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
strike them out of the Bill c. If be then consider if they be true on your own knowledge or by the Evidence given you if be then find the Bill c. if not they must be struck out or the Bill return'd Ignoramus c. As for Example The matter must be Criminal and Considerable This partly appears before but further Suppose the Apprentice of A. get a Woman with Child and secretly run away upon it and A. procure a Warrant to Apprehend him for it But B. a Stranger knowing of the Warrant Lodges Comforts and Assists the Apprentice in unknown places that the Warrant cann't be served the Stranger is not punishable 15 Jac. B. R. Vaughan's c. If a Commission be granted to two and one of them execute it alone without the other and accordingly Fine People c. yet no Indictment lies for it was an Error of Judgment 27 Ass. 23. If one say to a Justice of Peace Executing his Office at his House c. and not on the Bench certain scandalous words touching his Office of Justice yet he may not be Indicted for it Hides c. Trin. 11. C. 1. B. R. And so was Sir Sackfield's c. these being all inconsiderable Faults And as to whether the Circumstances or other matter than the Principal be material or not Those words or parts be only words of Form and but those only which are necessarily implyed as that if the Principal or the rest be true these must be so too and cann't possibly be otherwise and thus become needless to be proved being before proved as and by the necessary consequence of the other Proof so he that proves a Shadow proves also a Body since there must be a Body to cause it and those words be material which may cause a different Judgment or Punishment or that aggravate the Fault make it greater of another Nature or any wise alter it and therefore are not to be presumed but must be proved The Jury must observe also whether consistent as an Indictment of or for Felony saying that one such a Day Feloniously cut down such Trees and carried them away or with Force and Arms such a dav cut down such and such Trees and Feloniously carried them away this is inconsistent for Felony can never be about standing Trees Indict 4. So of growing Apples of Houses or any thing fixed to the Free-hold But all it can amount to is only Trespass unless the falling appear by the Indictment to be one time and the carrying away another So if a Mad-man a Child c. which have no Discretion be said to do things maliciously or designing any thing this is inconsistent or impossible in as much as no Malice or Design can be in such If necessarily implyed for if be not they must be proved c. Every Jury must go by Probata what 's proved as well as Allegata what is only alledged Where one's Accused of knowingly keeping a Dog wont to worry Sheep c. the knowledge must be proved as well as the rest Cockrain and Davies c. B. R. 17 C. 1. So the Lord Shaftsbury when sued Lord Digby for maliciously speaking such and such words he proved the malice as well as words If one pleads a Feoffment by Deed and the other denies it it must be proved to be by Deed Co. L. 281 b So if one be Indicted of Murder as that he with Malice Fore-thought killed such a one the Malice fore thought must be proved for in these Cases the killing might be either by chance as the Glance of an Arrow c. by giving Physick by a Champion in Tryal by Battel by a Hang-man doing his Office or by one non Compos mentis c. In which Cases is no Malice and and therefore the Indictment not to be found So the Words might be spoke in Jest or a Thousand other ways and not maliciously So one might keep such a Dog and not know he was such and the Fault would then be none at all in him The Law also may several times be broke in the Letter yet without any Fault if the Intent of the Law be not broke As when things are done to avoid a greater Inconveniency or by Compulsion or for Necessity or by involuntary Ignorance c. And in these and such like Cases the Party ought not be Indicted though the matter be true in it self The Romans had a Law He should dye that climbs over the Wall in the Night yet one doing so to discover their Enemies was by the Senate adjudged Innocent and Rewarded So it 's Lawful with us to pull down another's House when a Fire happens or in Time of War to prevent a greater Mischief So one being to appear to a Writ but hindred by Floods Sickness c. does not he is Excused One forces and uses one's hand to kill a third Person he is only Guilty So an Infant or one non sanae memoriae kills another it 's excusable So that where any Fact or Words in an Indictment might be as well under any of these Circumstances as what other the Clerk or Prosecutor is pleased to alledge these alledged must be proved for it 's plain are not necessarily implyed And yet if a Man should do any wise thus the Clerks will draw up the Indictment or Information as if none of these Circumstances were in the Case but that it was Maliciously in contempt of the Laws c. So it seems hard a Man should be Hanged for stealing under a Necessity where the taking is upon absolute Necessity indeed and it 's not the Parties Fault but Misfortune he fell into such Necessity And especially if the Party whom the taking is from have not the like necessity for the same thing or the Person that takes be very Serviceable or Profitable to the Kingdom or Common Good c. yet he must be though the thing so taken be not of the Value of 13 d. if the Jury agree he did it Feloniously whereas one Guilty of Perjury though does one a Hundred thousand times more harm shall only suffer an inconsiderable Rebuke And why should a Jury in this Case find it done Feloniously this was done under Force and Necessity to preserve a Man's Life c. instead of an House c. and what 's said Felonious must be Felleo animo with an ill affected Mind with a Mind not barely to do the thing but an itching also to do Mischief only this itching indeed shall be presumed unless Cause appear to the contrary As if one takes a thing out of another's Possession claiming it with some colour as his own c. this is adjudged no Felony Why for not done with any Felonious Intent as appears by his claiming c. So the like Stealing as aforesaid was not for Mischief sake at all but for Necessity c. Thus David against the Law took and eat that Bread which was provided for the Table of God only Exod. c. 29. 1 Kings
