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
THE English-mans RIGHT A DIALOGUE BETWEEN A BARRISTER at LAW AND A JURY-MAN Plainly setting forth I. The Antiquity of JURIES II. The excellent designed use of JURIES III. The Office and just Priviledges of JURIES By the Law of England LONDON Printed for Richard Janeway in Queens-head Alley in Paternoster-Row 1680. The English mans RIGHT c. Barrister MY old Client a good morning to you whither so fast The Introduction you seem intent upon some important affair Juryman Worthy Sir I am glad to see you thus opportunely there being scarce any person that I could at this time rather have wisht to meet with Barr. I shall esteem my self happy if in any thing I can serve you The business I pray Jurym. I am summon'd to appear upon a Jury and was just going to try if I could get off Now I doubt not but you can put me into the best way to obtain that favour Barr. 'T is probable I could But first let me know the reason why you desire to decline that service Jurym. You know Sir The Reasons why fit men endeavour sometimes to avoid serving on Juries there is something of trouble and loss of time in it and mens Lives Liberties and Estates which depend upon a Jury's Guilty or Not guilty for the Plaintiff or for the Defendant are weighty things I would not wrong my Conscience for a world nor be accessary to any mans ruin There are others better skill'd in such matters I have ever so loved peace that I have forborn going to Law as you well know many times though it hath been much to my loss Barr. I commend your tenderness and modesty Not sufficient yet must tell you these are but general and weak excuses As for your time and trouble 't is not much and however can it be better spent than in doing justice and serving your Country To withdraw your self in such cases is a kind of Sacriledg a robbing of the publick of those duties which you justly owe it the more peaceable man you have been the more fit you are For the office of a Jury-man is conscientiously to judg his neighbour and needs no more Law than is easily learnt to direct him therein I look upon you therefore as a man well-qualified with estate discretion and integrity and if all such as you should use private means to avoid it how would the King and Country be honestly served At that rate we should have none but Fools or Knaves intrusted in this grand concern on which as you well observe the Lives Liberties and Estates of all Englishmen depend Your Tenderness not to be accessary to any mans being wrong'd or ruin'd is as I said much to be commended But may you not incur it unawares by seeking thus to avoid it Pilate was not innocent because he washt his hands and said He would have nothing to do with the blood of that just one There are faults of Omission as well as Commission When you are legally call'd to try such a cause if you shall shuffle out your self and thereby persons perhaps less conscientious happen to be made use of and so a Villain escapes justice or an innocent man is ruined by a prepossest or negligent Verdict can you think your self in such a case wholly blameless Qui non prohibet cum potest jubet He abets evil that prevents it not when he may Nec caret scrupulo societatis occultae qui evidentèr facinori desinit obviare He deserves not to be free from the suspition of a close society or underhand con piracy in the mischief of subverting the fundamental Laws and Liberties of the Nation who ceases to obviate and oppose it Jurym. Truly I think a man is bound to do all the good he can especially when he is lawfully call'd to it But there sometimes happen nice cases wherein it may be difficult to discharge ones conscience without incurring the displeasure of the Court and thence trouble and damage may arise Barr. That is but a vain and needless fear For as the Jurors priviledges and every English-mans in and by them are very considerable So the Laws have no less providently guarded them against Invasion or Usurpation So that there needs no more than first understanding to know your duty and in the next place courage and resolution to practise it with impartiality and intergrity free from accursed bribery and malice or what is full out as bad in the end base and servile fear Jurym. I am satisfied that as 't is for the advantage and honour of the publick that men of understanding substance and honesty should be employ'd to serve on Juries that justice and right may fairly be administred So 't is their own interest when called thereunto readily to bestow their attendance and service to prevent ill presidents from men otherwise qualified which may by degrees fatally though insensibly undermine our just Birth-rights and perhaps fall heavy one day upon us or our posterity But for my own part I am fearful lest I should suffer through my ignorance of the duty and office of a Jury-man and therefore on that account principally it is that I desire to be excused in my appearance which if I understood but so well as I hope may others do I would with all my heart attend the service Barr. You speak honestly and like an Englishman But if that be all your cause of scruple it may soon be removed if you will but give your self a very little trouble of inquiry into the necessary provisions of the Law of Englaâ—â— relating to this matter J. There is nothing of a temporal concern that I would more gladly be inform'd in because I am satisfied The Antiquity of Trials Juries 't is very expedient to be generally known And first I would learn how long trials by Juries have been used in this Nation B. Even time out of mind so long that our best Historians cannot date the Original of the Institution being indeed cotemporary with the Nation it self or in use as soon as the people were reduced to any form of Civil Government and administration of Justice Not have the several Conquests or Revolutions the mixtures of Foreigners or the mutual feuds of the Natives at any time been able to suppress or overthrow it For 1. That Juries the thing in effect and substance Amongst the Britains though purhaps not just the number of Twelve men were in use amongst the Britains the first Inhabitants of this Island appears by the Ancient Monuments and Writings of that Nation attesting that their Free holders had always a share in all Tryals and determinations of differences 2. Most certain it is that they were practised by the Saxons and were then the only Courts Amongst the Saxons Lamb. p. 218. Cook 1. par Institutes fol. 155. or at least an essential and the greater part of all Court of Judicature For so to omit a multitude of other Instances we find in King
