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
things impossible repugnant inconsistent c. can be no more than bare Testimony and cannot any wise amount to or be called Evidence Herein the Jury must consider the Credit and Authority of the Evidence and the matter or extent of what is Evidenced First If the matter proved amount to such plain and full Proof as is required An Indictment laid against three Persons may not be found against all three when the Evidence is only against one or two of them nor if laid against one Person for three Faults may it be found against that one for all the three matters when but one or two of them are proved nor when the Evidence is but to part of a Matter or Fault may the Indictment be found for the whole but as aforesaid all found must be proved Indictments c. as aforesaid brought upon or referred to any Statute the words of the Statute mentioned in such Indictment c. must be proved very strictly even to a tittle the Proof must hit the Bird in the Eye As one Indicted on the Statute for Maliciously disturbing a Minister at Divine Service every one of these Words must be proved so for wilfully and corruptly forswearing one's self so for one's gain keeping a Gaming-House But in other Cases as at Common Law if the proof and words in the Indictment c. differ either in the matter or the form or manner inconsiderably or so as the difference be not somewhat considerable or material as aforesaid such is indeed no difference in Law nor by the Jury to be taken as any In the matter as in a Complaint for these words B. is a maintainer of Thieves and a strong Thief himself here the word strong signifying little or nothing need not be proved spoken Dy. 21. 75. But if the Allegation and Proof materially differ otherwise as for these words If B. might have his will he would kill all the true Subjects in England and the King too Now the Proof being that the Defendant said I think in my Conscience that if B. c. the best Opinions in this Case are that this is not sufficient Proof for the Words alledged are more positive and absolute and move Credit more in one's Ears than those proved and so are not in effect the same but materially differ So of these Words B. procured eight or ten Witnesses of his Neighbours to Perjure themselves the Proof being only that the Defendant said B. had caused eight or ten c. This is no Proof for one may be a Cause and yet not a Procurer there being remote Causes Causa sine quâ non as well as others so nigh as that of procuring Such a Cause as this B. might be though only Plaintiff or Defendant in a Suit for had there been no Suit there could be no Perjury And the most favourable and innocent Sence of Words is to be taken and no other As for the manner An Indictment being for Murder by Poyson if the Proof be it was not by Poyson but a Weapon Burning or Drowning c. this will not do for the manner proved is of another Nature proved than alledged but if the difference were only thus that the Poyson alledged were of one sort and that proved of another this being immaterial both agreeing it was by Poyson the Proof may serve So Murder alledged to have been committed by a Dagger the proof being it was by a Sword or Bill may serve but proof by Poysoning will not do If an Assault and Battery be alledged to have been at A. the proof being it was not at A. but B. may serve provided the Offence be neither greater or lesser whether committed at A. or B. But if the place alledged aggravate the Fault it 's otherwise or if both places be not in the same County So of the like difference in time alledged and proved Now as to the Credit and Authority of what is Witnessed It 's no proof or Evidence to a Jury which is against their own knowledge nor any other but that only which confirms them in what did know or acquaints them with what did not know The only Reason said my Lord High Steward at Lord Cornwallis's Tryal why a Prisoner is allowed no Councel in matter of Fact or in any thing but matter in Law when Life or Member is concerned is only this The Evidence whereby he shall be Condemned ought to be so plain and evident that all the Council in the World may be presumed able to say nothing against it or in his Defence Nothing ought so much as raise a suspicion says Horne but what comes from grave and good People those which be Credible and heed what they say Mir. 200. And not from others as ill-tongued ill disposed c. People Bract. Brit. Stanf. The great Lord Coke says of old time as yet says he indeed it ought to be Any Indictment was not to be found but on Credible Witnesses and plain and direct Proof and never upon Probabilities or Inferences c. Inst. 2. 