young lest in time this crafty Cockatrices Egg hatcht and fosterd by Ignorance and pusillanimous Compliance grow up up into a Serpent too big to be master'd â—and so Blast and destroy the First-Born of our English Freedoms And indeed Blessed be God it hath hitherto been rigorously opposed as often as it durst Crawl abroad being Condemned in Parliament and knockt o' th head by the Resolutions of the Judges upon solemn Argument As by and by I shall demonstrate Jurym. Welle but are Iurors not liable then to Fine or Imprisonment in any Case whatsoever Barr. Now you run from the Point Juries Office partly Ministerial partly Judicial Vaughan Repfo 152. we were talking of giving their Verdict and you speak of any Case whatsoever Whereas you should herein observe a necessary distinction which I shall give you in the words of that Learned Iudge last Cited e Much of the Office of Jurors in order to their Verdict is Ministerial as not withdrawing from their Fellows after they are Sworn not receiving from either side Evidence not given in Court Not eating and drinking before their Verdict Refusing to give a Verdict c. Wherein if they Transgress they may be finable But the Verdict in self when given is not an Act Ministerial but Judicial and supposed to be according to the best of their Judgment for which they are not Finable nor to be punisht but by Attaint that is by another Jury in Cases where an Attaint lies and where it shall be found that Wilsully they gave a Verdict false and Corrupt Now that Iuries otherwise are in no Case punishable nor can for giving their Verdict according to their Consciences and the best of their Judgment be Legally Fined or Imprisoned by any Iudge on Colour of not going according to their Evidence or finding contrary to the directions of the Court is a truth both founded on unanswerable Reasons and Confirmed by Irrefragable Authorities Jurym. Those I would gladly hear Barr. They are many but some of the most evident are these that follow As for Reasons 1. A Iury ought not to be Fined or Imprisoned because they do not follow the Iudges directions for if they do follow his directions they may yet be Attainted and to say they gave their Verdict according to his directions is no Barr but the Iudgment shall be revers'd and they punisht for doing that which if they had not done they should by this Opinion have been Fined and Imprisoned by the Iudge for not doing it Which is Vnreasonable 2. If they do not follow his direction and be therefore Fined yet they may be Attainted and so they should be doubly punisht by distinct Iudicatures for the same Offence which the Common Law never admits 3. To what end is the Jury to be return'd out of the Vicinage that is the neighbourhood whence the issue ariseth To what end must Hundredors be of the Jury whom the Law supposeth to have neare knowledge of the Fact than those of the Vicinage in general To what end are they challeng'd so scrupulously to the Array and Pole to what end must they have such a certain Freehold and be Probi legales homines and not of Affinity with the Parties concerned c. If after all this they implicitely must give a Verdict by the Dictates and Authority of another Man under pain of Fines and Imprisonment when sworn to do it according to the best of their own knowledge a Man cannot see by anothers Eye nor hear by anothers Ear no more can a Man conclude or infer the thing to be resolved by anothers understanding or reasoning unless all Mens understandings were equally alike and if meerly in compliance because the Iudge says thus or thus a Iury shall give a Verdict though such their Verdict should happen to be right true and just yet they being not assured it is so from their own understanding are for sworn at least in Foro Conscientiae 4. Were Jurors so finable then every Major and Bailiff of Corporations all Stewards of Leets Justices of Peace c. whatever Matters are try'd before them shall have Verdicts to their minds or else Fine and Imprison the Jurors till they have so that such must be either pleased humored or gratified else no Justice or Right to be had in any Court 5. Whereas a Person by Law may Challenge the Sheriff or any Jury-man if of Kin to his Adversary yet he cannot challenge a Major Recorder Justice c. who 't is possible will have a Verdict for their Kinsman or against their Enemy or else Fine and Imprison the Jury till they have obtained it so that by this means our Lives Liberties and Properties shall be solely tryed by and remain at the Arbitrary dispose of every mercenary or corrupted Justice Major Bailiff or Recorder if any such should at any time get into Office 6. 