fatius est petere fontes quam sectare rivulos adding That they should assuredly prosper and flourish in the distribution of Justice if they derived all their Power and Strength from their proper Roots Advising them Not to fear to do Right to all and to deliver their Opinions justly according to the Laws This wholsom Advice had it been but timely received by J.K. might have prevented that Presedent of Oppression quoted by our Author which rash and unadvised Sentence of his the Parliament took occasion so to rebuke though S. S c. to commend and immitate The Auguments and Reasons against Arbitrary Fining of Iurors respect a two fold Interest viz. The Freedom of Jurors in particular and the Freedom of the People of England in general who are equally hurt and wounded by the consequence of such tortious Proceedings 1. First It s unreasonable severity that a Iuror should be enforâ—ed to appear Nolens aut Volens at Assizes or Sessions of Peace and there to be sworn Well and truly to try and true deliverance make between c. according to evidence and when he has conscientiously performed his Duty for which he receives no Reward to be Fined at the Will of a Mercenary Iustice 2. Secondly If a Court has Power Arbitrarily to Fine a Jury that give not in a Verdict according to their sence of this or that Fact in Issue it must be because the Bench is presumed to have a fuller or nearer understanding of the matter in issue then the Jurors can which is clearly otherwise in the sence of the Law and appears in that the Iurors Summons is for persons Per quos rei veritas melius scire poterit by whom the Truth of the matter may be better known 3. Thirdly If the Integrity and Honesty of persons judging are to be esteemed of weight to evidence the Equallity of the Judgement given then surely twelve Honest Men of the Neighbourhood where the Offence if any was committed are the most proper Judges since that twelve men may neither be so easily corrupted as one single person nor their Judgment of such fact twelve men agreeing in one so likely to be erroneous as the single apprehension of one 4. Fourthly If Satisfaction is to be made to a Party grieved how can it be done more fully and equally then at the choice of the person offended The People or Neighbourhood who are pretended to be wronged or injured are called to be judges to redress their own Grievances and surely that Satisfaction they measure out to themselves shall be judged Correspondent to their sustained Damages 5. Fifthly If our Predecessors had thought that the Arbitrary Determination of a Bench of Iustice had been as equal a Iudgment as that of our Peers surely in vain did they exspend so much Blood for the reprizing the latter and exterpating the former Cook 2 Inst prefact 6. Sixthly If a Bench or single Justice Recorder Bailiff c. shall have power to fine and imprison a Jury of twelve men until they gratifie their Wills and Pleasures in their Verdicts which of our Lives and Liberties can be secured against the Lusts of such petty Prerogatives when the Courts Discretion not the Law of England our Birthright shall be the Standard to measure out every mans Desert and Portion Vide Cook 4 Inst fol. 42. We might in this sort much more enlarge to evince of how evil consequence these Arbitrary Practices are and will be to the English constitution of Government But I have here used the more of Brevity in as much as this Case needs no greater or further Argument to enforce it into any mans Understanding then his being an English-Man and so Born Free and not a Slave But altogether to omit our Stablished and Fundamental Laws would be as blame worthy as tediously to enlarge upon them Therefore I shall from them and some Maximes of the Law of England further prove the Unreasonableness and Unjustness of such Arbitrary Proceedings upon and against Juries 1. First Such Proceedings are absolutely against the Great Charter of Liberties as cap. 14. No Free-man to have Amercements assessed upon him but by Good and Honest Men of the Vicinage As also cap. 29. No Freeman to be Condemned without the lawful Judgment of his Peers Which two Chapters by Reason and Arguments in that Discourse of Liberty Asserted at the Tryal of Wil. Penn and Wil. Mead are by that Author expounded and applied to this present Case as the Reader may find at large pag. 46 47 and 48. of that Treatise 2. Secondly Such Arbitrary Judgements are against the Statute of 25 E. 1. cap. 1. which saith That Justices Sheriffs Mayors and other Ministers which under us have the Laws of our Land to guide shall allow the said Charters to be pleaded before them in all their Points This is a Clause says Cook Worthy to be written in Letters 〈◊〉 Gold that the Laws are to be the Judges Guides and therefore not the Judges to guide the Law by their Arbitrary Glosses which never yet misguided any that truly followed them â— Cook 2 Inst Now to Fine and Imprison Jurors for their Verdicts which by the Laws of England they are to give freely is waving the Rules of Law and embracing their own Discretion for a Guide in giving of Judgments Notwithstanding it 's expresly Enacted That if any Judgement be given