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-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
the Direction of the Court in matter of Law shall be understood that if the Judge having heard the Evidence given in Court for he can regularly know no other though the Jury may shall tell the Jury upon this Evidence the Law is for the Plaintiff or the Defendant and the Jury are under pain of Fine and Imprisonment to Find accordingly then 't is plain the Jury ought of Duty so to do Now if this were true who sees not that the Iury is but a trouble some Doldy of great Charge much Formality and no real use in determining right and wrong but meer Ecchos to sound back the pleasure of the Court and consequently that Tryals by them might be better abolish'd than continued which is at once to spit Folly in the Faces of our Venerable Ancestors and enslave our Posterity 9. As the Iudge can never direct what the Law is in any Matter Controverted without first knowing the Fact so he cannot possibly know the Fact but from the Evidence which the Iury have but he can never fully know what Evidence they have for besides what is sworn in Court which is all that the Judge can know the Jury being of the Neighbourhood may and oft-times do know something of their own knowledge as to the Matter it self the Credit of the Evidence c. which may justly sway them in delivering their Verdict and which self knowledge of theirs is so far countenanced by Law that it supposes them capable thereby to try the Matter in Issue and so they must though no Evidence were given on either side in Court. As when any Man is Indicted and no Evidence comes against him the Direction of the Court always is You are to acquit him unless of your own knowledge you know him Guilty so that even in that Case they may find him Guilty without any Witnesses Now how absurd is it to think that any Iudge has power to Fine a Iury for going against their Evidence when he that so Fineth knoweth perhaps nothing of their Evidence at all as in the last Case or at least but some part of it For how is it possible he should lawfully punish them for that which it is impossible for him to know Lastly Is any thing more common than for two Lawyers or Iudges to deduce contrary and opposite Conclusions out of the same Case in Law And why then may not two Men infer distinct Conclusions from the same Testimony And consequently may not the Judge and Jury honestly differ in their Opinion or Result from the Evidence as well as two Iudges may which often happens and shall the Jury-men meerly for this difference of Apprehension merit Fine and Imprisonment because they do that which they cannot otherwise do preserving their Oath and Integrity especially when by Law they are presum'd to know better and much more of the Business than the Judge does as aforesaid Are not all these gross contradicting Absurdities and unworthy by any Man that deserves a Gown to be put upon the Law of England which has ever own'd Right Reason for its Parent and dutifully submitted to be guided thereby Jurym. If the Law as you say be Reason then undoubtedly this Practice of Fining of Juries is most Illegal since there cannot be any thing more unreasonable But what Authorities have you against it Barr. You have heard it proved to be a Modern up-start encroachment so you cannot expect any direct or express Condemnation of it in Ancient Times because the thing was not then set on Foot And by the way though Negative Arguments are not necessarily conclusive yet that we meet with no Precedents of old of Iuries Fined for giving their Verdict contrary to Evidence or the Sense of the Court is a violent presumption that it ought not to be done for it cannot be supposed that this latter Age did first of all discover that Verdicts were many times not according to the Iudges Opinion and Liking Undoubtedly they saw that as well as we but knowing the same not to be any Crime or punishable by Law were so Modest and Honest as not to meddle with it However what entertainment it hath met with when attempted in our Times I shall shew you in two remarkable Cases 1. When the late Lord Chief Iustice Keeling had attempted something of that kind it was complained of and highly resented by the then Parliament as appears by this Copy of their Proceedings thereupon taken out of their Journal as follows Die Mercurii 11. Decembris 1667. The House resumed the Hearing of the rest of the Report touching the matter of Restraint upon Juries and that upon the Examination of divers Witnesses in several Cases of Restraints put upon Iuries by the Lord Chief Iustice Keeling and thereupon Resolved as followeth First That the Proceedings of the said Lord Chief Iustice in the Cases now Reported are Innovations in the Tryal of Men for their Lives and Liberties And that he hath used an Arbitrary and Illegal Power which is of dangerous Consequence to the Lives and Liberties of the People of England and tends to the introducing of an Arbitrary Government Secondly That in the Place of Iudicature the Lord Chief Iustice hath undervalued vilified contemned Magna Charta the great Preserver of our Lives Freedom and Property Thirdly That he be brought to Tryal in order to condign Punishment in such manner as the House shall judge most fit and requisite Die Veneris 13. Decembris 1667. Resolved c. That the Precedents and Practice of Fining or Imprisoning of Iurors for giving their Verdicts is Illegal Here you see it Branded in Parliament Next you shall see it formally condemn'd on a solemn Argument by the Judges The Case thus At the Sessions for London Sept. 1670. William Pen The Sum of the Case of Bishel and the rest of Mr. Pen and Mr. Meads Jury and William Mead two of the People commonly called Quakers were Indicted for that they with others to the number of 300 on the 14th Aug. 22. Regis in Gray-Church-street did with Force and Arms c. unlawfully and tumultuously assemble and congregate themselves together to the disturbance of the Peace and that the said William Pen did there Preach and speak to the said Mead and other Persons in the open Street by reason whereof a great Concourse and Tumult of People in the Street aforesaid then and there a long time did remain and continue in contempt of our said Lord the King and of His Law to the great disturbance of his Peace to the great Terror and disturbance of many of His Liege People and Subjects to the ill example of all others in the like Case Offenders and against the Peace of our said Lord the King His Crown and Dignity The Prisoners Pleading Not Guilty it was proved that there was a Metting at the time in the Indictment mentioned in Gray-Church-street consisting of three or four hundred People in the open Street that William Pen was