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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A59002	The second part of the Peoples antient and just liberties asserted in the proceedings against, and tryals of Tho. Rudyard, Francis Moor, Rich. Mew, Rich. Mayfeild, Rich. Knowlman, Gilbert Hutton, Job Boulton, Rich. Thornton, Charles Banister, John Boulton, and William Bayly : at the sessions begun and held at the Old-Bailey in London the last day of the 6th moneth, and there continued till the 7th day of the 7th moneth next following, in the year 1670, against the arbitrary procedure of that court, and justices there : wherein their oppression and injustice are manifested, their wickedness and corruption detected, and the jury-mans duty laid open.	Rudyard, Thomas, d. 1692, defendant.; Moor, Francis, defendant.; Mew, Richard, defendant.; Penn, William, 1644-1718. People's antient and just liberties asserted, in the tryal of William Penn.; England and Wales. Court of Quarter Sessions of the Peace (London)	1670 (1670)	Wing S2312; ESTC R21970	50,633	70

who were every First-day ordered by the Lievtenancy to guard as wel the publick Meeting-House in Gratious-Street as their Mercenary Priests whom the Bishops sent thither to read their Church-Homilies and Prayers apprehended and took into custody William Bayly whom they carryed before the Mayor and upon Information of the Priest which on that day was to have officiated in that place had he had courage to have performed what he had undertook the Mayor committed W. B. to New-Gate for opposing the Priest in officiating his Function as was alledged in his Mittimus when as the said W. B. had not at any time either seen or spoke with the said Priest Not long after John Boulton an antient Citizen of London of seventy Years of Age and very well known to be a quiet and peaceable person was sent by the Mayor to New-Gate as a Riotous person And soon after him William Penn and William Mead all which were taken up by armed Forces from their Publique and Peaceable Assemblies and committed to the Prison of New-Gate The last of the 6th Moneth the Sessions of Oyer and Terminer beginning at the Old-Baily not only such who the former Sessions had been Indicted but those newly committed attended the Court where constantly waiting three dayes in expectation of being called to their Tryals and according to the Laws of this Land to be Condemned or Acquitted were never once called until the 3d of the 7th Moneth at which time the Bench of Justices consisted of Samuel Starling Mayor John Robinson Rich. Ford Joseph Sheldon Geo. Waterman Wil. Peak Tho. Bloodworth Aldermen of London John Howel the City Recorder together with Richard Brown who pretending himself to be something learned in the Law came there to second the Recorder and with much confidence took upon him to examine persons according to his Will and Pleasure as if he had been a Justice in Commission for London John Smith and James Edwards were Sheriffs O yes being made and Silence commanded William Penn William Mead John Boulton William Bayly Francis Moor Richard Mew Richard Mayfeild Richard Knowlman Gilbert Hutton Richard Thornton Charles Banister Job Boulton Ezekiel Archer and Thomas Rudyard were all called into the Court and not giving that Cap Reverence and Hat Honour to the Place which the Hammon-like-spirited there upon the Bench expected and looked for the Mayor with great indignation openly amongst his Brethren first exprest himself against them calling out to the Officers who attended the Court saying POX ON THEM KNOCK THEM ALL DOWN. Surely such Language as this was very ill becoming that Court of Justice and especially to proceed from the chief Magistrate of this imperial City it s said He bears the Sword in vain that 's not a Terror to Evil-Doers and a Praise to them that do well If in this the Mayor of London has manifested his Christian Behaviour let him have the Praise thereof A time has been when such an Expression for its Prophanness should have merited a pair of Stoks or a Whip and for its Rashness and Violence to be bound to the Good-behaviour But the misery of our Age is such That Judgment is turned back and Justice standeth a far of And he alone who turneth himself from evil maketh himself a Prey But the under Marshals and Goalers manifesting more of humanity then to obey the inhumane and unchristian command of the Mayor exercised no other violence upon the Prisoners then pulling off their Hats for which the Recorder rebuked them and bid the Officers put on the Prisoners Hats upon their Heads again which was no sooner done in obedience of the Courts command but presently the Clark of the Peace requires every of the Prisoners in obedience and reverence to the Court to pull off their own Hats the Prisoners not complying with these whimsical humors ridiculous precepts and antick acts of Justice the Recorder gives order to the Officers a second time to pull off all their Hats and set Fines upon their Heads some twenty Marks some twenty Nobles using variety of airy expressions against and taunting those Prisoners whom he so illegally fined Which piece of ridiculous Pageantry being over O yes being made and Silence commanded as truly there was need of it the Cryer called over the Jury who when they had answered to their names and taken their places were commanded to look upon the Prisoners at the Bar the Prisoners were also required to look upon the Jurors and make their challenge before they were sworn the names of the Jury men were Thomas Veer Ed. Bushel John Hammond Henry Henley Henry Michel Charles Milson Gregory Walklet John Brightman Wil. Plumsted James Damask William Lever John Baily Who all took an Oath Well and truly to try and true deliverance make betwixt the King and the Prisoners at the Bar according to their Evidence and so that God should them help The Prisoners without objecting against any one man