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
ne pret prover sor saintz que melz ne post juger Lamb. 162 64. Also whosoever gives a false Judgment shall forfeit his Were what 's Life is worth unless can prove on Oath he could judge no better Judges if Condemned one to Death against their Knowledge or by Ignorance of or in what they ought not as Judges be Ignorant of they be Murderers c. and to dye as such Mir. 256. v. Bract. 412 King Alfred's Law was That false Judges because dishonour God whose Vicars they be the Scripture calls them Gods and the King which raises them to such an Honourable Seat as the Chair of God they shall first make satisfaction to the Party grieved forfeit what else they have and suffer further Punishment at King's Will and Pleasure And if they falsly put to Death any then to dye themselves and always at least to suffer like for like Mir. 265. 301. Appeal of one's Death lay against a Judge for judging one falsly or wrongfully to Death Mir. 136 258 298. Presentments were made against Chancellours Judges c. for breaking their Oath Mir. 144. There were 44 Judges hanged in one Year for wrongful Judgments Mir. 296. c. And says the same Book it 's an abuse that all things are not so now 296. What became of Tresilian and Belknap of later years But now the Law seems clear otherwise we have little or no Punishment against Chancellours Judges Councellors Attornies Clerks Witnesses c. yet were Juries then so cautious as aforesaid with and against them where now therefore how many times more Jealous and Cautious have they Reason and should they be The Law considering the great Burthen that lies upon the Consciences of Jury-men has favoured them with this Liberty They may as aforesaid take upon them the knowledge of what the Law is in the matter or upon the truth of the Fact as well as the knowledge of the Fact and so give in a Verdict generally that the Defendant is Guilty or not Or they may give in only the matter of Fact particularly how they find it to be and then leave it to the Judges to determine Or they may acquaint the Judges how the matter of Fact stands and then ask the Judges their Opinion as to the matter of Law and then determine the whole matter themselves The Grand Jury strikes out of the Indictment what they be not certain is true or may any wise alter it to what they be certain is true Or if any thing be in it they be doubtful of they may superscribe it Ignoramus at their Election in all these Cases Thus if a Jury find the Words not spoke or the Fact not done with and according to the Aggravations and Circumstances in an Indictment c. mentioned They ought either not find the Indictment for one not being Guilty as the Indictment mentions is consequently not Guilty of that Indictment but rather seems if guilty at all guilty of some other matter than which he stands Indicted of and so of some other Indictment only and then let the Prosecutor if so fond of troubling his Neighbours bring such other Or strike out what they have not sufficient Evidence of as do often in Indictments of Murder which say the Defendant of his malice fore-thought Feloniously Killed and Murdered such a one strike out the words of his malice fore-thought and murdered having no Evidence of the Malice but sufficient of the rest and then endorse it Billa vera and so find the Bill Man-slaughter instead of Murder So was it of an Indictment against Ld. Chandois and Count Arundel his second in a Duel In like manner when the Evidence proves a Fact done only by mischance defending one's self in time and place of War when Defendant was non Compos mentis an Officer doing his Office c. the Grand Jury alter the Indictment accordingly So of the Petit Jury only it does not alter the Indictment c. but instead of altering Murder to Man-slaughter c. as aforesaid in the Indictment they only say Guilty of Manslaughter and not of Murder or guilty of Chance-medley Se Defendendo c. Or they may tell the Court particularly and plainly how they find the truth in and of the whole matter to be so far as concerns the Fact or what was done or said As in Cases of Words what were spoke where to what intent c and so leave it to the Court to judge on it according to Law and to tell what the Law is thereupon and so be discharged themselves which is called giving a special Verdict Suppose A. bring an Action of Debt on a Bond against B. as Heir of C. and B. pleads he hath nothing from C. to pay any thing with and A. replyes that he has c. and so the Issue is joyned or what the Jury be to Try is whether B. has any thing as aforesaid or not A. proves that B. had before the Action brought something so but aliened by Fraud and ill Practice to deceive A. of his Debt Now they finding the matter or case to be thus indeed and the Law being for there is a Statute 13 El. that such aliening shall be void and consequent the Heir chargeable nevertheless They may if will as aforesaid either take upon them to know the Law and in this or any Case say generally they find for A. Or not take Notice of the Law but only of the Matter and so tell the Court how and what they find the matter to be and thus leave it to the Court to judge in Law whether ought to be found for and this is their most safe way To this end was the Stat. of West 2. c. 3. that if a Jury doubt on the Evidence what the Law is and therefore what to do they might leave it to the Judges to determine But says Coke this Statute is only in affirmance of the Common Law Inst. 2. 425. 13 E. 1. 39. See a special Verdict in Case of Murder Co. 4. 44. Co. 9. 63. One in an Information N. B. Entr. 375 378. Co. 1. 22. One in Attaint Dy. 173. So in a Case about Murder the Jury tell the Court they find the Killing itself to be true but not the Killing Feloniously as mentioned in the Indictment and so ask the Opinion of the Court if it be Murder Go. 9. 69. So the Jury found the Parties Indicted for Riotously tearing the Petition Guilty of tearing the Petition but not of the Riot c. It 's true it 's doubted in Moor c. 1002. whether in a Writ of Right a Jury may give a special Verdict But as there is no Reason that if the Cause be indifferently plain as to the Law the Jury themselves should not put an end to it giving a General Verdict as Guilty or not Guilty c. without so much further Charge loss of Time increase of Trouble as otherwise must needs follow yet on the other hand there is as
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