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
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
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
Also no Punishment whatever lyes for or against a Jury which consists of above Twelve Men 14. H. 7. 13. Nor does Attaint ever lye where the Witnesses are not on Oath or for going against what any such Witness says nor in any Appeal of Maim Murther or Felony F. N. B. 107. Nor in other Appeals as Regist. 122. Attaint 59 62. 22 Ass. 82. say Nor does ever any Action lye against any Jury for going against their Evidence And where an Attaint is brought it must be Tryed by a Jury of Twenty four Men. The only Cases the Judges have any Power over Juries in are where in their Behaviours they become guilty of any such thing as the Judges may justly call an unlawful Contempt 4 E. 4. 27. 36 H. 6. 27. Or be guilty of Embracery 5 E. 3. c. 10. 34 E. 3. c. 8. as receiving Bribes Promises c. before or at the Tryal c. Or in Case of Concealment the Justices of the Peace of every Shire c. may take by their discretion an Enquest c. to enquire of the Concealments of other Enquests taken afore them and afore others of such Matters and Offences as are to be inquired and presented afore Justices of Peace whereof complaint shall be made by Bill or Bills c. And if any such Concealment be found of any Enquest c. had or made within one year c. The Justices may Amerce or Fine them at Discretion 3 H. 7. c. 1. viz. as much as is reasonable for such Offence as is said in a like Case by Lord Coke 10. 140. and in Dalton p. 541 23. If any refuse to be on a Jury not offering sufficient Excuse he is Finable 7 H. 6. 12. So if any of either Jury give a Verdict c. as aforesaid twelve not agreed So the Grand Jury may not discover Evidence given them Inst. 3. 107. Mich. 15 Jaâ— in B. R. Smith and Hill's Case 27 Ass. 63. Lamb. 402. Chron. 207 272. Finch 20. So the Petty-Iury if without License of Court depart any whither upon any Occasion whatsoever after sworn before Verdict given Or that while but especially after Evidence given eat or drink Or out of Court receive any Evidence from either side may expect Fine and Imrisonment Thus much for what a Jury may do Now something more how and what it ought to do The Oath it self but that it 's so general would else be Instruction as well as Obligation sufficient The Oath of a Grand Jury-man is I will diligently enquire and true Presentment make of all such things and matters as shall be given me in Charge or shall come to my knowledge concerning this present Service The King's Council my own and my Fellows I well and will truly keep secret I will Present nothing for Malice Lucre or Evil Will Nor will I leave any thing unpresented for Love Favour Affection Reward or any hopes thereof But in all things that shall concern this present Service I will present the Truth the whole Truth and nothing else but the Truth So help me God The Oath of the Petty-Iury is I will well and truly-Try and true Deliverance make between our Sovereign Lord the King and the Prisoner at the Bar according to my Evidence So help me God That of the Grand-Iury was part of it Anciently Quod neminem accusare velint innocentem To accuse no Person innocent Ll. Ethelred And pour rien ne levray que je verite ne diray Nothing shall hinder me from speaking the Truth Brit. 12. 135. Crompt 304. The Scripture teaches one his Duty upon an Oath It says One must swear in Truth in Justice and Judgment Jer. c. 4. Deut. c. 16. Exod. c. 20. Dan. c. 5. Levit. c. 14. Zech. c. 13. Acts c. 5. and the Proverbs in several places In Truth with one's Eyes neither in a Telescope or Microscope not proceeding by appearance or seemingness of things not by adding nor diminishing not by aggravating or palliating not by Equivocation or Reservation not by Representing or Accepting the matter otherwise than really and truly it is not presenting c. things c. doubtful or not certainly true as true nor omitting any thing certainly true but always as the naked Truth is so and so In Judgment not at a venture as by casting Dice c. not as matter of Form not rashly perfunctorily or negligently passing or running over things not by implicite Faith or in complemental Obedience c. not upon trust or belief further than with and upon good and great Deliberation Considerateness Reasoning and Satisfaction according to ones own Conscience and because one's mature and settled Judgment is so and so In Justice proceeding fairly impartially with Integrity and according to the Merits of the Cause without charging one with Murder that 's Guilty but of Man slaughter and without Malice Fear Hope Pity Favour Affection Passion Corruption or other Prejudice Byas Consideration or private or sinister End or Design But all throughout purely because is so and so more than otherwise And consonant to Scripture as well as generally in all other things so also in this are even Morals and Politicks The Wise Men so called of Greece were called so from their living Prudently Justly and Honestly such also are they Aristotle calls so 1 Metaph c. The Stoicks say He 's the Wise Man that sticks to Truth Neque quicquam fingit and abhors and banishes every thing else not so much as admitting of any Stories Fictions c. whatsoever Machiavel says Judex cujusquam gratiae nec potentiae cedet neque misericordia nec invidia nec odio comovebitur sed vere semper incorrupte ex legibus judicabit Judges must not be moved for the Power of any one nor for any ones sake one way or other nor with Pity or ill Will but always go according to Law truly and without Byas Justinian speaking of Judges says Eorum est manus puras Deo Imperatori Legi praestare They must be inoffensive to God the King and the Law Non illum populi fasces non purpura regum flectunt No Acclamations of the People no Honours of the King neither of these move them Contra rempublicam nec contra jus jurandum amici causa vir bonus non faciet Against the common good or an Oath no Man will stir an Inch if honest though it be for a Friend's sake Judex ponit personam amici cum Iudicis induit Judge Hales is a Friend as Hales but none as a Judge Si omnia facienda sint quae amici velint non amicitiae tales sed conjurationes putandae sunt Cicero What a Judge does at the Request of his Friend is really and truly no Friendship but is making himself and Friend guilty both of a Crime The Areopagites were Judges that heard Causes only in the dark that they might take Notice what was said and not who spoke And what is said of Judges by these Authors
