he is lawfully call'd to it But there sometimes happen nice cases wherein it may be difficult to discharge ones conscience without incurring the displeasure of the Court and thence trouble and damage may arise Barr. That is but a vain and needless fear For as the Jurors priviledges and every English-mans in and by them are very considerable So the Laws have no less providently guarded them against Invasion or Usurpation So that there needs no more than first understanding to know your duty and in the next place courage and resolution to practise it with impartiality and intergrity free from accursed bribery and malice or what is full out as bad in the end base and servile fear Jurym. I am satisfied that as 't is for the advantage and honour of the publick that men of understanding substance and honesty should be employ'd to serve on Juries that justice and right may fairly be administred So 't is their own interest when called thereunto readily to bestow their attendance and service to prevent ill presidents from men otherwise qualified which may by degrees fatally though insensibly undermine our just Birth-rights and perhaps fall heavy one day upon us or our posterity But for my own part I am fearful lest I should suffer through my ignorance of the duty and office of a Jury-man and therefore on that account principally it is that I desire to be excused in my appearance which if I understood but so well as I hope may others do I would with all my heart attend the service Barr. You speak honestly and like an Englishman But if that be all your cause of scruple it may soon be removed if you will but give your self a very little trouble of inquiry into the necessary provisions of the Law of Englaâ—â— relating to this matter J. There is nothing of a temporal concern that I would more gladly be inform'd in because I am satisfied The Antiquity of Trials Juries 't is very expedient to be generally known And first I would learn how long trials by Juries have been used in this Nation B. Even time out of mind so long that our best Historians cannot date the Original of the Institution being indeed cotemporary with the Nation it self or in use as soon as the people were reduced to any form of Civil Government and administration of Justice Not have the several Conquests or Revolutions the mixtures of Foreigners or the mutual feuds of the Natives at any time been able to suppress or overthrow it For 1. That Juries the thing in effect and substance Amongst the Britains though purhaps not just the number of Twelve men were in use amongst the Britains the first Inhabitants of this Island appears by the Ancient Monuments and Writings of that Nation attesting that their Free holders had always a share in all Tryals and determinations of differences 2. Most certain it is that they were practised by the Saxons and were then the only Courts Amongst the Saxons Lamb. p. 218. Cook 1. par Institutes fol. 155. or at least an essential and the greater part of all Court of Judicature For so to omit a multitude of other Instances we find in King
part of Falshood Thus Twelve men ignorantly drop into a Perjury And will not every conscientious man tremble to pawn his Soul under the sacred and dreadful solemnity of an Oath to attest and justisie a Lie upon Record to all Posterity besides the wrong done to the Prisoner who thereby perhaps comes to be hang'd and so the Jury in soro conscientioe are certainly guilty of his Murther or at lesst by Fine or Imprisonment undone with all his Family whose just Curses will fall heavy on such unjust Jurymen and all their Posterity that against their Oaths and Duty occasion'd their causeless misery And is all this think you nothing but a matter of Formality Jurym. Yes really a matter of Vast Importance and sad Consideration yet I think you charge the mischiefs done by such Proceedings a little too heavy upon the Jurors Alas good men They mean no harm they do but follow the directions of the Court if any body ever happen to be to blame in such Cases it must be the Judges Barr. Yes forsooth That 's the Jury-mens common-plea but do you think it will hold good in the Court of Heaven 'T is not enough that we mean no harm but we must do none neither especially in things of that moment nor will Ignorance excuse where 't is affected and where duty obliges us to Inform our selves better and where the matter is so plain and easie to be understood As for the Judges they have a fairer plea than you and may quickly return the Burther back upon the Jurors for we may they say did nothing but our duty according to usual Practise the Jury his Peers had found the Fellow Guilty upon their Oaths of such an Odious Crime and attended with such vile presumptions and dangerous Circumstances They are Judges we took him as they presented him to us and according to our duty pronounced the Sentence that the Law inflicts in such Cases or set a Fine or ordered Corporal punishment upon him which was very moderate Considering the Crime laid in the Indictment or Information and of which they had so sworn him Guilty if he were innocent or not so bad as Represented let his Destruction lye upon the Jury c. At this rate if ever we should have an unconscionable Judge might he Argue And thus the Guilt of the Blood or ruin of an Innocent man when t is too late shall be Bandyed to and fro and shufled off from the Jury to the Judge and from the Judge to the Jury