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
exigua minima contemnimus We are apt to slight things beneath us as small and contemptible or inconsiderable And must be of the Neighbourhood that coming from nigh where the Question arises the Defendant in all probability may have the better knowledge of them to except against or to approve of them and such may also the more likely know somewhat themselves of the Party of the Matter of the Credit of the Witnesses and all Circumstances Lex intendit vicinus vicini facta sciat Co. L. 78. Thus if the Place happen disputable whence the Jury shall come they shall come from whence the matter is like best to be known 21 E. 4. 8. Besides in this way of or by Jury where Life or Member is concerned or in any danger and in all other Criminal Causes is required two Tryals of the Party before he can be said Guilty or any Judgment can be given against him and the Party must also be found to be Guilty on both these Tryals else all is nothing The Grand Jury must first Examine the matter and the Petty-Jury after Examine all again to prevent and secure against all Surprizes of the Party and Mistakes or Errors in the Jury It seems as if very Anciently the number on a Jury was indefinite but it was all the Persons present come as would come Brit. N. Bacon c. Like as of Old it was here of those we now call the House of Commons Concil Brit. 350. Ingulph c. And in the Tryals at Rome where Vox Populi was the Verdict except in Case of a Senator which indeed was Tryed by his Peers other Senators Hence probably it was that all Courts were at first to be open and so accessible Likewise Deut. 19. and some other Texts of the Old Testament seems as if the Tryal amongst the Jews were so But in Analogy of late it 's reduced to the number of twelve like as the Prophets were twelve to foretell the Truth the Apostles twelve to preach the Truth the Discoverers twelve sent into Canaan to seek and report the Truth and the Stones twelve that the Heavenly Hierusalem is Built on And as the Judges were twelve anciently to Try and Determine matters of Law and always when there is any wageing Law there must be twelve to Swear in it and also as for matters of State there were formerly 12 Councellors of State And any thing now which any Jury can be said to do must have the joint consent of twelve West 2. c. 13. Else it 's in construction of Law not the doing of the Jury but of Private Persons and void Mir. 42. 200. 41. Ass. 11. 6 H. 4. 2. 21 E. 3. 31. 29 E. 3. 43. Finch 58. The Grand Jury consists of more Persons commonly than twelve but as aforesaid twelve agreeing it 's enough and so many of them must So that by the Law of Juries 24 Men in all first and last find one Guilty c. before the Judgement can be given or one can be punished for the Fault one 's accused of And besides every Man of the latter Jury even all the whole twelve must all and every of them agree and be of that one and only Mind much to suspect unless one be certainly and plainly Guilty It 's more for all twelve than for twenty nine out of thirty to agree Any of the Grand Jury giving in a Presentment or Indictment without eleven more of the same Mind and agreeing with him ought to be Imprisoned 40. Ass. 10. which also for any one of the Petty-Jury to do none will deny but to be worse A Judge was Hanged for giving Judgment on the Verdict of eleven Jury-men Mir. 296. But on the other side the Judges are not so many at a Tryal scarce ever the major part of them agreeing it 's enough their Tryal would be but one or once only they are never sworn at the Tryal nor ever at all but only once and that exceeding generally they cannot any of them be excepted against or Challenged though Anciently might Lamb. Mir. Bract. Flota be they never so great strangers professed Enemies and otherwise ill qualified and though the King be Party yet chooses them himself against one Besides if Judges had Power of both determining the matter of Fact and also the matter of Law as must if were no Juries their Latitude of Erring c. must then be the greater and their doing wrong or mischief might be the more in as much as might wrong one then in both the Fact and Law and their Encouragement so to do would be Improved since then it must be harder to detect them as whether erred in the Fact or in the Law or partly in both like as it 's easier seeking a Bush than a Wood And as it 's said Occasio facit furem Opportunity makes many a Whore But were Judges presumed Saints and never so upright c. yet who can imagine but at a Tryal when Witnesses are all Examined and Evidence all given the Jury being so many Persons and probably knowing something of the matter before they may all assisting one another better observe remember and judge upon the whole matter than any one or two c. others though called Judges Certainly one may do more with help than without So the Proverb is Ne Hercules quidem contra duos oculi plus oculo vident Two to one is odds at Foot-Ball And Non omnes sed pauci decipi aut decipere possunt The fewer may the more easily deceive or be deceived Quandoque bonus dormit at Homerus Nemo sine Crimine vivit Humanum est errare It 's natural for Man to err None 's without fault and the surest Foot may slip Visc. St. Albans Aph. 8. says That 's the best Law which leaves the least to the Arbitrariness of a Judge and Bract. 119. says Judges represent the King's Person they are his Officers and Act in his stead and hence concludes they ought not at all be concerned in Causes of Life or Member c. Where the King's Party for says he the King is thus Judge as it were in his own Cause Thus appears what is the Difference of Judges and Juries and something of the Reason why the Parliament has all along been so Zealous for Tryals by Juries as no fewer than 58 several times since the Norman Conquest hath established and confirmed the Tryal by Juries no one Priviledge else nigh so often remembred in Parliament Now for the Power and Authority of Juries and how the Wisdom of the Law hath entrusted and enabled them in this Tryal The Law says in Tryals whether any Complaints as made or any matter as alledged be true or not the Judges ought not nor can say nor have any thing at all to do therewith but the Jury only Ad questionem facti non respondent Iudices All the whole or most they can do or at least ought is only after and upon what the Jury
