OF what Date Juries be, is the same to say, as when was Eng­land first Inhabited, altogether uncertain. But that their Antiquity here­in England runs to and beyond the Nor­man Conquest, among the Danes, the Saxons, and the Britains, is most certain. Olaus Magnus, Olaus Wormius, Vertega­nus, Fortesc. Co. Lit. &c.

The Saxons conquering the Britains, mixed their Customs with the Brittish, so the Danes those Brittish and Saxon [Page 2] ones with theirs, and the Normans all these with theirs; every Conquerour making some alteration. Yet this Law was, and from time to time hath been preserved and continued an Inheritance indisputable and Sacred unto us through all Revolutions, without any Interrup­tion.

None but must acknowledge this of all others, the best and most effectual way to find out Truth. There is no other Way or Art in the whole World, says Fortescue, so remote from all Danger of Subornation and Corruption, 75.

Aaron had, it's true, in plain Letters of Gold, Vrim and Thummim wrote on his Breast, signifying what he either had, or ought have had, lucem in monte, ac in voluntate rectitudinem, Ability in Parts, and Integrity in Practice. But have al­ways all other Judges since had such Parts and Practises? Their Interests, Ambition, Pleasures, other Passions and Frailties influenced them too much, ra­ther sufficient enough to render them, as the Prophet Isaiah, c. 33. v. 15. says, Idols with Eyes, Ears and Mouths, viz. [Page 3] Such as would neither hear the Peoples Complaints, regard the Oppressed, nor pro­nounce a just Judgment. Judges have Places and Preferments so extraordinary Honourable and Profitable: And what's their Tenure? Even during Pleasure, a term for so long as they do nothing but what and as pleases, &c. and do every thing which and as does please, &c. And whose Pleasure must it be? Truly every ones too, that any how has or can make any Interest, &c. Thus a short Syllogism proclaims them little other than Bond-slaves to such Mens pleasures, and menaces the People with the worst of all Miseries, Law-oppression, Op­pression under colour of Law; unless it be conceivable Mens pleasures were to have the Judges give Sentence against them. Judges also were all Lawyers we know, used just before to take Fees, it's the more therefore all forget it now. Judges are concerned in so many Causes, they are subject to be tempted the oftner, and every Temptation is the greater, because they know, if would yield, their gain might be so often. Judges are so [Page 4] few, it's plain they may the easier be Corrupted. Judges cann't want Courage, they think themselves lyable to no Action, &c. in any case, do what they will, but are absolutely dispunishable, Co. 12. 24, 25. Hutton. Whereas a Jury on the other side, if it err, in many cases it's lyable to an Attaint, the greatest Funish­ment they know on this side Death. A Jury consists of many Persons. Those which be Jury-men in one Case, yet may be in few more. They be Men of other Professions, used never in any Case to take Fees, &c. They are not prejudiced with fear of losing their Offices, &c.

And to further manifest the difference of Tryal by Judges, and of this by Ju­ries, Jury-men all are, and must be Li­beri &c. legales homines: Liberi free of, and from all manner of Bondage, Obli­gations, Affections, Relations, Passions, Interests, and other Prejudices whatso­ever, (as indeed it's ill Fishing in muddy or troubled Waters:) Legales, ones Peers or Equals, Mag. Ch. c. 29. West. 1. c. 6. Of full 21 Years old, not Out­lawed, never Attainted or Convicted of [Page 5] Treason, Felony, False-Verdict, Perju­ry, any Conspiracy at King's-Suit, nor ever Adjudged to the Pillory, Tumbrel. &c. whereby rendered Infamous; nor any Alien (unless an Allen be Tryed, &c.) But such others as be most nigh, most sufficient, and least suspicious, 28 E. 1. c. 9. F. N. B. 165. Dy. 59. 34 E. 3. c. 4. Regist. 177. 8 E. 3. 30. They were Anciently all Knights, Glanvil. l. 2. c. 14, 15. Bract. 116. They are, and must be yet Persons of Honour and Repute, 1 R. 3. c. 4 Brit. 39. Mir. 117, 118. 11 H. 7. 41. Young 116. 11 H. 4. 35. Stanf. 88. And Si l' Enditement ne y ert een fait de croyable gens & de bone fame, n'est nul tenus à cette respondrue. If an Indictment be found, but not by Cre­dible People, and those of good Repute, no Body's bound to take notice of it, Mir. 200. They must be such Persons as are named and returned at the Electi­on of the Sheriff or Coroner. They must be every one Sworn every several Try­al, and that in and by a particular Oath. If any of the Grand Jury be as afore­said, any wise amiss, what they do is [Page 6] quashed and made void on bare motion to the Court. If any of the Petty-Jury happen so, Party by Challenging of them, as appear to be Sworn, either sets aside the Pannel, viz. all of them, or may any of them, by taking Exception to the Poll, viz. to them severally, as the Case falls out; and peremptorily, with­out shewing any Cause, may Challenge and set aside as many as will, under 36, in case of High-Treason or Misprision of High-Treason; or under 21, in case of any Felony. And shewing any such Cause as aforesaid, as many as will, in any Case whatsoever, Co. L. 156. Now they are such Elect and Choice Men, because of the great Trust reposed in them: And must be Equals, that the Defendant may the better speak to, and expostulate with, or reflect upon them, if do amiss. And that they may not be over awed, &c. by's being greater than them; (whereas Magna stupem, su­periora perstringunt. Greater things con­found and astonish us, and things above us dazle our Eyes.) Nor be careless or perfunctory for his being much less [Page 7] than them, (Inferiora ut exigua & mini­ma contemnimus. We are apt to slight things beneath us, as small and contemp­tible, or inconsiderable.) And must be of the Neighbourhood, that coming from nigh where the Question arises, the De­fendant, in all probability, may have the better knowledge of them, to except a­gainst, or to approve of them; and such may also the more likely know some­what themselves of the Party, of the Mat­ter, of the Credit of the Witnesses, and all Circumstances. Lex intendit vicinus vicini facta sciat. Co. L. 78. Thus if the Place happen disputable, whence the Jury shall come, they shall come from whence the matter is like best to be known, 21 E. 4. 8. Besides, in this way of or by Jury, where Life or Member is con­cerned, or in any danger, and in all other Criminal Causes, is required two Tryals of the Party before he can be said Guilty, or any Judgment can be given against him: and the Party must also be found to be Guilty on both these Tryals, else all is nothing. The Grand Jury must first Examine the matter, and [Page 8] the Petty-Jury after Examine all again, to prevent and secure against all Surprizes of the Party, and Mistakes or Errors in the Jury. It seems as if very Anciently the number on a Jury was indefinite, but it was all the Persons present, come as would come, Brit. N. Bacon, &c. Like as of Old it was here of those we now call the House of Commons: Concil. Brit. 350. Ingulph. &c. And in the Tryals at Rome, where Vox Populi was the Ver­dict, (except in Case of a Senator, which indeed was Tryed by his Peers, other Senators.) Hence probably it was, that all Courts were at first to be open, and so accessible. Likewise Deut. 19. and some other Texts of the Old Testament, seems as if the Tryal amongst the Jews were so: But in Analogy of late it's re­duced to the number of twelve, like as the Prophets were twelve, to foretell the Truth, the Apostles twelve to preach the Truth; the Discoverers twelve, sent into Canaan to seek and report the Truth; and the Stones twelve, that the Heavenly Hierusalem is Built on: And as the Judges were twelve anciently to [Page 9] Try and Determine matters of Law, and always when there is any wageing Law, there must be twelve to Swear in it; and also as for matters of State, there were formerly 12 Councellors of State. And any thing now which any Jury can be said to do, must have the joint consent of twelve, West. 2. c. 13. Else it's in construction of Law, not the doing of the Jury, but of Private Per­sons, and void. Mir. 42. 200. 41. Ass. 11. 6 H. 4. 2. 21 E. 3. 31. 29 E. 3. 43. Finch. 58. The Grand Jury con­sists of more Persons commonly than twelve, but as aforesaid twelve agree­ing, it's enough, and so many of them must. So that by the Law of Juries 24 Men in all, first and last, find one Guilty, &c. before the Judgement can be given, or one can be punished for the Fault one's accused of. And besides, every Man of the latter Jury, even all the whole twelve, must all and every of them agree, and be of that one and only Mind; (much to suspect, unless one be certainly and plainly Guilty. It's more for all twelve, than for twenty nine out [Page 10] of thirty to agree) Any of the Grand Jury giving in a Presentment or Indict­ment, without eleven more of the same Mind, and agreeing with him, ought to be Imprisoned, 40. Ass. 10. which also for any one of the Petty-Jury to do, none will deny but to be worse. A Judge was Hanged for giving Judgment on the Verdict of eleven Jury-men, Mir. 296. But on the other side, the Judges are not so many at a Tryal scarce ever, the major part of them agreeing, it's enough; their Tryal would be but one, or once only; they are never sworn at the Tryal, nor ever at all, but only once, and that exceeding generally; they can­not any of them be excepted against, or Challenged, (though Anciently might, Lamb. Mir. Bract. Flota) be they never so great strangers, professed Enemies, and otherwise ill qualified; and though the King be Party, yet chooses them himself against one.

