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
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
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