contrary to the Point of the Great Charter which was declaratory of the Common Law by the Justices or other the Kings Ministers it should be Vndone and holden for Nought Thirdly By the Statute of Westminst 1. Anno 3 E. 1. it 's thus Enacted Rex vult precipit quod Justitia singulis tam quam nulla habita Personarum ratione That Justice shall be done to all without respect of Persons This says Cook is an antient Maxime of the Ccmmon Law repeated and affirmed amongst the Law of King Edgar And Fleta says that Author reciteth this Fundamental Law in few words Quod Communis Justitia singulis pariter exhibeatur That Common Justice be afforded to all If Jurors then be Freemen of England I know not wherefore they should be denied that common right in case they offend the Law of Trial by their Peers and have a Judgment passed upon them against this Common and Fundamental Law which is commanded by the express words of the Statute Inviolabiliter Observanri be to Inviolably Observed that Peace may be kept in this Land Cook 2 Inst 161. 4. Fourthly Cook in his 2d Inst fol. 689. affirms that Ratio Legis est Anima Legis The Reason of the Law is the Soul of the Law and therefore says he Quaecunque intra Rationem Legis inveniuntur intra ipsam Legem judicantur Whatsoever shall be found to be within the Reason of the Law shall be adjudged to be within the Law Had the Law of England presumed That a Mayor Justice Bailiff Sheriff c.
had been more knowing and so more proper per Judges who might give a better and more equal Determination of such Facts which for decision came before them then a Jury of twelve men could or would do Surely the Law would then have left all Controversies to their sole Arbitrary Determination and never have required and commanded Tryals by Jurors which are not only chargeable to the Iury-men Free-holders of this Nation by reason of their Attendance and Expence at Assizes and Sessions but also dangerous and hazardous to perform and do their Duty there But according to that Maxime Lex intendit vicinum vicini facta scire The Law presumes that each man best knows his Neighbours Actions Therefore the most proper Judge whether to condemn his Neighbour as guilty or to acquit him as innocent So we must either lose our Reason or conclude it Illegal and Irrational that Justices whom the Law quo ad hoc concludes Ignorant should judge or condemn Jurors for Ignorance whom the Law quo ad hoc concludes more knowing then themselves 5. Fifthly the fifth Reason and Argument to evince the Illegality of such Arbitrary Proceedings may be drawn from that Maxime of Law more then once used by the learned Cook viz. Lex est tutissima Cassis The Law is the surest Sactuary that a man can take and the strongest Fortress to protect the Weakest Yea saith that Author Sub clipeo Legis nemo decipâ—tur It fails none that put their trust in it We have no reason to believe that that Author put an Encomium upon the Laws of England we mean the Fundamental Laws the Charters of Liberties of which he then treated beyond their real Worth and Value But must rather conclude that such Arbitrary Proccedings which leave the Freemen of England void of Defence and Remediless of Relief are not according to the Rules and Mâ—xims of Law but clearly otherwise And thâ—t the Fining and Imprisoning of Jurors are such may further appâ—ar in these Particulars First In that the Jurors are condemned without a Tryal whether they have done their Duty or not that is whether they have found with or against their Evidence c. 2. Secondly In that the Iudgement against them be it Vitious or Erroneous either in respect of the irregularity of the Proceedings or nullity of the Fact charged upon them cannot be examin'd or revers'd by Writ of Error 3. Thirdly In that no such Superiour Court can receive or hear their Appeal as upon Indictments and all other Proceedings by due course of Law they might Manifesting that such Arbitrary Proceedings against Jurors are far more severe and hard then any Convictions of Traitors Thieves and Murderers who are apprehended Flagranti Delicto and tryed by due Course of Law And since they are so unreasonable that they allow not a Iury of twelve Boni Legales Homines Good and Lawfull Men neither liberty of defence before Iudgment nor an after Tryal or Examination of the Fact for which they were condemned we must necessarily conclude them Illegal and Irrational so null and void according to that known Maxime Cessante ratione Legis cessat ipsa Lex And leave them to that just Censure of the Parliament of the Commons of England THAT THEY WERE INNOVATIONS IN THE TRYALS OF MEN FOR THEIR LIVES AND LIBERTIES S.S. his 2d 3d and 4th Remarks Examined Saith S.S. If it be objected That in the present Case being an Indictment for a Trespass an Attaint doth lie and therefore ought to be punished in Attaint Which he thus himself answers Brook Title Attaint 130. saith Et sic admittitur quod si le Roy fuit merement Party Attaint negist Where the King is sole Party Attaint doth not lie In our present Case the King is sole party and therefore by the old Law no Attaint doth lie In the answering of his own Objection the