Besides, if Judges had Power of both determining the matter of Fact, and also the matter of Law, as must, if were no Juries, their Latitude of Erring, &c. [Page 11] must then be the greater, and their do­ing wrong or mischief might be the more, in as much as might wrong one then in both the Fact and Law; and their En­couragement so to do, would be Improv­ed, since then it must be harder to de­tect them, as whether erred in the Fact, or in the Law, or partly in both; like as it's easier seeking a Bush than a Wood: And as it's said, Occasio facit furem: Op­portunity makes many a Whore. But were Judges presumed Saints, and never so upright, &c. yet who can imagine but at a Tryal, when Witnesses are all Examined, and Evidence all given, the Jury being so many Persons, and pro­bably knowing something of the matter before, they may all assisting one another better observe, remember, and judge upon the whole matter, than any one or two, &c. others, though called Judges? Certainly one may do more with help than without. So the Proverb is, Ne Hercules quidem contra duos; oculi plus oculo vident: Two to one is odds at Foot-Ball: And, Non omnes sed pauci de­cipi aut decipere possunt, The fewer may the [Page 12] more easily deceive, or be deceived Quandoque bonus dormit at Homerus. Ne­mo sine Crimine vivit. Humanum est er­rare. It's natural for Man to err. None's without fault, and the surest Foot may slip.

Visc. St. Albans, Aph. 8. says, That's the best Law, which leaves the least to the Arbitrariness of a Judge; and Bract. 119. says, Judges represent the King's Person, they are his Officers, and Act in his stead, (and hence concludes) they ought not at all be concerned in Causes of Life or Member, &c. (Where the King's Party) for, says he, the King is thus Judge as it were in his own Cause.

Thus appears what is the Difference of Judges and Juries, and something of the Reason why the Parliament has all along been so Zealous for Tryals by Ju­ries, as no fewer than 58 several times since the Norman Conquest, hath esta­blished and confirmed the Tryal by Ju­ries; no one Priviledge else nigh so often remembred in Parliament.

Now, for the Power and Authority of Juries, and how the Wisdom of the Law [Page 13] hath entrusted and enabled them in this Tryal. The Law says, in Tryals, whe­ther any Complaints as made, or any matter as alledged be true or not, the Judges ought not, nor can say, nor have any thing at all to do therewith, but the Jury only. Ad questionem facti non re­spondent Iudices. All the whole, or most they can do, or at least ought, is only after and upon what the Jury, or the Parties themselves agree first to be true. What the Jury does, is called Verdictum, Veridictum, the declaring of what is the Truth in the Matter. What the Judges do, is called Judicium, Juris dictum, the telling only of what is the Law. Thus it is, that every finding of the Jury as their Verdict, &c. must be positive, what the Fact and Party's intent, &c. was, and not saying only what their Evidence is, that it was; for the Judges can't even so far meddle with, or take Conusance of the matter of Fact, as but to say, then the Fact, Case, &c. is so and so, if you agree, your Evidence to be so and so, and accordingly give Judgement. Co. 9. Downham's c. Co. 10. Oxford c. Ben­low. [Page 14] 3 E. 6. Isaac & Clerks c. Hob. 167. As A. delivers B. Goods, and after de­mands them again of B. but he refuses to deliver them again; if A. sues B. for finding these Goods, and converting them to his own Use; the Judges will tell the Jury, since B. refuses to re-deliver them, this is Evidence enough to find him Guilty of converting them to his own Use, &c. and is in Law a Conversion. But if the Jury gave their Verdict, &c. specially, as that A. delivered B. the Goods, and after re-demanded them, but B. refused the delivering of them back, without say­ing positively B. converted them to his own Use, or not saying generally, we find for the Plaintiff, which is tantamount, the Judges cann't say and judge B. Guilty, &c. but must discharge him. So where in a Tryal, fraud is pretended by one Party done, &c. by the other, the Judges will tell the Jury, such and such parts of the Evidence prove the Fraud, or in construction of Law are Fraud. But if the Jury give their Verdict specially, that such and such things are true, (which the Judges said prove the Fraud) and [Page 15] not saying positively there was Fraud, the Judges cann't say or judge Fraud, nor take the least notice of any thing as such. In the case of Roger Mortimer in Parlia­ment, Ao. 1 E. 3. it was adjudged there, 28 E. 3. n. 10. that the matters he was accused of, though were notorious, and known to them all in Parliament, and all People else, yet they could not give Judg­ment upon this, nor any time ought pro­ceed on any knowledge of their own. One Condemned of Trespass in the Common-Pleas, the Judges seeing him in Court, and knowing him never so well, yet it was adjudged, if he deny himself to be the same Person, they cann't say he is, and so cause him apprehended; because they cann't judge of any thing, nor take notice, but only of what is upon Record before them, 33 H. 6. 55. Thus if A. be Indicted of steal­ing five shillings,In Henry the Third's time, 1 s. was as much as 40 now, and before then, more; yet the Law was then, one must steal above the value of 1 s. to be Gullty of Felony: So that Merciful Juries now value by the An­cient shilling, and save many, not Guilty of above the value of 40 s. present Money. the Jury may give a Ver­dict, that he is Guilty of stealing the five shillings, but only to the value of ten pence; [Page 16] and the Judges here cann't say, the five shillings were more worth or less, though never so apparent. King Henry the fourth asking Judge Gascoyn, what if he saw A. kill B. and the Jury will find not that A. killed B. but that C. did? He answered, I can only Reprieve C, and then intercede with your Majesty for his Pardon. Pl. 83. The Infamous Empson and Dudley, proceeding to judge as Judges, of matters upon Information by Witnesses, &c. otherwise than by Juries; this was one indelible blot in their Escutcheon, though had an Act of Parliament, 11 H. 7. c. 3. to warrant them in so doing: Ander. l. 1. 156. When a Prisoner is Arraigned, he says, he puts himself on God and his Coun­trey (neither of which are the Judges) for his Tryal; which Countrey is the Jury. So it is manifest, Juries have the sole Power and Conusance of the mat­ters of Fact, as whether a thing be true or not, &c. and the Judges have at [Page 17] most only to do with matters of Law.

Jury men have also the determina­tion of Law, but with this difference from that of Fact, that it's necessary they determine the matter of Fact. But they may either refuse to meddle with any thing of Law, and leave it to the Judges, or at their Election, may take upon them knowledge of the Law, and determine both Fact and Law themselves. Lit. §. 368. and so is every days Experience, whereof see more anon, speaking of ge­neral Verdicts, and special Verdicts. Only if a Jury give a Verdict, setting forth specially or particularly how the matter was, and then draw an ill Con­clusion as to the matter of Law there­upon, the Judges will judge against, and so make the Judgment of the Jury in the matter of Law void, Hob. 53. As suppose A. be Indicted of Murdering B. the 10th. of Feb. &c. And the Jury give their Ver­dict, that A. gave the Wound at C. the 5th. of Feb. and that B. died at D. the 10th. of Feb. And conclude, that A. murdered B. at C. or on the 5th. of Feb. Now the Law saying the Murder was on, and at the place [Page 18] and time, when and where the Party died, the Judges will judge against the Judgment of the Jury, Co. 4. 42. So Anno 1654. in B. R. between the Protector and Somner, the Court said, the Jury had concluded con­trary to their premises, finding he killed two Men on the Road, but calling it Man­slaughter, se defendendo, and so the Judges ordered him to be Tryed again.

Thus we see, Judges are unessential and needless in a Tryal by Jury, fur­ther than to assist it, by answering and informing what the Law is, where diffi­culties arise, or at least the Primitive Constitution might be thus. Like as also yet they be in the House of Lords, or when any Tryal is by the Lords, but Assistants only, when consulted, and no Parties of or at the Tryal, &c. Or as it is, and always has been in Courts Barons, Hun­dred Courts, Courts of Ancient Demesne, and County Courts, 6 E. 4. 3. Crompt. 232, 233. and where the Sheriff is made Judge, though by the King's Writ, &c. Co. 6. 11, 12. The very form of special Verdicts to this day, looks as if it were so. As in Murder, the Jury find and [Page 19] give their Verdict (first) how, and in what manner particularly the Fact was committed, and then say, but whether upon the whole matter aforesaid, the killing aforesaid of J. S. be Murder, (in construction of Law) the Jury is igno­rant, and therefore ask the Advice of the Court; and (further saying,) if upon the whole matter aforesaid, it seem to the Judges and Court, that it is Mur­der, then the Jury on their Oath, say, the said I. N. is Guilty in manner and form as by the Indictment against him is supposed. And if upon the whole mat­ter, &c. it seem, &c. that it is not Mur­der, then, &c. I. N. is not Guilty in manner, &c. Co. 9. 64. So all the Judges do is but Advice, though in matter of Law; and it's the Jury only that judges one Guilty or not Guilty of Murder, &c. and whether it be Murder, or what one is Guilty of, by the Advice and Assi­stance only of the Judges, without their being any wise any Parties of or in giving such Judgment. And the Reason, and only Reason, why it ever seems otherwise, may rise hence, that the Judges of Westminster-Hall [Page 20] keep the said inferiour Courts to their due Bounds, Methods, and Order. And the Lords keep the Judges to theirs, when amongst them; but there's no Body does in Westminster-Hall. The like is hinted by the Stat. of Marlb. c. 26. which says, Mur­drum, &c. non adjudicetur coram Iustitia­rijs, Murder, &c. shall not be adjudged in the presence of the Judges: Shewing the Judgment always to be in the presence of, not by the Judges. The Ancient Books call Jury-men Judges, as Mir. 209. And it's not for nothing, the Law is so tender of them: He that strikes one of them, it's perpetual Imprisonment, and forfeiture of the offending Hand, Judg. 174.