Cardinal Deacon without twenty six or at least twenty four against a Cardinal Presbyter but with sixty four or at least forty four nor against a Cardidal Bishop without seventy two Witnesses Lamb. 178. The general Rule is In one dûum vel trium stet omne verbum si modo sint omni exceptione majores Two or three Witnesses be enough if lyable to no Exception Any one Person may invent or contrive any Story for Malice or Envy or other End to take away another's Life c. And who can disprove or detect him But it 's not so easie for two to do it yet two may possibly also agree and contrive an Evidence together and so form it and frame Circumstances all agreed of before-hand between them that being false it may yet seem very plausible The Children of this World be wiser than the Children of Light Jezebel had two Witnesses against Naboth and two Witnesses were against Chaste Susanna to prove her Avoutry yet both â—ad false Evidence against them Sussanna was acquitted only because the Witnesses differed what Tree it was unde In all Tryals whatsoever in England either at Civil Law or Common Law where is no Jury there all will confess must be two Witnesses at least Co. L. 6. b And always that Witnesses are to be joyned to the Jury they must be two at least ibid. And in any Law any where must be always two Witnesses at least and no place can be pretended of otherwise except only England And that it should be so here even when there is a Jury too see 48 Ass 5. Barrec 241. Enquest 42. Bract. l. 5. 400. 48 E. 3. 30. And so is expresly Mir. c. 3. c. Fortesc 73. Co. L. 6. b Inst. 3. 26. And so it was agreed in B. C. Trin. 9. El. And the only Reason why it should be otherwise is as aforesaid that the Jury be presumed to know themselves to the Value of one Witness more But if it so fall out that really they know nothing themselves then should they find one Guilty upon a single Testimony they make that Law which other wise could not be Law and find one Guilty the Law would have acquitted and thus a Tryal by a Jury would be less safe and more destructive than any other in all the whole World again The Jury thus make one Witness as good as a thousand for had a thousand Witnessed the Jury could have done no more This would occasion great Mischiefs Perjuries and other Inconveniencies A. then being sufficiently Malicious or Interested and so designing B's Death an Italian would Poyson Spaniard Stab French-man Pistol him but being an English-man and expecting such a Credulous Officious Jury as aforesaid to help him will sure choose to swear him to Death for A. has his Malice better answer'd B. thus not only loses his Life but also his Credit Estate and what not Besides attainting his Blood and utterly disgracing all his Relations and at last how shall A. be discovered in it He is infinitely more safe this way than any other Or suppose one comes out of the Moon and by chance should discover him he knows he is safe of his Life he shall not dye by our Law If any body happen too that will be at the Trouble Charges Hazard and Danger to Prosecute him never so severely But by the Statute he shall forfeit 40 l. or at his Election stand a while on the Pillory and half a year be in Prison this is all Likewise a cunning Rogue suppose Robs one c. no Witness by if one offer to prosecute him let him Prosecute first and he Hangs one thus into the Bargain and saves himself honourably Or were there one or two Witnesses by but he first Prosecutes and Swears against all it will go hard with them all It 's said of the Egyptians they had no punishment for lying and so had no measure in it But thus our Law tempts as well as scarce at all punishes Perjury A Jury though have two or more Witnesses ought also consider and examine their Circumstances Amongst the Turks only such may be Witnesses as are Freemen can say their Prayers have some knowledge in Law be known of civil life and conversation c. Boschiner Academ 19. By the Laws of Scotland for the most part always like ours none shall be Witness under 14 Years old furious people officer of the same Court Women Adultrous Persons Thieves Poor whipt for any Offence Infamous Convict and Ransomed from Justice Kinsfolks Companions or Parties of the same Crime Clergy against Laity nor any ones Tenant Bayliff Servant or any other of his Robe Councel Retinue c. nor any known Adversary nor any Person Excommunicate or Imprisoned for or accused of a Crime St. 2. Rob. 1. By our Laws none ought to be a Witness that 's Indicted of Treason or Felony and not acquitted Persons excommunicate outlawed or otherwise defemed nor Judges in any case where they shall be concerned as Judges Brit. 39. Mir. 117. 108. Bract. 118 119 133 141. Persons outlawed or otherwise infamous 11 H. 7. 41. Young 116. Stanf. 88. 11 H. 4. 35. Inst. 3. 36. And certainly they cann't that be infamous as attained of a false Verdict of any Conspiracy at King's suit of Perjury of a Praemunire of Forgery on the Stat. 5 El. c. 14. of Felony or have by Judgment lost their Ears or stood on the Pillory or be Infidels or Non sanae memoriae of insufficient discretion considerably interested in the matter Crompâ— 127. b Co. L. 6. b A Husband or Wife cann't be Witness for or against one another Co. L. 6. b nor against any other in the same cause Stanf. 26. b Except in crimiminal cases where he or she is the Party offended and swears only for the King and no other Evidence can be expected The Confession of a Criminal gotten by Fright or any Artifice used upon him or made before comes to his Tryal is no Evidence against him The Common Law was so strong in this point that 'till 2 3 P. M. c. 10. no Justice of Peace could examine a Criminal in short Conditio sexus aetas discretio fama Et fortuna fides in testibus ipse requires Ask his Estate Fame and Religion Quality Sex Age and Discretion But the Judges use to Determine who shall be sworn and what shall be produced as Evidence to the Jury and the Jury what Credit or Authority the same 's worthy of Co. L. 6. b One that 's burnt in the Hand for Felony is by some held to be a Witness in Law for the Crime say they is purged so if pardoned by the King And some hold many of those aforesaid are in Law good Witnesses as Poor Men but the Jury may consider such may easier be byassed or corrupted he has not so much to lose or forfeit for a Crime he lies under several Necessities and Temptations a Rich Man does not c. In Solomon's Proverbs