Author has taken up no less then four or â—â—ve Pages of his Discourse and the whole of his second third and fourth Remarks in quoting nine or ten Book-Cases and Statutes to prove his Assertion that no Attaint lies where the King is Party Ending his Libel thus From these four Remarks I conclude Nothing but leave the Determination of this important Affair to the honorable Sages of our Law and Pray that in this and in all other Businesses of Concernment that God the Great Iudge of Heaven and Earth would guide and direct them Answ 1st The Righteous God whom this Libeller imprecates has declared That the Prayers of the Wicked are an Abomination to him Prov. 15.9 and 28.9 2d The Frivolousness and Impertinentness of this Ribaldry to the Controversie in hand will appear to the meanest Capacity that will take the pains to compare it to the Libellers own Text viz. The fining of that Jury that gave two Contrary Verdicts Justified 3d The King being Party so no attaint lies the matter of these three last Remarks is so far from being an Objection to be offered by the Friends of those oppressed Iurors that they not only grant to him that no attaint lies against such Iurors but that it is horrid Injustice and Oppression to punish them by that or any other way which we shall clear briefly in these Particulars 1. First It might suffice any rational man That Iurors betwixt the King and Prisoners ought not thus by Arbitrary Fines or other Means to have punishment inflicted upon them in as much as the Ancient Common Law of England is so far from directing of Paiâ—es that it declares That all Restraints of Jurors are Abusions of the Law Which we have from Andrew Horn a learned Writer of the Law in the time of Ed. 1. who amongst the great abuses of the Common Law for some of which King Alfred executed several of his corrupt Judges sets down this viz. It is Abuse to compel Jurors to say that which they know not by distress of Fine and Imprisonment after their Verdict And that this is the Statute Law to this day may appear 2d In that the Grand Councels of England in Parliament have no less then Twenty several times given their Judgments about the false or vitious Verdicts of Jurors Enacting twenty one Statutes for the correcting and punishing of such Defaults And doubtless they having been so often near the Point had the Law of England and Right and Liberty of its People admitted of such Punishments as the Adversaries of both at this day put in practice they would have let us understood it and not suffer the Law so many Ages to be Vagum incognitum But those Councels making no such Breach upon our Fundamental Laws Rights and Liberties and this our present Parliament by their Resolves confirming the same we may and must aver the contrary procedures Innovations so illegal and opressive But to conclude 3d Lex semper intendit quod convenit Rationi The Law says Cook alwayes intends that which is agreeable to Reason
changing of but one piece of forreign Gold for its equal weight of our own And as in those times there was two great a watch over such men in Employment to inrich themselves at the cost of the Publick so must I say that his whole Employment at Sea since the Kings return was not above sixteen Moneths and for his other Offices they admitted not of Perquisits and I challenge the whole World to lay the just ignominy of but one Bribe to his charge though to speak modestly a thousand Families owe their advancement to his favour But of how ill report and consequence it is that men devoted in life and estate to the service of the Publick should meet with so ill entertainment from the hands of such Privateers that never knew what it was to be of publick importance may deserve the notice of all true Patriots But perhaps the Libeller thought that I ought as well to Inherit my Fathers Miscarriages if any aâ— his Estate which is contrary to Gods Practice that imputes not the Fathers Iniquity to the Son but that may be one reason why it is his he shews a Mind not a little Anger-bit who is not contented with the Living but besieges the Tomb of the Dead for farther satisfaction Yet after all his Impudent Folly and Slander he concludes with Taceo caetera de mortuis nil nisi bonum but as he would make one believe he could say worse so he would have us to think he had said nothing who not only vented his worst Abuses but what are in themselves most wretchedly false And as his Saying He should speak well of the Dead when he had said so ill is a Contradiction so his pretence of not saying more is not less injurious for his silence has wrong'd us more then his Discourse Since to Brow-beat the Dead and Tryumph over their Graves sâ—ows a greater want of Humanity then I was wiling to think the debauchery of our Age had reduc'd any man to but the pregnant Instances of S. S ' s Accomplishments have better inform'd me And whosoever he is I wish him repentance of these Impieties and sincerely declare my hearty forgiveness of all his aggravating Injuries Part IV. The Grand Case in Controversie about the Power of Juries clearly Stated and rationally Resolv'd AS a deserted Path over-grown by Time makes men to question