It perhaps may be pardonable in Councellors, because for their Fees, and not pretending Authority: But why Judges, though apt to Indulge, Improve, and Extend their own Power and Jursdicti­on, should offer to brow-beat, threaten, order, impose upon, or wheedle, flatter, tempt, insinuate with, or any wise lead, perswade, direct, incline or dispose Ju­ries, how to find their Verdict, unless only directing them so far as Juries re­quire [Page 21] of them, it's hard to say. People daily Rob, and so have done, on Salisbury-Plain, but it's ne'er the more Lawful. Thus are Judges Trumpets, and Juries the Eccho, let who will blow. Thus are Juries but an empty Name: Thus is turned topsy-turvy all the whole thing of Juries. Thus might the Judges draw, and ingross to themselves the whole Pow­er in the Tryal, and be in Effect Judges and Juries too. Thus is the Tryal by Juries a colour, a sham, and really no Tryal at all by Jury. Were this allowable by Law, we should never have had any; the having them would thus be only an unnecessary trouble, &c. whereas, Lex nunquam per plura quod possit per pauciora. The Law never sets up or requires any thing so vain or fruitless.

But some will say, the Jury can do nothing, but on the Evidence given in Court, which the Judges hear as well as the Jury, and so may see the Truth, and know how the Verdict ought to be, as well as the Jury, and consequently they may Instruct, Assist, &c. the Jury. It's true, they may be helpful, they may [Page 22] assist, but however, it's no matter for their being as aforesaid, too Officious. And besides, as aforesaid, that the Jury is Neighbours of the Fact, of the Party, of the Witnesses, &c. but the Judges strangers; and the Jury be more Per­sons, and the Judges fewer, &c. The Jury also is not bound up to the Evidence only given in Court, or that the Judges hear, but may go upon their own pri­vate knowledge. Suppose A. sues B. on a Bond forteen pounds, and B. pleads payment, but at Tryal proves nothing: The Judges themselves say to the Jury, you must find for A. unless know the Money paid your selves: Which shews, the Jury may find for B. if they know the Money paid, though the Judges knew nothing of it, 4 H. 7. 29. So Hob. So if one be Arraigned, and no Witness produced against him, the Court says the like; as was seen this Michaelmas Term, 81. in B. R. Bradley's Case, and by daily practice. They use their own knowledge besides, and often against the the Evidence in Court, Cr. El. 616. Groves and Short's Case. So in Plowd. [Page 23] 410, 411. So a great Case adjudged in B. R. Hill. 21 C. 1. And another there, 22 C. 1. And so says Stanf. If a Jury know any thing of themselves, it's as much as by Evidence, 130. So Plowden says, a Petty-Jury is sometimes bound to give their Verdict, though have no Evidence, f. 12. Hence in all Cases at Common Law, one Witness is accepted of as suf­ficient; and doubtless any Verdict is good, though in such Cases, without any Evi­dence given in Court, because the Jury is presumed to know somewhat of them­selves. Whereas in all other Countries in the World, where Juries be not used, and here when the Tryal is without a Jury, there must be at least two, as hereafter shall be said more at large. Thus in any Attaint brought against a Jury, more Evi­dence may be given on that side the Jury passed of or for, or in behalf of the Jury, than was given before, Dy. 53. b. which could not be, if their own knowledge were not Evidence, as well as that given in Court. Styles says, 23 C. 1. in B. R. it was adjudged, that the Grand Jury are not bound to find an Indictment, [Page 24] though have Evidence, since they may know something of themselves to over­balance it. So is Plowden, A Jury may sometimes go against their Evidence given in Court, 8. b And one may read, Ju­ries were Anciently punished for going though according to the Witnesses, if hap­pened false ones, Mir. 48. The Evi­dence to a Grand Jury is seldom heard by the Judges, which yet could not be, if none were Evidence but what given in Court. Likewise, a Jury knowing of a Record, Statute, &c. may give their Verdict, &c. according to it, though never given in Evidence. Moor says, a Jury-man delivered his Companions a certain Paper concerning the Question out of Court, yet the Verdict was ad­judged good, Case 656. Besides, if it happen they have no other Evidence but what the Judges know as well as they, yet they ought by, and according to the true purport and meaning of their Oaths, to proceed on it in their own sense, and as they apprehend or under­stand it themselves, and no otherwise, though the Judges differ with them; [Page 25] else how can they discharge their Con­science? And it often falls out, they may differ. No two Lawyers, nay, Judges, reading or hearing the very same Case, but presently make different Inferences, Deductions, Collections, Conclusions and Arguments, yea, the same Person at dif­ferent times; like as the Philosophers hold our Senses and Sentiments as diffe­rent as Physiognomies. And why should A. impose his Opinion on B. rather than B. on A? So of Judges and Juries. One cann't see by another's Eyes. And this is certain, every thing any Jury does, as a Jury, is on Oath, and they swear to be true by Vertue of the Oath at first administred them; therefore if any of them happen to joyn in a Verdict, &c. with the rest, against his Opinion, or not throughly satisfied in their own 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 [Page 26] 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 [Page 27] 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 [Page 28] 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, [Page 29] 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 [Page 30] 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 [Page 31] 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. Also no Punishment what­ever [Page 32] 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 [Page 33] 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 Ja [...]. 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: [Page 34] 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 [Page 35] 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, [Page 36] 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 [Page 37] 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 [Page 38] 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, must by us in like man­ner be applyed to Juries. The Book whereon Swearing one layes one's hand; is God's Everlasting Truth, and most Holy Word; so that if one forswears one's self, one virtually in so doing ut­terly forsakes God, and his Mercy and Truth. Says a Learned Man, part of the Oath is, So help me God, viz. I pray God he will never help me, if I shall not sincerely and faithfully keep this my Oath. Cajetanus says, 2 Qu. 98. Per­jury is of it's Nature a Contempt of God. And as the Proverb says, Malum est ludore cum Sanctis: It's however ill jesting with edg'd Tools.

By the Oath of the Grand-Iury, one's bound to observe as well the Charge which shall be given by the Court, as the Form of the Oath it self. But this it's plain must be understood, so far as [Page 39] the Charge is according to Law, and not contrary or repugnant to the Oath it self, and no further or otherwise.

Anciently the Charge was given in Writing to the Jurors, Brit. 9. Bract. l. 3. c. 1. Dalton p. That the Jury might easier remember it, their Minds be refreshed, and perhaps, themselves Edified, &c.

What the Grand Jury does, is by way either of Presentment or Indictment. By Presentment, when they know of a a Crime or Fault themselves, and give a short Note of the Parties Name, place of Abode, and Fault, without Form, re­ferring it to the Court to put into Form. By Indictment, when the Party and Fault are ready brought them in Parchment, drawn up in Form: And indeed, the most true difference is only, that the one is in Form, and the other not.

In an Indictment, first they must con­sider and understand it well and throughly: And if they cann't understand it, ask the Assistance of the Court, either to give them a Clerk on Oath to English it for them, or otherwise as need shall require. [Page 40] Then they must consider, if the Fault, as alledged, with the Circumstances and Ag­gravations; amount to, and be a real Fault or not, and also worth complain­ing of; for De minimis non curat Lex. The Law minds not every little thing, and this is daily experienced in Indict­ments and Ac. of Case. If it be no Fault, or one not worth complaining of, which in Law, as aforesaid, is all one, they reject the Bill, and meddle no more with it. If they find it a Fault, and con­siderable, as aforesaid, then they consi­der, if know it true so of themselves; which if they do, or other Evidence sa­tisfie them it is, they Indorse, or write on the Back side of it, Billa vera, this Bill is true: But if they do not know it themselves, nor be satisfied by the Evi­dence, then instead of Billa vera, they write Ignoramus, We know not: And afterwards thus deliver all the Indictments into Court.

The Clerks of Court, to get Fees, and perhaps, some others for one sinister end or other, will be apt to say, that the Grand-Iury ought to find an Indictment, [Page 41] or make a Presentment against any sup­posed Offence or Offender, though have but colour of Evidence, or a probabili­ty of the thing being true, and that what they do is but matter of Course, a Ceremony; matter of Form, barely an Accusation, &c. But that this is not so indeed, is apparent, for what end then is a Grand-Iury? Only for show. The Law would certainly then have never re­quired one to be at all. We see they are obliged to be Sworn, and they are as much on their Oath as any other Jury, which then should be the contra­ry. The very form of their Oath teaches us better. The Oath is, Diligently en­quire, &c. not negligently, &c. True Presentment make, not probable, &c. No­thing for lucre, &c. not excepting the Clerks, &c. According to Evidence, not Presumption: The whole Truth, and nothing else but the Truth, which how can be at such a rate as the Clerks, &c. speak of?

But then they Object, that these words, According to the best of one's Knowledge; are added. If they be, it's against Law, [Page 42] Mir. 304. Brit. 12. 135. And altering an Oath, is imposing a new one, which cannot be without an Act of Parliament, Inst. 2. 479, 658, 719. But however, May Jurors in such case wink, &c. that they may not know, &c. These words are best of, &c. and not worst; they are Knowledge, not Ignorance; they imply the best one can know or find out: And not only what one already does know, for then what need the word best? And besides, they relate to the word enquire, as well as any other word, &c. So the more one considers them, the less one shall find they really alter the Oath.