of the whole Pannel accepted freely of them though they had Liberty by the Law to have made their challenge against whom they pleased So now their Country being thus solemnly sworn to try and deliver c. they were the true and proper Judges to acquit or condemn to deliver or judge guilty the persons that were given them in charge In this of the Jury it s acknowledged the Prisoners had right and Justice done them and the Court acted under their Commission according to that Clause Facturi quod ad Justitiam pertinet secundum Legem Consuetudinem Angliae To do Justice according to the Law and Custom of England contained in the Charter of the English-mans Liberties which declares Quod Dominus Rex non capit imprisonabit nec super eum ibit nec mittit nisi per legale judicium parium suorum That the King shall not take imprison or pass upon any Free-man without tryal by his Equals And these are called the Good and Lawful men of the Vicinage whom the Prisoners had freely accepted and given up themselves and causes unto as to their Judges to be by them condemned or acquitted as in their Consciences they should judge Equal Just and Righteous according to the stablished and fundamental Laws of England The Court proceeded to try Wil. Penn and Wil. Mead the manner whereof is more largely set forth in a Book called The Peoples Antient and Just Liberties Asserted in the Tryal of W. P. and W. M. at the Sessions held at the Old-Bailey in London the 1st 3d 4th and 5th of the 7th Moneth 70. against the most Arbitrary Proceedure of that Court. Which was but an Introduction to their after Illegal and Tyrannical proceedings against the other Prisoners for when the Court sound that all their severe Menaces scurrilous Invectives and hard Usage towards the Iury could no wise availe to make them alter that Verdict which according to their Oaths they brought in for W. P. and W. M. they presently consult how they might separate this Iury and

and direct 〈◊〉 as is usual in all Courts of Justice where Right is impa●●●●lly administred and withal bidding the Prisoners to look upon the Iurors and before they were Sworn to make their Challenges So now a second Jury was going to be sworn upon them for the tryal of one single Fact which was a further manifestation of the Courts evil Intentions against them having now neither Equity Justice nor Law for their boundaries or guides it being such a piece of practice that no Age can paralel Saith the learned Cook in his 2 Inst 56. Lex est tutissima Cassis The Law is the safest guard to defend the Innocent from Tort and Wrong which declares That Justice and Right shall be denied to none Neither shall any man be destroyed by any manner of wise on which Cook observes That every Oppression against Law by colour of any usurped Authority is a kind of Destruction For saith he Quando aliquod prohibetur prohibetur omne per quod devenitur ad illud The Law admits not of the least wrong to be done to any man Therefore saith the same Author That its tho worst Oppression which is done by colour of Justice Observe then 1st The Court to swear two several Iuries upon one person to try one and the same Cause or Fact upon one and the same Indictment What is it but under disguise of Iustice to commit such Absurdities that our Laws allow not or Lawyers ever before heard of 2d If such Practises as these be allowable what person shall know when that Iury whom the Court will permit to try him is or shall be sworn upon him to acquit or condemn him according to his Fact and the Law of the Land 3d What Right and Iustice can a Prisoner expect when his Adversary shall not only summon what Iurors they please but also in the Court pack together such whom they Judge will answer their Malitious Designs upon those who shall be committed to their charge The Prisoners taking notice of the Courts partial Prosecution and unequl distribution of Justice and bold attempts to commit such horrid Rapes upon their Liberties made an unanimous Protestation against the second Iury. First Desiring to know by what Law or just President they practised such sort of Iustice upon them and how the Recorder could Swear two Iuries to try one and the same Fact c. The Recorder answered That the first Jury was imprisoned for their Misdemeanour meaning the not finding W. P. and W. M. guilty and the Prisoners must take that for an answer Which being far short of the Question the Prisoners still persisted to know what Law or Custom justified their proceedings The Recorder replyed That the Court had over-ruled them The Prisoners told him That the Law should be and ought to be the Rule and Guide of all Courts of Justice and that such Answers as The Court over-ruled you was not sufficient to satisfie their reasonable and just Demands Whereupon the Recorder with great Indignation and Rage told one of the Prisoners That he should be Gagged and deserved to have his Tongue bored through with a Hot Iron and his Mouth Nail'd to the Dust with many other inveterate approbious and tainting Expressions telling him That he was not bound to produce Presidents but it should satisfie That the Court was of another Opinion against them and had over-ruled them To which the Mayor joyned his consent saying also We will over-rule you By the Statute 25 Ed. 1. chap. 1. it was accorded That the Kings Justices Sheriffs Mayors c. that had the Laws to guide them c. This is a Clause saith Cook worthy to be written in letters of GOLD That the Laws are to be the Judges Guides And therefore not Judges by their Arbitrary Glosses to be Guides of the Laws which never yet misguiden any that truly followed them Sub Clipeo Legis nemo decipitur as saith the same Author Common Right in 2 E. 3. is called Common Law in 14 E. 3. c. and in this sence it is taken where it is said It a quod stet recto in curia i. e. legis in curia The Law is called rectum that is Right or a Rule because it discovereth that which is tort