if it had ever been a Way So the neglected case of Juries Power over-run by the Inchroachments of the Bench make many doubt if ever they had any I shall therefore endeavour to State and Vindicate the power of Juries from the Assault of Innovation and re-instate them of that Authority and Priviledge they are intituled to and defended in and by the Fundamental Laws of England 1st Per Judicium parum As explained by the universal concurrance of Laws and Lawyers we are to understand A Jury of our Equals 2d That no man shall be Taken or Imprisoned or be Disseized of his Free-hold Liberties Free-Customs or be Out-lawed or Exiled or any other way destroyed nor we shall not pass upon him nor condemn him but by the Lawful Judgment of his Peers Or by the Law of the Land 3 Hen. 9.29 This is the antient Law of the Land Confirmed by thirty two Parliaments acknowledged by all Lawyers nay confest and quoted by the man in hand pag. 3. 3d The Question will be this Whether from this Clause and what is recorded as Explenatory and Confirmatory of it there be sufficient to prove That Juries are Judges of Law and Fact First In order to the clear stating and full resolving of the Question I shall explain briefly and rescue the latter part of this Law-text from the wretched construction of S.S. which is this OR is either Disjunctive or Copulative if Disjunctive then it must imply some other Judges besides the Jury If Copulative Or for And it still implies another Jurisdiction besides that of the Peers or Jury his consequence is that Per Legem Terrae or the Law of the Land in that place cannot as this Novice insinuates be understood to be the Tryal of the Jury but to be the tryal both of Judge and Jury according to that Maxim Ex facto jus oritur I must confess my self to be a Novice to this preposterous way of Paraphrazing out of pure reputation Why if Or be disjunctive it must imply some other Judges I cannot see and wonder at the mans impertenency if what 's so natural to him were to be wondred at for though Expressions or the manner of Phraizing things may be disjunctive yet that does no way follow that the matters included in them should be so disjunctive of each other as to imply a thing not con-natural For instance If I should say by way of promise to a man Do me such a service and I will give thee an hundred Shillings or five pounds Does Or imply another sum or that such a Child is one thousand ninety and five Dayes Or three Years old Does Or suppose a Different Age In short Per Legem Terrae or by the Law of the Land cannot be understood Exclusive of a Judgment by Peers it being but a more ample and comprehensive way of phraizing the peoples right and priviledge of tryal by Juries If Or be considered Copulatively He thinks it will fetch in the Justices as Co-Judges with Juries but that conclusion is wrong for as such copulation disowns an exclusion of judgment by Peers and makes it part of the Law of the Land so let me tell him that what is conceiv'd to be additional as by the Law of the Land cannot so easily be understood of Justices as of the whole legal form method of tryal in the case mentioned with the whole rights and priviledges of Juries and Prisoners That this is not mine own sence but the Laws if his so much honored Lord Cook be to be credited let him turn to fol. 50. of the 2d part of his Institutes where he will find this Doctrine Tryals by the Law of the Land are by due course and process of the Law and they are by Indictment and Presentment of good and lawful Men And what is this but Per Juditium parum or Iudgment by Iuries But of this more in the Appendix Next That as Iuries are Iudges of Law and Fact as hath been unhappily distinguisht mens interest putting that assunder that Reason and Law originally joyned togâ—ther I shall proceed to evidence 1. The first Argument is drawn from the Record of their own Indictments The Indictment is found and given into the Court as Billa Vera or a true Indictment by the Grand Inquest or Iury of twelve men before the Court can take cognizance of the Cause upon this it s recommended to the Petty-Jury to judge the whole matter and to deliver in their Verdict or Opinion whether A.B. be guilty in Manner and Form If then the Indictment comprehends both Law and Fact and that the Jury is to give
in effect and justifie themselves and declare they will do the like again whatever Laws the King and Parliament can provide against the same O confident Impudency Surely both King and Parliament will take notice of Penn's Arrogancy Answ It will be wholly needless to repeat the Evidence twice done already but to his Nota I answer thus 1st That the Witnesses did not Swear that we were at an Vnlawful Assembly and that they were there the Jury never scrupled That part of the Indictment which was so Indigestable with the Jury was the Illegallity of the Assembly and since the Court was not content with their Verdict upon a meer Fact it argues that they would have made them Judges of Law by determining the Legallity or Illegallity of the Meeting not sworn to by the Witnesses 2d The Mayor and Recorder differed in the Point The Mayor was for sacrificing Me