'T is unreasonable that a Jury should be Finable on pretence of their going against their Evidence because it can never be Tryed whether or no in truth they did find with or against their Evidence by reason no Writ of Error lies in the Case 7. Were Jury-men liable to such Arbitrary Fines they should be in a worse condition than the Criminals that are tryed by them for in all Civil Actions Informations and Indictments some Appeals or Writs of false Judgment or of Error do lie into Superior Counts to try the regular Proceedings of the Inferior But here can be no After-Tryal or Examination but the Jury-man if Fining at all were lawful must either pay the Fine or lie by it without remedy to decide whether in his particular Case he were legally Fined or not 8. Without a Fact agreed it is as impossible for a Judge or any other to know the Law relating to that Fact or direct concerning it as to know an Accident that hath no Subject for as where there is no Law there is no Transgression so where there is no Transgression there is no place for Law for the Law saith Divine Authority is made for the Transgressor And as Cook tells us Ex facto Jus oritur upon slating the Fact or Transgression matter of Law doth arise or grow out of the Root of the Fact Now the Jury being the sole Judges of Fact and Matter in Issue before them not finding the Fact on which the Law should arise cannot be said to find against Law which is no other than a Superstructure on Fact so that to say they have found against the Law when no Fact is found is absurd an expression insignificant and unintelligible for no Issue can be joyned of matter in Law no Jury can be Charged with the Tryal of matter in Law barely no Evidence even was or can be given to a Jury of what is Law or not Nor can any such Oath be given to or taken by a Jury to try matter in Law nor does an Attaint for such Oath if false c. But if by finding against
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
long continued use of Juries and the zealous regards our Ancestors had not to part with them I perceive that they were esteemed a special priviledg Be pleased therefore to acquaint me wherein the excellency and advantages to the people by that method of trial above others may consist B. This question shew See all this excellently made out and more at large by the L. C. J. Fortescue afterwards Chancellor to K Hen. 6. in his Book De laudibus Legum Angliae cap. 26 27 28 29. you have not been much conversant abroad to observe the miserable condition of the poor people in most other Nations where they are either wholly subject to the despotick arbitrary lusts of their Rulers or at best under such Laws as render their Lives Liberties and Estates liable to be disposed of at the discretion of strangers appointed their Judges most times mercinary and Creatures of Prerogative sometimes malicious and oppressive and often partial and corrupt Or suppose them never so just and upright yet still has the Subject no security against the attacks of unconscionable Witnesses yea when there is no sufficient Evidence upon bare suspicions they are obnoxious to the Tortures of the Rack which often make an innocent man confess himself guilty meerly to get out of present pain Is it not then an inestimable happiness to be born and live under such a mild and righteous Constitution wherein all these mischiefs as far as humane prudence can provide are prevented where none can be condemn'd either by the power of superior enemies or the rashness or ill will of any Judg nor by the bold Affirmations of any profligate evidence But no less than Twelve honest substantial impartial men his neighbours who consequently cannot be presumed to be unacquainted either with the matters charged the Prisoner's course of life or the credit of the Evidence must first be fully satisfied in their Consciences that he is guilty and so all unanimously pronounce him upon their Oaths Are not these think you very material priviledges J. Yes certainly though I never so well consider'd them before But now I plainly see our forefathers had and we still have all the reason in the world to be zealous for the maintenance and preservation thereof from subversion or encroachments and to transmit them intire to posterity For if once this bank be broken down or neglected an ocean of oppression and the ruins of infinite numbers of people as in Empson and Dudley's days may easily follow when on any pretence they may be made Criminals and then fined in vast sums with pretext to enrich the Kings Coffers but indeed to feed those insatiate Vultures that promote such unreasonable Prosecutions The Office and power of Juries But since you have taught me so much of the antiquity and excellency of Juries I cannot but crave the continuance of your favour to acquaint me somewhat more particularly of their office and power by Law B. See Cook 4th part of Instit fol. 84. I shall gladly comply with so reasonable and just a request A Jury of twelve men are by our Laws the only proper Judges of the matter in issue before them As for instance 1. That Testimony which is delivered to induce a Jury to believe or not to believe the matter of Fact in issue is