crooked or wrong so as Right signifieth Law so Tort Crooked or Wrong signifieth Injury and Injuria est contra jus against Right Hereby saith Cook the crooked Cord of that which is called Discretion appeareth to be unlawful So that First its plain The Law rules and guides but Discretion Force and Violence over-rule Secondly The just Judge makes the Law his Rule and Guide but the Unjust over-rules the Law So that its apparent that this over-ruling is no other then by Discretion which is tort crooked and rough to oppose with violence that Justice and Right which the Laws allow and afford every Free-man of England then there 's no defence to be made against the Recorders over-ruling that is gone beyond the Laws Rule to his own over-ruling Will and Discretion The Clark of the Peace in obedience to the Courts command proceeds to Swear the second Jury upon the Prisoners upon which some of the Prisoners objected against several of them as one Steed the Fore-man and several others The Recorder denied they their challenges telling them still that the Court over-rul'd them And although Judge Cook in his 3 Inst fol. 27. saith That the end of Challenge is to have an indifferent Trial and which is required by Law and to bar the Party indicted of his lawfull Challenge is to bar him of a principal concern in his Trial yet this Recorder who doth or should know the Law and those Rights and Priviledges which it affords the Prisoners both in the Challenge of the Array of the Pannel and also of the Poles admitted their Challenges to neither but cried out still The Court over-rules you that as well the Spectators as Prisoners were fully satisfied that the purpose and resolution of the Bench was to make them subject and slaves to their Injustice and most Tyrannical Will and Pleasure in dispite of the Laws and that undoubted Right and Liberty which is the best Birth-right the Freeman of England hath The names of the Jury were Henry Stead Fore-man Edward Dermer Thomas Mosse John Ashborne Edward Langton Henry Osstly Edward Hanney Walter Hungerford Tho. Pendleton Robert Twisord Rob. Cooper and Daniel Waiton As its most certainly true that every Freeman of England may and doth challenge the benefit of Ancient Fundamental Laws to protect and defend his Life and Liberty against violence and oppression most especially that which is contained in the 29th Chapter of the Charter of Liberties viz. Not to be taken imprisoned c. but by Judgment of his Equals which Cook calls in his Exposition twelve of his good and honest Neighbours And to have equal Justice and Right done him according to that Charter as by the first Statute of 20 E. 1. So

other Persons who have undergone with him the severe Judgments or as some call them the Inquisitory like Censures of that Court which were so far from Juris Dicta The Law of Right or impartial dispencing of Justice that they are clear contrary and directly opposit unto them The Justices of that Court Judge Cook that famous English Lawyer doth well describe in his 2d Inst Fol. 55. in a Poetical Simile of an unjust Judge Grosius hic rodamanthus habet durissima Regna castigatque auditque dolas subigitque fateri And in another place Leges fixit praecio atque refixit They Punish then Hear compel to Confess make and marr Laws at pleasure The Occasion of T. R's being Envyed and Prosecuted by these Adversaries of Peace was because of his faithful defending and Constant appearing when called thereto for his Clyents and Retainders in such Matters Causes as Will and Power had forged and daily did put in execution against them so that the 3d of the 4th Moneth called June the Magistrates of the City of London in the Name or Colour of a Lievtenancy or Militia Issued out a Warrant to break open his house in the dead of the Night to apprehend him when they might have had him at Noon-day upon the Exchange about his occasions and did take and carry away him and also what Arms they there coudl find which Warrant was executed by the Souldiers of one Captain Holford and the next day was sent to the ●o●l of New-Gate as a person suspected and disaffected to the Peace of the Kingdom as was alledged in his Mittimus under the Hands and Seals of Samuel Starling Mayor Wil. Peak Rob. Hauson A. King J. Dawes John Cutler William Rouswel A. Stanyon John Tivell Wil. Allott J. Sheldon and T. Davice The 7th of the 4th Moneth the Lievtenancy so called ordered T. R. to be again brought before them who without alledging any Crime or certain Matter that was proved against him though earnestly requested by him That he might hear his Accusation or see his Accusers face to face did demand 2000 l. security for his Good-behaviour which unreasonable Demand being not complied withal T. R. was remanded to Goal with a Mittimus under Sam. Starling and John Robinsons Hand and Seal Pretending therein That T. R. did stir up persons to the disobedience of Laws and abetted and encouraged such as met in unlawful and Seditious Conventicles contrary to the late Act in the 22th C. 2. of which things they alledged that they found cause to suspect T. R. to be guilty Which Case being brought before the Iustices of the Court of Common-Pleas at Westminster by Habeas Corpus That Court after solemn debate gave their Judgment That T. R. was unjustly Imprisoned and unlawfully Detained And so by them was set at Liberty His Adversary viz. S. Starling the Mayor being incensed at his Deliverance and Discharge finds out new Stratagenis to encompass his ends upon him so that at a Sessions of the Peace at the Old-Baily the 29th of the 4th Moneth an Indictment is framed and preferred against T. R. the Tenor whereof was That whereas at a S●ssions of the Peace held at Guildhall for the City of London the ●●●h of May the 22th year of the King before S. Starling c. an●●he ●ustices of the Peace of the said City assigned c. a certain Bill of ●●●ic●ment was exhibited and preferred against one Samuel 