only The Recorder thought it Unreasonable that I should go without a Mate and justifies his Apprehension from the word Conspiracy but where the Conspiracy was we have leave to think The Bench being thus divided in the Point 't was ill observed by S.S. since the Person he most vindicates lies most liable to reflection 3d Though we confess to have been there yet we deny to have been at an Vnlawful Assembly which being the purpose of the Indictment it was unseasonably observed But 4ly We acknowledge before God Angels and Men that MEET we must and encourage others to do the like yet so as never to Contrive or Abet the least Disturbance to the Civil Peace And if from hence he stiles Me Impudent and Arrogant I am contented to bear his Scurvy Epithites till he is better learnt One Passage I cannot well omit because it gives the man the Lye that spoke it When W. Mead askt R. Brown What he did there Was he a Justice or no If not desired him to come down R. Brown is said to answer him by the relation of S.S. Sir I am a Justice and you are an impudent Fellow Which Answer carries as much of Falshood as Incivility and Folly For First he was no Justice in that place the ground of the Question And next He might have spared the insolency of stiling Him an Impudent Fellow who is in external Respects a Person no ways inferior to himself And lastly He shews not a little Folly or S.S. for him who ventures to call him an Impudent Fellow in the end of the Sentence that he stiled Sir in the beginning a Title of so much Honour with S.S. pag. 10. But if the Author of the Tryal gave not Titles and Additions this Man hath not been wanting in either Nota 7. pag. 17. How Mr. Penn plays upon the word Common Answ I play'd upon nothing but for working in defence of the Common Law Some were so prodigal as to play away my Liberty But S.S. will have it that the Mayor had Law enough to define the Common one but at the rate he expresses it he might have let it alone unless his Exposition had turned more to his account For if the Common Law be Common Reason as he says the Mayor defin'd it and that being a man I have common reason which none of them had so much extrordinary Reason as to evince the contrary methinks they might have forborn so great an Instance of no Reason as their commanding me to the Bale-dock for demanding Common Reason I am well assured that common Reason criminates no Assembly peaceably met to Worship God without the least appearance of Weapons Offensive or Defensive Nota 8. pag. 19. This Nota referring to the Jury's being Judge of Law and Fact as unhappily distinguisht I omit to consider it further it being fully unswered already in the fourth Part of this Discourse Nota 9. pag. 21. Penn made such an uncivil Noise that the Court could not give the Jury the Charge he was therefore put into the Bale-dock which stands even with the Bar and the Prisoners might hear the Charge there as well as a Prisoner might hear at the Barr this therefore was a causeless Exclamation Answ If my noise was uncivil it was because it was Legal and I expect not a better Character from such as so proclaim me a broacher of new Heresies because I honestly demanded the free course of the Fundamental Laws of England The plain truth was this that because I endeavoured to inform the Jury of my Case and to take off the asperity of some mens passions they turn'd me and my Companion into the Bale-dock which though even with the Bar yet besides the main Court and so deeply impaled that we could not see the Court nor hear the Charge but upon information that the Recorder was charging the Jury I stept up and my Fellow-Prisoner after me and exclaimed against the irregularity of such proceedings And for this plain Reproof and but necessary demand of the English Right of Prisoners being present at the giving of the Charge commanded us into the Hole a place so noisom and stinking that the Mayor himself would have thought it an unfit Sty for his Swine Nota 10. page 23. Six or seven of the Jury men did agree to the Mayors question upon which Bushel Hammond and two others opposed themselves They allowed of no such word as an unlawfull Assembly in their Verdict Answ It s not the least unhappiness this Libeller is attended with to be frequent in self-contradiction for in the Interogatories immediately precedent the Mayor speaks thus to the Foreman of the Jury May. What was it not an unlawfull Assembly Fore-m. My Lord This is all I had in Commission And yet this man was one of the seven S.S. would have a Dissenter I hope since the Fore-man had no more in Commission S.S. is to blame for so impudent an Assertion as that seven at that time dissented from the rest Nata 11. page 25. A peaceable innocent people indeed that when the King had seized the Meeting-House into his hands as by Law he might they would come and break open the doors they violently over-power'd the Constable and his Watchmen and 't is prov'd that the people at this time kick and spurn'd the Constable and his watch-men â—e endeavouring to dissipate this unlawfull Assembly as is sworn by Read the Constable Answ This does but still aggravate How much S.S. is an Enemy to all truth What if the Door was broken open had not the Quakers in Justice and Equity right to the Place However it is a most false Consequence that they spurn'd the Constable because he was spurn'd at their Meeting since many are accustom'd to crow'd after the Constables and Souldiers who are no Quakers but come to see their usage Nor does Read swear it was the Quakers but some people present And some of the Jury fully answered that part of the Evidence in this discreet Observation That it was impossible any man could pass through so great a Throng and not be pusht
