other Matters comprised within the Construction of the Statute of Praemunire as the drawing Matters any where else to another Examination than in the King's Courts of Law And many other Offences made to be under the like Punishment and call'd Praemunire by other Statutes which we need not here mention my Intention being only hereby to shew that Juries have been anciently Judges of Ecclesiastical Matters even in time of Popery And for their having been Judges of Religion also we may see after King Henry the Eighth had cast off the Pope's usurped Supremacy and by the Power of a Parliament restored the Crown and Laws of England in Church Matters to their ancient Rights and Usage but had not then cast off the Popish Religion He with the Lords Spiritual and Temporal and the Commons in Parliament in the Thirty first Year of his Reign even at the Instigation of the Clergy as is recited in the Record of that Statute and in Rastal's Printed Book of Statutes at large 31 H. 8. c. 14. Enacted that the Statute commonly call'd of six Articles whereby 1. The Real Presence in the Sacrament was to be believed 2. That the Communion in both kinds was not necessary 3. That Priests ought not to Marry 4. That Vows of Single Life are to be kept 5. That Private Masses were agreeable to God's Word 6. That Auricular Confession was necessary and that if any one should Publish Declare Say Affirm Argue or Hold any Opinion against the said Articles he should suffer Pains of Death without Benefit of Clergy and forfeit all his Estate Real and Personal and Commissions were to be directed to the Bishops of the Diocess their Chancellors Commissaries and other Persons as the King should appoint to Inquire by the Oaths of Twelve Men concerning these Matters Of which Statute the Learned Dr. Burnet in his History of Reformation Folio 266. hath observed That there was but one Comfort which the poor Reformers could pick out of the whole Act That they were not left to the Mercy of the Clergy in their Ecclesiastical Courts but were to be Tryed by a Jury where they might expect more Candid and Gentle Dealing But though these Matters were thereby to be brought before a Jury yet so great were the Arts and Industry of the Bishops and those who were then most Zealous to uphold Popery that they endeavour'd sometimes to bring back these things to their way of Determining without and to lay aside Juries and often when these Matters were brought before Juries they did over-awe them and overstrained this Law and so dreadful were the Storms and so grievous the Persecutions against the then Dissenters that in the 35th Year of the same Kings Reign to qualifie the Severity as by the Record thereof and Rastal's Book of Printed Statutes at large 35 H. 8. cap. 5. may be seen that whereas by force of the former Statute of 31 H. 8. Certain false Accusations and Presentments were brought against the Kings Subjects and such Accusations and Presentments were kept secret from the knowledge of the Accused till time espyed and they by Malice Convict to the great Peril and Danger of the Subject It was therefore Enacted that Presentments and Indictments on the said Statute whereunto any Person shall be call'd to answer shall be in open Court upon the Oaths of Twelve indifferent persons according to Equity and good Conscience and as other Presentments have been used to be taken in this Realm in such 〈◊〉 Causes according to the good and laudable Custom and Vsage of the same And that the Inquiry and Tryals upon the said Presentments and Indictments may Iustly and Charitably proceed without Corruption or Malice accordingly If any Object against this last recited Act That the Statute of 31. H. 8. of the six Articles was afterwards in the time of King Edward the Sixth Repealed and that this latter Statute of 35 H. 8. is also Repealed or of none Effect It is to be answered That though the first be repealed and that the latter Statute in what it relates to the former Statute in that respect be Repealed or of no Use yet as to what it doth Declare and Affirm to be the Ancient and long used Course of Law that Juries should proceed according to the Laudable Custom and Vsage of this Realm and agreeable to good Conscience and Equity and Charity without Malice or Corruption and that the Lives of the Subjects ought not to be drawn into danger by False and Malicious Accusations and Secret or Corrupt Practices These are such Fundamental Maxims and Rules of Law as cannot be repealed and no Judges whatsoever may give any Expositions to the contrary any more than they can do against Magna Charta or any other Fundamental Maxims or Rules of our Laws and Government Thus you may see what was then declared by the greatest Authority on Earth the King Lords and Commons in Parliament that the Laudable Custom and Usage of this Realm hath ever been for Grand Juries to make their Presentments and Indictments according to good Conscience and Equity and that they ought to proceed therein as well Charitably as Justly Since therefore in such Matters as belong to Grand Juries to enquire or are brought before them they have as large Power as a Lord Chancellour hath in matters within his Cognisance Well might Antiquity call them Grand Juries as Magna Charta is called the Great Charer from its great and weighty Contents Here I would not have it thought a Digression to add that having seemed before to speak only of Grand Juries and Juries of Tryal in Criminal Causes that the like Rules are to be observed concerning Juries a Tryal of Actions between Party and Party that the Judge should always leave the matter impartially and fairly before them which would much diminish the number of trivial Actions as of slander for Words c. whereof there may be some doubt whether some of them would bear an Action if the Judge would be pleased at the Tryal not to countenance either Party where a great Man sometimes will bring Action against a mean or poor Man for Words it may be but slightly proved though by Witnesses of seeming Gravity and not give Directions thereupon to give excessive Damages by reason of the great Quality of the Plaintiff I shall further take leave to Observe that both Juries of Inquiry and Juries of Tryal with their Power and Priviledges are so naturally the Rights of English-men that even when strong Endeavours were used to say them aside by an Act of Parliament which Empson and Dudley whom though you mentioned in your Book and I must take occasion to repeat with some Observation thereon had procured in 11 H. 7. to proceed without Juries yet when like wicked Gardiners for Gardiners may be a Simile for Councellors and Ministers of Justice and Government and be stiled good or bad as they behave themselves the aforesaid Empson and Dudley instead of using
Grand Jury as any other ordinary Witness Besides If the Intire Judgment of the Evidence had not by the Law been left to the Jury then they would be finable if they should refuse to find according to the direct Swearing of the Witnesses whether true or false probable or improbable to them and if they should not implicitly follow the Pleasure and Direction of the Judges But that the Jury is not finable is adjudged in the Case you remember of Bushel in the Lord Vaughan's Reports by solemn and seasonable Resolution of the Judges And should not the Grand Jury be Judges of the credibility of the Evidence before them the Affidavits of Two Persons who should swear Treasonable Words against any Man would be sufficient to bring him immediately upon the Jury of Life and Death and then the Trouble of a Grand Jury would seem only a piece of needless Formality which our wise Ancestors never thought so slightly of before and certainly the Use of them would never have been continued nor would Men of so Great Worth as they generally are or should be serve therein where Sheriffs make a Conscience of their Duty to return such It may not seem Impertinent here to mention a Memorial or Credible Report of what happened in the Reign of Queen Elizabeth concerning a Jury at a Tryal whereof the Substance is That a Murder being committed a Man who was suspected for the Fact was Arraigned before the Lord Chief Justice Anderson at the Assizes the Evidence was so strong that the Judge directed the Jury to find the Prisoner Guilty and they going together to consult of their Verdict Eleven were for finding him Guilty but the Twelfth Man was against it This begat great Dispute and the Judge expecting a present Verdict sent for them to know the Reason why they staid so long he being ready to rise the Jury told him they were all agreed but one whereupon the Judge aske him why he did not agree with his Fellows to find the Prisoner guilty seeing there was so plain and full Evidence To this the twelfth Man gave no Answer where by the way may be noted that none of the Jury are bound to declare their Reason for their Opinion So the Jury was sent out again but no Perswasions could prevail with the twelfth Man to agree with the rest Therefore the Jury were to be shut up all Night without Meat or Drink and in the Morning great were the Complaints from the Eleven of the Indisposition of their Health so that the Judges in Commiseration sent for them and they agreeing with the Twelfth Man the Prisoner was found Not guilty and so acquitted After the Jury had given in their Verdict the Chief Justice desired to speak with the twelfth Man and that he should come to his Lodgings after the Court should rise When he came his Lordship taking him aside told him that the Countrey look'd on him as an Honest Man but in what he had done he much doubted there was something extraordinary and desired him to tell him what it was The Juror with a disturbed Mind told him that if it might not turn to his Prejudice he would discover the whole Business To which the Chief Justice replyed that it should not