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
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
part of Falshood Thus Twelve men ignorantly drop into a Perjury And will not every conscientious man tremble to pawn his Soul under the sacred and dreadful solemnity of an Oath to attest and justisie a Lie upon Record to all Posterity besides the wrong done to the Prisoner who thereby perhaps comes to be hang'd and so the Jury in soro conscientioe are certainly guilty of his Murther or at lesst by Fine or Imprisonment undone with all his Family whose just Curses will fall heavy on such unjust Jurymen and all their Posterity that against their Oaths and Duty occasion'd their causeless misery And is all this think you nothing but a matter of Formality Jurym. Yes really a matter of Vast Importance and sad Consideration yet I think you charge the mischiefs done by such Proceedings a little too heavy upon the Jurors Alas good men They mean no harm they do but follow the directions of the Court if any body ever happen to be to blame in such Cases it must be the Judges Barr. Yes forsooth That 's the Jury-mens common-plea but do you think it will hold good in the Court of Heaven 'T is not enough that we mean no harm but we must do none neither especially in things of that moment nor will Ignorance excuse where 't is affected and where duty obliges us to Inform our selves better and where the matter is so plain and easie to be understood As for the Judges they have a fairer plea than you and may quickly return the Burther back upon the Jurors for we may they say did nothing but our duty according to usual Practise the Jury his Peers had found the Fellow Guilty upon their Oaths of such an Odious Crime and attended with such vile presumptions and dangerous Circumstances They are Judges we took him as they presented him to us and according to our duty pronounced the Sentence that the Law inflicts in such Cases or set a Fine or ordered Corporal punishment upon him which was very moderate Considering the Crime laid in the Indictment or Information and of which they had so sworn him Guilty if he were innocent or not so bad as Represented let his Destruction lye upon the Jury c. At this rate if ever we should have an unconscionable Judge might he Argue And thus the Guilt of the Blood or ruin of an Innocent man when t is too late shall be Bandyed to and fro and shufled off from the Jury to the Judge and from the Judge to the Jury but really sticks fast to both but especially on the Jurors because the very end of their Institution was to prevent all dangers of such oppression and in every such Case they do not only wrong their own Souls and irreparably Injure a particular Person but also basely betray the Liberties of their Countrey in General for as without their ill-complyance and Act no such mischief can happen so by it ill precedents are made and the Plague is encreased honester Juries are disheartned or seduc'd by Custome from their Duties just Priviledges are lost by disuser and perhaps within a while some of themselves may have an hole pickt in their Coats and then they are Tryed by another Jury just as wise and honest and so deservedly come to smart under the Ruinating Effects and Example of their own Folly and Injustice Jurym You talk of Folly and blame Jury-men when indeed they cannot help it they would sometimes find such a Person Guilty and such an one Innocent and are perswaded they ought so to do but the Court over-rules and forces them to do otherwise Barr. How I pray Jurym. How Why did you never hear a Jury threatned to be Fined and Imprisoned if they did not comply with the Sentiments of the Court Barr. I have Read of such doings but I never heard or saw it done and indeed I do not doubt but our Seats of Justice are furnisht with both better men and better Lawyers than to use any such Menaces of Duress for undoubtedly 't is a base and very Illegal Practise But however will any man that fears God nay that is but an honest Heathen debauch his Conscience and forswear himself do his Neighbour Injustice betray his Countreys Liberties and consequently enslave himself and his Posterity and all this meerly because he is Hector'd and threaten'd a little Jurym. I know it should not sway with any but alas a Prison is terrible to most men whatever the Cause be And the Fine may besuch if one shall refuse to comply as may utterly ruin ones Family Barr. Fright not your self Jurors cannot be Fined or Imprisoned in any case for giving their Verdict according to their Consciences though contrary to the direction or sense of the Court. there is no cause for this Ague-sit to shake your Conscience out of Frame if you are Threatned t is but Brutum Fulmen Lightning without a Thunderbolt nothing but big words for it is well known That there is never a judge in England that can Fine or Imprison any Jury-man in such a Case Jurym. Good Sir I am half asham'd to hear a Barrister talk thus have not some in our memory been Fin'd and Imprison'd And sure that which has actually been done is not altogether Impossible Barr. Your Servant Sir Under favour of your mighty Wisdom and Experience when I said no Judge could do it I spake the more like a Barrister for t is a Maxim in Law Id possumus quod Jure possumus A man is said to be Able to do only so much as he may Lawfully do But such Fining or Imprisoning cannot Lawfully be done the Judges have no Right or Power by Law to do it and therefore it may well be said they cannot or are not able to do it And whereas you say that some Juries in our Memory have been Fined and imprisoned you may possibly say true But t is as true that it hath been only in our Memory for no such thing was practised in Antient times for so I find it asserted by a late Learned Judge d in these possitive words Lord Chief Justice Vaughan in his Reports fol. 146. No case can be offered either before Attaints granted in General or after that ever a Jury was punisht by Fine and Imprisonment by any Judge for not finding according to their evidence and his direction until Pophams time nor is there clear proof that he ever Fined them for that Reason seperated from other Misdemeanours And Fol. 152 he Affirms That no man can shew that a Jury was ever punisht upon an Information either at Law or in the Star-Chamber where the Charge was only for finding against their Evidence or giving an untrue Verdict unless Imbracery Subornation or the like were joyn'd So that you see the Attempt is an Innovation as well as unjust a thing unknown to our Fore-fathers and the Antient Sages of the Law and therefore so much the more to be watcht against resisted and suppressed whilst
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
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