2. See the impudent Falsity of this Libeller It s acknowledged that Leech with five other Jury-men of whom were Anthony Selby Oylman in Pudding Lane Edward Briscoe in Lothbury Brown a Dyer in Thames-Street London c. Persons of good Reputation and well known in this City were as S.S. alledges bound to appear in the King-Bench by R. Hyde then chief Iustice who after many foul Reproaches and daring Menaces to those Citizens of London as is too frequent a practise in that Court commanded an Information to be exhibited against them in the Crown Office for acquitting somâ— Quakers who were given them in charge at the Old-Baily to which-they all willingly appeared but that they were sized thereon as asserted by S.S. is a most horrid Vntruth for Hyde never afterwards in his life time was so hardy to prosecute the same to Trial nor had J.K. his Successor so much Courage to compleat his Predecessors Enterâ—rize but prudently surceas'd the Suâ—t So this Case cited by S. S is but like the rest of his Authorities with which he would patch up and salve his Patrons illegal and arbitrary Procedures But that we may come more closly to the point in hand First We absolutely deny S.S. his Conclusion and do affirm that as well the Fining and Imprisoning as otherwise punishing a Iury of twelve men Iâ— pannelled to try c. betwixt the King and a Prisonâ—r for giving a Verdict according to their Conscience though in the sence of the Bench and Iustices in Eier contrary to Evidence is an Innovation and the practise of it against Reason the Law of England and the Liberties of its Freeborn People This Point is so considerable that I may say and affirm that the fairest Flower that now grows in the Garden of the English-mans Liberties is a fair Tryal by his Peers or Twelve of his Neighbours which so much Artifice and Violence is used by the wild Bâ—res of our age to pluck up by the Roots In order to its defence and security let us first remove that grand Obâ—ection of our Adversary which he makes a Foundation for his aâ—ter superstructure of violence and Oppression Aâ—d that is from the 29th Chaptâ—r of the Great Chapter on these words Or by the Law of the Land intimating therefrom that by or by the Law of the Land is meant â—ome other Judges Judicatuâ—e or Jurisdiction then Judgment of Peers as in the third page of his Pamphlet The Judgment of â—oke 2 Instit 50 an undeniable Author and authority may serv o â—ear the pâ—â—nt who writes thuâ— upon his Exposition on per 〈◊〉 First For the true seâ—ce and expoâ—ition of these words says hâ— See the Statute of 37 E. 3. cap. 8 where the words By the Law of the Land are rendred without due prosess of Law For there it is said thoâ—gh it be contained in the Great Charter that 〈◊〉 man be taken imprisoned or put out of hâ—s Free-hold without 〈◊〉 of Law that is by Indictment or Presentment of good and Lawfull men where such Deeds be done in due manner or bâ— Writ original of the common-Common-Law Secondly Without being brought in to answer but by due process of the common-Common-Law Thirdly No man be put to answer without presentment before Justices or thing of Record or by due Process or by Writ original according to the old Law of the Land By which is most apparent to every reaâ—onable understanding that by the words or by the Law of the Land is not meant other Jurisdiâ—tion Judges or Judicature wherein or whereby any man is to be tryed as S.S. would ignorantly have it but that the Proceedings against a Free-man of England in order to the Judgment of his Peers or twelve Neighbours shall be according to the Laws of the Land as by Presentment Indictment c. Statute 37 E. 3 cap. 8. And Coke declares that the said 29 th Chapter was but Declaratory of the old Law of the Land which knew no other Judgments or Jurisdictions for its free Inhabitants but Legale Juditium parium suorum neither have the Free-men of England heard of any such except by those arbitrary Innovators who have felt the smart of their sore Oppressions by the hand of Justice have received condign Punishment as due rewards for their introducing of new Jurisdictions as the Reader may see at large Cook 2 Instit fol. 51. Cook 4 Inst fol. 41. And Horns Mirror of Justice cap. 5. sect 1. And this seasonable Caveat and Caution Cook has left as a Legacy to such Time-Servers Qui corum Vestigjis insistunt corum exitus perhorrescant This having SHAKEN HIS SANDY FOUNDATION by the stablished Fundamental Laws and the Responsis Prudentium upon the Ancient Statutes of England Let us try the strength of his Babel-superstructure by the same