and gave him his Hand upon it whereupon the Juror with tears told him that he was the Person that had unfortunately killed the Man and that the Prisoner was not guilty of it and that this Juror had not sought to serve in the Jury and confessed that after he was sworn upon his Lordships Directions and the Juries Importunities he had once resolved to comply and find the Prisoner guilty but when he considered that was to add Perjury and another Murder unto Murder he resolved to be starved to Death rather than to agree thereunto When the Chief Justice had heard him out you have saith he done a very ill thing but seeing you have not added one crying sin to another Pray God for Pardon and I will get you the Queens Pardon Sir You having mentioned in your Book I might omit to say any thing that Juries of Tryal every one of the twelve must agree or no Verdict can be given and no way should be introduced to go to the Vote and Poll amongst themselves for the major part But I could not forbear mentioning it again because special Notice should be taken thereof And also of what you have very well observed that Grand Juries ought not to find any Bill or make any Present men or Indictment unless twelve of their number agree to the Presentment or Indictment The Rule of Law being very clear 〈…〉 as may appear by the Statute that direct Enquiry to be by the Oath of twelve Men And all the said Statutes prove and some of them expresly declare that Enquiry by the Oath of twelve Men hath always been the laudable Custom and Usage of this Realm Therefore though Grand Juries consist of a greater Number and may put matters that come before them to the Vote and Poll yet the major part of them ought to be twelve at the least to agree to any Bill of Presentment or Indictment for there cannot lawfully be any Presentment or Indictment unless twelve of them consent thereunto which I could not forbear the more expresly to repeat It being fit and necessary for all Gentlemen and others who serve in Grand Juries to know to prevent Mistakes of what is so plainly the Law in all Cases of Presentment and Indictment by Grand Iuries That Juries are Judges not only of Fact but of Law by your Treatise may more fully be seen and may clearly appear by their Power to give Special Verdicts as well in Capital as Common Matters as in Case of â—â—dictment of Burglary they may find only the Felony and acquit of the Burglary and many such like Cases as where Indictment for stealing Goods therein mentioned of the Value of Ten Pounds they may find the same to be but Ten Pence and so to be but Petit Larceny And I hope it will not seem tedious to shew that Juries as well of Inquiry as Tryal have sometimes been Judges also in Matters of the Church and Religion even in time of Popery As in Cases of Praemunire such anciently was the Care and Watchfulness which our Law provided against the Danger and Incroaching Jurisdiction of the Popes and Church of Rome which have always had Designs against England our Laws and theirs being incompatible Therefore from the time of King Edward the Third and the Reigns of the succeeding Kings there have been Laws made That if any of the Kings Subjects obtain Provision or Promotion to Benefices or if any Appeal from the Kings Courts of Justice to the Court of Rome c. they shall be Imprisoned during Life and forfeit their Lands and Goods and be out of the Kings Protection And we know that the way of Inquiry and Tryal in these Cases hath always been by Juries There are some
A GUIDE TO JURIES Setting forth their Antiquity Power and Duty From the Common-Law and Statutes With a TABLE By a Person of Quality ALSO A LETTER to the Author upon the same SUBJECT London Printed for Tho. Cockerill at the Bible and Three-Leggs over against Grocers-Hall in the Poultrey 1699. To all Honest JURY-MEN Gentlemen IN a Word You are England's Ephori and Tribuni The Boundaries of Prerogative and Priviledge and the living Bulwark of the Laws Your Honour is Eclipsed is unaccountably * Learned Dr. Cowel in word Jury speaks of Juries being in his own words Associates and Assistants to the Judges of the Court anciently in a kind of Equality whereas now adays saith he they attend them in great Humility c Citing also Lamb. and Cust. of Normandy agreeing with them shrunk The Office yet is great Here 's demonstrated the great Priviledge you be that it may be seen how much all English-men ought in Interest to Value and Encourage you Here 's set forth What and How you may do and What and How you may not Do under what Penalties Also the History of the Whole The King is graciously pleased to Declare He will Govern by Law Is' t fit you should know how to Govern your selves according to Law This is Concise and a Breviate rather than a Book that should it meet with a queasie Stomach little Purse or narrow Soul the same might not stumble at it If any thing by this means happen so general as admit of any Exception you may expect it in some other if not in the same place It 's chiefly about Criminal Causes where the King's Name 's used for that of the Plaintiff because most Difficult and Greatest Concern But is serviceable and sufficient for others too It may at least serve to Stir up and to Foil if not Assist learneder Hands Adieu THE INDEX ANtiquity of Juries Pag. 1 2. Assistants Judges be to Juries 18 19 20 26. Attaint lies for following Judges directions 27. Age of a person tryable by Judges or Jury 27 c. Attaint lies not where Witnesses were not sworn 32. nor in Appeals 32. is tryed by 24 Men. According to the best of one's knowledge what 41 42. Appeal is dangerous to bring 45 46. Affirmatives are not to be Sworn against directly 90. Altering Indictments is common and how 97 c. Alteration may be of any thing that is Recorded in Court 102. Alteration by a petty Jury to make a fault less 102. Billa vera means what c. 40 43 50 51 52 54. Challenge to Jurors when and how 6 to Jndges anciently 10. Confirmation of Tryal by Juries 58 times 12. Conclusion of the Jury against their Premises void 18. Contempts in a Jury punishable 31. Concealment in Juries where and how punished 32. Charge to Juries 38 39. Circumstances alledged must be consistent 64 65 and when must be proved 64 c. Credit of Witnesses cousidered 76 77 79 80 86 c. Confession before tryal no Evidence 87. Differences of Opinions oft on the same matter 25. Directions of Judges ought not always be followed 26. Discretion in Fining c. how understood 33. Duty of Judges 30 31 37 38. Doubtful Cases are for Defendant 50 c. Difference in proof from the Accusation 76 c. which is material and which immaterial 77. Evidence is what 75. it's Credit and Authority is to be considered 76 77 79 80 86 c. it 's extent must be well considered 29 30 can't be directly against an Affirmative 90. Confession before tryal is none 87. is Juries own knowledge 22 c. 35 and saying and Swearing what 's Law is none 26. Embracery is punishable in them 32. Errour of Judgment is not punishable 64. Estopels bind not Juries 91. Examination of Witnesses ought to be by Juries 91 92. Fact is determined by Juries not Judges 13 c. Fine at Discretion is what 33. Fault must be considerable 40 62 c. by Compulsion of necessity involuntary ignorance c. not punishable 67. Felony is what and how 69. Fraudulent sales void 99. Hearing both parties 54 c. Implied is what 66 c. Judges ought be able and upright 2. hold their places at King's pleasure 2 3. are not punishable 4. ought not be concerned where King is party 12. meddle not with matter of fact 13 c. are but Assistants to Juries 18 c. 26. ought not influence Juries 20 c. 24 26 30 31. their duty 30 31 37 38. say what shall be given as Evidence 88. Juries who may be of 4 5. anciently Knights only 5 chosen by Sheriff or Coronor 5 as capable as Judges or more 11. they only determine Fact 13. and sometimes Law too 17. sometimes called Judges 20. ought not be byassed 35 c. are Judges of the Credit of Testimony 88. are bound by their own sense 24. Indictment what and how 39. ought not be found of course 41 c. is a tryal as well as another 44. is great damage to the party 45. Ignorance in Juries excuses not 53. Ignoramus means what c. 40 50 51 52 97. Knights were only on Juries anciently 5. Legales signifies what 4 5. Liberi is what 4. Law is but improv'd and refin'd Reason 27. Law determined by Jury 17. Mercy is Justice 49 c. Material Circumstances which 64. difference which 77 c. Number on a Jury indefinite anciently 8. but now is Twelve p. 9 c. Of Judges determining any thing was anciently Twelve Of Witnesses ought to be Two 80 c. Negatives can't be Sworn 90. Oath of Juries its Form 34. how must be performed 35 36. unalterable but in Parliament 42. Punishment is none for Judges 4. for Juries in Civil Causes is by Attaint 4. Juries punishable scarce any wise else 28. c. 31. 32. Quare 53. are punishable for Contempts Embracery c. 32. and the Grand Jury for wilful Concealments in a Sessions of Peace 32. or for discovering their Evidence c. 33. are for refusing to be Sworn on the Jury 43. or giving a Verdict Twelve at last not agreed 33. no punishment for Error in Judgment 64. is what for Perjury 85 94. none for a Jury above Twelve 32. Parliament can hardly take away Juries 16. Perjury is what and how 25 26 38 39. Presentment is what and how 39. Present is the same as say 43. Peers exceedingly suffer by Indictments 46. their future Judge and Jury are all without Oath can't except against or Challenge any of their Jury if the major part of their Jury agree it 's enough 47. Presumption of nothing but innocency c. 49 73 81. Proof of what Circumstances is requred 64. c. it ought be full and plain 76 79 80. ought be very particular and full upon a Statute 76. differing from what one 's accused of 77 78 79. what is sufficient 78 79. Punishment was what anciently for Perjury 94. Judges 95. Lawyers 94 95.