Then, say they, all a Grand-Iury does, is but presenting in form, and not in form as aforesaid, and is only supposi­tious as it were, and nothing positive or certain, grounding themselves only on this, that the Form of the Indictment is, The Jury upon their Oath Present, instead of The Jury upon their Oath say; and so infer, that if any thing in the Pre­sentment or Indictment be false, yet it's no Perjury. Alas, to see Men in extremi­ty, what hold they'll catch at! Could [Page 43] Argus himself have seen this Exception? No, unless blind. Present and say are undoubtedly here, and in such like cases, Sy­non [...]mous Terms. To Present on Oath, is to give the Court to understand on Oath: And to say on Oath, is to tell the Court on Oath; and an infinite of Indictments be say instead of present, Rast. 263. Kitch. 100. Co. 9. 114. And Fleta goes so far, as calls an Indictment a Verdict, f. 113. The words also of the Oath be, to truly pre­sent, and not say. And Lord Coke plain­ly calls the Grand Jury-men all wilfully Forsworn and Perjured, if wrongfully find an Indictment, Inst. 3. 33.

Then, say they, but Indorsing Billa vera, as aforesaid, implies not that the Jury takes upon them to know, or say, the Bill, or the Contents, are true; but vera there signifies probable, or fit for Enquiry. But then, why not another word used more properly and usually Latin for such a sence than, and instead of vera? And what is Latin for true, if it be not? And is not true, the com­mon accepted English word of, and for vera? And is not Billa vera the Answer [Page 44] made to their Oath, that they shall true Presentment make? This is like the rest.

Then, say they, this is no Tryal, but in Order to bring to Tryal, and the Party is at no prejudice if the Bill be found. It's true, it's no determinative Tryal that finally concludes either Party, because it's but one of two, which every one accused of a Crime must have as aforesaid. But it's so much a Tryal, as Learned Fleta, f. 113. looks upon it no less one than any other. The form of their Indictment is the same of that of a Verdict. All things are, or ought to be alike in the whole Proceedings, and to differ nothing, but the one to be be­fore the other, and the latter to be final, the other not. The Stat. of 23 H. 8. c. 23. Enacts, One shall be Indicted of High Treason in what County the King pleases. And the Stat. 1, 2 P. M. c. 10. says, That Tryals for Treason, shall be according to Common Law: This Act repeals the other, though speaks only of Tryals, and the other of Indictments, Anders. (1.) 104, 105. Inst. 3. 27. [Page 45] which shews an Indictment is a Tryal. One of the Grand Jury cann't be after­wards on the other: And why? says the Law, for he has once already found the Party Guilty, and if should not again, he must Perjure himself, Brit. 12. 25 E. 3. c. 3. 7 E. 4. 4. Stanf. 158. It puts the Defendant to Disgrace, Trouble, Damage, Danger of Life, &c. It makes him lyable to an Out-lawry, to Impri­sonment, &c. and to every thing but very Death, &c. the final Judgment it self. It gains Credit, and gives Autho­rity to auother Jury to find one Guilty. It produces this Effect, that if the other Jury find one guilty never so wrongfully, no Attaint lies against them, nor other Punishment: And what's the Reason? The Law says, because he is found Guil­ty not by these other twelve only, but in all, by Twenty four or more, this latter and the other Jury too, Attaint. 64, 60. Attaint R. a. 18. v. 8. H. 4. 23. ^b 14 H. 7. 13. So if one be In­dicted, any one may bring an Appeal, though never so wrongfully, &c. against him, whereas he that brings one against [Page 46] any one that was never Indicted of the same Offence, may be liable to great Punishment, if wrongfully brought, Stanf. 172.^b Cor [...]n. 178. 40 E. 3. 42.

Where Peers be indicted for Treason, Felony, or Misprision of either, they not only suffer in Honour, Liberty, Vexa­tion, Danger, Trouble, Charges, and other Inconveniencies, as aforesaid, ano­ther does, but must with a more tender sense, and in a much greater measure, as they be so much greater Persons, &c. And they can have no other Tryal on Oath, for their future Judges or Jury are none of them on Oath, Inst. 3. 89. Co. L. 156. They can except against none of their Jury, though have what cause soever possible, Co. L. 156.^b They must be Tryed by such as shall be chosen against them, such, as perhaps, shall not be Neighbours, but picked any where up and down the whole Kingdom; such a Jury, as perhaps, shall not be above twelve in all, whereof then if any seven, or any time the major part agree to find them Guilty, it shall be so, though the other five, or lesser number, be utterly against [Page 47] it: So that upon the whole, if a Peer have but seven Peers among all the rest that bear him ill will, or either any ill wisher, that can make him so many of them his Enemies, he must Dye, &c. fall back, fall edge. And to help the matter, he shall always be sure of the ablest Council in the Kingdom, to ma­nage the Cause against him.

Suppose one should ask any Honest Man this Question: Were he not on his Oath, yet would he find an In­dictment of Course, &c. to expose one, and put him to such Inconveniences, as aforesaid? Certainly, says he, No. And the Monster that would, does it wrong­fully, because is not certain he does o­therwise. And being on his Oath, as aforesaid, it's not only doing wrong, but tainting himself Crimson red in Per­jury too; sure a Malicious way of doing wrong. It's doing wrong also by co­lour of Law and pretended Authority, the greatest Mischief and Injustice, says the Lord Coke, of all other, Inst. 2. 48. The damage, &c. too in all these Cases is the greater yet, that the Party can [Page 48] very scarcely, if at all, expect any Re­paration or Amends: Whereas in all o­ther Cases he may easily. For against the Grand Jury, or any of them, no Action lyes, in as much as doing what they do on their Oaths, the Law will not presume, &c. any Malice, &c. in them. And though one be Indicted at the Instance, or upon the Endeavours of some other Person, (all the Jury, as afore­said, being sworn to Secrecy) can one easily discover, and prove who this Person is, what he did, and prove it at a Tryal? Which yet one must do fully, if expect any thing but making bad worse. And might one recover damage, &c. yet it's damage, &c. to be put to the Trouble and Hazard of the Recovery. Well therefore, says Fleta, f. 52. Valde ne­cessarium est in omni presumptione in in­quisitione de vita & membris; Juratores diligenter examinare: It's an exceeding necessary thing, that the Grand Jury should make diligent Examination, before pre­sume any thing, either in Case of Life or Member. Iust. Dalton's Book, p. 539. says, no less Care or Concern at all lies [Page 49] on the Grand Jury, than does on the Petty Jury.

The Law, (to see its Nature, how it inclines generally, that one may the better guess in this matter) it is not with us like those of Draco: It's as tender of the Lives, Liberties, and Credits of the People, (none can deny in all cases else) as a Mother of her Child, and why then not in this also? It will presume nothing dishonest, &c. in any one, or any time, but it will, and always does presume all Persons and Things Honest, True, Innocent, &c. till the contrary be proved, Co. L. 78. b As Ovid says, Sit piger ad poenas princeps ad praemia velox. So Lamb. Sax. Laws cry often Clemency and Forgiveness as well as Justice. And Lex Angliae Lex misericordiae est, Says Coke, Inst. 2. 315. Like the Laws of Scrip­ture, whence it was first derived, which shews Mercy is not opposite to, but part of Justice, 1 John 1. 9. Psal. 71. 1, 2. Ier. 18. 7, 8, 9, 10. Ezek. 33. 13, 14. The Laws of England, the Laws of Mer­cy. And says a Great Man, Justitia sem­per mitiorem sequitur partem. Justice [Page 50] leans that way which is the milder. One brings an Appeal, if the Jury be doubt­ful, the Defendant shall be acquit, and the Appellour imprisoned, Fleta 52. Mir. 224, 273. So a Jury being doubtful if one were a Villain or not, was there­fore free, Fleta 238. Bene tibi praecipiunt (says Cicero) qui vetant quidpiam agere quod dubites aequum sit vel iniquum; aequitas enim lucet ipsa per se, dubitatio autem cogi­tationem significat injuriae. They do well, that forbid, one doing a thing when du­bious, whether right or wrong; for where it's right, the thing is necessarily as clear as the Sun: But any doubt speaks the thing not to be so. As if a Physitian give one Physick, he must give one that he is sure will do one good, or no harm, and not what he doubts may do one harm. It's also plain, if I doubt, I must not say, I am certain, (as Billa vera) but I know not certainly, (as Ignoramus) else I tell a Lye. It's very remarkable too about all Indictments, the Jury only says, either it's true, or we know not, and never that it is not true; which shews, if they be doubtful, or not fully satisfied, [Page 51] the Indictments must be Endorsed not Billa vera, we know it is true, but Ig­noramus, we do no not know it is true. And the Law does not put it upon the Grand Jury, to say the Bill is not true, if they do not find it, though does put it upon them to say positively, the Bill is true, if they find it, and so encou­rages the finding Indictments Ignoramus. Fortesc. says, It's better Twenty ill Men were unjustly saved, than one unjustly Condemned, 62. For Mercy and Pity is on the one side, but on the other In­justice and Cruelty. Says Bracton, Tu­tius est reddere rationem misericordiae quam Iudicij. It's safer giving an Account of one's being Merciful, than otherwise. The Saxons in doubtful Cases only Ap­pealed to God for Discovery, and left all only to him, viz. Where the Case was doubtful, if Guilty or not, or clear and manifest Proofs wanted, they had four sorts of Tryal, Spec. Sax. l. 1. First, Kamp-fight, or by Battel. Secondly, Fire-Ordeal, by holding red hot Iron in his Hands, or walking bare-foot over it. Thirdly, Hot water-Ordeal, by putting [Page 52] one's Arms up to the Elbows, in seething hot water. Or, Fourthly, Cold Water-Ordeal, But a Jury first past upon them, Rot. Temp. R. S. Io. Lord Hales his Collections. by casting one into the Water with a Rope under his Arms. Whereof the three last were used, one or other of them, where the Party was most vehe­mently suspected; Versteganus and others. But Pope Stephen the 2d. by his Decree, utterly abolished them all, and afterwards so did the Parliament, 3 H. 3. Memb. 5. Judging it more fit the Party should be acquitted than prosecuted, where the Case was doubtful. So that one must know beyond all doubt, before say Billa vera, else say, Ignoramus, which is in English, we doubt, we do not know, we are not certain if it be true. Paribus, sententijs reus absolvitur, Inst. 4. 64. And says Brit. If a Jury doubt at any time, they must find for the Defendant, 245, 130, 136, 219, 213. Judge Fribern was Hang­ed for judging one to Death, where the Jury were doubtful in their Verdict, Mir. 298. Anciently if a Jury Indicted an In­nocent Man, another might be impanelled [Page 53] to go upon this Jury, as Offenders, &c. Mir. 101. Aussi sont homicides de volunt, faux Jurours & ceux que Endictent fauxe­ment: Jurors that falsely Indict any one, be guilty of wilfully killing Men, Mir. 34, 36. They shall be reputed and ad­judged Infamous, and suffer Corporal Pu­nishment, that find an Indictment against an Innocent Person, ibid. 251, 252. 254. 256. Or, if an Innocent Person be ad­judged to Death, &c. if they could have holpen it, ibid. 256. An Appeal lay a­gainst a Jury in such Cases, ibid. 136. Brit. 14. 137, 237. If they any wise of­fend so, Ignorantly, yet this excuses not at all, unless they could not possibly know better, ibid. 257. And negligence in, or of knowing better, makes their fault the worse, ibid. And the greatest Oracle of our Laws, Co. L. 115, 391, 45, 94, 113. has it, That whatever was Law, is yet, unless altered by Act of Parliament, which this never was. Where­as on the other side, if a Grand Jury do not find the Bill against any one, there can be no harm then to any Body; but another Indictment may some other [Page 54] time be brought, when there's better Evi­dence, or a worse Jury. For though one's Life, &c. shall come but once in danger, or on Tryal, before the Petty-Iury, it may yet a Thousand times be­fore the Grand-Iury, for they never say the Party is not Guilty, but at most say Ignoramus, as aforesaid.