infallable Rules and Measures Says S.S. The fining of Jurors has been alwayes practized as pag. 33. Answ Truly his Prescription for time is unquestionable if he but prove by Authority what he barely affirms but this I fear he will fall short in Does he bring his Examples Usages or Customs so to fine Jurors from the times or Laws of Alfred Athelston Edmundus Edgar Canutus Edward the Confessor William the first Henry the first Noble and Famous Princes of this Nation many of whose Laws are yet in force from our Charter of Liberties ancient Statutes of this Realm Nothing less But should I grant that he had brought a Presedent of later standing to countenance the late illegal procedure as by Wagstaffs Case it appears he has will it not deservedly fall under the Censure of a Tortious Vsage having neither the Statute Law of the Land nor Reason the Ground of the Law to warrant or justifie it which Andrew Horn a Writer of the Law in the Reign of E. 1. accounts no more of then those of Thieves whose Vsages are to Rob and Steal Mirror Justice cap. 5. sect 1. And that we may as aptly suit a Case to our Libellers as he would have that of Wagstaffs to answer us Take a Resolve of a Court not inferior to the Consideratum est of the K Bench whose Reason and Authority was never subjected to the Opinion of three or four interested persons as S.S. by his bold Pamphlet would have it I mean the Parliament of the Commons of England who upon Justice K fining of Wagstaffs Iury Resolved That he had used an Arbitrary and Illegal Power which was of dangerous consequence to the Lives and Liberties of the People of England and tended to the introducing of an Arbitray Government And that the Presedents and Practice of Fining and Imprisoning Juries for Verdicts is illegal Hence we may observe that Illo die Englands Fountain of Justice was clear and wholesom although the Rivolets or lesser Streams might be troubled and corrupted Therefore it 's worthy our observation what Cook that Master of Reason directing himself to the sobordinate Courts or Seats of Justice said Quod
And Reason will with ease reconcile wherefore the Law has not prescribed nor directed a Punishment for Jurors who give a Verdict according to their Consciences though contrary to the sence of a Court or Bench of Iustices in Causes where the King is Party as for Fellony Trespass c. viz. As our English Government is now stablished Potestas Regia est facere justitiam It's regal power to do Iustice And therefore all Indictments are prosecuted in the name of the King although the Fellony Trespass c. was committed upon the People who really received the Tort and Wrong yet because the King has undertaken for the Safety Defence and Protection of his Subjects the Trespass c. is said to be done to him Yet Experience and Reason tells us that the People of England are not therefore the less interested in nor will be the less careful of the Security of their Persons and Estates but do and will use their uttermost endeavour to defend the first from Violence preserve the second from Ruin So 1st the Boni Legales Homines or Jurors impannelled to do Iustice upon such Fellons c. being Free-born English-men and as neerly interested and concerned in the Punishment of publick Offendors as any who are said to Prosecute And 2dly The Law presuming they would be no more Treacherous to their own Peace and Safety then the King faithful to preserve them thought good to lay no other Obligation or Engagement upon Jurors in such Cases but the consideration of their own Weal Peace and Safety which many hundred years has by experience been found sufficient Till Justices on the Benches and Seats of Judicature turned Informers and Prosecutors and instead of not knowing persons in Judgment appeared contrary to their Oaths as Counsel for the King and Prosecutors and Executioners upon the Prisoners This I shall take the Liberty to Remark upon S.S. the Writer of that Scandalous Libel that however he would recommend himself to the King and Country as a Man of Reputation and Truth or at least to the deserving the estimation of Learning and Ingenuity this Work of his has given them an opertunity to take other measures of his Deserts who has in this one Section of his Libel not only manifested meer Falshood in his Charge but also Ignorance in his Proofs First His Falshood appears in calumniating the Jurors with meer Untruths and that by his own shewing Secondly His Ignorance in that he has not in the least colourably justified his Assertions or those Practices of his Patrons whom he appears for against the Jurors Yea I may say that his Folly has so accompanied his Knavery that he needs no other Character then his own Work in Print And whether he has Reason to assume that Title he takes to himself in the Front of his Piece viz. To be a Friend to Justice and Courts of Justice I submit to those of the Long-Robe he allarums to look to themselves and to the juditious Reader that will weigh his Discouse For my own part I am not in the least jealous that he is any such Person But if this Author would favour us with the knowledge of his name then Justice and its Courts might express