exigua minima contemnimus We are apt to slight things beneath us as small and contemptible or inconsiderable And must be of the Neighbourhood that coming from nigh where the Question arises the Defendant in all probability may have the better knowledge of them to except against or to approve of them and such may also the more likely know somewhat themselves of the Party of the Matter of the Credit of the Witnesses and all Circumstances Lex intendit vicinus vicini facta sciat Co. L. 78. Thus if the Place happen disputable whence the Jury shall come they shall come from whence the matter is like best to be known 21 E. 4. 8. Besides in this way of or by Jury where Life or Member is concerned or in any danger and in all other Criminal Causes is required two Tryals of the Party before he can be said Guilty or any Judgment can be given against him and the Party must also be found to be Guilty on both these Tryals else all is nothing The Grand Jury must first Examine the matter and the Petty-Jury after Examine all again to prevent and secure against all Surprizes of the Party and Mistakes or Errors in the Jury It seems as if very Anciently the number on a Jury was indefinite but it was all the Persons present come as would come Brit. N. Bacon c. Like as of Old it was here of those we now call the House of Commons Concil Brit. 350. Ingulph c. And in the Tryals at Rome where Vox Populi was the Verdict except in Case of a Senator which indeed was Tryed by his Peers other Senators Hence probably it was that all Courts were at first to be open and so accessible Likewise Deut. 19. and some other Texts of the Old Testament seems as if the Tryal amongst the Jews were so But in Analogy of late it 's reduced to the number of twelve like as the Prophets were twelve to foretell the Truth the Apostles twelve to preach the Truth the Discoverers twelve sent into Canaan to seek and report the Truth and the Stones twelve that the Heavenly Hierusalem is Built on And as the Judges were twelve anciently to Try and Determine matters of Law and always when there is any wageing Law there must be twelve to Swear in it and also as for matters of State there were formerly 12 Councellors of State And any thing now which any Jury can be said to do must have the joint consent of twelve West 2. c. 13. Else it 's in construction of Law not the doing of the Jury but of Private Persons and void Mir. 42. 200. 41. Ass. 11. 6 H. 4. 2. 21 E. 3. 31. 29 E. 3. 43. Finch 58. The Grand Jury consists of more Persons commonly than twelve but as aforesaid twelve agreeing it 's enough and so many of them must So that by the Law of Juries 24 Men in all first and last find one Guilty c. before the Judgement can be given or one can be punished for the Fault one 's accused of And besides every Man of the latter Jury even all the whole twelve must all and every of them agree and be of that one and only Mind much to suspect unless one be certainly and plainly Guilty It 's more for all twelve than for twenty nine out of thirty to agree Any of the Grand Jury giving in a Presentment or Indictment without eleven more of the same Mind and agreeing with him ought to be Imprisoned 40. Ass. 10. which also for any one of the Petty-Jury to do none will deny but to be worse A Judge was Hanged for giving Judgment on the Verdict of eleven Jury-men Mir. 296. But on the other side the Judges are not so many at a Tryal scarce ever the major part of them agreeing it 's enough their Tryal would be but one or once only they are never sworn at the Tryal nor ever at all but only once and that exceeding generally they cannot any of them be excepted against or Challenged though Anciently might Lamb. Mir. Bract. Flota be they never so great strangers professed Enemies and otherwise ill qualified and though the King be Party yet chooses them himself against one Besides if Judges had Power of both determining the matter of Fact and also the matter of Law as must if were no Juries their Latitude of Erring c. must then be the greater and their doing wrong or mischief might be the more in as much as might wrong one then in both the Fact and Law and their Encouragement so to do would be Improved since then it must be harder to detect them as whether erred in the Fact or in the Law or partly in both like as it 's easier seeking a Bush than a Wood And as it 's said Occasio facit furem Opportunity makes many a Whore But were Judges presumed Saints and never so upright c. yet who can imagine but at a Tryal when Witnesses are all Examined and Evidence all given the Jury being so many Persons and probably knowing something of the matter before they may all assisting one another better observe remember and judge upon the whole matter than any one or two c. others though called Judges Certainly one may do more with help than without So the Proverb is Ne Hercules quidem contra duos oculi plus oculo vident Two to one is odds at Foot-Ball And Non omnes sed pauci decipi aut decipere possunt The fewer may the more easily deceive or be deceived Quandoque bonus dormit at Homerus Nemo sine Crimine vivit Humanum est errare It 's natural for Man to err None 's without fault and the surest Foot may slip Visc. St. Albans Aph. 8. says That 's the best Law which leaves the least to the Arbitrariness of a Judge and Bract. 119. says Judges represent the King's Person they are his Officers and Act in his stead and hence concludes they ought not at all be concerned in Causes of Life or Member c. Where the King's Party for says he the King is thus Judge as it were in his own Cause Thus appears what is the Difference of Judges and Juries and something of the Reason why the Parliament has all along been so Zealous for Tryals by Juries as no fewer than 58 several times since the Norman Conquest hath established and confirmed the Tryal by Juries no one Priviledge else nigh so often remembred in Parliament Now for the Power and Authority of Juries and how the Wisdom of the Law hath entrusted and enabled them in this Tryal The Law says in Tryals whether any Complaints as made or any matter as alledged be true or not the Judges ought not nor can say nor have any thing at all to do therewith but the Jury only Ad questionem facti non respondent Iudices All the whole or most they can do or at least ought is only after and upon what the Jury
private judgment such a Verdict c. though never so true and good in it self yet makes the Party or Parties as aforesaid not satisfied certainly forsworn at least in foro Conscientiae as to their Conscience For Perjury is not only a Lye confirmed by Oath but likewise either when any one being deceived and believing that to be true which is not rashly or unadvisedly swears it to be true Or either when any one thinking a thing not true swears it is true though indeed it be true Flet. 334. Bract. 288 289 292. and all the Casuists So is seen in Palmer's Reports One was Indicted and Punished for swearing a thing so and so because he did not know it to be true as he swore So that upon the whole one may see a Judge ought not to meddle at all with the Jury If he differ not with them it 's needless and troublesome if he differ they are not to mind him take it which way one will But perhaps it will be urged that this must be understood only as to trying matter of Fact and that however as to matter of Law the Jury ought always to be advised and governed by the Judges though not as to matter of Fact No no further than a mannerly deference that is payable to the Judges as more Learned in the Laws For if the Judges say or any Witness swear the Law to be so and so no Jury is by Law bound or any wise obliged beyond their own Reason c. at least to believe them in it 9 H. 6. 38. Finch 58. If an Attaint be brought against a Jury it 's no Excuse that the Verdict is according to the Judges Directions Cro. El. 309. 