Any thing any Jury does, ought be Quod­dam Evangelium, like what they laid their Hands on, taking their Oath. When they write Billa vera on an Indictment, they undeniably compare the Truth of the Contents therein, to the Truth of the Gospel, and this upon Oath. Thus one would admire how it comes to pass, that they of the Grand Jury should of­ten hear but one side: Their Oath, it's apparent, is against this: It says, Present the whole Truth, not concealing or omit­ting any part of it; which implies as well all one side can inform them as the other. And so appears by less strong Cases far, an Attaint lies against a Jury (swearing to well and truly Try the issue between the Parties) when every word of the Verdict may yet be true, [Page 55] only it not being the whole Truth. As if one having had common appendant time out of Mind, bring an Assize of the Common, making his Title that he hath had common time out of Mind, &c. (without speaking of the Appen­dency) and so the Jury find for him: For thus he should else have Common in gross, when his Right or Title is not to such, but to Common Appendant, F N B. 107. a. 10 E. 4. 17. 49 H. 6. 17. So one having had a Rent in Fee, as Forrester of such a Forrest, time out of Mind; in an Assize for it, makes Title, by saying he had a Rent out of that Land, time out of Mind, &c. (with­out saying as Forrester, &c.) and the Jury find for him, for he hath not had the Rent by Prescription, as must be un­derstood by the Claim and Verdict, as aforesaid, ibid. b. Co. 5. 78, 79. So that it is not enough for a Jury to say the Truth, but the whole Truth, though too no such Word as this of whole Truth, be mentioned in the Oath. It proceeds, and says, And nothing else but the Truth, which how can possibly, [Page 56] or any Jury-man be satisfied in, unless hear both Parties? It says, You shall di­ligently Enquire, &c. not by halves, or but hearing one side only. It's a Maxime, Qui statuit aliquid parte inauditâ alterâ aequum licet statuerit haud aequus fuerit. He that judges or determines any thing, when but one side only is heard, does unjustly: And the Judgment, or Deter­nation, though in self be never so just or right, yet shall he no wise be account­ed a Just Judge, &c. Is it not a common Saying, One Tale is good, while another is told? One at this rate might be In­dicted for a Cut-purse, when but an Ho­nest Glover; so might Chyrurgions, She­riffs, Bayliffs, Jaylors, Hang-men, At­tornies, &c. for but doing what belongs to their several and respective Professi­ons, as the matter may be managed, and yet saying nothing but Truth neither, only not the whole Truth. Is there not in all Determinations else, the Hearer and Defendant, as well as Complainant? Thus erred Judah the Son of Jacob, in judging Thamar to be Burnt, upon Report, when she was unheard, Gen. 38. [Page 57] 24, 25, 26. So was Joseph faisly accused of Lying with his Mistress, and cast in­to Prison, Gen. 39. 19, 20. So was Me­phibosheth falsly accused by Ziba, and deprived of all he had, 2 Sam. 16. Which being all Presidents, and Damned in Scrip­ture, must, or shall any one be so hardy as to embrace and follow them now? Either one's Guilty or not; if be, let him yet have fair play for his Life, &c. If not, why should he then be Indicted? So that, why should he not be heard? Else one's Condemned first, and Heard after; or indeed Hanged first, and Try­ed after, or little less. The true intent of the Law herein seems, as if Men were to be handled not thus, but that the Defendant should be heard at first, and if he then could give satisfaction, &c. he might be at no further trouble, &c. And if he could not, that he should have such trouble, &c, and having No­tice thus, might prepare himself the bet­ter, and so not be surprized at the final and concluding Tryal, or have any co­lour of Pretence that he was surpriz'd, or any wise unprepared at this final Tryal. [Page 58] This method being most Honourable for the King and the Law, and also most safe for the People. And the Reason why it was ever otherwise, seems bare­ly a Result of some Artifice of the Clerks, to get themselves Money, imposing on the Juries; or from this, that Present­ments being made without the Party heard, therefore the Jury thought they might find an Indictment likewise. Where­as, they ought always to distinguish; for a Presentment is on their own knowledge, when they know all the whole matter, even what the Defendant can say for himself; but an Indictment is found up­on Witnesses, which tell their Tale to a hairs breadth, &c. as makes the most for the side they are produced of. And at length after some few Presidents, it has now grown into Practice: Dato uno absurdo mille sequuntur: All can be pretended why it should be so now, is but Practice and President. And when it's against Justice, against Truth, against any ones Judgment, sure one ought rather to Correct than Approve of, or follow such Practice or President. At [Page 59] least wise a Grand Jury ought hear both Parties, if present, or easily, or conve­niently to be heard.

It would likewise amaze one, to see how the Clerks, for their Gain, or o­thers for other Ends, have often prevail­ed with Jurors to find a Bill true, &c. when in all the Circumstances of Ag­gravation, or most of them, false, if not in the Fact it self; and those Circum­stances too altering the very Fact, as al­ledged about as much as white Feathers would a black Crow.

Considering how true Presentments, Indictments, and Verdicts ought to be, and that the whole Truth, and nothing but the Truth must, or may be in them: That the Jury undertake the Bill is al­together true, not only as to the Sub­stance, &c. or in general, but even in every particular, all the Circumstances, Aggravations, and every individual word, (for if it be not true in the least word, it's not true, but false, and Perjury.) Stanf. says well, f. 96. ^b De faire bon Enditement est requisite a conustre & d' aprendre que sera dit Treason. ou Fe­lony [Page 60] ou non: To perform the Duty of one on the Grand Jury, it's necessary to learn and know what's called Trea­son, what Felony, &c. and what not: Hence also one learns, one must not in an Indictment, &c. call, or suffer called Felony, Treason; Man-slaughter, Mur­der; nor one Crime by the Name of another: Or mention, or suffer mentio­ned, words spoke, or things done, other or after another manner than really or truly were said or done; and therefore the Judges give the Grand Jury to this day their Charge so distinguishing, par­ticular, and directive of all, and all man­ner of the several Crimes, their Natures, and how to call them, &c.