〈◊〉 late of London Stationer written in Parchment for speaking these seditious and menacing Words viz. The first man that shall disturb Mr. Vincent will never go out of the house alive whereas one N. Grove J. Tillot were sworn to give Evidence in behalf of the King to the grand Inquest that T. R. intending to hinder and pervert Justice and due course of Law against S. A. for speaking the seditious and menacing words aforesaid the 30th of May with Force and Arms c. the said Bill of Indictment before it came to the grand Inquest unlawfully secretly and subtilly did get take and had in his hands and unlawfully did conceal and detain from the Jury in contempt of the King and his Laws to the hindrance of Justice and due course of Law against Allingbridge unto the evil example of others and against the Kings Peace Crown and Dignity To which Indictment T. R. appearing in Court and pleading not guilty John Lee told the Bench that there was no cause for that Indictment by reason that S. A. was tryed convicted and acquitted the same Sessions that the pretended Indictment miscarryed Whereupon the Mayor pulling an Affidavit out of his Pocket that bore date the 29th then instant alledged That the Indictment was not drawn to the Case and according to the Instructions that he gave to Jo. Lee and shewed that Affidavit to Archer one of the Justices of the Common-Pleas who when he had perufed and read it over acquainted the Mayor That the matter therein contained was no cause for an Indictment To which the Mayor answered That it is cause and shall be cause and he would stand to it withal affirming That he had asked chief Justice Keeling's Judgment and he advised him to prosecute it So the Instructions were delivered to John Lee to draw up another Indictment This piece of practice was in open Court which manifests their partiallity and unequal dealings to such whom they convened before them to receive Justice at their hands And how little they who sate there as Judges regarded their Oaths and the duty of that place of so great a trust is easily resolved weighing them in the Ballance of Law and Justice Said the learned Cook in his 3 Inst fol. 29. The Judges ought not to deliver their Opinion before-hand upon a Case put and proofs urged on one side in absence of the party accused For how saith he can they be indifferent who have delivered their Opinions before hand without hearing of the party accused when a small addition or substraction may alter the Case And how doth it stand with their Oaths that are sworn That they shal well lawfully serve our Lord the King and his people in the Office of a Justice And they should do Equal Law execution of Right to all his Subjects Yea he saith further That the Kings Council shall not so much as put the case in absence of the Prisoner to the Judges As may be seen at large in 3 Inst fol. 30. And the 3d Statute of 18 Edward 3. In the Judges Oath it s said And that ye give no advice nor counsel to no man great nor small in no case where the King is party Now if the Mayors prosecution and Justice Keelings Advice be according to the Law Justice their Oaths and Duty in their respective places let the World judge The Clark of the Peace drew up another Indictment by the Mayors Directions which contained the substance of the former and further That the said T. R.

him it is a Trespass and the Goaler shall be answerable for it So that we may undeniably conclude That there is no Fee at all due to any Goaler or Guardian of a Prison from the Prisoner but what is due unto him by special Act of Parliament And if a Goaler or Guardian of a Prisoner shall take any thing as a Fee of his Prisoner he may and ought to be Indicted of Extortion and upon conviction to be removed from his Office and if his Prisoner by Constraint Menace or Dures be enforced to give him Money he may recover that Money against the Goaler again in an Action of the Case at Common Law Item The King Considering the great Perjury Extortion and Oppression which be and have been in this Realm by his Sheriffs Under-Sheriffs and their Clarks Bailiffs and Keepers of Prisons c. hath ordained by Authority aforesaid in eschewing all such Extortion Perjury and Oppression that no Sheriff shall let to Farm in any manner his County nor any of his Bailiwicks Nor that any of the said Officers and Ministers by occasion or under colour of their Office shall take any other thing by them nor by any other Person to their use profit or avail if any person by them or any of them to be arrested or attatched for the omitting of any Arrest or attachment to be made by their Body or of any person by them or any of them by force or colour of their Office arrested or attatched for Fine Fee Suit of Prison Mainprise letting to Bail or snewing any Ease or favour to any such person so arrested or to be attatched for their Reward or Profit but such as follow that is to say For the Sheriff 20 d. The Bailiff which maketh the Arrest or Attachment 4 d. And the Goaler of the Prison if he be committed to ward 4 d. And that all Sheriffs Bailiffs Goalers or any other Officer or Ministers which do contrary to this Ordinance in any point of the same shall lose to the party in this behalf indammaged or grieved his trebble Dammages and shall forfeit the sum of 40 l. for every such Offence the one moiety to the King the other to the Prosecutor to be Recovered at Common Law in either of the Courts of Kings-Bench or Common-Pleas at Westminster This is a perfect Account of the Goalers Fees in all Cases where persons are laid in Prison upon Civil Matters and Causes which Fee of 4 d. is more then any other Statute or Law allows them to take from their Prisoners But in such Cases where the King is party it s stablished That the Prisoners in all the Kings Prisons should be maintained at the Kings Charge and out of the Kings Revenues according to the old Law of the Land much less to have Money extorted