18. Now says a timerous Ignorant Juror Oh! but whether the Law be thus or not the Judges will Punish the Jury if comply not with them This sure would be pretty A Jury perhaps forsworn and lyable to an Attaint if do comply and yet punishable if do not No no the Law which is nothing but improved and refined Reason was never so unreasonable to suffer this A. levyed a Fine of Lands to B. and B. paid A the purchase-money But after A. said he was then at levying the Fine under Age of One and Twenty Years old and therefore the Fine was void The Law says here the Judges shall determine by looking on the Party whether he were of full Age or not and the Jury shall not the true Reason being that if the Party seem of full Age though he be not he shall not avoid the Fine to prevent cheating c. Whereas if the Jury were to try it they must not go according to the seeming but real true Age and so if he want but a Day of One and Twenty Years he must thus be adjudged under Age as much as if he wanted Twenty Years and B. should be cheated This Fine was after reversed by King's Bench because A. did appear and was also proved by four Witnesses to be under Age But the Validity of the Fine coming after to be disputed in Common Pleas on a Tryal by Jury though the Court here told the Jury that notwithstanding some Witnesses prove to you A. was of full Age at levying the Fine yet you ought not to heed them for the Judges have the sole and only power of determining whether of full Age or not and the Judges of the King's Bench have already determined it nevertheless the Jury being somewhat extraordinary and not so very leadable Men gave their Verdict contrary to the Direction of the Court and as if A. were then of full Age And an Attaint being after brought against the Jury the Jury was acquitted and commended Dy. 201. 301. And the Jury is the more justifiable in it since the Judges first altered the Law in trying by Witnesses and not only by Inspection as Juries also do which in Tryals by Witnesses are as aforesaid the more competent c. Of this Nature is a memorable Case of Bushel reported by Lord Chief Justice Vaughan where Meade and Penne two Quakers were Indicted at the Old Baily for their Meetings and the Jury whereof Bushel was the Fore-man would not find them Guilty The Court mighty angry Fined and Committed the Jury alledging for cause that they the Jurors against the Law of the Realm against full and manifest Evidence and against the Direction of the Court in matter of Law to them in Court openly given and declared had acquitted the said Meade and Penne But upon long and serious Debate it was after adjudged the Commitment Fining c. was unlawful and accordingly the Jury were discharged c. Another time also a Jury-man dissenting with all the rest and that no less than two days the Judges asked him what he would do Says he rather starve and dye in Prison than consent the Court fined and committed him But on better Consideration discharged him without more ado All the Court can do being only to carry them in Carts if in the Circuit along with them and keep them without Meat Drink c. till will agree 41 Ass. 11. says Mir. Juror's ought not to be threatned but to be free differing in Opinion c. 273. And it was resolved in Parliament Anno 1677. That the Presidents and Practises of Fining c. Juries in or for giving their Verdicts are Illegal And Keeling Chief Justice of B. R. was called to Question in Parliament for such Practises Coke upon Lit. f. 369. says If any Labour a Jury Instruct them or put them in fear or the like it 's Punishable as Maintenance or Embracery either at King's Suit or at Parties and perhaps it would puzzle one to shew why a Judge is not within this Law for how can he be said to do this as a Judge when to do so is no part of his Office And why should any usage alter the Case here any more than in other Cases of breaking the Laws it 's much too any Judge should offer such a thing considering he that judges without a Jury certainly judges without Authority And he that judges with a Jury but governed or led by him judges only by colour of a Jury and by colour of Authority and thus makes himself forsworn in and by the Oath taken at his being Created Judge makes the Jury all forsworn violates the greatest Priviledge of the Subject infringes the most often confirmed Law of the Kingdom and also does particularly the Party offended the greatest Wrong imaginable in as much as by colour of Law and makes all the Jury accessaries to the whole Hence it 's improbable any Judge should offer the contrary But however a Jury in any Indictment Presentment or Information ought and may give their Verdict c. according to their own Conscience without any fear of Punishment one way or other And in any other Case as where the King is no Party but an Attaint happens to lye they may be punished no other way
Also no Punishment whatever lyes for or against a Jury which consists of above Twelve Men 14. H. 7. 13. Nor does Attaint ever lye where the Witnesses are not on Oath or for going against what any such Witness says nor in any Appeal of Maim Murther or Felony F. N. B. 107. Nor in other Appeals as Regist. 122. Attaint 59 62. 22 Ass. 82. say Nor does ever any Action lye against any Jury for going against their Evidence And where an Attaint is brought it must be Tryed by a Jury of Twenty four Men. The only Cases the Judges have any Power over Juries in are where in their Behaviours they become guilty of any such thing as the Judges may justly call an unlawful Contempt 4 E. 4. 27. 36 H. 6. 27. Or be guilty of Embracery 5 E. 3. c. 10. 34 E. 3. c. 8. as receiving Bribes Promises c. before or at the Tryal c. Or in Case of Concealment the Justices of the Peace of every Shire c. may take by their discretion an Enquest c. to enquire of the Concealments of other Enquests taken afore them and afore others of such Matters and Offences as are to be inquired and presented afore Justices of Peace whereof complaint shall be made by Bill or Bills c. And if any such Concealment be found of any Enquest c. had or made within one year c. The Justices may Amerce or Fine them at Discretion 3 H. 7. c. 1. viz. as much as is reasonable for such Offence as is said in a like Case by Lord Coke 10. 140. and in Dalton p. 541 23. If any refuse to be on a Jury not offering sufficient Excuse he is Finable 7 H. 6. 12. So if any of either Jury give a Verdict c. as aforesaid twelve not agreed So the Grand Jury may not discover Evidence given them Inst. 3. 107. Mich. 15 Jaâ— in B. R. Smith and Hill's Case 27 Ass. 63. Lamb. 402. Chron. 207 272. Finch 20. So the Petty-Iury if without License of Court depart any whither upon any Occasion whatsoever after sworn before Verdict given Or that while but especially after Evidence given eat or drink Or out of Court receive any Evidence from either side may expect Fine and Imrisonment Thus much for what a Jury may do Now something more how and what it ought to do The Oath it self but that it 's so general would else be Instruction as well as Obligation sufficient The Oath of a Grand Jury-man is I will diligently enquire and true Presentment make of all such things and matters as shall be given me in Charge or shall come to my knowledge concerning this present Service The King's Council my own and my Fellows I well and will truly keep secret I will Present nothing for Malice Lucre or Evil Will Nor will I leave any thing unpresented for Love Favour Affection Reward or any hopes thereof But in all things that shall concern this present Service I will present the Truth the whole Truth and nothing else but the Truth So help me God The Oath of the Petty-Iury is I will well and truly-Try and true Deliverance make between our Sovereign Lord the King and the Prisoner at the Bar according to my Evidence So help me God That of the Grand-Iury was part of it Anciently Quod neminem accusare velint innocentem To accuse no Person innocent Ll. Ethelred And pour rien ne levray que je verite ne diray Nothing shall hinder me from speaking the Truth Brit. 12. 