384. The Famous Montagne p. 1040. says à tuer les gens il faut un clarté bien lumineuse nette And the Lord Coke Inst. 3. 25. It 's most necessary as many hold there should be two good Witnesses produced to the Grand Jury to prove every Indictment And the Proof says he ought to be more clear than Light Every Jury must always remember they may presume nothing but Innocency and Innocency c. they ought until the contrary proved Of Presumption and Argumentative Verdicts c. finding one Guilty there be several very sad Examples One the Lord Coke tells of is There being two Brothers one dies leaving an Estate and an only Child the other Educates it and one Night correcting it it cryed Good Vnkle do not kill me and next morning it was gone no Body knew whither This Brother is Accused of its Death upon Evidence of the matter aforesaid that he beat it it was Young about Nine years old it cryed as aforesaid it was never heard of since and that the Vnkle enjoys an Estate by this The Jury find him Guilty and he was Hanged but about a year after it returned safe and well Inst. 3. 232. The Scripture enjoyns the use always of two Witnesses at least when yet the Punishment then and there was so much less than now with us for the Crimes to be punished Deut. 17. 6. 16. 19. 15. Mat. 18. 16. Jo. 18. 27. 2 Cor. 13. 1. Heb. 10. 28. Vox unius nullius vox One is none l. 8. C. de testibus Quaedam sunt causae quae plures quà m duos exigunt testes nulla tamen quae unius testimonio terminetur says the Civil Law In some Cases there must be more than two Witnesses but never fewer c. Licit 23. in sin extr de test By the Ancient Laws of England no Indictment was to be received against a Presbyter without three or at least two Witnesses against a
c. 30. praying against Poverty the Reason's alledged lest being poor one should steal and take the Name of the Lord in vain And it 's for something the Poet says Quantum quisque suâ nummorum servat in arcâ Tantum habet Fidei Juvenal As for Servants c. they are under the same Circumstances commonly of Poor Men and worse for more apt to do any thing in Obedience or Favour or else out of Malice c. against or for their Lord c. Before the Conquest the Oath of a Thane one of like degree then as a Yeoman is now was in Law Equivalent to the Oath of six Villains Pagans c. Servants that were bound Lamb. 56. 200. as for Persons any wise Infamous such will not value or stand upon their Credit or but the less since have little or none to lose and over shoes over boots As for criminal Persons It 's a Maxime Justitia non potest cum scelerato Commorcium habere He that has been once wicked or in one thing may be suspected again or in another thing hence where a Desendant is supposed in Law guilty but of a Contempt Trespass Deceit or Injury He shall not wage his Law for the Law will not believe him though would believe another against whom is an Action of Debt Detinue or Account Co. L. 295. As for one under 14 Years old such are as our Law says not arrived at Discretion such may Mistake be Influenced c. and so of all the rest But it were not amiss if Juries heard all Persons weighing their Testimony as ought A Jury should mislike any Witness also that in 's Evidence varies delivers himself in any passion speaks at random or not cautiously or seems to side with or against either Party or to argue or to offer proving Negatives None can swear a Negative nor may be admitted to give Testimony directly against an Affirmative 48 E. 3. 30. 12 H. 6. 6. Assize 408. 12 H. 4. 9 50. E. 3. 16. 43 E. 3. 32. Fleta liâ— 6. c. FNB. 136. h. 97. c. A Jury may take Notice of particular Statutes Patents Judgments and other Records given in Evidence and may go against Estopels Conclusions c. so it be according to the very truth for they must speak the Truth in all cases Co. 4. 