but really sticks fast to both but especially on the Jurors because the very end of their Institution was to prevent all dangers of such oppression and in every such Case they do not only wrong their own Souls and irreparably Injure a particular Person but also basely betray the Liberties of their Countrey in General for as without their ill-complyance and Act no such mischief can happen so by it ill precedents are made and the Plague is encreased honester Juries are disheartned or seduc'd by Custome from their Duties just Priviledges are lost by disuser and perhaps within a while some of themselves may have an hole pickt in their Coats and then they are Tryed by another Jury just as wise and honest and so deservedly come to smart under the Ruinating Effects and Example of their own Folly and Injustice Jurym You talk of Folly and blame Jury-men when indeed they cannot help it they would sometimes find such a Person Guilty and such an one Innocent and are perswaded they ought so to do but the Court over-rules and forces them to do otherwise Barr. How I pray Jurym. How Why did you never hear a Jury threatned to be Fined and Imprisoned if they did not comply with the Sentiments of the Court Barr. I have Read of such doings but I never heard or saw it done and indeed I do not doubt but our Seats of Justice are furnisht with both better men and better Lawyers than to use any such Menaces of Duress for undoubtedly 't is a base and very Illegal Practise But however will any man that fears God nay that is but an honest Heathen debauch his Conscience and forswear himself do his Neighbour Injustice betray his Countreys Liberties and consequently enslave himself and his Posterity and all this meerly because he is Hector'd and threaten'd a little Jurym. I know it should not sway with any but alas a Prison is terrible to most men whatever the Cause be And the Fine may besuch if one shall refuse to comply as may utterly ruin ones Family Barr. Fright not your self Jurors cannot be Fined or Imprisoned in any case for giving their Verdict according to their Consciences though contrary to the direction or sense of the Court. there is no cause for this Ague-sit to shake your Conscience out of Frame if you are Threatned t is but Brutum Fulmen Lightning without a Thunderbolt nothing but big words for it is well known That there is never a judge in England that can Fine or Imprison any Jury-man in such a Case Jurym. Good Sir I am half asham'd to hear a Barrister talk thus have not some in our memory been Fin'd and Imprison'd And sure that which has actually been done is not altogether Impossible Barr. Your Servant Sir Under favour of your mighty Wisdom and Experience when I said no Judge could do it I spake the more like a Barrister for t is a Maxim in Law Id possumus quod Jure possumus A man is said to be Able to do only so much as he may Lawfully do But such Fining or Imprisoning cannot Lawfully be done the Judges have no Right or Power by Law to do it and therefore it may well be said they cannot or are not able to do it And whereas you say that some Juries in our Memory have been Fined and imprisoned you may possibly say true But t is as true that it hath been only in our Memory for no such thing was practised in Antient times for so I find it asserted by a late Learned Judge d in these possitive words Lord Chief Justice Vaughan in his Reports fol. 146. No case can be offered either before Attaints granted in General or after that ever a Jury was punisht by Fine and Imprisonment by any Judge for not finding according to their evidence and his direction until Pophams time nor is there clear proof that he ever Fined them for that Reason seperated from other Misdemeanours And Fol. 152 he Affirms That no man can shew that a Jury was ever punisht upon an Information either at Law or in the Star-Chamber where the Charge was only for finding against their Evidence or giving an untrue Verdict unless Imbracery Subornation or the like were joyn'd So that you see the Attempt is an Innovation as well as unjust a thing unknown to our Fore-fathers and the Antient Sages of the Law and therefore so much the more to be watcht against resisted and suppressed whilst
the Direction of the Court in matter of Law shall be understood that if the Judge having heard the Evidence given in Court for he can regularly know no other though the Jury may shall tell the Jury upon this Evidence the Law is for the Plaintiff or the Defendant and the Jury are under pain of Fine and Imprisonment to Find accordingly then 't is plain the Jury ought of Duty so to do Now if this were true who sees not that the Iury is but a trouble some Doldy of great Charge much Formality and no real use in determining right and wrong but meer Ecchos to sound back the pleasure of the Court and consequently that Tryals by them might be better abolish'd than continued which is at once to spit Folly in the Faces of our Venerable Ancestors and enslave our Posterity 9. As the Iudge can never direct what the Law is in any Matter Controverted without first knowing the Fact so he cannot possibly know the Fact but from the Evidence which the Iury have but he can never fully know what Evidence they have for besides what is sworn in Court which is all that the Judge can know the Jury being of the Neighbourhood may and oft-times do know something of their own knowledge as to the Matter it self the Credit of the