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
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.
Records are Evidence though Jury only know of them 13. Special Verdict how 14. Sense of the Jury themselves upon things is to Govern them 24. of words that must be taken which of most innocency 78. Tryal by Juries most safe c. 2 c. is in effect twice in Cases of Life Member c. 7. 44. by one's Peers why 6 by Ordeal c. when 51. Tryal of one's Age by Judge or Jury 27 c. Verdict of Petit Jury may lessen not inlarge a Fault 102. Verdicts must be positive what the fact is 13 14 and special what and how be 14 97 c. Value 1 s. anciently was more than 40 s. now 15. Vera signifies true 43. Verdict General which and how 97. c. Verdict in Case of Life or Member must be given in Court only 102. Words of form so called must be examined 34 c. 59 c. which be such 64. Witnesses ought be examin'd by Jury 87 91 and who be capable to be Witnesses 86 c. Judges determine who shall be Sworn 88 must be two 80 c. A GUIDE TO JURIES OF what Date Juries be is the same to say as when was England first Inhabited altogether uncertain But that their Antiquity herein England runs to and beyond the Norman Conquest among the Danes the Saxons and the Britains is most certain Olaus Magnus Olaus Wormius Verteganus Fortesc Co. Lit. c. The Saxons conquering the Britains mixed their Customs with the Brittish so the Danes those Brittish and Saxon ones with theirs and the Normans all these with theirs every Conquerour making some alteration Yet this Law was and from time to time hath been preserved and continued an Inheritance indisputable and Sacred unto us through all Revolutions without any Interruption None but must acknowledge this of all others the best and most effectual way to find out Truth There is no other Way or Art in the whole World says Fortescue so remote from all Danger of Subornation and Corruption 75. Aaron had it 's true in plain Letters of Gold Vrim and Thummim wrote on his Breast signifying what he either had or ought have had lucem in monte ac in voluntate rectitudinem Ability in Parts and Integrity in Practice But have always all other Judges since had such Parts and Practises Their Interests Ambition Pleasures other Passions and Frailties influenced them too much rather sufficient enough to render them as the Prophet Isaiah c. 33. v. 15. says Idols with Eyes Ears and Mouths viz. Such as would neither hear the Peoples Complaints regard the Oppressed nor pronounce a just Judgment Judges have Places and Preferments so extraordinary Honourable and Profitable And what 's their Tenure Even during Pleasure a term for so long as they do nothing but what and as pleases c. and do every thing which and as does please c. And whose Pleasure must it be Truly every ones too that any how has or can make any Interest c. Thus a short Syllogism proclaims them little other than Bond-slaves to such Mens pleasures and menaces the People with the worst of all Miseries Law-oppression Oppression under colour of Law unless it be conceivable Mens pleasures were to have the Judges give Sentence against them Judges also were all Lawyers we know used just before to take Fees it 's the more therefore all forget it now Judges are concerned in so many Causes they are subject to be tempted the oftner and every Temptation is the greater because they know if would yield their gain might be so often Judges are so few it 's plain they may the easier be Corrupted Judges cann't want Courage they think themselves lyable to no Action c. in any case do what they will but are absolutely dispunishable Co. 12. 24 25. Hutton Whereas a Jury on the other side if it err in many cases it 's lyable to an Attaint the greatest Funishment they know on this side Death A Jury consists of many Persons Those which be Jury-men in one Case yet may be in few more They be Men of other Professions used never in any Case to take Fees c. They are not prejudiced with fear of losing their Offices c. And to further manifest the difference of Tryal by Judges and of this by Juries Jury-men all are and must be Liberi c. legales homines Liberi free of and from all manner of Bondage Obligations Affections Relations Passions Interests and other Prejudices whatsoever as indeed it 's ill Fishing in muddy or troubled Waters Legales ones Peers or Equals Mag. Ch. c. 29. West 1. c. 6. Of full 21 Years old not Outlawed never Attainted or Convicted of Treason Felony False-Verdict Perjury any Conspiracy at King's-Suit nor ever Adjudged to the Pillory Tumbrel c. whereby rendered Infamous nor any Alien unless an Allen be Tryed c. But such others as be most nigh most sufficient and least suspicious 28 E. 1. c. 9. F. N. B. 165. Dy. 59. 34 E. 3. c. 4. Regist. 177. 8 E. 3. 30. They were Anciently all Knights Glanvil l. 2. c. 14 15. Bract. 116. They are and must be yet Persons of Honour and Repute 1 R. 3. c. 4 Brit. 39. Mir. 117 118. 11 H. 7. 41. Young 116. 11 H. 4. 35. Stanf. 88. And Si l' Enditement ne y e rt een fait de croyable gens de bone fame n'est nul tenus à cette respondrue If an Indictment be found but not by Credible People and those of good Repute no Body 's bound to take notice of it Mir. 200. They must be such Persons as are named and returned at the Election of the Sheriff or Coroner They must be every one Sworn every several Tryal and that in and by a particular Oath If any of the Grand Jury be as aforesaid any wise amiss what they do is quashed and made void on bare motion to the Court. If any of the Petty-Jury happen so Party by Challenging of them as appear to be Sworn either sets aside the Pannel viz. all of them or may any of them by taking Exception to the Poll viz. to them severally as the Case falls out and peremptorily without shewing any Cause may Challenge and set aside as many as will under 36 in case of High-Treason or Misprision of High-Treason or under 21 in case of any Felony And shewing any such Cause as aforesaid as many as will in any Case whatsoever Co. L. 156. Now they are such Elect and Choice Men because of the great Trust reposed in them And must be Equals that the Defendant may the better speak to and expostulate with or reflect upon them if do amiss And that they may not be over awed c. by 's being greater than them whereas Magna stupem superiora perstringunt Greater things confound and astonish us and things above us dazle our Eyes Nor be careless or perfunctory for his being much less than them Inferiora ut