When the Clerks draw an Indictment, Information, &c. they'll not only alledge and insert in it the very Fact, &c. one is accused of, but craftily, and full of Art, stuff and load it, into the Bargain, with several fictitious and fleight Alle­gations of their own, to swell up, and aggravate the matter; as Circumstances of Malice, or Design, &c. in the Party, when did the Fact, spoke the words, &c. [Page 61] So that sometimes from a Mouse, a Mountain; from nothing, or what's in­considerable, it will in such a Dress shew and strut like a Giant, a Monster, &c. And all this, forsooth, they'll call mat­ter of Form, and then endeavour to perswade a Jury, if they find the chief matter, or that part which they'll call the matter of Substance, true, they must of course find all the rest, which they please to call matter of Form, true also. This usual way of wording Indictments is so notorious, dangerous, hurtful and grie­vous, that it several times, and in all Ages, has been complained of by all Per­sons whatsoever, except the Clerks and Prosecutors themselves, whilst Clerks and Prosecutors. It has been a Complaint in and of Parliament, by King, Lords, and Commons; See 4 H. 4. c. 2. 37 H. 8. c. 8. This is that whereof may be said, as was in Courtin Hertsey's Case, Ali­quid creare ex nihilo malum, Diabolicum est. It's the part of the Devil himself to make a small fault be, or seem a great one. But no Complaint, no Argument will, or can prevail with a Covetous Clerk, [Page 62] getting Fees, or a Malicious Prosecutor, troubling whom he has Envy or Malice against, to desist their Advantage. And as the true Circumstances of any Crime do always, or mostly aggravate or alle­viate it, and all those suggested thus by the Clerk, if the Bill, &c. be found by the Jury, (though pretended only mat­ter of Form) become thus as true, and the Judges must adjudge a Punishment accordingly, as if all were really true: Thus is a Trap set to catch the Jury and Defendant; the Jury to Perjure themselves, and wrong the Defendant, and the Defendant to be adjudged of a Crime, when perhaps guilty of none, or at least of a worse Crime than tru­ly he is. A Jury therefore, ought first consider, as aforesaid, if the matter of Substance, or chief matter, be Criminal at all; and if be, then if considerable: And if be not Criminal, or considerably Cri­minal in it self; then if the Circumstan­ces, as alledged, make it so; and if not, then to reject it. If it be considerably Criminal, with or without the Circum­stances, then consider if you know it of [Page 63] your selves, or by Evidence be satisfied it is true, both it self and the Circum­stances: If the matter it self be not true you reject the Bill; (for where's no Body, is certainly no Shadow:) If the matter be true, but the difficulty be about the Circumstances, then consider if they be material; if not, you find the Bill; if be, then consider if they be consistent, or the matter will bear them; if not, then reject the Bill, &c. or at least 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 [Page 64] 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 [Page 65] 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, [Page 66] 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 [Page 67] 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 [Page 68] 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 [Page 69] 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 21. Our Saviour and his Apo­stles plucked off, and eat the Ears of another's Corn, Mat. 12. And he, be­cause he had need of an Asse, took that was none of his, but anothers; and had Lazarus, ready to perish, taken Dives's Crumbs against his Will, &c. yet it [Page 70] seems he had no more sinned than he mis-behaves himself, that does what the Lord bids, and the Steward forbids, under the Rules aforesaid. A Jury therefore, not observing the Rules aforesaid, gives a Verdict not only against the present and immediate Defendant, but also in him even against David, Christ, &c. repre­sented thus in his Case. In the Civil Law, (that of the Admiralty particular­ly) if a distressed Ship takes water by force of another where is Plenty, it's no Theft; because of the necessity, so adjudged several times. If an Indict­ment mention one Seditiously, and de­signing to disturb the Government, and to withdraw from the King the Love of his Subjects, and said of him such and such Words, here the Words might, perhaps, be spoken within the Priviledge of Dis­course in Parliament, or in a Jocular Way, or Ironically, when one means the contrary; or by way of Supposition, in Argument, or when one meant a con­trary thing, or no harm at all; and this perhaps too explained at the same time in other words accordingly, or the Words [Page 71] in the Indictment be but part of the Sentence, &c. or transposed, or some how else altered. So if a Complaint be, that one falsly and maliciously, and with­al designing to break his Credit, and ruine his Trade, called such a one a Bankrupt, here, perhaps, he was a Bankrupt then, or no Tradesman at all; therefore in these and such Cases, the Circumstances alledg­ed being not implyed necessarily, though the Fact or words were spoke, they must be proved. But to instance some Cases ad­judged by the Judges themselves: If A. bring an Appeal against B. and B. is after acquitted; now, should B. Indict A. for maliciously, &c. bringing the Appeal, the Indictment ought not be found, if B. were Indicted before of the same Fault, he was after Appealed against for, because his being before Indicted proves there was at least colourable Reason why the Appeal was brought, and not Malice only, Coron. 178. 40 E. 3. 42. A Chvrurgion was Indicted, for that he by Negligence in Curing one's Hand, maimed it; the Negligence must be proved, 48 E. 3. 6. 11 H. 6. 18. So in [Page 72] Actions for Words, which holds the same Law as in Indictments, &c. A. sues B. for falsly and maliciously calling him, being an Heir, a Bastard; Action will not lye, if B. pretend himself Heir, for then it was not maliciously, but only as it were in order to get or claim the Land, &c. And it's Lawful thus to slander another, justifying one's own Title, Co. 4. 10. So Molton sues Clapham, for that a Suit depending between them, upon reading certain Affidavits in Court, Clapham o­penly then and there, falsly and malici­ously said, there is not a Word true in the Affidavits, and that he would prove it by 40 Witnesses; here the Words, though were agreed false, yet being not spoke maliciously, but out of other de­sign, as in his Defence, &c. as aforesaid, Action does not lye, B. R. 14 C. 1. Rot. 459. So a Councellor calling one a Thief at a Tryal, the like; for it's not malicious, &c. if material for the Cause he manages, Montagues c. So where A. says to his Friend B. that C. hath the French Pox, therefore advising him not to keep him Company; for [Page 73] spoke as Advice to a Friend, and not maliciously, James and Rudley's c. 40, 41, El. in B. And thus is further seen the Cause or Occasion of speaking words, or doing any thing, must be considered as well as the Words or Fact: And says Coke, This is a General Rule, Co. 4. 14. Also it's another Rule, All Offen­ces in Fact or Word, ought in con­struction to be made the least of pos­sible. Verba accipienda sunt in mitiori sensu. Words shall be taken spoke in that sence which is most innocent, &c. See of this several Examples, Co. 4. 17. Hob. 473. C. 4. 19. Co. 4. 13. for the Law will presume Innocency further than down-right proved, as aforesaid, to the contrary. ‘And if Juries should not be cautious, as aforesaid, one might be Indicted, &c. for saying The King is a fit Man to Govern, or for any thing in the World. Suppose A. be Indicted for maliciously, and with a de­sign to withdraw the King's Subjects from their due Allegiance, &c. saying, The King is a fit Man to Govern, and A. should be found Guilty of it, because [Page 74] he said these words; A. would be in a sad case, the Judges must give Judg­ment, as if the Words were spoke Ironically, or in a contrary Sence than they were, for so the Circumstances al­ledged import, though be found of course.’ If a Jury find an Indictment, &c. with the Word felonicè in it, they find one Guilty of Felony, be the Fact what it will, and so as a Felon the De­fendant must suffer: So also if the word proditoriè, for High Treason; and why may not they as justifiably find these words of course, as other not necessa­rily implyed? Where an Indictment, &c. is grounded upon a Statute, then every little Word must be proved that is also in the Statute, though seeming implyed, or little more than immate­rial; this all agree. For want of these, and such like Observations, one Tho. Burdett, Esq was Condemned, Hanged and Beheaded at Tyburn, in Edward the Fourth's Time, when the matter proved was only, that he being absent, the King hunted in his Park, and killed a white Buck, which Mr. Burdett fancied above the [Page 75] rest of his Deer, and that Mr. Burdett hearing of this, wished the Bucks Horns in his Belly that Advised the King so to do, Speed's Hist. 700. Much like was it also with one Walter Walker, who was Beheaded in Smithfield, Anno 1476. when all proved against him, was only, that he (Living at the Sign of the Crown in Cheapside, London) said to his Child, to pacifie him when he cryed, Peace, peace, Child, thou shalt be Heir of the Crown. But who can open some Jury-mens Eyes, to see how like an Ox led to the Slaughter they be imposed upon, and cheated, to cheat others of their Lives, Fortunes, and all that's dear to them; though by their Example too of Acting thus, they make Presidents, and give countenance to after Juries to be like themselves, and consequently expose and render themselves, they know not how soon, in the same predicament, and to be punished as the Criminal was they punished. Or by the Evidence given you. ‘Evidence is only such a Testimony that makes somewhat relating to the issue or matter in Question clear, ma­nifest [Page 76] and plain to the Jury;’ hence says Coke Lit. 283. Probationes debent esse evidentes & perspicuae. And thus is it, all the Witnesses or Testimony in the World of things impossible, repug­nant, inconsistent, &c. can be no more than bare Testimony, and cannot any wise amount to, or be called Evidence. Here­in the Jury must consider the Credit and Authority of the Evidence, and the mat­ter or extent of what is Evidenced. First, If the matter proved amount to such plain and full Proof as is required. An Indictment laid against three Per­sons, may not be found against all three, when the Evidence is only against one or two of them; nor if laid against one Person for three Faults, may it be found against that one for all the three mat­ters, when but one or two of them are proved; nor when the Evidence is but to part of a Matter or Fault, may the Indictment be found for the whole; but, as aforesaid, all found must be proved. Indict­ments, &c. as aforesaid, brought upon, or referred to any Statute, the words of the Statute mentioned in such Indictment, [Page 77] &c. must be proved very strictly, even to a tittle; the Proof must hit the Bird in the Eye. As one Indicted on the Statute for Maliciously disturbing a Mi­nister at Divine Service, every one of these Words must be proved; so for wilfully and corruptly forswearing one's self; so for one's gain keeping a Gaming-House. But in other Cases, as at Com­mon Law, if the proof and words in the Indictment, &c. differ either in the mat­ter, or the form, or manner, inconside­rably, or so as the difference be not somewhat considerable or material, as aforesaid; such is indeed no difference in Law, nor by the Jury to be taken as any. In the matter, as in a Complaint for these words, B. is a maintainer of Thieves, and a strong Thief himself; here the word strong signifying little or no­thing, need not be proved spoken, Dy. 21. 75. But if the Allegation and Proof materially differ, otherwise; as for these words, If B. might have his will, he would kill all the true Subjects in England, and the King too. Now, the Proof be­ing that the Defendant said, I think in [Page 78] my Conscience, that if B. &c. the best Opinions in this Case are, that this is not sufficient Proof; for the Words al­ledged are more positive and absolute, and move Credit more in one's Ears than those proved, and so are not in effect the same, but materially differ. So of these Words, B. procured eight or ten Witnesses of his Neighbours, to Perjure themselves; the Proof being only that the Defendant said, B. had caused eight or ten, &c. This is no Proof, for one may be a Cause, and yet not a Procurer, there being remote Causes, Causa sine quâ non, as well as others so nigh, as that of procuring. Such a Cause as this B. might be, though only Plaintiff or Defendant in a Suit, for had there been no Suit, there could be no Perjury. And the most favourable and innocent Sence of Words is to be taken, and no o­ther. As for the manner, An Indict­ment being for Murder by Poyson; if the Proof be, it was not by Poyson, but a Weapon, Burning or Drowning, &c. this will not do; for the manner prov­ed, is of another Nature proved than al­ledged; [Page 79] but if the difference were only thus, that the Poyson alledged were of one sort, and that proved of another, this being immaterial, (both agreeing it was by Poyson) the Proof may serve. So Murder alledged to have been com­mitted by a Dagger, the proof being it was by a Sword or Bill, may serve; but proof by Poysoning will not do. If an Assault and Battery be alledged to have been at A. the proof being it was not at A. but B. may serve, provided the Offence be neither greater or lesser, whe­ther committed at A. or B. But if the place alledged aggravate the Fault, it's otherwise; or if both places be not in the same County. So of the like difference in time alledged and prov­ed. Now, as to the Credit and Authority of what is Witnessed: ‘It's no proof or Evidence to a Jury, which is against their own knowledge, nor any other but that only, which confirms them in what did know, or acquaints them with what did not know.’ The only Reason, said my Lord High Steward, at Lord Cornwallis's [Page 80] Tryal, why a Prisoner is allowed no Councel in matter of Fact, or in any thing but matter in Law, when Life or Member is concerned, is only this, The Evidence whereby he shall be Condemned, ought to be so plain and evident, that all the Council in the World may be pre­sumed able to say nothing against it, or in his Defence. Nothing ought so much as raise a suspicion, says Horne, but what comes from grave and good People, those which be Credible, and heed what they say, Mir. 200. And not from others, as ill-tongued, ill disposed, &c. People, Bract. Brit. Stanf. ‘The great Lord Coke says, of old time (as yet, says he, indeed it ought to be) Any Indictment was not to be found but on Credible Witnesses, and plain and direct Proof; and never upon Probabilities or Inferences,’ &c. Inst. 2. 384. The Famous Montagne, p. 1040. says, à tuer les gens il faut un clarté bien lumineuse & nette. And the Lord Coke, Inst. 3. 25. It's most necessary, as many hold, there should be two good Wit­nesses produced to the Grand Jury to [Page 81] prove every Indictment: And the Proof, says he, ought to be more clear than Light. Every Jury must always remem­ber, they may presume nothing but Inno­cency; and Innocency &c. they ought, un­til the contrary proved. Of Presump­tion and Argumentative Verdicts, &c. finding one Guilty, there be several very sad Examples. One the Lord Coke tells of, is, There being two Brothers, one dies, leaving an Estate, and an only Child, the other Educates it, and one Night correct­ing it, it cryed, Good Vnkle do not kill me, and next morning it was gone no Body knew whither. This Brother is Accused of its Death, upon Evidence of the matter aforesaid, that he beat it, it was Young, about Nine years old, it cryed as afore­said, it was never heard of since, and that the Vnkle enjoys an Estate by this. The Jury find him Guilty, and he was Hanged, but about a year after it returned safe and well, Inst. 3. 232. The Scrip­ture enjoyns the use always of two Wit­nesses at least, when yet the Punishment then and there was so much less than now with us, for the Crimes to be pu­nished, [Page 82] Deut. 17. 6. 16. 19. 15. Mat. 18. 16. Jo. 18. 27. 2 Cor. 13. 1. Heb. 10. 28. Vox unius nullius vox. One is none, l. 8. C. de testibus. Quaedam sunt causae quae plures quàm duos exigunt testes, nulla tamen quae unius testimonio termine­tur, says the Civil Law. In some Cases there must be more than two Witnesses, but never fewer, c. Licit. 23. in sin. extr. de test. By the Ancient Laws of Eng­land, no Indictment was to be received against a Presbyter, without three, or at least two Witnesses; against a 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 [Page 83] 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 [...]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. [Page 84] 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 [Page 85] 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 [Page 86] 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, [Page 87] 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, Cromp [...] 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. [Page 88] 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,