private judgment such a Verdict c. though never so true and good in it self yet makes the Party or Parties as aforesaid not satisfied certainly forsworn at least in foro Conscientiae as to their Conscience For Perjury is not only a Lye confirmed by Oath but likewise either when any one being deceived and believing that to be true which is not rashly or unadvisedly swears it to be true Or either when any one thinking a thing not true swears it is true though indeed it be true Flet. 334. Bract. 288 289 292. and all the Casuists So is seen in Palmer's Reports One was Indicted and Punished for swearing a thing so and so because he did not know it to be true as he swore So that upon the whole one may see a Judge ought not to meddle at all with the Jury If he differ not with them it 's needless and troublesome if he differ they are not to mind him take it which way one will But perhaps it will be urged that this must be understood only as to trying matter of Fact and that however as to matter of Law the Jury ought always to be advised and governed by the Judges though not as to matter of Fact No no further than a mannerly deference that is payable to the Judges as more Learned in the Laws For if the Judges say or any Witness swear the Law to be so and so no Jury is by Law bound or any wise obliged beyond their own Reason c. at least to believe them in it 9 H. 6. 38. Finch 58. If an Attaint be brought against a Jury it 's no Excuse that the Verdict is according to the Judges Directions Cro. El. 309. 18. Now says a timerous Ignorant Juror Oh! but whether the Law be thus or not the Judges will Punish the Jury if comply not with them This sure would be pretty A Jury perhaps forsworn and lyable to an Attaint if do comply and yet punishable if do not No no the Law which is nothing but improved and refined Reason was never so unreasonable to suffer this A. levyed a Fine of Lands to B. and B. paid A the purchase-money But after A. said he was then at levying the Fine under Age of One and Twenty Years old and therefore the Fine was void The Law says here the Judges shall determine by looking on the Party whether he were of full Age or not and the Jury shall not the true Reason being that if the Party seem of full Age though he be not he shall not avoid the Fine to prevent cheating c. Whereas if the Jury were to try it they must not go according to the seeming but real true Age and so if he want but a Day of One and Twenty Years he must thus be adjudged under Age as much as if he wanted Twenty Years and B. should be cheated This Fine was after reversed by King's Bench because A. did appear and was also proved by four Witnesses to be under Age But the Validity of the Fine coming after to be disputed in Common Pleas on a Tryal by Jury though the Court here told the Jury that notwithstanding some Witnesses prove to you A. was of full Age at levying the Fine yet you ought not to heed them for the Judges have the sole and only power of determining whether of full Age or not and the Judges of the King's Bench have already determined it nevertheless the Jury being somewhat extraordinary and not so very leadable Men gave their Verdict contrary to the Direction of the Court and as if A. were then of full Age And an Attaint being after brought against the Jury the Jury was acquitted and commended Dy. 201. 301. And the Jury is the more justifiable in it since the Judges first altered the Law in trying by Witnesses and not only by Inspection as Juries also do which in Tryals by Witnesses are as aforesaid the more competent c. Of this Nature is a memorable Case of Bushel reported by Lord Chief Justice Vaughan where Meade and Penne two Quakers were Indicted at the Old Baily for their Meetings and the Jury whereof Bushel was the Fore-man would not find them Guilty The Court mighty angry Fined and Committed the Jury alledging for cause that they the Jurors against the Law of the Realm against full and manifest Evidence and against the Direction of the Court in matter of Law to them in Court openly given and declared had acquitted the said Meade and Penne But upon long and serious Debate it was after adjudged the Commitment Fining c. was unlawful and accordingly the Jury were discharged c. Another time also a Jury-man dissenting with all the rest and that no less than two days the Judges asked him what he would do Says he rather starve and dye in Prison than consent the Court fined and committed him But on better Consideration discharged him without more ado All the Court can do being only to carry them in Carts if in the Circuit along with them and keep them without Meat Drink c. till will agree 41 Ass. 11. says Mir. Juror's ought not to be threatned but to be free differing in Opinion c. 273. And it was resolved in Parliament Anno 1677. That the Presidents and Practises of Fining c. Juries in or for giving their Verdicts are Illegal And Keeling Chief Justice of B. R. was called to Question in Parliament for such Practises Coke upon Lit. f. 369. says If any Labour a Jury Instruct them or put them in fear or the like it 's Punishable as Maintenance or Embracery either at King's Suit or at Parties and perhaps it would puzzle one to shew why a Judge is not within this Law for how can he be said to do this as a Judge when to do so is no part of his Office And why should any usage alter the Case here any more than in other Cases of breaking the Laws it 's much too any Judge should offer such a thing considering he that judges without a Jury certainly judges without Authority And he that judges with a Jury but governed or led by him judges only by colour of a Jury and by colour of Authority and thus makes himself forsworn in and by the Oath taken at his being Created Judge makes the Jury all forsworn violates the greatest Priviledge of the Subject infringes the most often confirmed Law of the Kingdom and also does particularly the Party offended the greatest Wrong imaginable in as much as by colour of Law and makes all the Jury accessaries to the whole Hence it 's improbable any Judge should offer the contrary But however a Jury in any Indictment Presentment or Information ought and may give their Verdict c. according to their own Conscience without any fear of Punishment one way or other And in any other Case as where the King is no Party but an Attaint happens to lye they may be punished no other way
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