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
Ethelreds Laws In singulis Centuriis c. In every Hundred let there be a Court and let Twelve ancient Free-men together with the Lord or rather according to the Saxon the Greve i. e. the chief Officer amongst them be sworn That they will not condemn any person that is Innocent nor acquit any one that is guilty 3. When the Normans came in William though commonly called the Conquerour Continued by the Normans See Spelmans Glossar in the word Jurata was so far from abrogating this Priviledg of Juries That in the 4th year of his Reign he confirmed all King Edward the Confessors Laws and the ancient Customs of the Kingdom whereof this was an essential and most material part Nay he made use of a Jury chosen in every County to report and certifie on their Oaths what those Laws and Customs were as appears in the Proem of such his Confirmation 4. Confirmed by Magna Charta Afterwards when the Great Charter commonly called Magna Charta which is nothing else than a recital confirmation and corroboration of our Ancient English Liberties was made and put under the Great Seal of England in the 9th year of King Henry the 3d which was Anno Domini 1225. Then was this Priviledg of Tryals by Juries in an especial manner confirmed and establisht as in the 14th Chapter That no Amercements shall be assessed but by the Oath of good and honest men of the Vicinage And more fully in that Gold on Nine and twentieth Chapter No Freeman shall be taken or imprisoned nor be disseized of his Freehold or Liberties or free customs or be out-law'd or exil'd or any other way destroyed nor shall we pass upon him or condemn him but by the lawful judgment of his Peers c. Which Grand Charter having been confirmed by above thirty Acts of Parliament the said right of Juties thereby and by constant usage and common custom of England which is the common Law is brought down to us as our-undoubted Birth-right and the best inheritance of every English man For as that famous Lawyer Chief Justice Cook in the words of Cicero excellently avers 2. Institutes fol. 56. Major Hereditas venit unicuique nostrum a jure legibus quam a parentibus 'T is a greater inheritance and more to be valued which we derive from the fundamental constitution and Laws of our Country than that which comes to us from our respective Parents For without the former we have no claim to the latter J. But has this method of Trial never been attempted to be invaded or justled out of practice B. 'T is but rarely that any have arrived to so great a confidence Essays made to overthrow Trials by Juries always unsuccessful and severely punisht For 't is a most dangerous thing to shake or alter any of the rules or fundamental points of the common Law which in truth are the main pillars and supporters of the fabrick of the Commonwealth These are Judg Cooks words ⋆ 2. Institutes pag. 74. Yet sometimes it has been endeavoured But so sacred and valuable was the Institution in the eyes of our Ancestors and so tenacious were they of their Priviledges and zealous to maintain and preserve such a vital part of their Birth-right and Freedom that no such attempts could ever prove effectual but always ended with the shame and severe punishment of the rash undertakers For example 1. Andrew Horn an eminent Lawyer in his Book Entituled The Mirrour of Justices written in the Reign of K. Edw. 1. now near 400 years ago in the fifth Chapter and first Section records That the renowned Saxon King Alfred caused four and forty Justices to be hang'd in one year as murtherers for their false Judgments And there recites their particular Crimes most of them being in one kind or other Infringements Violations and Encroachments of and upon the Rights and Priviledges of Juries amongst the rest that worthy Author tells us he hanged one Justice Cadwine because he judged one Hackwy to death without the consent of all the Jurors for whereas he stood upon his Jury of twelve men because three of them would have saved him this Cadwine removed those three and put others in their room on the Jury against the said Hackwy 's consent Where we may observe that though at last twelve men did give a Verdict against him yet those so put upon him were not accounted his Jurors by reason all or any of them who were first sworn to try him could not by Law be removed and others put in their stead And that such illegal alteration was then adjudged a Capital Crime and forthwith the said Cadwine was Hang'd 2. A second instance I shall give you in the words of the Lord Chief Justice Cook Against this ancient and fundamental Law and in the face thereof there was in the 11. year of King Henry 7. Cook 2. part of Institutes fol. 51. cap. 3. an Act of Parliament obtained on fair pretences and a specious preamble as to avoid divers-mischiefs c whereby it was Ordain'd That from thenceforth as well Justices Assize as Justices of the Peace upon a bare Information for the King before them made without any finding or presentment by the Verdict of Twelve men should have full power and authority by their discretions to hear and determine all offences and contemts committed or done by any person or persons against the Form Ordinance or effect of any statute made and not repealed c. By colour of which Act saith Cook shaking this Fundamental Law he means touching all Trials to be by Juries it is not credible what HORRIBLE OPPRESSIONS and EXACTIONS to the undoing of MULTITUDES of people were committed by Sir Richard Enipson Knight and Edmund Dudley Esq being Justices of the Peace throughout England and upon this unjust and injurious Act as commonly in like cases it falleth out a new Office was erected and they made Masters of the Kings Forfeitures But not only this Statute was justly soon after the decease of Hen. 7. repealed by the Statute of the 1 Hen. 8. cap. 6. but also the said Empson and Dudley notwithstanding they had such an Act to back them yet it being against Magna Charta and consequently void were fairly executed for their pains and several of their under agents See Sir Rich. Bakers Chron. p. 273. as Promoters Informers and the like severely punisht for a warning to all others that shall dare on any pretence whatsoever infringe our English Liberties For so the Lord ⋆ 4 part Instit fol. 41. Cook having elsewhere with detestation mentioned their story pathetically concludes Qui eorum vestigiis insistant exitus perhorrescant Let all those who shall presume to tread their steps tremble at their dreadful end Other Instances of a latter date might be given but I suppose these may suffice J. Yes surely The benefits of being tried by Juries and by what you have discoursed of the