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) [Page 89] c. 30. praying against Poverty, the Rea­son's alledged, lest being poor, one should steal, and take the Name of the Lord in vain. And it's for something the Poet says,

As for Servants, &c. they are under the same Circumstances commonly of Poor Men, and worse, for more apt to do any thing in Obedience, or Favour, or else out of Malice, &c. against or for their Lord, &c. Before the Con­quest the Oath of a Thane (one of like degree then, as a Yeoman is now) was in Law Equivalent to the Oath of six Villains, Pagans, &c. (Servants that were bound) Lamb. 56. 200. as for Persons any wise Infamous, such will not value or stand upon their Credit, or but the less, since have little or none to lose, and over shoes over boots. As for cri­minal Persons, It's a Maxime, Justitia [Page 90] non potest cum scelerato Commorcium ha­bere. He that has been once wicked, or in one thing, may be suspected again, or in another thing, hence where a De­sendant is supposed in Law guilty but of a Contempt, Trespass, Deceit or In­jury; He shall not wage his Law, for the Law will not believe him, though would believe another against whom is an Action of Debt, Detinue or Account, Co. L. 295. As for one under 14 Years old, such are, as our Law says, not ar­rived at Discretion, such may Mistake, be Influenced, &c. and so of all the rest. But it were not amiss, if Juries heard all Persons, weighing their Te­stimony as ought. A Jury should mislike any Witness also, that in's Evidence va­ries, delivers himself in any passion, speaks at random, or not cautiously, or seems to side with or against either Party, or to argue, or to offer proving Negatives. None can swear a Negative, nor may be admitted to give Testimony directly against an Affirmative, 48 E. 3. 30. 12 H. 6. 6. Assize 408. 12 H. 4. 9▪ 50. E. 3. 16. 43 E. 3. 32. Fleta [Page 91] li [...] 6. c. FNB. 136. h. 97. c. A Jury may take Notice of particular Statutes, Patents, Judgments, and other Records given in Evidence, and may go against Estopels, Conclusions, &c. so it be ac­cording to the very truth; for they must speak the Truth in all cases, Co. 4. 53. It's much the Jury does not always exa­mine Witnesses themselves. If he that examines them be corrupted, or any wise ill affect, he may easily mislead the whole course of Evidence, he may countenance which side he will pleasedly, hearing the one side on one sort, but the other not without brow-beating and uneasiness; he may frighten, discountenance, divert, puzzle, distract, or otherwise abuse a Wit­ness; he may flatter, wheadle, prompt, ask leading Questions, direct, &c. and thus darken and perplex the Truth.

How does a Jury discharge its Con­science thus? The Jury is the only Judges also of what is said, and how the Ver­dict shall be given, and they whose Con­sciences are to be satisfied, and certainly know best what they want to know, &c. unless walk by implicite Faith, and [Page 92] therefore be the most proper to ask the Questions.