135. Crompt 304. The Scripture teaches one his Duty upon an Oath It says One must swear in Truth in Justice and Judgment Jer. c. 4. Deut. c. 16. Exod. c. 20. Dan. c. 5. Levit. c. 14. Zech. c. 13. Acts c. 5. and the Proverbs in several places In Truth with one's Eyes neither in a Telescope or Microscope not proceeding by appearance or seemingness of things not by adding nor diminishing not by aggravating or palliating not by Equivocation or Reservation not by Representing or Accepting the matter otherwise than really and truly it is not presenting c. things c. doubtful or not certainly true as true nor omitting any thing certainly true but always as the naked Truth is so and so In Judgment not at a venture as by casting Dice c. not as matter of Form not rashly perfunctorily or negligently passing or running over things not by implicite Faith or in complemental Obedience c. not upon trust or belief further than with and upon good and great Deliberation Considerateness Reasoning and Satisfaction according to ones own Conscience and because one's mature and settled Judgment is so and so In Justice proceeding fairly impartially with Integrity and according to the Merits of the Cause without charging one with Murder that 's Guilty but of Man slaughter and without Malice Fear Hope Pity Favour Affection Passion Corruption or other Prejudice Byas Consideration or private or sinister End or Design But all throughout purely because is so and so more than otherwise And consonant to Scripture as well as generally in all other things so also in this are even Morals and Politicks The Wise Men so called of Greece were called so from their living Prudently Justly and Honestly such also are they Aristotle calls so 1 Metaph c. The Stoicks say He 's the Wise Man that sticks to Truth Neque quicquam fingit and abhors and banishes every thing else not so much as admitting of any Stories Fictions c. whatsoever Machiavel says Judex cujusquam gratiae nec potentiae cedet neque misericordia nec invidia nec odio comovebitur sed vere semper incorrupte ex legibus judicabit Judges must not be moved for the Power of any one nor for any ones sake one way or other nor with Pity or ill Will but always go according to Law truly and without Byas Justinian speaking of Judges says Eorum est manus puras Deo Imperatori Legi praestare They must be inoffensive to God the King and the Law Non illum populi fasces non purpura regum flectunt No Acclamations of the People no Honours of the King neither of these move them Contra rempublicam nec contra jus jurandum amici causa vir bonus non faciet Against the common good or an Oath no Man will stir an Inch if honest though it be for a Friend's sake Judex ponit personam amici cum Iudicis induit Judge Hales is a Friend as Hales but none as a Judge Si omnia facienda sint quae amici velint non amicitiae tales sed conjurationes putandae sunt Cicero What a Judge does at the Request of his Friend is really and truly no Friendship but is making himself and Friend guilty both of a Crime The Areopagites were Judges that heard Causes only in the dark that they might take Notice what was said and not who spoke And what is said of Judges by these Authors
the one to be before the other and the latter to be final the other not The Stat. of 23 H. 8. c. 23. Enacts One shall be Indicted of High Treason in what County the King pleases And the Stat. 1 2 P. M. c. 10. says That Tryals for Treason shall be according to Common Law This Act repeals the other though speaks only of Tryals and the other of Indictments Anders 1. 104 105. Inst. 3. 27. which shews an Indictment is a Tryal One of the Grand Jury cann't be afterwards on the other And why says the Law for he has once already found the Party Guilty and if should not again he must Perjure himself Brit. 12. 25 E. 3. c. 3. 7 E. 4. 4. Stanf. 158. It puts the Defendant to Disgrace Trouble Damage Danger of Life c. It makes him lyable to an Out-lawry to Imprisonment c. and to every thing but very Death c. the final Judgment it self It gains Credit and gives Authority to auother Jury to find one Guilty It produces this Effect that if the other Jury find one guilty never so wrongfully no Attaint lies against them nor other Punishment And what 's the Reason The Law says because he is found Guilty not by these other twelve only but in all by Twenty four or more this latter and the other Jury too Attaint 64 60. Attaint R. a. 18. v. 8. H. 4. 23. b 14 H. 7. 13. So if one be Indicted any one may bring an Appeal though never so wrongfully c. against him whereas he that brings one against any one that was never Indicted of the same Offence may be liable to great Punishment if wrongfully brought Stanf. 172. b Corâ—n 178. 40 E. 3. 42. Where Peers be indicted for Treason Felony or Misprision of either they not only suffer in Honour Liberty Vexation Danger Trouble Charges and other Inconveniencies as aforesaid another does but must with a more tender sense and in a much greater measure as they be so much greater Persons c. And they can have no other Tryal on Oath for their future Judges or Jury are none of them on Oath Inst. 3. 89. Co. L. 156. They can except against none of their Jury though have what cause soever possible Co. L. 156. b They must be Tryed by such as shall be chosen against them such as perhaps shall not be Neighbours but picked any where up and down the whole Kingdom such a Jury as perhaps shall not be above twelve in all whereof then if any seven or any time the major part agree to find them Guilty it shall be so though the other five or lesser number be utterly against it So that upon the whole if a Peer have but seven Peers among all the rest that bear him ill will or either any ill wisher that can make him so many of them his Enemies he must Dye c. fall back fall edge And to help the matter he shall always be sure of the ablest Council in the Kingdom to manage the Cause against him Suppose one should ask any Honest Man this Question Were he not on his Oath yet would he find an Indictment of Course c. to expose one and put him to such Inconveniences as aforesaid Certainly says he No. And the Monster that would does it wrongfully because is not certain he does otherwise And being on his Oath as aforesaid it 's not only doing wrong but tainting himself Crimson red in Perjury too sure a Malicious way of doing wrong It 's doing wrong also by colour of Law and pretended Authority the greatest Mischief and Injustice says the Lord Coke of all other Inst. 2. 48. The damage c. too in all these Cases is the greater yet that the Party can very scarcely if at all expect any Reparation or Amends Whereas in all other Cases he may easily For against the Grand Jury or any of them no Action lyes in as much as doing what they do on their Oaths the Law will not presume c. any Malice c. in them And though one be Indicted at the Instance or upon the Endeavours of some other Person all the Jury as aforesaid being sworn to Secrecy can one easily discover and prove who this Person is what he did and prove it at a Tryal Which yet one must do fully if expect any thing but making bad worse And might one recover damage c. yet it 's damage c. to be put to the Trouble and Hazard of the Recovery Well therefore says Fleta f. 52. Valde necessarium est in omni presumptione in inquisitione de vita membris Juratores diligenter examinare It 's an exceeding necessary thing that the Grand Jury should make diligent Examination before presume any thing either in Case of Life or Member Iust. Dalton's Book p. 539. says no less Care or Concern at all lies on the Grand Jury than does on the Petty Jury The Law to see its Nature how it inclines generally that one may the better guess in this matter it is not with us like those of Draco It 's as tender of the Lives Liberties and Credits of the People none can deny in all cases else as a Mother of her Child and why then not in this also It will presume nothing dishonest c. in any one or any time but it will and always does presume all Persons and Things Honest True Innocent c. till the contrary be proved Co. L. 78. b As Ovid says Sit piger ad poenas princeps ad praemia velox So Lamb. Sax. Laws cry often Clemency and Forgiveness as well as Justice And Lex Angliae Lex misericordiae est Says Coke Inst. 2. 315. Like the Laws of Scripture whence it was first derived which shews Mercy is not opposite to but part of Justice 1 John 1. 9. Psal. 71. 1 2. Ier. 18. 7 8 9 10. Ezek. 33. 13 14. The Laws of England the Laws of Mercy And says a Great Man Justitia semper mitiorem sequitur partem Justice leans that way which is the milder One brings an Appeal if the Jury be doubtful the Defendant shall be acquit and the Appellour imprisoned Fleta 52. Mir. 224 273. So a Jury being doubtful if one were a Villain or not was therefore free Fleta 238. Bene tibi praecipiunt says Cicero qui vetant quidpiam agere quod dubites aequum sit vel iniquum aequitas enim lucet ipsa per se dubitatio autem cogitationem significat injuriae They do well that forbid one doing a thing when dubious whether right or wrong for where it 's right the thing is necessarily as clear as the Sun But any doubt speaks the thing not to be so As if a Physitian give one Physick he must give one that he is sure will do one good or no harm and not what he doubts may do one harm It 's also plain if I doubt I must not say I am certain as Billa vera but I know
