long continued use of Juries and the zealous regards our Ancestors had not to part with them I perceive that they were esteemed a special priviledg Be pleased therefore to acquaint me wherein the excellency and advantages to the people by that method of trial above others may consist B. This question shew See all this excellently made out and more at large by the L. C. J. Fortescue afterwards Chancellor to K Hen. 6. in his Book De laudibus Legum Angliae cap. 26 27 28 29. you have not been much conversant abroad to observe the miserable condition of the poor people in most other Nations where they are either wholly subject to the despotick arbitrary lusts of their Rulers or at best under such Laws as render their Lives Liberties and Estates liable to be disposed of at the discretion of strangers appointed their Judges most times mercinary and Creatures of Prerogative sometimes malicious and oppressive and often partial and corrupt Or suppose them never so just and upright yet still has the Subject no security against the attacks of unconscionable Witnesses yea when there is no sufficient Evidence upon bare suspicions they are obnoxious to the Tortures of the Rack which often make an innocent man confess himself guilty meerly to get out of present pain Is it not then an inestimable happiness to be born and live under such a mild and righteous Constitution wherein all these mischiefs as far as humane prudence can provide are prevented where none can be condemn'd either by the power of superior enemies or the rashness or ill will of any Judg nor by the bold Affirmations of any profligate evidence But no less than Twelve honest substantial impartial men his neighbours who consequently cannot be presumed to be unacquainted either with the matters charged the Prisoner's course of life or the credit of the Evidence must first be fully satisfied in their Consciences that he is guilty and so all unanimously pronounce him upon their Oaths Are not these think you very material priviledges J. Yes certainly though I never so well consider'd them before But now I plainly see our forefathers had and we still have all the reason in the world to be zealous for the maintenance and preservation thereof from subversion or encroachments and to transmit them intire to posterity For if once this bank be broken down or neglected an ocean of oppression and the ruins of infinite numbers of people as in Empson and Dudley's days may easily follow when on any pretence they may be made Criminals and then fined in vast sums with pretext to enrich the Kings Coffers but indeed to feed those insatiate Vultures that promote such unreasonable Prosecutions The Office and power of Juries But since you have taught me so much of the antiquity and excellency of Juries I cannot but crave the continuance of your favour to acquaint me somewhat more particularly of their office and power by Law B. See Cook 4th part of Instit fol. 84. I shall gladly comply with so reasonable and just a request A Jury of twelve men are by our Laws the only proper Judges of the matter in issue before them As for instance 1. That Testimony which is delivered to induce a Jury to believe or not to believe the matter of Fact in issue is called in Law EVIDENCE because thereby the Jury may out of many matters of Fact Evidere verilatem that is see clearly the truth of which they are proper Judges 2. 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 proper Judges 3. Whether such an act was done in such or such a manner or to such or such an intent the Jurors are Judges For the Court is not Judg of these matters which are evidence to prove or disprove the thing in issue And therefore the Witnesses are always ordered to direct their speech to the Jury they being the proper Judges of their Testimony And in all Pleas of the Crown or matters Criminal the Prisoner is said to put himself for trial upon his Country which is explained and referred by the Clerk of the Court to be meant of the Jury saying to them Which Country you are J. Well then what is the part of the Kings Justices The office of the Court in Trials or the Court what are they to take cognizance of or do in the Trials of mens Lives Liberties and Properties B. Their office in general is to do equal justice and right particularly 1. To see that the Jury be regularly return'd and duly sworn 2. To see that the Prisoner in cases where 't is permittable be allowed his lawful challenges 3. To advise by Law whether such matter may be given in evidence or not such a writing read or not or such a man admitted to be a witness c. 4. Because by their learning and experience they are presum'd to be best qualified to ask pertinent questions and in the most perspicuous manner soonest to sift out truth from amongst tedious impertinent Circumstances and Tautologies they therefore commonly examine the Witnesses in the Court yet not excluding the Jury who of right may and where they see