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
and thereupon to give judgment according to Law For the office of a Judg as Cook well observes is jus dicene not jus dare not to make any Laws by strains of wit or forced Interpretations but plainly and impartially to declare the Law already establisht Nor can they refuse to accept the Juries Verdict when agreed For if they should and force the Jury to return and any of them should miscarry for want of accommodation it would undoubtedly be murder and in such case the Jury may without crime force their liberty because they are illegally confined having given in their Verdict and thereby honestly discharged their office and are not to be starv'd for any mans pleasure J. How Jurors are Judges of Law as well as Fact But I have been told That a Jury is only Judg of naked matter of fact and are not all to take upon them to meddle with or regard matter of Law but leave it wholly to the Court. B. 'T is most true Jurors are Judges of matters of Fact that is their proper Province their chief business but yet not excluding the consideration of matter of Law as it arises out of or is complicated with and influences the Fact For to say they are not at all to meddle with or have respect to Law in giving their Verdicts is not only a false position and contradicted by every days experience but also a very dangerous and pernicious one tending to defeat the principal end of the Institution of Juries and so subtilly to undermine that which was too strong to be batter'd down 1. It it false for though the direction as to matter of Law separately may belong to the Judg and the finding the matter of Fact does peculiarly belong to the Jury yet must your Jury also apply matter of Fact and Law together and from their consideration of and a right judgment upon both bring forth their Verdict For do we not see in most General issues as upon not guilty pleaded in trespass breach of the peace or Felony though it be matter in Law whether the party be a trespasser a breaker of the Peace or a Felon yet the Jury do not find the Fact of the case by it self leaving the Law to the Court but find the party guitly or not guilty generally So as though they answer not to the question singly what is Law yet they determine the Law in all matters where Issue is join'd So likewise is it not every days practise that when persons are Indicted for murther the Jury does not only find them guilty or not guilty but many times upon hearing and weighing of circumstances brings them in either guilty of Murther Manslaughter per Infortunitus or se-defendendo as they see cause Now do they not herein complicately resolve both Law and Fact And to what end is it that when any person is prosecuted upon any Statute the Statute it self is usually read to the Jurors but only that they may judg Whether or no the matter be within that Statute But to put the business out of doubt we have the suffrage of that Oracle of Law Littleton who in his Tenures Sect. 368. declares That if a Jury will take upon them the knowledg of the law upon the matter they may Which is agreed to likewise by Cook in his Comment thereupon And therefore 't is false to say That the Jury hath not power or doth not use frequently to apply the Fact to the Law and thence taking their measures judg of and determine the crime or issue by their Verdict 2. As Juries have ever been vested with such power by Law so to exclude them from or disseize them of the same were utterly to defeat the end of their institution For then if a person should be Indicted for doing any common innocent act if it be but clothed and disguised in the Indictment with the name of Treason or some other high crime and prov'd by Witnesses to have been done by him the Jury though satisfied in Conscience that the Fact is not any such offence as 't is called yet because according to this fond opinion they have no power to judg of law and the fact charged is fully prov'd they should at this rate be bound to find him guilty And being so found the Judg may pronounce sentence against him for he finds him a convicted Traytor c. by his Peers And thus as a certain Physician boasted That he had kill'd one of his Patients with the best method in the world So here should we have an innocent man hang'd drawn and quarter'd and all according to law J. God forbid that any such thing should be practised and indeed I do not very fully understand you B. I do not say it ever hath been and I hope it never will be practised But this I will say that according to this Doctrine it may be and consequently Juries may thereby be rendred rather a snare or engine of oppression than any advantage or Guardian of our Legal Liberties against Arbitrary Injustice and made meer properties to do the drudgery and bear the blame of unreasonable Prosecutions And since you seem so dull as not to perceive it let us put as Imaginary case not in the least to abet any irreverence towards his Majesty but only to explain the thing and shew the absurdness of this opinion Suppose then a man should be Indicted For that he as a false Traytor not having the fear of God before his eyes c. did trayterously presumptuously against his Allegiance and with an intent to affront his Majesties Person and Government pass by such or such a Royal Statue or Effigies with his hat on his head to the great contempt of His Majesty and his Authority the evil example of others against the Peace and his Majesties Crown and Dignity Being hereupon arraigned and having pleaded Not guilty suppose that sufficient evidence should swear the matter of Fact laid in the Indictment viz. That he did pass by the Statue or Picture with his hat on now imagine your self one of the Jury that were sworn to try him What would you do in the matter J. Do Why I should be satisfied in my Conscience That the man had not herein committed any crime and so I would bring him in not Guilty B. You speak as any honest man would do But I hope you have not forgot the point we were upon suppose therefore when you thought to do thus the Court or one of your Brethren should take you up and tell you That it was out of your power so to do For look ye saith he my Masters An ordinary Jury-man's wise Speech we Jury-men are only to find matter of Fact which being fully prov'd as in this case before us it is we must find the party Guilty whether the thing be Treason or not does not belong to us to inquire 't is said so here you see in the Indictment and let the Court look to that they know