their Gratitude for his seasonable Vindication of them and the Mayor Recorder's c. Candor and Integrity in their juditial Proceedings at the Old-Baily against the Jury and Prisoners Less then this I could not say by reason of those false Aspertions that this Libeller has cast upon my Friends the Jurors to enlarge I shall forbear inasmuch as the Author has closed his Discourse with pretence to leave the important affair to the Judges determination whose Judgments I desire may and I hope will be measured by the streight Metwand of the fundamental Laws of England and not by the crooked Line of Discretion for say the wisest of Men and noblest of Princes Qui derelinqunt legem laudant improbos at qui observant legem miscent praelia cum illis I had no other end in this short Discouse but to vindicate Truth and Justice from Falshood and Violence so my earnest Zeal is that the first may ever stand over the heads of their Opposers and Oppressors Newgate Prison in London the 12th Moneth 1670. T. Rudyard Postscript TO Answer the Libellers Challenge and defend the Author of the Tryal c. in reference to S.S.S. it may not be impertinently observ'd that if he will please to enquire of one John Barnes of Hornsey whether the late Mayor was not a Commissioner for setling the late Powers Militia and so brisk and sharp a Reflecter upon those that went under the notion of Cavaliers above the rest of the Committee as to incur the rebuke of his Brother-Commissioners we hear that he may receive very ample satisfaction if it may be any to be found in a mistake of what he so confidently ventur'd to assert Nor is it less worthy of notice that upon enquiry made of Dr Whitchcock he could not but acknowledge that S. Sterling was so far from deserting the University for want of conformity to the Scotish Covenant that it never was tender'd to any of that Colledge Which is not remarkt out of Prejudice to the Mayor but love to the Truth and a desire to manifest his libellous Apollogist who rather then his defensive Flatteries should fail his Diana or his injust Slanders miss us resolves to break through all the bonds of Truth Law and Religion Not that we would render it so criminal to serve the Nation under both Govenments as having served both to persecute either But we will end the whole with this solemn Declaro ' and protest First That we are Free-born English-men and esteem our selves undoubted Heirs of our Countries Liberties not to be dis-inherited upon any religious Difference it being no Clause or Proviso in our first Civil Constitution or Fore-fathers last Will and Testament Secondly That we have been deprived of our dear Liberty and Property and that meerly for Worshipping the God that made Us against all Law Reason and Scripture particularly at the Old-Bailey Thirdly That notwithstanding such daily provocations we do as heartily forgive as we are maliciously persecuted bearing no ill-will to the persons of any The Title and Tenure of our holy Gospel being Glory to God on High on Earth Peace and Good-will towards all men And we could desire of God if it might please him to open their Eyes and affect their Hearts with a right sence of things that they might understand how much more it would be their true Interest to rebuke Vice then punish Opinion and that in themselves first So would Oppression cease the Spring-Tides of Intemperance fall Mercy Truth Justice and Peace flow over all the Banks of Animosity Self-interest Revenge to the once more refreshing of our Weary Dry and Parched Country with the pleasant Streams of thorow Reformation From Newgate Prison in London the first Moneth 1671. W. Penn. THE END Courteous Reader THou art desired to place the numerous Errors of this Discourse to the account of difficulty in Printing any thing that comes not out with an IMPRIMATUR in the front of it But as we can't fly to the Hills to hide us so will it be esteem'd civility in thee to excuse the Authors from the Mistakes be they Points Letters Syllables or whole Words A short Collection follows Page Line Errors Corrected 3 17 Gilt Guilt  18 srcipta scripta  19 become becomes 4 4 imply imploy 5 last doubted thought 12 last Christ God 16 1 ginious genius 19 15 conformed conform 27 17 maind man'd 39 23 Goaled Goalers 40 5 Mead Mead's 41 7 they we  17 or for 43 2 so to  14 commanded they commanded 44 12 it was the they were 50 3 out-stript out stript  7 Friend Friends 52 10 impudent imprudent 53 20 the their 54 last that that it 59 11 This Thus  25 cient ancient  28 it appears he pretends 60 28 Auguments Arguments  33 Proceedings Proceedings as appears thâ—s Page 1. Page 1. Page 1. Page 1. Page 2. Page 2. Page 5. Pas. 5. Ja. 25 F. 3 4. 28 E. 3.3 37 E. 3.8 42 E. 3.3 11 Dec. 1670. Lib. asserted pag. 60 61. Cook 4 Institu Epilogue Wagstaffs Case 17. Ca 2. Câ— 2. Inst 28. 2 Institut 48. Stat. 25. E. 1. cap. 2. Cook 2 Instit prefact Co 2 Inst 161. Lib. 1. cap. 29. Cook 1 Inst 78. 2 Inst 56. and 526. Co. 2 Inst 11. Votes Par. Ang. 11. Dec. 1667. Title Abusions of the Common Law cap. 5. sect 1. Vide Poltons statutes Title Attaint 1 Inst sect 103 Co. 2 In. 375. Stat. 28 E. 1. Vide Cook 2 Inst 178 179. Co. 2 Just