cast into Prison Gen. 39. 19 20. So was Mephibosheth falsly accused by Ziba and deprived of all he had 2 Sam. 16. Which being all Presidents and Damned in Scripture must or shall any one be so hardy as to embrace and follow them now Either one 's Guilty or not if be let him yet have fair play for his Life c. If not why should he then be Indicted So that why should he not be heard Else one's Condemned first and Heard after or indeed Hanged first and Tryed after or little less The true intent of the Law herein seems as if Men were to be handled not thus but that the Defendant should be heard at first and if he then could give satisfaction c. he might be at no further trouble c. And if he could not that he should have such trouble c and having Notice thus might prepare himself the better and so not be surprized at the final and concluding Tryal or have any colour of Pretence that he was surpriz'd or any wise unprepared at this final Tryal This method being most Honourable for the King and the Law and also most safe for the People And the Reason why it was ever otherwise seems barely a Result of some Artifice of the Clerks to get themselves Money imposing on the Juries or from this that Presentments being made without the Party heard therefore the Jury thought they might find an Indictment likewise Whereas they ought always to distinguish for a Presentment is on their own knowledge when they know all the whole matter even what the Defendant can say for himself but an Indictment is found upon Witnesses which tell their Tale to a hairs breadth c. as makes the most for the side they are produced of And at length after some few Presidents it has now grown into Practice Dato uno absurdo mille sequuntur All can be pretended why it should be so now is but Practice and President And when it 's against Justice against Truth against any ones Judgment sure one ought rather to Correct than Approve of or follow such Practice or President At least wise a Grand Jury ought hear both Parties if present or easily or conveniently to be heard It would likewise amaze one to see how the Clerks for their Gain or others for other Ends have often prevailed with Jurors to find a Bill true c. when in all the Circumstances of Aggravation or most of them false if not in the Fact it self and those Circumstances too altering the very Fact as alledged about as much as white Feathers would a black Crow Considering how true Presentments Indictments and Verdicts ought to be and that the whole Truth and nothing but the Truth must or may be in them That the Jury undertake the Bill is altogether true not only as to the Substance c. or in general but even in every particular all the Circumstances Aggravations and every individual word for if it be not true in the least word it 's not true but false and Perjury Stanf. says well f. 96. b De faire bon Enditement est requisite a conustre d' aprendre que sera dit Treason ou Felony ou non To perform the Duty of one on the Grand Jury it 's necessary to learn and know what 's called Treason what Felony c. and what not Hence also one learns one must not in an Indictment c. call or suffer called Felony Treason Man-slaughter Murder nor one Crime by the Name of another Or mention or suffer mentioned words spoke or things done other or after another manner than really or truly were said or done and therefore the Judges give the Grand Jury to this day their Charge so distinguishing particular and directive of all and all manner of the several Crimes their Natures and how to call them c. When the Clerks draw an Indictment Information c. they 'll not only alledge and insert in it the very Fact c. one is accused of but craftily and full of Art stuff and load it into the Bargain with several fictitious and fleight Allegations of their own to swell up and aggravate the matter as Circumstances of Malice or Design c. in the Party when did the Fact spoke the words c. So that sometimes from a Mouse a Mountain from nothing or what 's inconsiderable it will in such a Dress shew and strut like a Giant a Monster c. And all this forsooth they 'll call matter of Form and then endeavour to perswade a Jury if they find the chief matter or that part which they 'll call the matter of Substance true they must of course find all the rest which they please to call matter of Form true also This usual way of wording Indictments is so notorious dangerous hurtful and grievous that it several times and in all Ages has been complained of by all Persons whatsoever except the Clerks and Prosecutors themselves whilst Clerks and Prosecutors It has been a Complaint in and of Parliament by King Lords and Commons See 4 H. 4. c. 2. 37 H. 8. c. 8. This is that whereof may be said as was in Courtin Hertsey's Case Aliquid creare ex nihilo malum Diabolicum est It 's the part of the Devil himself to make a small fault be or seem a great one But no Complaint no Argument will or can prevail with a Covetous Clerk getting Fees or a Malicious Prosecutor troubling whom he has Envy or Malice against to desist their Advantage And as the true Circumstances of any Crime do always or mostly aggravate or alleviate it and all those suggested thus by the Clerk if the Bill c. be found by the Jury though pretended only matter of Form become thus as true and the Judges must adjudge a Punishment accordingly as if all were really true Thus is a Trap set to catch the Jury and Defendant the Jury to Perjure themselves and wrong the Defendant and the Defendant to be adjudged of a Crime when perhaps guilty of none or at least of a worse Crime than truly he is A Jury therefore ought first consider as aforesaid if the matter of Substance or chief matter be Criminal at all and if be then if considerable And if be not Criminal or considerably Criminal in it self then if the Circumstances as alledged make it so and if not then to reject it If it be considerably Criminal with or without the Circumstances then consider if you know it of your selves or by Evidence be satisfied it is true both it self and the Circumstances If the matter it self be not true you reject the Bill for where 's no Body is certainly no Shadow If the matter be true but the difficulty be about the Circumstances then consider if they be material if not you find the Bill if be then consider if they be consistent or the matter will bear them if not then reject the Bill c. or at least
Cardinal Deacon without twenty six or at least twenty four against a Cardinal Presbyter but with sixty four or at least forty four nor against a Cardidal Bishop without seventy two Witnesses Lamb. 178. The general Rule is In one dûum vel trium stet omne verbum si modo sint omni exceptione majores Two or three Witnesses be enough if lyable to no Exception Any one Person may invent or contrive any Story for Malice or Envy or other End to take away another's Life c. And who can disprove or detect him But it 's not so easie for two to do it yet two may possibly also agree and contrive an Evidence together and so form it and frame Circumstances all agreed of before-hand between them that being false it may yet seem very plausible The Children of this World be wiser than the Children of Light Jezebel had two Witnesses against Naboth and two Witnesses were against Chaste Susanna to prove her Avoutry yet both â—ad false Evidence against them Sussanna was acquitted only because the Witnesses differed what Tree it was unde In all Tryals whatsoever in England either at Civil Law or Common Law where is no Jury there all will confess must be two Witnesses at least Co. L. 6. b And always that Witnesses are to be joyned to the Jury they must be two at least ibid. And in any Law any where must be always two Witnesses at least and no place can be pretended of otherwise except only England And that it should be so here even when there is a Jury too see 48 Ass 5. Barrec 241. Enquest 42. Bract. l. 5. 400. 48 E. 3. 30. And so is expresly Mir. c. 3. c. Fortesc 73. Co. L. 6. b Inst. 3. 