Evidence c. which may justly sway them in delivering their Verdict and which self knowledge of theirs is so far countenanced by Law that it supposes them capable thereby to try the Matter in Issue and so they must though no Evidence were given on either side in Court. As when any Man is Indicted and no Evidence comes against him the Direction of the Court always is You are to acquit him unless of your own knowledge you know him Guilty so that even in that Case they may find him Guilty without any Witnesses Now how absurd is it to think that any Iudge has power to Fine a Iury for going against their Evidence when he that so Fineth knoweth perhaps nothing of their Evidence at all as in the last Case or at least but some part of it For how is it possible he should lawfully punish them for that which it is impossible for him to know Lastly Is any thing more common than for two Lawyers or Iudges to deduce contrary and opposite Conclusions out of the same Case in Law And why then may not two Men infer distinct Conclusions from the same Testimony And consequently may not the Judge and Jury honestly differ in their Opinion or Result from the Evidence as well as two Iudges may which often happens and shall the Jury-men meerly for this difference of Apprehension merit Fine and Imprisonment because they do that which they cannot otherwise do preserving their Oath and Integrity especially when by Law they are presum'd to know better and much more of the Business than the Judge does as aforesaid Are not all these gross contradicting Absurdities and unworthy by any Man that deserves a Gown to be put upon the Law of England which has ever own'd Right Reason for its Parent and dutifully submitted to be guided thereby Jurym. If the Law as you say be Reason then undoubtedly this Practice of Fining of Juries is most Illegal since there cannot be any thing more unreasonable But what Authorities have you against it Barr. You have heard it proved to be a Modern up-start encroachment so you cannot expect any direct or express Condemnation of it in Ancient Times because the thing was not then set on Foot And by the way though Negative Arguments are not necessarily conclusive yet that we meet with no Precedents of old of Iuries Fined for giving their Verdict contrary to Evidence or the Sense of the Court is a violent presumption that it ought not to be done for it cannot be supposed that this latter Age did first of all discover that Verdicts were many times not according to the Iudges Opinion and Liking Undoubtedly they saw that as well as we but knowing the same not to be any Crime or punishable by Law were so Modest and Honest as not to meddle with it However what entertainment it hath met with when attempted in our Times I shall shew you in two remarkable Cases 1. When the late Lord Chief Iustice Keeling had attempted something of that kind it was complained of and highly resented by the then Parliament as appears by this Copy of their Proceedings thereupon taken out of their Journal as follows Die Mercurii 11. Decembris 1667. The House resumed the Hearing of the rest of the Report touching the matter of Restraint upon Juries and that upon the Examination of divers Witnesses in several Cases of Restraints put upon Iuries by the Lord Chief Iustice Keeling and thereupon Resolved as followeth First That the Proceedings of the said Lord Chief Iustice in the Cases now Reported are Innovations in the Tryal of Men for their Lives and Liberties And that he hath used an Arbitrary and Illegal Power which is of dangerous Consequence to the Lives and Liberties of the People of England and tends to the introducing of an Arbitrary Government Secondly That in the Place of Iudicature the Lord Chief Iustice hath undervalued vilified contemned Magna Charta the great Preserver of our Lives Freedom and Property Thirdly That he be brought to Tryal in order to condign Punishment in such manner as the House shall judge most fit and requisite Die Veneris 13. Decembris 1667. Resolved c. That the Precedents and Practice of Fining or Imprisoning of Iurors for giving their Verdicts is Illegal Here you see it Branded in Parliament Next you shall see it formally condemn'd on a solemn Argument by the Judges The Case thus At the Sessions for London Sept. 1670. William Pen The Sum of the Case of Bishel and the rest of Mr. Pen and Mr. Meads Jury and William Mead two of the People commonly called Quakers were Indicted for that they with others to the number of 300 on the 14th Aug. 22. Regis in Gray-Church-street did with Force and Arms c. unlawfully and tumultuously assemble and congregate themselves together to the disturbance of the Peace and that the said William Pen did there Preach and speak to the said Mead and other Persons in the open Street by reason whereof a great Concourse and Tumult of People in the Street aforesaid then and there a long time did remain and continue in contempt of our said Lord the King and of His Law to the great disturbance of his Peace to the great Terror and disturbance of many of His Liege People and Subjects to the ill example of all others in the like Case Offenders and against the Peace of our said Lord the King His Crown and Dignity The Prisoners Pleading Not Guilty it was proved that there was a Metting at the time in the Indictment mentioned in Gray-Church-street consisting of three or four hundred People in the open Street that William Pen was