called in Law EVIDENCE because thereby the Jury may out of many matters of Fact Evidere verilatem that is see clearly the truth of which they are proper Judges 2. When any matter is sworn Deed read or offered whether it shall be believed or not or whether it be true or false in point of Fact the Jurors are proper Judges 3. Whether such an act was done in such or such a manner or to such or such an intent the Jurors are Judges For the Court is not Judg of these matters which are evidence to prove or disprove the thing in issue And therefore the Witnesses are always ordered to direct their speech to the Jury they being the proper Judges of their Testimony And in all Pleas of the Crown or matters Criminal the Prisoner is said to put himself for trial upon his Country which is explained and referred by the Clerk of the Court to be meant of the Jury saying to them Which Country you are J. Well then what is the part of the Kings Justices The office of the Court in Trials or the Court what are they to take cognizance of or do in the Trials of mens Lives Liberties and Properties B. Their office in general is to do equal justice and right particularly 1. To see that the Jury be regularly return'd and duly sworn 2. To see that the Prisoner in cases where 't is permittable be allowed his lawful challenges 3. To advise by Law whether such matter may be given in evidence or not such a writing read or not or such a man admitted to be a witness c. 4. Because by their learning and experience they are presum'd to be best qualified to ask pertinent questions and in the most perspicuous manner soonest to sift out truth from amongst tedious impertinent Circumstances and Tautologies they therefore commonly examine the Witnesses in the Court yet not excluding the Jury who of right may and where they see cause ought to ask them any necessary questions which undoubtedly they may lawfully do with modesty and discretion without begging any leave For if asking leave be necessary it implies in the Court a right when they list to deny it and how then shall the Jury know the truth And since we see that Council who too often Pudet haec opprobria nobis for their fees strive only to baffle Witnesses and stifle Truth take upon them daily to interrogate the evidence 't is absurd to think that the Jurors should not have the same priviledg who are upon their Oaths and proper Judges of the matter 5. As a discreet and lawful Assistant to the Jury Vanghan's Reports in Bushell's Case fol. 144. they do often recapitulate and sum up the heads of the Evidence but the Jurors are still to consider whether it be done truly fully and impartially for one mans memory may sooner fail than Twelve's He may likewise state the Law to them that is deliver his opinion where the case is difficult or they desire it But since Ex facto jus oritur all matter of Law arises out of matter of Fact so that till the Fact is setled there is no room for Law therefore all such discourses of a Judg to a Jury are or ought to be Hypothetical not coercive conditional and not positive viz. If you find the fact thus or thus still leaving the Jury at liberty to find as they see cause then you are to find for the Plaintiff But if you find the Fact thus or thus then you are to find for the Defendant or the like Guilty or not guilty in cases Criminal Lastly They are to take the Verdict of the Jury
and thereupon to give judgment according to Law For the office of a Judg as Cook well observes is jus dicene not jus dare not to make any Laws by strains of wit or forced Interpretations but plainly and impartially to declare the Law already establisht Nor can they refuse to accept the Juries Verdict when agreed For if they should and force the Jury to return and any of them should miscarry for want of accommodation it would undoubtedly be murder and in such case the Jury may without crime force their liberty because they are illegally confined having given in their Verdict and thereby honestly discharged their office and are not to be starv'd for any mans pleasure J. How Jurors are Judges of Law as well as Fact But I have been told That a Jury is only Judg of naked matter of fact and are not all to take upon them to meddle with or regard matter of Law but leave it wholly to the Court. B. 