from him by the Goaler But look into the Prisons in and about the City of London what horrible Oppressions Extortions and Cruelties are Exercised upon the Free-born People of England yea in most Prisons throughout this Kingdom Which excessive Amercements and Fines after all their other Partial Dealings Lawless Proceedings and Arbitrary Carriages towards the Prisoners from first to last do manifest and evidence to the World their Malice and Envy against an Innocent Upright Quiet and Peaceable People What proportion is there here betwixt the pretended Fault and the assessed Fine provides not the fourteenth Chapter of the Great Charter against such uniust Judgments and partial Censures which declares A Freeman shall not be Amerced for a small Fault but after the quantity of the Fault for a great Fault after the manner thereof and the Amercement shall be assessed by the Oath of Honests Men of the Vicinage H●●e's Justice and Equity Righteousness in Judgment which affords every man Common Right declares That all Offenders ought to be Amerced by their Neighbourhood according to the quantity of the Trespass Wherein have these Judges who are commanded by the Statute of 25 E. 1. Confirmed by Pet. Right 3 Car. 1. allowed the Charter before them in Judgment in all its Points c. It may truly be said that our ancient just and fundamental Laws which Cook on the 14th chapter of Magna Charta calls a Law of Mercy are as the same Author there writes now turned into a Shaddow for by the Wisdom of the Law these Amercements were instituted to deter both Demandants and Plaintiffs from unjust Suits and Tenants and Defendants from unjust Defences which was the Cause in ancient time of fewer suits but now we have but a Shaddow of them Habemus quidem senatus consultum sed in tabulis reconditum tanquam gladium invagina repositum Yea our antient Charters are as a Sword in its Sheath which if drawn are and will be sufficient to defend us against all Injustice Tyranny or Oppression whatsoever But it s often objected by many of their Aversaries That the Publick Meeting Houses wherein the People called Quakers are and have been of late accustomed to meet in and assemble themselves together and out of which the Military Forces do from time to time hale and expel them and by force keep and restrain them from entrance are by Orders of the King and Council invested and stablished in the now King and that he has right to dispose of them as his own Inheritance yea to pull them down sell and burn the material of them as his inferiour Officers have lately dove by some about London and thereupon such who come there to assemble together are Trespasser● Rioters Routers and unlawfull Assemblies and as such are rig●●ly and duely punished according to the Laws To which is answered That by the Ancient and Fundamental Laws which have been already recited as the 29th of Magna Charta There is no mans Right Property or Free-hold shall be taken away from him but by trial of a Jury and the Law of the Land Read Stat. 2 E. 3. 8. 5 E. 3 9. 14 E. 3. 14. 28 E. 3. 3. Regist sol 186. Cook pla sol 4. 56. Cook 2 Inst 45. 3 Inst 136. And set a Statute of latter date 17 Car. 1. cap. 10. Entituled An Act for Regulating the Privy-Council c. which speaks in this wise Be it likewise declared and enacted by the Authority of this present Parliament That neither his Majesty nor his Privy Councel have or ought to have any Jurisdiction Power or Authority by English Bill Petition Articles Libel or any other Arbitrary way whatsoever to examined or draw into question determine or dispose of the Lands Tenements Hereditaments Goods or Chattels of any the Subjects of this Kingdom but that the same ought to be tried and determined in the Courts of Justice and by the ordinary course of Law Also Learned Cook in his 2 Inst sol 36. saith The Common Law of which the great Charter is Declaratory hath so admeasured the preragative of a King as he cannot take or prejudice

the Prisoner be Innocency or Guilt And so the Bench at the Old-Baily acted last Sessions in the Case of Riots Routs and unlawful Assemblies and although there be several Statutes in force which point out the persons that ought to be apprehended and punished as Rioters and Routers as the Statute of 17 R. 2. 8. 13 H. 4. 7. 2 H. 5. 8. with others yet your Recorder and Magistrates pretending to proceed by the Common Law non scripta apprehended quiet and peaceable Religious Assemblies as Riots and Routs and punished them as such the greatest abuse to the Common Law as has been done in any age by such who pretend to sit upon a Bench of Iustice And after the rate of their Proceedings by their abuse of the Law they might have framed an Indictment against a man for vi armis eating Meat at his own Table with his Wife and Children and at last ushering in the Fact committed with these obnoxlous Tearms as Against the King and his Laws Illogally and in contempt of his Crown and Dignity c. And a Iury of their packing would have found them guilty Modo Forma Therefore it concerns you to have great care and regard to the Charge you undertake which is Well and truly to try and true deliverance make according to what is evidenced to your Conscience Cit. But what 's the Reason that Indictments and all the Proceedings of the Sessions be drawn and entred in Latine a Language which few either Jurors or Prisoners understand Stud. It s such a Practice that no Reason can be given for it except to keep the People ignorant especially the Grand Inquests who first pass the Bills of Indictment who being generally unknowing in such Language may perjure themselves blindfold being only informed or made to understand so much of what they swear to as a mercenary Clark will read to them or let them know which besure shall be no more then what 's for the interest of the Prosecutors and the Prisoners disadvantage And if these twelve men who by the Law are uncontroulable Judges