HAving little diversion besides the reading of Gazets and other News-Pamphlets, that of Feb. 20. 1681. came to me of course, which tells us of a Declaration Presented to His Majesty by Edm. Saunders Esq; Councellor at Law, and several other Gentlemen of the Middle-Temple; and Signed by the Gentle­men of that Society: This indeed surprised me at first: but finding no more of the Ancients of the Bar named, nor the Bench so much as mention'd; I concluded presently that 'twas the Act only of some Good-fellows of the House, who being met at a Tavern, and better filled with Wine than Law, thought themselves fit to give an Opinion of all things and persons; and presuming that Number would add weight to their Paper, stiled themselves The Gentlemen of the Society; to look big in a Ga­zette, how unvaluable soever in their Chambers. Nor is it to be wondred at, If a Low-Birth, narrow Fortune, and Debauched Life, do so slavishly expose some men to any great Temptation, as to underva­lue their Profession, and abandon Religion. The Laws of England are so tender of mens Lives, that no one can suffer Death but by the averment of twice twelve men, that he committed such a Fact for which that Punishment is awarded, and there­fore however of late (for the advancement of Pow­er by depriving men of half that safety which the Law gives them) it hath been given in Charge to Grand-Juries to find upon a probable Evidence, and always the highest Offence, because it may be lessen­ed at a Tryal, where 'tis expected the influence of a Court should be great enough to hang or save, ac­cording to Directions; Yet let every true English ­man, when he serves upon this Duty, consider what care the Law takes in their returns, not only that they be good and lawful men; but that they be of the Vicinage, and so are presumed to have a clearer knowledge both of the nature of the Fact, Credit of the Witnesses, and Reputation of the Party ac­cused, than any other persons tho' equally able and honest, yet not living within those limits can reaso­nably be imagined to have; For as my Lord Chief Justice Vaughan observes in Bushels Case, They may have Evidence from their own Personal Knowledg, by which they may be satisfied, and sometimes are, of the incredibility of the Witnesses; and as a Jury cannot discharge that Trust which the Law repo­seth in them, if they do not well weigh the Credit of their Evidence and all Circumstances relating to the Fact; so they cannot satisfie their Consci­ences if they shall deliver a Verdict otherwise than they believe: Therefore my Lord Chief Justice Vaughan in Bushel's Case p. 140. makes this one fault in that Return, That the Jurors are not said to have acquitted the persons Indicted against full and mani­fest Evidence, Corruptly, and knowing the said Evi­dence to be full and manifest against the Persons indi­cted; for how manifest soever the Evidence was, if it were not so to them, and that they believed it such, it was so far from being a Fault, that it was their Duty, because sworn to give their Verdict ac­cording to the best of their knowledg; and they had been forsworn, at least in foro Conscientiae to have done otherwise; so that according to the opinion of this great and learned Judg, a Jury must, and cannot otherwise be guided than by their thoughts of the Evidence. What a Court may call clear and plain proof (as they have done in the late and unusual way of examination of Witnesses) may appear far otherwise to them, and for reasons weighty and convincing; and whatever men may say or write yet since they cannot believe as they please, it is not in their power to alter their Judgment accord­ing to anothers direction. So that there might be motives strong enough to induce the E's. of S. Jury to acquit him, though there had been as many more such witnesses, and had all as positively sworn the Treason, as those that appeared; as the considerati­on of the Evidence it self, how improbable some things were, and how ireconcilable others to common sense and beleif; how infamous the Witnesses were, and what applications they had made to the City (and perhaps to some of them) for a subsistence, before they entred into this Conspiracy; the state of my L. S. as he stood in the way of Popish designs; and therefore necessary to be destroyed, and by no means so advantagious to their Cause, as under the colour of a Protestant Plot to be proved by Popish Evidence. How unlikely a man of his Prudence was to discover such a Design to persons that might be­tray, but could never give the least advantage to it; [Page] how fatal the Kings Death must needs be to a man of his Fortune, eminently irreconcilable to Popery and a Popish S [...]ccess [...]r: the Jurors might have under their consideration these or the like circumstances, and from them conclude, that such thorough and impro­bable swearing was not gratis; and upon the same reasons that such a party as would be at the charge of such and so many Witnesses, would not spare for Price, nor want opportunity to convey into his Clo­set the horrid Paper that was found there. It is worth consideration that every Witness comes to a Grand-Jury under the Obligation of this Oath, viz.

The Evidence that you shall give to the Grand In­quest upon this Bill of Indictment, shall be the truth, the whole truth, and nothing but the truth: so help you God.

