to punish their fellow Subjects with the utmost or beyond the Rigor and contrary to the Intention of those Laws And whereas one of the late Acts allows an Appeal it may yet seem hard for an Englishman to be put to that after-game of a hopeless Tryal of his Appeal by a Jury when he is deprived of his first legal Guard a Grand Jury to whom by the Laudable and Ancient Vsage of England all Presentments and Indictments in Criminal Matters do belong And it is further to be considered that the Person who is brought into this Trouble may be under great Difficulties whether to desire or how to manage his Appeal when perhaps all his Goods by selling whereof he might provide Money to deposite as the Law requires before he can be admitted to Appeal are taken from him by Distress and at last his Appeal shall be tryed before the same Justices that inflicted the Penalty on him and also that the Prosecution at the Tryal shall be managed by the Informers who are to be Sharers of the Profit they can get by the poor Man's ruin These are some of the Considerations I could not omit to mention together with my wish that the good Reputation of our Ancient Laws may not be clouded by any more such New Laws as herein seem to imitate Ecclesiastical Courts where Proceedings are without Juries which it seems some of our Clergy in times past did think to bring to pass whereof though I could mention some Instances I shall only cite one fully to our purpose out of the Lord Cokes 2d part of Institutes being his Exposition on some Statutes fol. 599 c. where he saith It will conduce much to the understanding of this matter to report unto you what Articles Archbishop Bancrost exhibited in the Name of the Clergy in Michaelmas Term 3 Jacobi to the Lords of the Council against the Judges of the Realm Entituled Certain Articles of Abuses which are desired to be reformed in granting Prohibitions And the Answers thereunto upon mature Deliberation and Consideration in Easter Term following by all the Judges and Barons of the Exchequer with one unanimous consent under their Hands Resolutions which were by them delivered to the Lords of the Council and for distinction-sake because there might be occasion often to cite them called Articuli Cleri 3 Jacobi These Articles and their Answers being very long I must refer to be there read as being very material to be known how the Clergy endeavoured to get the multitude of Businesses into their Courts to be determined without Juries and so encroach upon and alter the Course therein of our good English Laws and Government At the end of those Articles and Answers the same Author further saith That the Clergy claimed to Interpret all Statute-Laws concerning the Clergy but it was resolved by all the Judges of England That the Interpretation of Statutes concerning the Clergy being a parcel of the Laws of the Realm belong to the Judges of the Common Law And saith Magna est veritas praevalet To which as agreeing to the truth thereof I may add Lex Angliae optima est praevalebit I would not have any of our present Clergy think I reflect on them for I truly and heartily Honour some of our Bishops and Dignified Clergy and any others of them whose soundness of Doctrine great Learning and good and sober Lives are and might be Examples for all the rest and for whose sake I bear Civil Respect to the rest that are not altogether so praise worthy as those Good and most Reverend Men to whom I bear my chief Respects but shall say no more of any of them here but that I hope they will leave off severe Punishing their fellow-Christians and for bear one another Col. 3. 13 And study to be quiet and meddle with their own Business 1 Thes. 4. 11. And that by a re-view of these Laws these things will in due time receive prudent and gentle as well as sufficient Cure and Remedy in Parliament And now Sir I hope you will pardon me for having perhaps been too tedious seeing your excellent Treatise contains so much on the behalf of Juries that all that I can say may seem needless and you may think fit to lay aside what I have written yet if it only have the effect to dispose you to let us know to whom we owe our Acknowledgments for your so good Book which is fit for every English-man who may think himself concerned in our Rights to read and understand I shall think it enough to testifie that among those you will infinitely Oblige thereby I shall desire to be Dec. 29. 1681. Your Friend and Servant J. M. I Shall here add a necessary Post script concerning 3 H. 7. Cap. 1. Wherein there is a Clause how in some special Case a Jury of Enquiry may be fined That it only concerns such Matters and Offences whereof Indictments may be brought before Justices of the Peace in their County Sessions if the matter plain and fully proved and they wilfully conceal the same the said Justices of the Peace might cause a new Inquest to be returned but the words take Inquest do not give the Justices power to name who shall be returned which is the Sheriffs Office and it is to be only and purposely to enquire of such Concealment and doth not extend to enquire of any other Offences whatsoever and then after such wilful Concealment is found by such Inquest The same Justices of the Peace in the County Sessions might fine the Jury of the former Inquest By which may be observed That the said clause of the said Act of 3 H. 7. doth fully and clearly prove that by the common Law Juries were not finable concerning their Presentments Indictments and Verdicts And even that Clause since that time being One hundred Ninety and four Years or thereabouts hath seldom or never been used Our Books of Reports of Law-Cases not affording any plain or full Instance of any Proceeding on that Clause of that Statute Therefore it may seem as Littleton saith in his Book Sect. 108. That in as much as it was never seen or heard that any Action was brought on the Statute of Merton which was made 20 H. 3. For the matter he treats of in that Section no Action could be brought thereon For if any Action might have been brought for that matter it shall be intended that it would some time or other have been put in ure And with this agrees the Ld. Coke in his Comment on that place And also the Judges in their Arguments on a late case of Action brought on the Statute about the Return of Members of Parliament did cite the said place of Littleton By which appears concerning such unusual manner of final Juries by the Clause of 3 H. 7. how there ought to be great Caution in Executing any Acts or Statutes where they alter the Common Law and Course thereof seeing that Act of 3 H. 7. in that particular and other memorable things therein made then such Alterations of the Common Law of this Realm as I forbear any further here to mention FINIS
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
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