shall not bring in or return Billavera to such Indictments as the Bench shall favour your Mayor and Recorder after Iustice Keeling's Example do frequently command them back till they find those Bills according to their direction which great abuse of the Law as Horn calls it is not only one of the greatest Violences that is offered to our Lives and Liberties but also expresly against the very Oath that those Justices take for the execution of that place of Trust which saith Ye shall do even Law and Execution of Right to all Rich and Poor without having regard to any person and that ye give none Advice nor Counsel to no man great nor small in no Case where the King is party Cit. How comes it to pass that these Judges who so violate their Oaths oppress the People so illegally censure the Innocent and condemn the Just escape condign punishment in all Ages which is a due reward for their Oppression and Injustice Stud. To call them Judges is a Title beyond their Place or Commission They are stiled Iustices according to their Office which is to see Iustice done betwixt party and party not to fine and imprison persons at their will and pleasure without a Iury which practice of theirs is no more legal then evil Custom can make it which practice A. Horn in his Mirror of Justice reckons amongst the Abuses of the Law they having no other Law Ground or Authority for it then some former Uses or rather Abuses acted by their Predecessors and by the same rule in case the Iurors bring their habeas Corpus for relief the Recorder or his Council may offer Keelings sining of the Iury although condemned in Parliament to justifie this latter piece of Injustice After which rate a Thief or a Robber may legally justifie his Actions because of his long Use Custom and frequent Practice which abuses the Iustices at Westminster rarely dare or will punish by reason such crimes advancing prerogative it may occasion a Frown or Rebuke from one or other Superior forgetting or else neglecting that obligation that lies upon them To deny no man Common Right by the Kings Letters nor none other mans nor for none other cause Nor delay Justice or Right to any man according to the Charter of Liberties And although many corrupt and faithless Executioners of Iustice have escaped their due Reward in all Ages yet there are some who have received their Portion as Lambert in the Translation of his Saxon Laws reports That King Alfred the famous Compiler of our English Laws executed many such Of which Andrew Horn a worthy Authour in his Mirror of Justice written in the time of Edw. 1. cap. 5. sect 1. among the many Violences and Abuses offered to the Common Law i. e. The Common Right of the People of England gives a punctual account saying It was an abuse of Justices and their Officers who kill people by false Judgment were not destroyed as other Murderers which King ALFRED caused to be done who caused Forty Four Justices in one year to be HANGED as Murderers for their false Judgments Amongst which says the Author He Hanged Cadwine because that he judged Hackwy to death without the consent of all the Jurors And whereas be stood upon his Jury of twelve men because part of them would have saved him Cadwine like your Recorder removed those and put others on the Jury against Hackwy's consent So observe It s said without the consent of his Jurors though twelve men had given a Verdict against him for those who were put upon him against his consent were not his Jurors by reason all or any of those who were first sworn to try him could not by the Law be removed and others put in their rooms This is a Case save only in the punishment of the Justices parralel to that of your Mayor and Recorder at the Old-Baily London 5 Sept. 1670. who when one Jury of twelve men were sworn to try several persons called Quakers and the Prisoners had accepted of them they Cadwine like removed the first Jury and forced other Jurors upon them against their consent and by that means condemned them like Hackwy without the consent of their Jurors He Hanged Seafoul because he judged Ording to Death for not Answering So it was Murder in a Justice to condemn a Person before a Jury had tryed the Fact which in this case they could not do the Prisoner not pleading to the Indictment He Hanged Freburn because he judged Harpyn to dye when as the Jury were in doubt of their Verdict and the reason is given because in doubtful Cases one ought rather to Save then Condemn Here 's not only a Maxime for Jurors Justices Rather in doubtful Cases to Save then Condemn but a seasonable Caution to Justices of Assize and Sessions who not only when a Jury are doubtful but

fill their Sheriffs Pockets with extorted gain or arbitrarily to punish a most innocent and peaceable people to gratifie their Lusts and Malice And how many flourishing States have been ruined by the Avarices Cruelty and Non-observance of the Laws by the Governours and Magistrates were tedious to insert only take notice what Cook in his 2 Inst 388. declares That three things overthrew the flourishing State of the Roman Empire Latens odium inve●ile consilium et privatum lucrum And observes there That its the greatest injustice when the Innocent under colour of Justice whereby he ought to be protected is oppressed But good Government consisting principally in the execution of their just and known Laws procures Love from the Subject it s only their Love which supports a State in adversity ●● our desire that such as Londons Mayor and Recorder c. may not by their actions sow a jelousie among the freeborn people of England that its the intent of our suproam Magistrates to hold up that common Maxime of all oppressing States That their Interest is to maintain the publique wealthy and the particular Poor Therefore permit not these persons in their Courts to creat the presidents of Oppression to enslave our Posterity in future times to that end hath this been made