21. Our Saviour and his Apostles plucked off and eat the Ears of another's Corn Mat. 12. And he because he had need of an Asse took that was none of his but anothers and had Lazarus ready to perish taken Dives's Crumbs against his Will c. yet it seems he had no more sinned than he mis-behaves himself that does what the Lord bids and the Steward forbids under the Rules aforesaid A Jury therefore not observing the Rules aforesaid gives a Verdict not only against the present and immediate Defendant but also in him even against David Christ c. represented thus in his Case In the Civil Law that of the Admiralty particularly if a distressed Ship takes water by force of another where is Plenty it 's no Theft because of the necessity so adjudged several times If an Indictment mention one Seditiously and designing to disturb the Government and to withdraw from the King the Love of his Subjects and said of him such and such Words here the Words might perhaps be spoken within the Priviledge of Discourse in Parliament or in a Jocular Way or Ironically when one means the contrary or by way of Supposition in Argument or when one meant a contrary thing or no harm at all and this perhaps too explained at the same time in other words accordingly or the Words in the Indictment be but part of the Sentence c. or transposed or some how else altered So if a Complaint be that one falsly and maliciously and withal designing to break his Credit and ruine his Trade called such a one a Bankrupt here perhaps he was a Bankrupt then or no Tradesman at all therefore in these and such Cases the Circumstances alledged being not implyed necessarily though the Fact or words were spoke they must be proved But to instance some Cases adjudged by the Judges themselves If A. bring an Appeal against B. and B. is after acquitted now should B. Indict A. for maliciously c. bringing the Appeal the Indictment ought not be found if B. were Indicted before of the same Fault he was after Appealed against for because his being before Indicted proves there was at least colourable Reason why the Appeal was brought and not Malice only Coron 178. 40 E. 3. 42. A Chvrurgion was Indicted for that he by Negligence in Curing one's Hand maimed it the Negligence must be proved 48 E. 3. 6. 11 H. 6. 18. So in Actions for Words which holds the same Law as in Indictments c. A. sues B. for falsly and maliciously calling him being an Heir a Bastard Action will not lye if B. pretend himself Heir for then it was not maliciously but only as it were in order to get or claim the Land c. And it 's Lawful thus to slander another justifying one 's own Title Co. 4. 10. So Molton sues Clapham for that a Suit depending between them upon reading certain Affidavits in Court Clapham openly then and there falsly and maliciously said there is not a Word true in the Affidavits and that he would prove it by 40 Witnesses here the Words though were agreed false yet being not spoke maliciously but out of other design as in his Defence c. as aforesaid Action does not lye B. R. 14 C. 1. Rot. 459. So a Councellor calling one a Thief at a Tryal the like for it 's not malicious c. if material for the Cause he manages Montagues c. So where A. says to his Friend B. that C. hath the French Pox therefore advising him not to keep him Company for spoke as Advice to a Friend and not maliciously James and Rudley's c. 40 41 El. in B. And thus is further seen the Cause or Occasion of speaking words or doing any thing must be considered as well as the Words or Fact And says Coke This is a General Rule Co. 4. 14. Also it 's another Rule All Offences in Fact or Word ought in construction to be made the least of possible Verba accipienda sunt in mitiori sensu Words shall be taken spoke in that sence which is most innocent c. See of this several Examples Co. 4. 17. Hob. 473. C. 4. 19. Co. 4. 13. for the Law will presume Innocency further than down-right proved as aforesaid to the contrary And if Juries should not be cautious as aforesaid one might be Indicted c. for saying The King is a fit Man to Govern or for any thing in the World Suppose A. be Indicted for maliciously and with a design to withdraw the King's Subjects from their due Allegiance c. saying The King is a fit Man to Govern and A. should be found Guilty of it because he said these words A. would be in a sad case the Judges must give Judgment as if the Words were spoke Ironically or in a contrary Sence than they were for so the Circumstances alledged import though be found of course If a Jury find an Indictment c. with the Word felonicè in it they find one Guilty of Felony be the Fact what it will and so as a Felon the Defendant must suffer So also if the word proditoriè for High Treason and why may not they as justifiably find these words of course as other not necessarily implyed Where an Indictment c. is grounded upon a Statute then every little Word must be proved that is also in the Statute though seeming implyed or little more than immaterial this all agree For want of these and such like Observations one Tho. Burdett Esq was Condemned Hanged and Beheaded at Tyburn in Edward the Fourth's Time when the matter proved was only that he being absent the King hunted in his Park and killed a white Buck which Mr. Burdett fancied above the rest of his Deer and that Mr. Burdett hearing of this wished the Bucks Horns in his Belly that Advised the King so to do Speed's Hist. 700. Much like was it also with one Walter Walker who was Beheaded in Smithfield Anno 1476. when all proved against him was only that he Living at the Sign of the Crown in Cheapside London said to his Child to pacifie him when he cryed Peace peace Child thou shalt be Heir of the Crown But who can open some Jury-mens Eyes to see how like an Ox led to the Slaughter they be imposed upon and cheated to cheat others of their Lives Fortunes and all that 's dear to them though by their Example too of Acting thus they make Presidents and give countenance to after Juries to be like themselves and consequently expose and render themselves they know not how soon in the same predicament and to be punished as the Criminal was they punished Or by the Evidence given you Evidence is only such a Testimony that makes somewhat relating to the issue or matter in Question clear manifest and plain to the Jury hence says Coke Lit. 283. Probationes debent esse evidentes perspicuae And thus is it all the Witnesses or Testimony in the World of