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
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
the Protestant Religion in a Sermon preached before the most excellent King Edward the sixth delivered these words I must desire your Grace to hear Poor Mens Suits your self the Saying is now See Latimers Sermons fo 41. the second Sermon before King Edward the sixth That Money is heard every where if he be Rich he shall soon have an end of his Matter others are fain to go home with weeping Tears for any help they can obtain at any Judges Hand Hear Mens Suits your self I require you in Gods behalf and put them not to the Hearing of these Velvet-Coats these Upâ—skips Amongst all others one especially moved at this time to speak This it is Sir A Gentlewoman came and told me that a Great Man keepeth certain Lands of hers from her and will be her Tenant in spight of her Teeth And that in a whole Twelve-month she could not get but one day for the Hearing of her Matter and the same day when it should be heard the Great Man brought on his side a great sight of Lawyers for his Counsel the Gentlewoman had but one Man of Law and the Great Man shakes him so that he cannot tell what to do so that when the Matter came to the Point the Judge was a means to the Gentlewoman that she should let the Great Man have a quietness in her Land I beseech your Grace that ye youl l look to these Matters And you proud Judges Hearken what God saith in his Holy Book Audite illos ita parvum ut magnum Hear them saith he the Small as well as the Great the Poor as well as the Rich regard no Person fear no man And why Quia Domini Judicium est The Judgment is Gods Mark this Saying thou Proud Judge The Devil will bring this Sentence against thee at the Day of Doom Hell will be full of these Judges if they repent not and amend they are worse than the wicked Judge that Christ speaketh of Luke the 19th that neither feared God nor the World Our Judges are worse than this Judge was for they will neither hear Men for God's sake nor fear of the World nor Importunateness nor any thing else Prison yea some of them will command them to ⋆ ward if they be importunate I heard say That when a Suiter came to one of them he said What fellow is it that giveth these folks counsel to be so importunate he deserves to be Punished and Committed to ward Marry sir punish me then It is even I that gave them Counsel I would gladly be punished in such a Cause and if you amend not I will cause them to cry out upon you still even as long as I live These are the very words of that good Bishop and Martyr Father Latimer Jurym. Truly they are somewhat Bold but I think very Honest ones But what signify they to our discourse Barr. Only this suppose the Judges of those times thinking themselves agrieved by such his Freedom should have brought an Indictment against him setting forth that falsly and maliciously intending to scandalize the Government and the Administration of Justice in this Realm and to bring the same into Contempt he did speak publish and declare the false and scandalous words before recited Jurym. I conceive the Judges had more Wit than to trouble themselves about such a Business Barr. That 's nothing to the purpose but suppose I say by them or any body else it had been done and his speaking the words had been proved and you had then been Living and one of the Jury Jurym. I would have pronounced him not Guilty and been starv'd to Death before I would have consented to a contrary Verdict Because the words in themselves are not Criminal nor reflecting upon any particulars and as for what is supposed to be laid in the Indictment or Information that they were published or spoken to scandalize the Government and the Administration of Justice or to bring the same into Contempt nothing of that appears Barr. You resolve as every Honest Understanding Conscientious man would do in the like Case for when a man is Prosecuted for that which in it self is no Crime how dreadfully soever it may be set out as the Inquisitors in Spain use to Cloath Innocent Protestants whom they Censure to the flames with Sambenito's Garments all over bepainted with Devils that the people beholding them in so Hellish a dress may be so far from pitying them that they may rather Condemn them in their thoughts as Miscreants not worthy to Live though in truth they know nothing of their Cause yet I say notwithstanding any such Bugg-bear Artifice an Innocent man ought to be Acquitted and not he and all his Family ruined and perhaps utterly undone for words or matters harmless in themselves and possibly very well intended but only rendred Criminal by being thus hideously dressed up and wrested with some far-fetch'd forced and odious Construction Jurym. This is a matter well worthy the Consideration of all Juries for indeed I have often wondred to observe the Adverbs in Declarations Indictments and Informations in some Cases to be harmless Vinegar and Pepper and in others Henbane steep'd in Aqua fortis Barr. That may easily happen where the Jury does not distinguish Legal Implications from such as Constitute or materially Aggravate the Crime for if the Jury shall honestly refuse to find the latter in Cases where there is not direct proof of them viz. That such an Act was done Falsly Scandalously Maliciously with an intent to raise Sedition defame the Government or the like their mouths are not to be stopt nor their Consciences satisfied with the Courts telling them you have nothing to do with that its only matter of Form or matter of Law you are only to examine the Fact whether he spoke such words writ or sold such a Book or the like For now if they should ignorantly take this for an Answer and bring in the Prisoner Guilty though they mean and intend of the naked Fact or bare Act only yet the Clerk Recording it demands a further Confirmation saying to them thus well then you say A. B. is Guilty of the Trespass or Misdemeanour in manner and form a he stands Indicted and so you say all to which the Foreman Answers for himself and his fellows Yes Whereupon the Verdict is drawn up Juratores super Sacramentum suum dicunt c. The Jurors do say upon their Oaths that A. B. maliciously in Contempt of the King and the Government with an intent to scandalize the Administration of Justice and to bring the same into Contempt or to raise Sedition c. As the words before were laid spake such Words publisht such a Book or did such an Act against the Peace of our Lord the King his Crown and Dignity Thus a Verdict so called in Law quasi veritatis because it ought to be the Voice or Saying of Truth it self Dictum may become composed in its material