'T is most true Jurors are Judges of matters of Fact that is their proper Province their chief business but yet not excluding the consideration of matter of Law as it arises out of or is complicated with and influences the Fact For to say they are not at all to meddle with or have respect to Law in giving their Verdicts is not only a false position and contradicted by every days experience but also a very dangerous and pernicious one tending to defeat the principal end of the Institution of Juries and so subtilly to undermine that which was too strong to be batter'd down 1. It it false for though the direction as to matter of Law separately may belong to the Judg and the finding the matter of Fact does peculiarly belong to the Jury yet must your Jury also apply matter of Fact and Law together and from their consideration of and a right judgment upon both bring forth their Verdict For do we not see in most General issues as upon not guilty pleaded in trespass breach of the peace or Felony though it be matter in Law whether the party be a trespasser a breaker of the Peace or a Felon yet the Jury do not find the Fact of the case by it self leaving the Law to the Court but find the party guitly or not guilty generally So as though they answer not to the question singly what is Law yet they determine the Law in all matters where Issue is join'd So likewise is it not every days practise that when persons are Indicted for murther the Jury does not only find them guilty or not guilty but many times upon hearing and weighing of circumstances brings them in either guilty of Murther Manslaughter per Infortunitus or se-defendendo as they see cause Now do they not herein complicately resolve both Law and Fact And to what end is it that when any person is prosecuted upon any Statute the Statute it self is usually read to the Jurors but only that they may judg Whether or no the matter be within that Statute But to put the business out of doubt we have the suffrage of that Oracle of Law Littleton who in his Tenures Sect. 368. declares That if a Jury will take upon them the knowledg of the law upon the matter they may Which is agreed to likewise by Cook in his Comment thereupon And therefore 't is false to say That the Jury hath not power or doth not use frequently to apply the Fact to the Law and thence taking their measures judg of and determine the crime or issue by their Verdict 2. As Juries have ever been vested with such power by Law so to exclude them from or disseize them of the same were utterly to defeat the end of their institution For then if a person should be Indicted for doing any common innocent act if it be but clothed and disguised in the Indictment with the name of Treason or some other high crime and prov'd by Witnesses to have been done by him the Jury though satisfied in Conscience that the Fact is not any such offence as 't is called yet because according to this fond opinion they have no power to judg of law and the fact charged is fully prov'd they should at this rate be bound to find him guilty And being so found the Judg may pronounce sentence against him for he finds him a convicted Traytor c. by his Peers And thus as a certain Physician boasted That he had kill'd one of his Patients with the best method in the world So here should we have an innocent man hang'd drawn and quarter'd and all according to law J. God forbid that any such thing should be practised and indeed I do not very fully understand you B. I do not say it ever hath been and I hope it never will be practised But this I will say that according to this Doctrine it may be and consequently Juries may thereby be rendred rather a snare or engine of oppression than any advantage or Guardian of our Legal Liberties against Arbitrary Injustice and made meer properties to do the drudgery and bear the blame of unreasonable Prosecutions And since you seem so dull as not to perceive it let us put as Imaginary case not in the least to abet any irreverence towards his Majesty but only to explain the thing and shew the absurdness of this opinion Suppose then a man should be Indicted For that he as a false Traytor not having the fear of God before his eyes c. did trayterously presumptuously against his Allegiance and with an intent to affront his Majesties Person and Government pass by such or such a Royal Statue or Effigies with his hat on his head to the great contempt of His Majesty and his Authority the evil example of others against the Peace and his Majesties Crown and Dignity Being hereupon arraigned and having pleaded Not guilty suppose that sufficient evidence should swear the matter of Fact laid in the Indictment viz. That he did pass by the Statue or Picture with his hat on now imagine your self one of the Jury that were sworn to try him What would you do in the matter J. Do Why I should be satisfied in my Conscience That the man had not herein committed any crime and so I would bring him in not Guilty B. You speak as any honest man would do But I hope you have not forgot the point we were upon suppose therefore when you thought to do thus the Court or one of your Brethren should take you up and tell you That it was out of your power so to do For look ye saith he my Masters An ordinary Jury-man's wise Speech we Jury-men are only to find matter of Fact which being fully prov'd as in this case before us it is we must find the party Guilty whether the thing be Treason or not does not belong to us to inquire 't is said so here you see in the Indictment and let the Court look to that they know