So that hearing all that can be said against the Prisoner, it were very unreasonable if they should not be so tender of his life, as not to hazard it at a further Tryal, if what is said on one side be not to them sufficiently convict [...]ve; and how can a consci­entious Juror aver that upon his Oath, the truth whereof he is not satisfied in his Judgment? For the form of their presentment runs thus, The Jurors up­on their Oaths do present, that A. B. is guilty of Trea­son, Murder, or Felony; for they must upon their Oaths aver the Fact as well as the Subsequent Jury, (or else the Prisoner can never be Convicted) and therefore ought to be as careful in their Verdicts, and not find a Bill upon that Evidence tho' of the Grand Jury, which they would not upon the same Evidence find if of the other, the Prisoner no way defeating it upon his Tryal. Of what esteem Grand-Juries were in former times in the Tryal of mens lives, (how insignificant soever some would render them now, by directing them to find in Course and Form) may be easily collected from the Statute 3 H. 8. Chap. 12. Which though cited upon all oc­casions to Justifie the Authority in altering of Pan­nels, yet the reason is not observed why that power of reforming was so intrusted; the words are these: Whereas great oppressions have been within most parts of England by the subtilty and undue demeanour of Sheriffs by making and returning for the body of the shires at every Sessions the names of such persons who for the benefit of such Sheriffs will be wilfully for­sworn at the solicitation of such Sheriffs and their ministers; By reason whereof many and divers substantial persons, the Kings true Subjects, contrary to equity and rigbt, have div [...]rs and many times wrong­fully been Indicted of divers Murthers, Felonies, and other misbehaviours by their covin and falsehood, to the utter undoing of their lives, loss of their goods and lands. By the Preamble of this Act, 'tis plain that this power of Reforming was given to no other in­tent, than that the Subject might have honest Grand-Juries, men of such integrity and under­standing, as will-neither be corrupted nor frighted into a false averment of any Indictment, and there­by put the Prisoner in hazard of his life at a farther Tryal; which was the only crime of which those Grand Juries so corruptly returned could be guilty; for they could do no more than find the Indictment as it was brought to them, and the Prisoner must after­wards come upon another Tryal, and before Justi­ces too, to make his defence. And yet the Statute saith, these Indictments have been to the utter undoing of the lives and fortunes of divers substantial persons the Kings true Subjects, especially when found o [...] course in that manner and form as they are sent to them; which Jurors ought particularly to consider in this age, where violent prosecutions are so frequent, and many undone by great fines upon hasty expres­sions, (or parhaps pleased with the Libels of the age, and having no other malice to the Govern­ment than reading the Witt of the Phamphlets, are made the Publishers, that they may be Fined to their ruine, if they prove not persons of a consci­ence like these Gentlemen, fully complying to every thing in fashion) lest by a common rumour they mistake that for form which is the essential part of every Indictment, and the consideration thereof absolutely necessary in their giving a Verdict, be­cause the safety or destruction of the Prisoner de­pends as much upon their finding his Intention as his Fact: For all Indictments in capital Cases must be laid Feloniously, Traiterously, Maliciously, Sediti­ously, with intention to raise discord between the King and his People, or in such like expressions de­clearing the intention of the offender. The Bill thus drawn, the Prosecutor looks no farther than the proving those VVords or Actions to which that malice is so affixed. Now if a Jury affirms the Indict­ment thus formed as hath been the common course, then indeed the Party is in Law supposed Guilty of all the Malice, as it is there asserted, not that the Law presumes the Malice (as of late hath been too much insinuated into Juries but because the Jurors upon their Oaths do find the Fact committed with such Malicious Intentions; for a cunning Clerk, or learned Attorney General, may with his additions so dress up an ordinary Trespass, as to look like a for­midable Treason, and bring a man in question for his Life upon the most trifling offence, if a wise discern­ing Jury shall not think fit to take off the Varnish, and find the true naked fact as it shall appear to them.

In the great contested case of Barnardiston and the Sheriff of Suffolk, if the Jury had found only a false Return, and not found it to be done Malici­ously and knowingly, as was asserted in the Declara­tion, who can beleive that my Lord Chief Justice Hale, and his then learned brethren in the Kings-Bench, would have given Judgment for the Plaintiff; the knowledge and malice of the Defendant so found by the Jury, was the ground of that Judgment. As in the case of Pen and Mead, who being Indicted for certain Trespasses and Contempts, unlawful As­semblies and Tumults, to the disturbance of the Peace, their Intention appearing otherwise, were Justly acquitted; for though the Evidence was very plain that they with a great number besides were met together, yet the Jurors being upon their Oaths convinced That meeting of theirs was not with any Intention to raise Tumults, or disturb the Peace, as was charged upon it in the Indictment, could not bring them in Guilty. And for want of this careful distinguishing in Juries, we shall in a lit­tle time (if London preserves its Charter, have the Apprentices Riots in the Easter holy-days when they go to pull down a Bawdy-house, made a new Trea­son, by the only addition of the word Traiterous to this accustomed riotous offence; and nothing shall for ever hereafter be a Riot (although our Old Laws have known some great tumults to be no more) when a vigorous Attorney General shall think fit to call it Treason