publick that the supream Magistrate and Legislators of this Nation for the dignity and honour of their Rule and Goverment and for the safety of the freeborn people of this Land not only take care to purge the Benches of Justice from that partiallity and corruption which hath usurped those places of great trust and punish the Offenders who have been guilty of such enormous Crimes with condign Punishment answerable to their respective Offences and horrid Oppression but also command the keeping observing and executing in all their Courts the known written promulged ancient and fundamental Laws of this Land and that they may as they have often avowed maintain the Liberties of the free-born people of England in assuring to them that Salus populi is supremalex Can it be reasonably thought that the impunity of these that have been so faithless to their Oaths Trusts reposed in them shall ever be serviceable to this State or Magistrates under whom they act no they 'll rather take courage to betray them when they find the first oppertunity therefore like our old Proverb Though we love the Treason yet we hate the Traytor So it hath been the prudence of the wisest and best governed States Never to pardon any man for a notorious Crime committed against the Common-wealth for any good service before done to it To which Clement Edmonds upon Caesars Comentaries well agrees fol. 174. It more importeth a Common-wealth to punish an ill Member then to reward a good Act So that State or Common-wealth that will keep it self in good order and free from ruin must cherish Impeachments and Accusations of the people against those that through ambition avarice pride cruelty or oppression seek to destroy the liberty and property of the people so shall they keep their State free from Envie and secure from supplantation and the free-born people of this Nation being thus preserved secured against Tyranny and Oppression will never seek after other Liberty but rejoyce under their own Governours For as it never turned to any States advantage to gain the peoples hatred so it s the most stable lasting Government under which the people rejoyce and live cheerfully according to that Maxime of Camillus the Roman Firmissimum imperium quo obedientes gaudent An Appendix by Way of DIALOGUE in a Plain and Friendly Discourse between a Student in the Laws and Liberties of England and a true Citizen of London whereby is shewed That a Jury of twelve men are the only proper Judges of their Neighbours Actions and may by the stablished Laws of England give a Verdict of such Facts according to their Consciences without incurring Fine and Imprisonment c. Stud. VVHither are you hasting out so fast this Morning my Friend Cit. Truely about some earnest business that will not admit of delay Stud. I know you to be a man of business but in my apprehension you seem more then usually in haste now I am come to give you a visit Cit. I acknowledge your kindness and since you are so opportunely come I would request your advice in what I am going about Stud. Yea most freely But what 's the Case Cit. I am summoned to appear tomorrow as a Jury-man at the Old-Baily but would willingly get my self exeused and was but now going out to one of the Sheriffs my old Acquaintance to intreat his favour to do me that kindness but its probable you know a nearer way to effect such a matter and may direct me Stud. It s very like did it much concern you I might get your discharge But why should not you rather serve your Country in these publique concerns If all men were of your mind how should Right be done in Courts of Justice Cit. There 's many others that are better skilled in such Matters who are more fit to perform that Office as for my part I have ever so loved peace that I have forborn going to Law though it has been much to my loss Stud. That 's no Excuse for the more peaceable man you have been the more fit you are for such services The Office of a Jury-man is conscientiously to judge his Neighbour who needs no more Law then is easily learned to direct him therein Cit. I should willingly appear according to this Summon but that the Mayor and Recorders carriage to Juries was such the last Sessions that I question whether I could under-go so much Hardship and not endanger my Life so I find that all my Neighbours as well as I are endeavouring to get themselves excused Stud. Then it s a restraint from your Trade that deters you Cit. No truly that 's not all but to be kept without Meat and Drink two Dayes and Nights together and not to be allowed the priviledge of Natures Easement and after all to be cast into New-Gate is hard Service Stud. I must confess this was very hard yet it should not deter you from doing your duty and if those Jurors suffered unjustly which I Question not their Service was the easier to them Cit. I am of opinion they were unjustly dealt withal many of them I know who had the repute of honesty especially those four who yet lie in Durance but I may suffer by reason of my Ignorance of the Duty and Office of a Jury-man therefore on that account principally I desire to be excused my appearance which if I understood as well as many do withal my heart I would do my service Stud. Now you speak honestly like an English-man and in case that be all your cause of scruple it may soon be removed if you will take my Advice Cit. Yes with all my heart Then pray let me have your Answer to some