All that is aforesaid should also the rather be as proposed, considering how the Law is now alter'd as to Accusers, Judges, Witnesses, Councellors, Solici­tors, &c. Anciently, Omnis qui crimen objicit scribat se probaturum. Et non opor­tet quenquam Judicari vel Damnari prius­quam legitimos Accusatores habeat presen­tes, Ll. Guil. 1. c. 5. All Persons that Indicted any other, were to be sufficient, responsible, &c. Co. 5. 120. Accusers gave Security to answer Damages if the Accusation proved false, Mir. 19, 120, 124, 147, 195. Glanv. 75. longum car­ceris inducunt inclusionem cum redemptione, falsae appellationes & hujusmodi abetta­tores, Fleta 142. Fines were set on Ap­pellours, 11 R. 2. Fines 2. 15 E. 3. Fines 49. 107. If A. brought an Ap­peal in any Case, and was either barred, non-suited, or his Writ abated, he was fined and imprisoned immediately, without Defendants trouble, 8 H. 4. 17. 20. Brit. 245. 32. Ass. 9. 42. E. 3. 26. Ap­pellee acquit, the Appellour was by the [Page 93] same Judgment, without more Trouble, imprison'd a Year and Day, and was to repair the Damages of Credit, Trouble, Charges, &c. of Appellee, besides, un­dergo a grievous Ransom or Fine to the King; and so was it of Abettors or En­couragers of the Prosecution, Fleta 53. It was Death to appeal innocent Persons of any Mortal Crime, 'till H. 1. brought it to Corporal Punishment, and satisfying the Party grieved his Damages, Mir. 250, 251. So the Lawyers were pu­nished for assisting the Accuser, and a year and a day's Imprisonment inflicted on a Sergeant, Lawyer, Attorney, or Clerk, to use Deceit or Collusion in a Court, or consent to it, either in Favour of the Court, or any Person else, Fleta 87. Councellors were to be suspended Practise, if tendered false Delays, false Witnesses knowingly, used Deceits, Ficti­ons, or Untruths to the Court: And were to swear not to maintain or defend any Wrong or Falsity, Mir. 121, 122. And it's by a kind construction they be not yet lyable in several Cases to be punished as Barrettors, Maintainers, &c. [Page 94] An Assize did lye against Councellors, Attorneys, &c. by whose ill practice or means any one lost but a Free-hold in-Land, Mir. 154. 209. Brit. 315. So Witnesses have formerly been punished severely. In the Scripture, the Story of Susanna, the Witnesses are put to Death. By Moses's Law it was Eye for Eye, and Tooth for Tooth, Life for Life, &c. against false Witnesses, Deut. 19, 21. By the Law, Cornel [...]a amongst the Romans, a Witness that occasioned another's Death by false Testimony, lost his Head, if one of the greater Quality, else he was Hanged on the Cross, or given to wild Beasts, Simler. Before the Conquest, that of Moses was mostly; so with us, only sometimes it was Ba­nishment, &c. Ll. Ed. c. 3. Ethelst. c. 10. 25. Edm. c. 6. 35, &c. Edw. & Gru. c. 11. Aussi sont homicides de­volunt juges & tesmonis que fausses. Mir. 34, 36. False Judges, and false Wit­nesses are guilty of wilfully killing Men. After it came to cutting out of Tongues▪ Mir. c. 4. Ll. Canut. c. 15. As for Judges, they were accounted Disseissours, [Page 95] if wronged any one in his Title, Brit. 137. Mir. 154. 209. Brit. 315. In Scotland, Judex qui ter malè judicasse convictus fuerit perdit Officium & fit in­famis, Stat. Rob. 1. c. 28. A Judge con­victed of having thrice ill judged, loses his Office, and is adjudged infamous. Says Glanvil, Tenetur Curia Judicium suum tueri per duellum & maximè per illum qui Judicium reddidit. Et quidem si Curia de falso Judicio convicta fuerit, Dominus Curiae in misericordiâ▪ Regis manet & perpetuò Curiam amittit; prae­ [...]rea tota Curia in misericordia Regis re­nanet, Glanv. 66. Altresi qui faus juge­ment fuit pert sa Were si il ne pret pro­ver sor saintz que melz ne post juger, Lamb. 162, 64. Also whosoever gives a false Judgment, shall forfeit his Were, (what's Life is worth) unless can prove on Oath he could judge no better. Judges, if Condemned one to Death against their Knowledge, or by Ignorance of, or in what they ought not, as Judges, be Ig­norant of, they be Murderers, &c. and to dye as such, Mir. 256. v. Bract. 412, King Alfred's Law was, That false Judges, [Page 96] because dishonour God, whose Vicars they be, (the Scripture calls them Gods) and the King, which raises them to such an Honourable Seat, as the Chair of God; they shall (first) make satisfacti­on to the Party grieved, forfeit what else they have, and suffer further Punishment at King's Will and Pleasure. And if they falsly put to Death any, then to dye themselves, and always at least to suffer like for like, Mir. 265. 301. Appeal of one's Death lay against a Judge, for judging one falsly or wrongfully to Death, Mir. 136, 258, 298. Presentments were made against Chancellours, Judges, &c. for breaking their Oath, Mir. 144. There were 44 Judges hanged in one Year for wrongful Judgments, Mir. 296. &c. And says the same Book, it's an abuse, that all things are not so now, 296. What became of Tresilian and Belknap, of later years? But now the Law seems clear otherwise, we have little or no Punishment against Chancellours, Judges, Councellors, Attornies, Clerks, Witnes­ses, &c. yet were Juries then so cau­tious, as aforesaid, with and against [Page 97] them, where now therefore how many times more Jealous and Cautious have they Rea­son, and should they be.

The Law considering the great Burthen; that lies upon the Consciences of Jury-men, has favoured them with this Liberty. They may, as aforesaid, take upon them the knowledge of what the Law is in the mat­ter, or upon the truth of the Fact, as well as the knowledge of the Fact, and so give in a Verdict generally, that the Defendant is Guilty or not. Or they may give in only the matter of Fact, particularly how they find it to be, and then leave it to the Judges to determine. Or, they may acquaint the Judges, how the matter of Fact stands, and then ask the Judges their Opinion, as to the matter of Law, and then determine the whole matter themselves. The Grand Ju­ry strikes out of the Indictment what they be not certain is true; or may any wise al­ter it to what they be certain is true: Or, if any thing be in it they be doubtful of, they may superscribe it Ignoramus, at their Ele­ction in all these Cases. Thus if a Jury find the Words not spoke, or the Fact not done, with, and according to the Aggravations [Page 98] and Circumstances in an Indictment, &c. mentioned: They ought either not find the Indictment, (for one not being Guilty as the Indictment mentions, is consequently not Guilty of that Indictment, but rather seems, if guilty at all, guilty of some other matter than which he stands Indicted of, and so of some other Indictment only; and then let the Prosecutor, if so fond of trou­bling his Neighbours, bring such other) Or strike out what they have not sufficient Evidence of, as do often in Indictments of Murder, (which say the Defendant of his malice fore-thought Feloniously Killed and Murdered such a one) strike out the words of his malice fore-thought and murdered, ha­ving no Evidence of the Malice, but suffici­ent of the rest, and then endorse it Billa ve­ra, and so find the Bill Man-slaughter, in­stead of Murder. So was it of an Indict­ment against Ld. Chandois and Count Arun­del his second in a Duel. In like manner, when the Evidence proves a Fact done on­ly by mischance, defending one's self, in time and place of War, when Defendant was non Compos mentis, an Officer doing his Office, &c. the Grand Jury alter the Indict­ment [Page 99] accordingly. So of the Petit Ju­ry, only it does not alter the Indict­ment, &c. but instead of altering Murder to Man-slaughter, &c. as aforesaid, in the Indictment, they only say, Guilty of Man­slaughter, and not of Murder; or guilty of Chance-medley, Se Defendendo, &c. Or they may tell the Court particularly and plainly how they find the truth in, and of the whole matter to be so far as concerns the Fact, or what was done or said. As in Cases of Words, what were spoke, where, to what intent, &c, and so leave it to the Court to judge on it according to Law, and to tell what the Law is thereupon, and so be discharged themselves, which is called giv­ing a special Verdict. Suppose A. bring an Action of Debt on a Bond against B. as Heir of C. and B. pleads he hath nothing from C. to pay any thing with; and A. replyes, that he has, &c. and so the Issue is joyned (or what the Jury be to Try, is) whether B. has any thing, as aforesaid, or not. A. proves that B. had before the Action, brought something so, but aliened by Fraud and ill Practice, to deceive A. of his Debt. Now, they finding the matter or case to be thus indeed, and the Law being (for there is a [Page 100] Statute, 13 El.) that such aliening shall be void, and consequent, the Heir chargeable nevertheless: They may, if will, as afore­said, either take upon them to know the Law, and in this, or any Case, say generally, they find for A. Or not take Notice of the Law, but only of the Matter, and so tell the Court how, and what they find the matter to be; and thus leave it to the Court to judge in Law, whether ought to be found for, and this is their most safe way. To this end was the Stat. of West. 2. c. 3. that if a Jury doubt on the Evidence what the Law is, and therefore what to do, they might leave it to the Judges to determine. But, says Coke, this Statute is only in affirmance of the Common Law, Inst. 2. 425. 13 E. 1. 39. See a special Verdict in Case of Mur­der, Co. 4. 44. Co. 9. 63. One in an Infor­mation, N. B. Entr. 375, 378. Co. 1. 22. One in Attaint, Dy. 173. So in a Case about Murder, the Jury tell the Court; they find the Killing itself to be true, but not the Killing Feloniously, as mentioned in the In­dictment, and so ask the Opinion of the Court if it be Murder, Go. 9. 69. So the Ju­ry found the Parties Indicted for Riotously tearing the Petition, Guilty of tearing the Pe­tition, [Page 101] but not of the Riot, &c. It's true, it's doubted in Moor, c. 1002. whether in a Writ of Right a Jury may give a special Verdict. But as there is no Reason, that if the Cause be indifferently plain, as to the Law, the Jury themselves should not put an end to it, giving a General Verdict, as Guilty or not Guilty, &c. without so much further Charge, loss of Time, increase of Trouble, as otherwise must needs follow; yet on the other hand, there is as little why if there be difficulty in Law upon the case that they being mostly unlearned in Law should be bound to find generally Guilty or not, &c. and so find and say on a sudden what is the very Law, as well as Fact, when some such Cases have several years puzled all the Judges to resolve. And it's against all Reason, that the Election of giving a special Verdict, or general Verdict, should be in the Judges too; for the Jury best knowing them­selves, their own Capacities and Strength, do therefore best know when meet with diffi­culties to them in Law, and so when to give the one or other: And accordingly are [...] best Opinions that the Jury may choose▪ [...] the Action, &c. real, personal, or mixt, Civil, [Page 102] Criminal, Publick, or Private; and be the Issue general or special, or in any Case whatsoever: And that the Judges must ac­cept of, and can't refuse such Verdict, 13 E. 1. 30. Fitz. I. of P. 114. Co. 9. 14. Inst. 2. 425. Inst. 4. Co. L. 227, 228.

Either Jury may at any time alter their Opinion or Verdict, &c. before Recorded in Court, Fitz. I. of P. 114. Co. L. 227.

All said any where above of Grand Iu­ries, may be applied to the other Juries; and no Body will offer to deny, but other Juries ought to be as strict, circumspect, and careful, &c. as aforesaid, though would pretend otherwise of Grand Juries.

A Petit Jury may abridge a fault a Grand Iury finds one Guilty of, but can't enlarge it: As one indicted of Murder, may by the Petit Iury, be found Guilty of Man-slaughter, Chance-medley, &c. instead thereof; but one being Indicted of Man-slaughter, can't by the Petit Jury be found guilty of Murder, or any greater Crime than Man-slaughter.

A Petit Jury can't give any Verdict a­gainst any one, where Life or Member is in question or danger, but only in the Court, whilest also it's sitting, &c. though in other cases may.