sift out the truth or discover the Villainy And for your better satisfaction endeavour to write down the evidence or the Heads thereof that you may the better Recall it to memory 4. Take notice of the nature of the Crime charged and what Law the Prosecution is grounded upon and distinguish the supposed Criminal Fact which is proved from the aggravating Circumstances which are not proved 5. Remember that in Juries there is no Plurality of Voices to be allowed 7 cannot over-rule or by vertue of Majority Conclude 5. no nor 11 1. But as the Verdict is given in the name of all the 12 or else it is void So every one of them must be actually agreeing and satisfied in his particular Understanding and Conscience of the truth and Righteousness of such Verdict or else he is forsworn and therefore if one man differ in Opinion from his fellows they must be kept together till either they by strength of Reason or Argument can satisfy him or he convince them For he is not to be Hecktor'd much less punisht by the Court into a Compliance Rep. fol. 151. for as the L. Ch. Justice Vanghan says well if a man differ in Judgment from his Fellows whereby they are kept a day and a night though his dissent may not in truth be as reasonable as the Opinion of the rest that agree yet if his Judgment be not satisfied one disagreeing can be no more Criminal than four or five disagreeing with the rest Upon which occasion the said Author recites a remarkable Case out of an antient Law-Book a Juror would not agree with his fellows for two days 41 Iss p. 11. and being demanded by the Judges if he would agree said he would first die in Prison whereupon he was Committed and the Verdict of the the eleven taken but upon better Advice the Verdict of the eleven was Quasht and the Juror discharged without Fine and the Justices said the way was to carry them in Carts this is to be understood at Assizes where the Judges cannot stay but must remove in such a time into another County until they agreed and not by Fining them And as the Judges err'd in taking the verdict of Eleven so they did in Imprisoning the Twelve And therefore you see on second thoughts Reales'd him 6 Endeavour as much as your Circumstances will permit at your spare Hours to Read and Understand the Fundamental Laws of the Country such as Magna Charta the Petition of Right the late excellent Act for Habeas Corpus's Horns Mirrour of Justices Sir Edw. Cook in his 2d 3d and 4th parts of the Institutes of the Law of England and Judge Vaughans Reports these are Books frequent to be had and of excellent use to inform any Reader of Competent Apprehension of the true Liberties and Priviledges which every English man is Justly Intituled unto and Estated in by his Birth-right as also the nature of Crimes and the punishments severally and respectively Inflicted on them by Law the Office and duties of Judges Juries and all Officers and Ministers of Justice c. Which are highly necessary for every Jury-man in some Competent measure to know for the Law of England hath not placed Tryals by Juries to stand between men and Death or Destruction to so little purpose as to Pronounce men Guilty without regard to the nature of the Offence or to what is to be Inflicted thereupon For want of duly understanding and considering these things Juries many times plunge themselves into lamentable perplexities as it befel the Jury who were the Tryers of Mr. Vdal a Minister who in the 32d year of Q. Eliz. was Indicted and Arraigned at Creydon in Surry for High-Treason for defaming the Queen and Her Government in a certain Book Intituled A Demonstration of the Discipline c. And though there was no Direct but a scambling Shadow of Proof and though the Book duly considered contained no matter of Treason but certain words which by a forced construction were laid to tend to the defamation of the Government and so the thing prosecuted under that Name yet the Jury not thinking that in pronouncing him Guilty they had upon their Oath pronounced him Guilty of Treason and to die as a Traitor but supposing that they had only declared him Guilty of making the Book hereupon they brought him in Guilty but when after the Judges Sentence of Death against him which they never in the least intended they found what they had done they were confounded in themselves and would have done any thing in the world to have Revok'd that unwary pernicious Verdict when alas it was too late Dr. Fuller has this witty note on this witty Gentlemans Conviction that it was Conceived rigorous in the greatest which at best saith he is Cruel in the least Degree And it seems so Queen Elizabeth thought it for she suspended Execution and he dyed naturally But his Story survives to warn all Succeeding Jury-men to endeavour better to understand what it is they do and what the Consequences thereof will be 7. As there is nothing I have said intended to encourage you to partiality or tempt any Jury-man to a Connivance at Sin and Malefactors whereby those Pests of Society should avoid being brougt to condign punishment and so the Law cease to be a terror to evil-doers which were in him an horrible Perjury and indeed a foolish Pitty or Crudelis misericordia a Cruel Mercy for he is highly injurious to the Good that absolves the Bad when real Crimes are proved against them so that I must take leave to say That in Cases where the matter is dubious both Lawyers and Divines prescribe rather favour than rigour an eminent and learned Judge ⋆ Fortesene Ca. 27. of our own has in this Advice and Wish gone before me Mallem reverà viginti Facinorosos mortem pictate evadere quam justion unum injustè condemnari I verily saith he had rather twenty evil-doers should escape death through Tenderness or Pitty than that one Innocent Man should be unjustly condemned I shall conclude with that excellent Advice of my Lord Cook ⋆ In the Epilogue of his 4th Part of Institutes which he generally addresses to all Judges but may no less properly be applyed to Jurors Fear not to do Right to all and to deliver your Verdicts justly according to the Laws for Fear is nothing but a betraying of the Succours that Reason should afford and if you shall sincerely execute Justice be assured of three Things 1. Though some may malign you yet God will give you his Blessing 2. That though thereby you may offend Great Men and Favourites yet you shall have the favourable Kindness of the Almighty and be his Favourites And lastly That in so doing against all scandalous Complaints and pragmatical Devices against you God will defend you as with a Shield mdash For than Lord wilt give a Blessing unto the Righteous Psal 5.15 and with thy favourable Kindness wilt thou defend him as with a Shield FINIS