26. And so it was agreed in B. C. Trin. 9. El. And the only Reason why it should be otherwise is as aforesaid that the Jury be presumed to know themselves to the Value of one Witness more But if it so fall out that really they know nothing themselves then should they find one Guilty upon a single Testimony they make that Law which other wise could not be Law and find one Guilty the Law would have acquitted and thus a Tryal by a Jury would be less safe and more destructive than any other in all the whole World again The Jury thus make one Witness as good as a thousand for had a thousand Witnessed the Jury could have done no more This would occasion great Mischiefs Perjuries and other Inconveniencies A. then being sufficiently Malicious or Interested and so designing B's Death an Italian would Poyson Spaniard Stab French-man Pistol him but being an English-man and expecting such a Credulous Officious Jury as aforesaid to help him will sure choose to swear him to Death for A. has his Malice better answer'd B. thus not only loses his Life but also his Credit Estate and what not Besides attainting his Blood and utterly disgracing all his Relations and at last how shall A. be discovered in it He is infinitely more safe this way than any other Or suppose one comes out of the Moon and by chance should discover him he knows he is safe of his Life he shall not dye by our Law If any body happen too that will be at the Trouble Charges Hazard and Danger to Prosecute him never so severely But by the Statute he shall forfeit 40 l. or at his Election stand a while on the Pillory and half a year be in Prison this is all Likewise a cunning Rogue suppose Robs one c. no Witness by if one offer to prosecute him let him Prosecute first and he Hangs one thus into the Bargain and saves himself honourably Or were there one or two Witnesses by but he first Prosecutes and Swears against all it will go hard with them all It 's said of the Egyptians they had no punishment for lying and so had no measure in it But thus our Law tempts as well as scarce at all punishes Perjury A Jury though have two or more Witnesses ought also consider and examine their Circumstances Amongst the Turks only such may be Witnesses as are Freemen can say their Prayers have some knowledge in Law be known of civil life and conversation c. Boschiner Academ 19. By the Laws of Scotland for the most part always like ours none shall be Witness under 14 Years old furious people officer of the same Court Women Adultrous Persons Thieves Poor whipt for any Offence Infamous Convict and Ransomed from Justice Kinsfolks Companions or Parties of the same Crime Clergy against Laity nor any ones Tenant Bayliff Servant or any other of his Robe Councel Retinue c. nor any known Adversary nor any Person Excommunicate or Imprisoned for or accused of a Crime St. 2. Rob. 1. By our Laws none ought to be a Witness that 's Indicted of Treason or Felony and not acquitted Persons excommunicate outlawed or otherwise defemed nor Judges in any case where they shall be concerned as Judges Brit. 39. Mir. 117. 108. Bract. 118 119 133 141. Persons outlawed or otherwise infamous 11 H. 7. 41. Young 116. Stanf. 88. 11 H. 4. 35. Inst. 3. 36. And certainly they cann't that be infamous as attained of a false Verdict of any Conspiracy at King's suit of Perjury of a Praemunire of Forgery on the Stat. 5 El. c. 14. of Felony or have by Judgment lost their Ears or stood on the Pillory or be Infidels or Non sanae memoriae of insufficient discretion considerably interested in the matter Crompâ— 127. b Co. L. 6. b A Husband or Wife cann't be Witness for or against one another Co. L. 6. b nor against any other in the same cause Stanf. 26. b Except in crimiminal cases where he or she is the Party offended and swears only for the King and no other Evidence can be expected The Confession of a Criminal gotten by Fright or any Artifice used upon him or made before comes to his Tryal is no Evidence against him The Common Law was so strong in this point that 'till 2 3 P. M. c. 10. no Justice of Peace could examine a Criminal in short Conditio sexus aetas discretio fama Et fortuna fides in testibus ipse requires Ask his Estate Fame and Religion Quality Sex Age and Discretion But the Judges use to Determine who shall be sworn and what shall be produced as Evidence to the Jury and the Jury what Credit or Authority the same 's worthy of Co. L. 6. b One that 's burnt in the Hand for Felony is by some held to be a Witness in Law for the Crime say they is purged so if pardoned by the King And some hold many of those aforesaid are in Law good Witnesses as Poor Men but the Jury may consider such may easier be byassed or corrupted he has not so much to lose or forfeit for a Crime he lies under several Necessities and Temptations a Rich Man does not c. In Solomon's Proverbs
ne pret prover sor saintz que melz ne post juger Lamb. 162 64. Also whosoever gives a false Judgment shall forfeit his Were what 's Life is worth unless can prove on Oath he could judge no better Judges if Condemned one to Death against their Knowledge or by Ignorance of or in what they ought not as Judges be Ignorant of they be Murderers c. and to dye as such Mir. 256. v. Bract. 412 King Alfred's Law was That false Judges because dishonour God whose Vicars they be the Scripture calls them Gods and the King which raises them to such an Honourable Seat as the Chair of God they shall first make satisfaction to the Party grieved forfeit what else they have and suffer further Punishment at King's Will and Pleasure And if they falsly put to Death any then to dye themselves and always at least to suffer like for like Mir. 265. 301. Appeal of one's Death lay against a Judge for judging one falsly or wrongfully to Death Mir. 136 258 298. Presentments were made against Chancellours Judges c. for breaking their Oath Mir. 144. There were 44 Judges hanged in one Year for wrongful Judgments Mir. 296. c. And says the same Book it 's an abuse that all things are not so now 296. What became of Tresilian and Belknap of later years But now the Law seems clear otherwise we have little or no Punishment against Chancellours Judges Councellors Attornies Clerks Witnesses c. yet were Juries then so cautious as aforesaid with and against them where now therefore how many times more Jealous and Cautious have they Reason and should they be The Law considering the great Burthen that lies upon the Consciences of Jury-men has favoured them with this Liberty They may as aforesaid take upon them the knowledge of what the Law is in the matter or upon the truth of the Fact as well as the knowledge of the Fact and so give in a Verdict generally that the Defendant is Guilty or not Or they may give in only the matter of Fact particularly how they find it to be and then leave it to the Judges to determine Or they may acquaint the Judges how the matter of Fact stands and then ask the Judges their Opinion as to the matter of Law and then determine the whole matter themselves The Grand Jury strikes out of the Indictment what they be not certain is true or may any wise alter it to what they be certain is true Or if any thing be in it they be doubtful of they may superscribe it Ignoramus at their Election in all these Cases Thus if a Jury find the Words not spoke or the Fact not done with and according to the Aggravations and Circumstances in an Indictment c. mentioned They ought either not find the Indictment for one not being Guilty as the Indictment mentions is consequently not Guilty of that Indictment but rather seems if guilty at all guilty of some other matter than which he stands Indicted of and so of some other Indictment only and then let the Prosecutor if so fond of troubling his Neighbours bring such other Or strike out what they have not sufficient Evidence of as do often in Indictments of Murder which say the Defendant of his malice fore-thought Feloniously Killed and Murdered such a one strike out the words of his malice fore-thought and murdered having no Evidence of the Malice but sufficient of the rest and then endorse it Billa vera and so find the Bill Man-slaughter instead of Murder So was it of an Indictment against Ld. Chandois and Count Arundel his second in a Duel In like manner when the Evidence proves a Fact done only by mischance defending one's self in time and place of War when Defendant was non Compos mentis an Officer doing his Office c. the Grand Jury alter the Indictment accordingly So of the Petit Jury only it does not alter the Indictment c. but instead of altering Murder to Man-slaughter c. as aforesaid in the Indictment they only say Guilty of Manslaughter and not of Murder or guilty of Chance-medley Se Defendendo c. Or they may tell the Court particularly and plainly how they find the truth in and of the whole matter to be so far as concerns the Fact or what was done or said As in Cases of Words what were spoke where to what intent c and so leave it to the Court to judge on it according to Law and to tell what the Law is thereupon and so be discharged themselves which is called giving a special Verdict Suppose A. bring an Action of Debt on a Bond against B. as Heir of C. and B. pleads he hath nothing from C. to pay any thing with and A. replyes that he has c. and so the Issue is joyned or what the Jury be to Try is whether B. has any thing as aforesaid or not A. proves that B. had before the Action brought something so but aliened by Fraud and ill Practice to deceive A. of his Debt Now they finding the matter or case to be thus indeed and the Law being for there is a Statute 13 El. that such aliening shall be void and consequent the Heir chargeable nevertheless They may if will as aforesaid either take upon them to know the Law and in this or any Case say generally they find for A. Or not take Notice of the Law but only of the Matter and so tell the Court how and what they find the matter to be and thus leave it to the Court to judge in Law whether ought to be found for and this is their most safe way To this end was the Stat. of West 2. c. 3. that if a Jury doubt on the Evidence what the Law is and therefore what to do they might leave it to the Judges to determine But says Coke this Statute is only in affirmance of the Common Law Inst. 2. 