cause ought to ask them any necessary questions which undoubtedly they may lawfully do with modesty and discretion without begging any leave For if asking leave be necessary it implies in the Court a right when they list to deny it and how then shall the Jury know the truth And since we see that Council who too often Pudet haec opprobria nobis for their fees strive only to baffle Witnesses and stifle Truth take upon them daily to interrogate the evidence 't is absurd to think that the Jurors should not have the same priviledg who are upon their Oaths and proper Judges of the matter 5. As a discreet and lawful Assistant to the Jury Vanghan's Reports in Bushell's Case fol. 144. they do often recapitulate and sum up the heads of the Evidence but the Jurors are still to consider whether it be done truly fully and impartially for one mans memory may sooner fail than Twelve's He may likewise state the Law to them that is deliver his opinion where the case is difficult or they desire it But since Ex facto jus oritur all matter of Law arises out of matter of Fact so that till the Fact is setled there is no room for Law therefore all such discourses of a Judg to a Jury are or ought to be Hypothetical not coercive conditional and not positive viz. If you find the fact thus or thus still leaving the Jury at liberty to find as they see cause then you are to find for the Plaintiff But if you find the Fact thus or thus then you are to find for the Defendant or the like Guilty or not guilty in cases Criminal Lastly They are to take the Verdict of the Jury
part of Falshood Thus Twelve men ignorantly drop into a Perjury And will not every conscientious man tremble to pawn his Soul under the sacred and dreadful solemnity of an Oath to attest and justisie a Lie upon Record to all Posterity besides the wrong done to the Prisoner who thereby perhaps comes to be hang'd and so the Jury in soro conscientioe are certainly guilty of his Murther or at lesst by Fine or Imprisonment undone with all his Family whose just Curses will fall heavy on such unjust Jurymen and all their Posterity that against their Oaths and Duty occasion'd their causeless misery And is all this think you nothing but a matter of Formality Jurym. Yes really a matter of Vast Importance and sad Consideration yet I think you charge the mischiefs done by such Proceedings a little too heavy upon the Jurors Alas good men They mean no harm they do but follow the directions of the Court if any body ever happen to be to blame in such Cases it must be the Judges Barr. Yes forsooth That 's the Jury-mens common-plea but do you think it will hold good in the Court of Heaven 'T is not enough that we mean no harm but we must do none neither especially in things of that moment nor will Ignorance excuse where 't is affected and where duty obliges us to Inform our selves better and where the matter is so plain and easie to be understood As for the Judges they have a fairer plea than you and may quickly return the Burther back upon the Jurors for we may they say did nothing but our duty according to usual Practise the Jury his Peers had found the Fellow Guilty upon their Oaths of such an Odious Crime and attended with such vile presumptions and dangerous Circumstances They are Judges we took him as they presented him to us and according to our duty pronounced the Sentence that the Law inflicts in such Cases or set a Fine or ordered Corporal punishment upon him which was very moderate Considering the Crime laid in the Indictment or Information and of which they had so sworn him Guilty if he were innocent or not so bad as Represented let his Destruction lye upon the Jury c. At this rate if ever we should have an unconscionable Judge might he Argue And thus the Guilt of the Blood or ruin of an Innocent man when t is too late shall be Bandyed to and fro and shufled off from the Jury to the Judge and from the Judge to the Jury but really sticks fast to both but especially on the Jurors because the very end of their Institution was to prevent all dangers of such oppression and in every such Case they do not only wrong their own Souls and irreparably Injure a particular Person but also basely betray the Liberties of their Countrey in General for as without their ill-complyance and Act no such mischief can happen so by it ill precedents are made and the Plague is encreased honester Juries are disheartned or seduc'd by Custome from their Duties just Priviledges are lost by disuser and perhaps within a while some of themselves may have an hole pickt in their Coats and then they are Tryed by another Jury just as wise and honest and so deservedly come to smart under the Ruinating Effects and Example of their own Folly and Injustice Jurym You talk of Folly and blame Jury-men when indeed they cannot help it they would sometimes find such a Person Guilty and such an one Innocent and are perswaded they ought so to do but the Court over-rules and