Questions which often of late I have had upon my thoughts to propound to you or some Practitioner of the Law that would be plain with me Stud. Offer what you think meet and I will endeavour to give you that satisfaction you desire Cit. Since Jurors are thus of late Menaced Threatned Fined and Imprisoned by our Recorder at the Old-Baily pray wherein lies their Priviledge or Safety What say the Fundamental Laws of England to such Practices Stud. The Jurors Priviledges and every English-mans by them as they are very Considerable so the Laws have very well Guarded them against Usurpation as I shall shew you Cit. But pray first let me know their Antiquity I have heard it said That Tryals by Juries have been of long standing in this Nation Stud. Their Antiquity no one knows but all Authors agree that they have been very ancient Cook the Oracle of our English Laws writes That long before the Conquest it was ordered That in every Century there should be twelve good and honest men to judge c. And Cambden in his Britania correcteth Pollidor Virgill for saying William the Conquerer first brought in this way of Tryal affirming that it was most certain and apparent by the Laws of Etheldred that such Tryals were in use many years before Which Horn in his Mirror of Justice written in the time of E. 1. doth well confirm and assure us Cit. But what say the Law-Books of later date and our Predecessors in later years about them Stud. When the great Charter of our English Liberties in the 9th year of H. 3. was made and put under the great Seal of England then were these Tryals by Juries confirmed down to us and therein it was stablished That no Amercments should be assessed upon any man but by the Oaths of good and lawful men of the Vicinage And also that no Free-man of England should be imprisoned in his Person or destroyed in his Estate and Liberties without the Lawful Judgment of his Equals which Charter has been confimed by thirty two Parliaments and now stands firm to justifie and maintain the freedom of this sort of Tryals which Cook calls the Subjects Birthright And which I must say is the only Preserver of our Lives Freedom and Property as you may read the Book of the Tryal of W. P. and W. M. last Sessions Cit. I am very well Satisfied in this point but pray what sayes the Law about menacing threatning fining and imprisoning of Jurors as before I mentioned to you Stud. As to the menacing and threatning language which that Bench gave the Jurors it only evidenced and manifested to the world their Envy and Malice against the Prisoners that the Jury had in charge and so may be said also of their fining and imprisoning of the Jury afterwards Cit. Hath a Court then no power by the Law to fine and imprison a Jury Sutd We find in our Law Books or Books of Cases that Jurors have been fined by a Court for these following matters 1. If a Jury man take money from the party to be tryed before or after he be sworn 2. If they receive any Writings from the persons they have in trial 3. If a Jury man appear and then depart before he be sworn is a contempt of the Court. 4. If a Juror after he shall be sworn depart from his Fellows before they deliver in their Verdict 5. If Eleven Jurors shall give in their Verdict without or against the consent of the Twelfth 6. If a Jury eat or drink after they are gone from the Bar and before they bring in their Verdict This I suppose is meant where the Court will accept of the Verdict when the Jurors tender it And for such like Misdemenors as these they have been Fined and Imprisoned but how Warrantable is a Query Cit. As for these Miscarriages you have instanced it seems reasonable they should be punished which no honest man will be found guilty of neither do I fear to suffer for such like misdemeanors But what say you to the fining a Jury for giving in a Verdict according to their Consciences yet pretended by the Court to be contrary to Evidence Stud. To fine them at all is an abuse though it has been long practised but to fine them for giving their Verdict according to their Conscience such practices are very much against Law and Reason too For a Jury of twelve men are by the Laws the only proper Judges of matter in issue before them as for instance 1 That Evidence which is delivered to induce a Jury to believe or not to believe the matter of Fact in issue it s called Evidence because the Jury may out of many matters of Fact evidere veritatem that is so clearly the truth of which they are proper Judges 2d When any Matter is sworn Deed read or offered whether it shall be believed or not or whether it be true or false in point of Fact the Jurors are the proper Judges 3d Whether such men met together intentionally to do such an Act or not the Jurors are Judges for the Court is not Judge of these matters which are Evidence to prove or disprove the thing in issue Cit. What then is the Court to take con●sance of in the Tryals of mens Liberties and Properties Stud. The Court as their duty is are to do equal Justice and Right so they in such Tryals do direct whether such matter shall be admitted to be given in Evidence or not such a Writing read or not or such a man to be admitted a Witness or not and this belongs to the Judgment of the Court as they are upon their Oaths to see Justice done twixt party and party Therefore has the Common Law ordained That matters of Fact which are drawn to an issue shall be tryed by Jurors and matters of Law upon a Dem●rr●r special Verdict c. by the Justices according to that Rule or Maxime of Sr. Ewd. Cook Ad Questionem facti non respondent Judices it a ad questionem leg is non respondent Juratores The Justices meddle not with matter of Fact nor Jurors with matter of Law So it s the Jurors Office to find veritatem Facti the truth of the Fact in issue and the Court to give Judgment accordingly By which we may see the Wisdom of the Law in referring things to persons in which they have conusance and are most expert according to that Maxime Quod quisque norit in hoc se exerceat Cit. According to this Account you have given me of the Duty and Office as well of the Court as the Jurors the Law seems to have dealt justly and equally betwixt them both But one Question further pray Whence is it that Jurors are summoned of their Neighbourhood where the Fact is supposed to be done or acted Stud. As the Common Law of this Land is nothing else then Common Right pure and tryed reason so it never