the one to be before the other and the latter to be final the other not The Stat. of 23 H. 8. c. 23. Enacts One shall be Indicted of High Treason in what County the King pleases And the Stat. 1 2 P. M. c. 10. says That Tryals for Treason shall be according to Common Law This Act repeals the other though speaks only of Tryals and the other of Indictments Anders 1. 104 105. Inst. 3. 27. which shews an Indictment is a Tryal One of the Grand Jury cann't be afterwards on the other And why says the Law for he has once already found the Party Guilty and if should not again he must Perjure himself Brit. 12. 25 E. 3. c. 3. 7 E. 4. 4. Stanf. 158. It puts the Defendant to Disgrace Trouble Damage Danger of Life c. It makes him lyable to an Out-lawry to Imprisonment c. and to every thing but very Death c. the final Judgment it self It gains Credit and gives Authority to auother Jury to find one Guilty It produces this Effect that if the other Jury find one guilty never so wrongfully no Attaint lies against them nor other Punishment And what 's the Reason The Law says because he is found Guilty not by these other twelve only but in all by Twenty four or more this latter and the other Jury too Attaint 64 60. Attaint R. a. 18. v. 8. H. 4. 23. b 14 H. 7. 13. So if one be Indicted any one may bring an Appeal though never so wrongfully c. against him whereas he that brings one against any one that was never Indicted of the same Offence may be liable to great Punishment if wrongfully brought Stanf. 172. b Corâ—n 178. 40 E. 3. 42. Where Peers be indicted for Treason Felony or Misprision of either they not only suffer in Honour Liberty Vexation Danger Trouble Charges and other Inconveniencies as aforesaid another does but must with a more tender sense and in a much greater measure as they be so much greater Persons c. And they can have no other Tryal on Oath for their future Judges or Jury are none of them on Oath Inst. 3. 89. Co. L. 156. They can except against none of their Jury though have what cause soever possible Co. L. 156. b They must be Tryed by such as shall be chosen against them such as perhaps shall not be Neighbours but picked any where up and down the whole Kingdom such a Jury as perhaps shall not be above twelve in all whereof then if any seven or any time the major part agree to find them Guilty it shall be so though the other five or lesser number be utterly against it So that upon the whole if a Peer have but seven Peers among all the rest that bear him ill will or either any ill wisher that can make him so many of them his Enemies he must Dye c. fall back fall edge And to help the matter he shall always be sure of the ablest Council in the Kingdom to manage the Cause against him Suppose one should ask any Honest Man this Question Were he not on his Oath yet would he find an Indictment of Course c. to expose one and put him to such Inconveniences as aforesaid Certainly says he No. And the Monster that would does it wrongfully because is not certain he does otherwise And being on his Oath as aforesaid it 's not only doing wrong but tainting himself Crimson red in Perjury too sure a Malicious way of doing wrong It 's doing wrong also by colour of Law and pretended Authority the greatest Mischief and Injustice says the Lord Coke of all other Inst. 2. 48. The damage c. too in all these Cases is the greater yet that the Party can very scarcely if at all expect any Reparation or Amends Whereas in all other Cases he may easily For against the Grand Jury or any of them no Action lyes in as much as doing what they do on their Oaths the Law will not presume c. any Malice c. in them And though one be Indicted at the Instance or upon the Endeavours of some other Person all the Jury as aforesaid being sworn to Secrecy can one easily discover and prove who this Person is what he did and prove it at a Tryal Which yet one must do fully if expect any thing but making bad worse And might one recover damage c. yet it 's damage c. to be put to the Trouble and Hazard of the Recovery Well therefore says Fleta f. 52. Valde necessarium est in omni presumptione in inquisitione de vita membris Juratores diligenter examinare It 's an exceeding necessary thing that the Grand Jury should make diligent Examination before presume any thing either in Case of Life or Member Iust. Dalton's Book p. 539. says no less Care or Concern at all lies on the Grand Jury than does on the Petty Jury The Law to see its Nature how it inclines generally that one may the better guess in this matter it is not with us like those of Draco It 's as tender of the Lives Liberties and Credits of the People none can deny in all cases else as a Mother of her Child and why then not in this also It will presume nothing dishonest c. in any one or any time but it will and always does presume all Persons and Things Honest True Innocent c. till the contrary be proved Co. L. 78. b As Ovid says Sit piger ad poenas princeps ad praemia velox So Lamb. Sax. Laws cry often Clemency and Forgiveness as well as Justice And Lex Angliae Lex misericordiae est Says Coke Inst. 2. 315. Like the Laws of Scripture whence it was first derived which shews Mercy is not opposite to but part of Justice 1 John 1. 9. Psal. 71. 1 2. Ier. 18. 7 8 9 10. Ezek. 33. 13 14. The Laws of England the Laws of Mercy And says a Great Man Justitia semper mitiorem sequitur partem Justice leans that way which is the milder One brings an Appeal if the Jury be doubtful the Defendant shall be acquit and the Appellour imprisoned Fleta 52. Mir. 224 273. So a Jury being doubtful if one were a Villain or not was therefore free Fleta 238. Bene tibi praecipiunt says Cicero qui vetant quidpiam agere quod dubites aequum sit vel iniquum aequitas enim lucet ipsa per se dubitatio autem cogitationem significat injuriae They do well that forbid one doing a thing when dubious whether right or wrong for where it 's right the thing is necessarily as clear as the Sun But any doubt speaks the thing not to be so As if a Physitian give one Physick he must give one that he is sure will do one good or no harm and not what he doubts may do one harm It 's also plain if I doubt I must not say I am certain as Billa vera but I know
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