forces them to do otherwise Barr. How I pray Jurym. How Why did you never hear a Jury threatned to be Fined and Imprisoned if they did not comply with the Sentiments of the Court Barr. I have Read of such doings but I never heard or saw it done and indeed I do not doubt but our Seats of Justice are furnisht with both better men and better Lawyers than to use any such Menaces of Duress for undoubtedly 't is a base and very Illegal Practise But however will any man that fears God nay that is but an honest Heathen debauch his Conscience and forswear himself do his Neighbour Injustice betray his Countreys Liberties and consequently enslave himself and his Posterity and all this meerly because he is Hector'd and threaten'd a little Jurym. I know it should not sway with any but alas a Prison is terrible to most men whatever the Cause be And the Fine may besuch if one shall refuse to comply as may utterly ruin ones Family Barr. Fright not your self Jurors cannot be Fined or Imprisoned in any case for giving their Verdict according to their Consciences though contrary to the direction or sense of the Court. there is no cause for this Ague-sit to shake your Conscience out of Frame if you are Threatned t is but Brutum Fulmen Lightning without a Thunderbolt nothing but big words for it is well known That there is never a judge in England that can Fine or Imprison any Jury-man in such a Case Jurym. Good Sir I am half asham'd to hear a Barrister talk thus have not some in our memory been Fin'd and Imprison'd And sure that which has actually been done is not altogether Impossible Barr. Your Servant Sir Under favour of your mighty Wisdom and Experience when I said no Judge could do it I spake the more like a Barrister for t is a Maxim in Law Id possumus quod Jure possumus A man is said to be Able to do only so much as he may Lawfully do But such Fining or Imprisoning cannot Lawfully be done the Judges have no Right or Power by Law to do it and therefore it may well be said they cannot or are not able to do it And whereas you say that some Juries in our Memory have been Fined and imprisoned you may possibly say true But t is as true that it hath been only in our Memory for no such thing was practised in Antient times for so I find it asserted by a late Learned Judge d in these possitive words Lord Chief Justice Vaughan in his Reports fol. 146. No case can be offered either before Attaints granted in General or after that ever a Jury was punisht by Fine and Imprisonment by any Judge for not finding according to their evidence and his direction until Pophams time nor is there clear proof that he ever Fined them for that Reason seperated from other Misdemeanours And Fol. 152 he Affirms That no man can shew that a Jury was ever punisht upon an Information either at Law or in the Star-Chamber where the Charge was only for finding against their Evidence or giving an untrue Verdict unless Imbracery Subornation or the like were joyn'd So that you see the Attempt is an Innovation as well as unjust a thing unknown to our Fore-fathers and the Antient Sages of the Law and therefore so much the more to be watcht against resisted and suppressed whilst
Speaking or Preaching to them Note the Quakers have a Meeting-house in that Street out of which they were then kept by Soldiers and therefore they met as near to it as they could in the open Street but what he said the Witnesses who were Officers and Soldiers sent to disperse them could not hear This was the effect of the Evidence which Sir John Howel the then Recorder as I find in the Print of that Tryal P. 14 was pleased to sum up to the Iury in these words You have heard what the Indictment is 't is for Preaching to the People in the Street and drawing a Tumultuous Company after them and Mr. Pen was speaking if they should not be disturb'd you see they will go on there are three or four Witnesses that have proved this that he did Preach there that Mr. Mead did allow of it After this you have heard by substantial Witnesses what is said against them Now we are upon the Matter of Fact which you are to keep to and observe as what hath been fully sworn at your pern This Tryal begun on the Saturday the Jury retiring after some considerable time spent in debate came in and gave this Verdict Guilty of Speaking in Gray-Church-Street At which the Court was offended and told them they had as good say nothing Adding Was it not an unlawful Assembly you mean he was speaking to a Tumult of People there But the Foreman saying what he had delivered was all he had in Commission and others of them affirming That they allowed of no such word as an unlawful Assembly in their Verdict They were sent back again and then brought in a Verdict in writing subscribed with all their Hands in these words We the Jurors hereafter named do find William Pen to be Guilty of Speaking or Preaching to an Assembly met together in Gray-Church-street the 14th of Aug. 1670. And