425. 13 E. 1. 39. See a special Verdict in Case of Murder Co. 4. 44. Co. 9. 63. One in an Information N. B. Entr. 375 378. Co. 1. 22. One in Attaint Dy. 173. So in a Case about Murder the Jury tell the Court they find the Killing itself to be true but not the Killing Feloniously as mentioned in the Indictment and so ask the Opinion of the Court if it be Murder Go. 9. 69. So the Jury found the Parties Indicted for Riotously tearing the Petition Guilty of tearing the Petition but not of the Riot c. It 's true it 's doubted in Moor c. 1002. whether in a Writ of Right a Jury may give a special Verdict But as there is no Reason that if the Cause be indifferently plain as to the Law the Jury themselves should not put an end to it giving a General Verdict as Guilty or not Guilty c. without so much further Charge loss of Time increase of Trouble as otherwise must needs follow yet on the other hand there is as
the Power they possest in their Masters favour which should have been for preserving had cut down some of those Ancient Trees of wholesom Fruit the way of Enquiry and Tryal by Juries and digged deep to bury them by the Act of Parliament they had obtained to that purpose and hoped they would never rise again Yet there being a lasting Life in our good old Laws though sometimes as little to be discerned as when the Life of Trees in Winter-time retires invisibly to their Roots The Act of 11 H. 7. was repealed by an Act of Parliament 1 H. 8. and the Use of Juries restored and sprang up again to the Confusion and Destruction of those Treacherous Gardiners of whom the History is Famous enough to be a warning to all others to avoid the like mischief And how careful Judges have since been and ought to be to maintain the Ancient and Rightful Course of Law and not to go out of it may be seen in Anderson's Reports fol. 156. where Empson's Indictment is recited at large That Act of Parliament by which he and Dudley being as in the 94th Psalm ver 20. like the seeking to establish Mischeif by a Law and so contrary to the good Fundamental Law of England to Enquire and Try by Juries That though it was an Act of Parliament they acted by it proved too weak to save their Heads and became Fatal to them who procured and were chief Instruments in the Execution of it and the inferiour Instruments the Informers and Promoters were also severely punished and dyed shortly after as mentioned by the History of King Henry the Eighth Written by the Lord Herbert As an Appendix to the Treatise of Juries might be also recommended to your Consideration the late increase of Informations in the Crown-Office of Court of the Kings Bench in Criminal Cases not specially and particularly exprest or directed by any Statute for thereby the Subject is drawn into hazard of Liberty and Estate without Presentment or Indictment of Grand Jury and thereby deprived of that great and good out-guard of his Liberty and Property the Inquest by Oath of twelve Men before he should be brought to Tryal which is worth the Judges Care to rectifie or will he worthy the Consideration of a Parliament by a Law more fully to remedy for the future By having after named Empson and Dudley's History mentioned the Mischief which if not carefully prevented would grow by the Increase of the last mentioned Informations in the King's Bench I do not in either of these Cases intend any Reflection on any of the Judges for as I am a Son of a Judge who whilst he lived made it his Care to maintain as well as use the Rules and due course of Law and often as well in publick as private Discourse would praise the Excellency of our Laws and particularly those of Enquiry and Tryal by Juries I bear such Honourable Respect and Kindness to the present Judges as to believe and hope that whatsoever may sometimes happen they always do and will for the future make it their Care to preserve the Law in its due Course and to prevent any Mischief or Inconvenience from Entring or Growing in the Use or Practice of it I would here close but that I could not totally forbear to take some Notice of the Ways which are used to punish those Protestants who do not Conform in the Outward Manner of Worship and Ceremonies though they agree with our English Church in the Main Doctrines thereof and in all respects behave themselves Peaceably whereof I crave leave freely to say my Mind That though I love our Church and frequently and duely receive the Sacrament and I and all my Family come constantly to Church every Sunday except hindred by Sickness or other Extraordinary Impediment and continue decently there during all the Time of Divine Service and I so well love the Common-Prayers thereof that I use part of them in my Family and would perswade all I can to the like Conformity yet I have that Kindness to all those Protestants commonly call'd Dissenters who by reason of Tenderness of Conscience different Education or Vse of other manner of Worship and who though they differ in Opinion concerning some lesser Matters yet hold the main Doctrine of Christianity wherein all Protestants agree notwithstand their different manner of Worship And I could use many Arguments for Gentleness towards them whereof I shall here only name the Topicks of some of them which are From the common sense of Humanity From Principles of Right Reason From Christian Charity From Divine Command and the Holy Scriptures From its being well pleasing to God and the Way to have his Blessing That the beginning of Persecution of and among Christians was from Antichristian Principles That Persecution is chiefly used by the Pope and Church of Rome That Vnion of Protestants is the Common Interest of the Protestant Religion both here and abroad That Vnion of Protestants is the best way to preserve and defend us from the Idolatry Policy and Force of Popery That the safety of Christendom depends upon it That it is the best way to preserve the English Monarchy so as thereby it would Ballance and hinder the French King from gaining the Vniversal Monarchy and be a means to preserve the Countries and Dominions of all other Princes of Europe in Safety That it would much encrease the Peopling of this Land by quiet dwelling here That it would infinitely inrich this Nation by increase of Trade and Value of Land That Trade being thereby encreas'd his Majesties Customs will be also very much encreas'd That Gentleness Mercy and Kindness are honourable Qualities That these Qualities are agreeable unto the Gracious Expressions of his Majesty to his Protestants Subjects concerning the fame That it is suitable to the Kindness he shewes to the Persecuted French Protestants That we hope some of his Counsellors and our Best Magistrates are of the like Honourable Mind concerning Gentleness to be used to Protestant Dissenters and that the Measure of their Goodness will be esteem'd and taken by the Degrees of their Disposition to such Gentleness I could name more Particulars from whence much might be said on every of them to this purpose which Task though it would be rather pleasant than difficult I shall not meddle with but leave it to some other who will better perform it than I can it being unnecessary here to say more thereof because it is here only proper to Observe how some late Acts of Parliament relating to Church Matters leaving the Trust of punishing thereby to the Discretion of the Magistrates without the use of Juries which is so great a Trust as was not usally left to any Judges in former Ages those who have that Power ought to be the more careful discreetly and prudently to use it with Moderation and not to abuse so great a Trust by overstraining such Laws hunting after and taking all Occasions they can