53. It 's much the Jury does not always examine Witnesses themselves If he that examines them be corrupted or any wise ill affect he may easily mislead the whole course of Evidence he may countenance which side he will pleasedly hearing the one side on one sort but the other not without brow-beating and uneasiness he may frighten discountenance divert puzzle distract or otherwise abuse a Witness he may flatter wheadle prompt ask leading Questions direct c. and thus darken and perplex the Truth How does a Jury discharge its Conscience thus The Jury is the only Judges also of what is said and how the Verdict shall be given and they whose Consciences are to be satisfied and certainly know best what they want to know c. unless walk by implicite Faith and therefore be the most proper to ask the Questions All that is aforesaid should also the rather be as proposed considering how the Law is now alter'd as to Accusers Judges Witnesses Councellors Solicitors c. Anciently Omnis qui crimen objicit scribat se probaturum Et non oportet quenquam Judicari vel Damnari priusquam legitimos Accusatores habeat presentes Ll. Guil. 1. c. 5. All Persons that Indicted any other were to be sufficient responsible c. Co. 5. 120. Accusers gave Security to answer Damages if the Accusation proved false Mir. 19 120 124 147 195. Glanv 75. longum carceris inducunt inclusionem cum redemptione falsae appellationes hujusmodi abettatores Fleta 142. Fines were set on Appellours 11 R. 2. Fines 2. 15 E. 3. Fines 49. 107. If A. brought an Appeal in any Case and was either barred non-suited or his Writ abated he was fined and imprisoned immediately without Defendants trouble 8 H. 4. 17. 20. Brit. 245. 32. Ass. 9. 42. E. 3. 26. Appellee acquit the Appellour was by the same Judgment without more Trouble imprison'd a Year and Day and was to repair the Damages of Credit Trouble Charges c. of Appellee besides undergo a grievous Ransom or Fine to the King and so was it of Abettors or Encouragers of the Prosecution Fleta 53. It was Death to appeal innocent Persons of any Mortal Crime 'till H. 1. brought it to Corporal Punishment and satisfying the Party grieved his Damages Mir. 250 251. So the Lawyers were punished for assisting the Accuser and a year and a day's Imprisonment inflicted on a Sergeant Lawyer Attorney or Clerk to use Deceit or Collusion in a Court or consent to it either in Favour of the Court or any Person else Fleta 87. Councellors were to be suspended Practise if tendered false Delays false Witnesses knowingly used Deceits Fictions or Untruths to the Court And were to swear not to maintain or defend any Wrong or Falsity Mir. 121 122. And it 's by a kind construction they be not yet lyable in several Cases to be punished as Barrettors Maintainers c. An Assize did lye against Councellors Attorneys c. by whose ill practice or means any one lost but a Free-hold in-Land Mir. 154. 209. Brit. 315. So Witnesses have formerly been punished severely In the Scripture the Story of Susanna the Witnesses are put to Death By Moses's Law it was Eye for Eye and Tooth for Tooth Life for Life c. against false Witnesses Deut. 19 21. By the Law Cornelâ—a amongst the Romans a Witness that occasioned another's Death by false Testimony lost his Head if one of the greater Quality else he was Hanged on the Cross or given to wild Beasts Simler Before the Conquest that of Moses was mostly so with us only sometimes it was Banishment c. Ll. Ed. c. 3. Ethelst c. 10. 25. Edm. c. 6. 35 c. Edw. Gru. c. 11. Aussi sont homicides devolunt juges tesmonis que fausses Mir. 34 36. False Judges and false Witnesses are guilty of wilfully killing Men. After it came to cutting out of Tongues Mir. c. 4. Ll. Canut c. 15. As for Judges they were accounted Disseissours if wronged any one in his Title Brit. 137. Mir. 154. 209. Brit. 315. In Scotland Judex qui ter malè judicasse convictus fuerit perdit Officium fit infamis Stat. Rob. 1. c. 28. A Judge convicted of having thrice ill judged loses his Office and is adjudged infamous Says Glanvil Tenetur Curia Judicium suum tueri per duellum maximè per illum qui Judicium reddidit Et quidem si Curia de falso Judicio convicta fuerit Dominus Curiae in misericordiâ Regis manet perpetuò Curiam amittit praeâ—rea tota Curia in misericordia Regis renanet Glanv 66. Altresi qui faus jugement fuit pert sa Were si il