William Mead not Guilty of the said Indictment * Note though this Jury for their excellent example of courage and constancy deserve the commendation of every good English-man yet if they had been better advis'd they might have brought the Prisoners in Not Guilty ut first saved themselves the trouble and inconveniences of these two Nights Restraint This the Court resented still worse and therefore sent them back again and Adjourned till Sunday morning but then too they insisted on the same Verdict so the Court Adjourned till Monday morning and then the Jury brought in the Prisoners generally Not Guilty which was Recorded and allowed of But immediately the Court fined them Forty Mark a Man and to lie in Prison till paid Being thus in Custody Edw. Bushel one of the said Iurors on the 9th of Nov. following brought his Habeas Corpus in the Court of Common-Pleas On which the Sheriffs of London made Retorn That he was detained by vertue of an Order of Sessions whereby a Fine of forty Marks was set upon him and eleven others particularly named and every of them being Iurors sworn to try the Issues joyned between the King and Pen and Mead for certain Trespasses Contempts unlawful Assemblies and Tumults and who then and there did acquit the said Pen and Mead of the same against the Law of this Kingdom and against full and manifest Evidence and against the direction of the Court in matter of Law of and upon the Premises openly in Court to them given and declared and that it was ordered they should be imprisoned till they severally paid the said Fine which the said Bushel not having done See Bushels Case in Vaughans Reports at large the same was the cause of his Caption and Detention The Court coming to debate the validity of this Retorn adjudged them same insufficient for 1. The Words Against full and manifest Evidence was too general a Cause the Evidence should have been fully and particularly recited else how shall the Court know it was so full and evident they have now only the Iudgment of the Sessions for it that it was so but said the Iudges Our Judgments ought to be Grounded upon our own Inferences and Vnderstandings and not upon theirs 2. It is not said that they acquitted the Persons Indicted against full and manifest Evidence corruptly and knowing the said Evidence to be full and manifest for otherwise it can be no Crime for that may seem full and manifest to the Court which does not appear so to the Iury. 3. The other part of the Return viz. That the Iury had acquitted those Indicted against the direction of the Court in matter of Law was also adjudged to be naught and unreasonable and the Fining of the Juries for giving their Verdict in any Case concluded to be illegal for the several Reasons before recited and other Authorities of Law urged to that purpose and all the Precedents and Allegations brought to justify the Fine and Commitment solidly answered whereupon the Chief Iustice delivered the Opinion of the Court That the Cause of Commitment was insufficient and accordingly the said Bushel and other his Fellow-prisoners were discharged and left to the Common Law for Remedy and Reparation of the Damages by that tortious illegal Imprisonment sustained Which Case is amongst others Reported by that Learned Iudge Sir John Vaughan at that time Lord Chief Iustice of the Common-Pleas setting forth all the Arguments Reasons Authorities on which the Court proceeded therein from which I have extracted most of the Reasons which before I recited for this Point for the greatest part in the very words of that Reverend Author Jurym. This Resolution hath one would think as you said knock'd this Illegal Practice on the Head beyond any possibility of Revival but may it not one day be denied to be Law and the contrary justified Barr No such thing can be done without apparent violating and subverting all Law Justice and Modesty for though the Precedent it self be valuable and without further inquiry is wont to be allowed when given thus deliberately upon solemn debate by the whole Court yet 't is not only that but the sound substantial and everlasting Reasons whereon they grounded such their Resolves that will at all time Justify Fining of Iuries in such Cases to be Illegal besides as the Reporter was most considerable both in his Quality as Lord Chief Justice and for his Parts soundness of Iudgment and deep Learning in the Law so such his Book of Reports is approved and recommended to the World as appears by the Page next after the Epistle by the Right Honourable the present Lord Chancellor of England Sir William Scroggs now Lord Chief Iustice of England my Lord North Chief Iustice of the Common Pleas and in a word by all the Iudges of England at the time of Publishing thereof so that it cannot be imagined how any Book can challenge greater Authority unless we should expect it to be particularly confirm'd by Act of Parliament Jurym. You have answered all my Scruples and since I