MY old Client! a good morning to you, whither so fast?The Introdu­ction. you seem intent upon some important affair?

Worthy Sir! I am glad to see you thus oppor­tunely, there being scarce any person that I could at this time rather have wisht to meet with.

I shall esteem my self happy, if in any thing I can serve you.—The business I pray?

I am summon'd to appear upon a Jury, and was just going to try if I could get off. Now I doubt not but you can put me into the best way to obtain that favour.

'Tis probable I could. But first let me know the reason why you desire to decline that service.

You know, Sir,The Reasons why fit men endeavour sometimes to avoid serving on Juries. there is something of trouble and loss of time in it; and mens Lives, Liberties, and Estates (which depend upon a Jury's Guilty, or Not guilty, for the Plaintiff, or for the Defendant) are weighty things. I would not wrong my Conscience for a world, nor be accessary to any mans ruin. There are others better skill'd in such matters. I have ever so loved peace, that I have forborn going to Law, (as you well know many times) though it hath been much to my loss.

I commend your tenderness and modesty; Not sufficient. yet must tell you, these are but general and weak excuses. As for your time and trouble, 'tis not much; and however, can it be bet­ter spent than in doing justice, and serving your Country? To withdraw your self in such cases, is a kind of Sacriledg, a robbing of the publick of those duties which you justly owe it; the more peaceable man you have been, the more fit you are. For the office of a Jury-man is, conscientiously to judg his neighbour; and needs no more Law than is easily learnt to di­rect him therein. I look upon you therefore as a man well-qualified [Page 2]with estate, discretion, and integrity; and if all such as you, should use private means to avoid it, how would the King and Country be honestly served? At that rate we should have none but Fools or Knaves intrusted in this grand con­cern, on which (as you well observe) the Lives, Liberties, and Estates of all Englishmen depend.

Your Tenderness not to be accessary to any mans being wrong'd or ruin'd, is (as I said) much to be commended. But may you not incur it unawares, by seeking thus to avoid it? Pilate was not innocent because he washt his hands, and said, He would have nothing to do with the blood of that just one. There are faults of Omission as well as Commission. When you are legally call'd to try such a cause, if you shall shuffle out your self, and thereby persons perhaps less conscientious happen to be made use of, and so a Villain escapes justice, or an innocent man is ruined by a prepossest or negligent Verdict; can you think your self in such a case wholly blameless? Qui non prohibet cum potest, jubet: He abets evil, that prevents it not when he may. Nec caret scrupulo societatis occultae qui evi­dentèr facinori desinit obviare: He deserves not to be free from the suspition of a close society or underhand con piracy in the mischief of subverting the fundamental Laws and Liberties of the Nation, who ceases to obviate and oppose it.

Truly I think a man is bound to do all the good he can, especially when he is lawfully call'd to it. But there sometimes happen nice cases, wherein it may be difficult to discharge ones conscience without incurring the displeasure of the Court, and thence trouble and damage may arise.

That is but a vain and needless fear. For as the Ju­rors priviledges (and every English-mans in and by them) are very considerable; So the Laws have no less providently guarded them against Invasion or Usurpation. So that there needs no more than first understanding to know your duty, and in the next place courage and resolution to practise it with impartiality and intergrity, free from accursed bribery and ma­lice, or (what is full out as bad in the end) base and servile fear.

I am satisfied, that as 'tis for the advantage and ho­nour of the publick, that men of understanding, substance, and honesty should be employ'd to serve on Juries, that justice and right may fairly be administred; So 'tis their own interest when called thereunto, readily to bestow their attendance and ser­vice, to prevent ill presidents from men otherwise qualified; which may by degrees fatally, though insensibly, undermine our just Birth-rights, and perhaps fall heavy one day upon us, or our posterity. But for my own part, I am fearful lest I should suffer through my ignorance of the duty and office of a Jury­man, and therefore on that account principally it is, that I de­sire to be excused in my appearance, which if I understood but so well as I hope may others do, I would with all my heart attend the service.

You speak honestly, and like an Englishman. But if that be all your cause of scruple, it may soon be removed, if you will but give your self a very little trouble of inquiry into the necessary provisions of the Law of Engla [...] relating to this matter.

There is nothing (of a temporal concern) that I would more gladly be inform'd in, because I am satisfied,The Antiqui­ty of Trials Juries. 'tis very ex­pedient to be generally known. And first I would learn how long trials by Juries have been used in this Nation?

Even time out of mind; so long, that our best Historians cannot date the Original of the Institution, being indeed cotem­porary with the Nation it self, or in use as soon as the people were reduced to any form of Civil Government, and admini­stration of Justice. Not have the several Conquests or Revo­lutions, the mixtures of Foreigners, or the mutual feuds of the Natives, at any time been able to suppress or overthrow it. For,

• 1. That Juries (the thing in effect and substance,
  Amongst the Britains.
  though purhaps not just the number of Twelve men) were in use amongst the Britains the first Inhabitants of this Island, ap­pears by the Ancient Monuments and Writings of that Na­tion, attesting that their Free holders had always a share in all Tryals and determinations of differences.
• 2. Most certain it is, that they were practised by the Sax­ons, [Page 4]and were then the only Courts,
  Amongst the Saxons. Lamb. p. 218. Cook. 1. par. In­stitutes. fol. 155.
  or at least an essential, and the greater part of all Court of Judicature: For so (to omit a multitude of other Instances) we find in King Ethelreds Laws, In singulis Centuriis, &c. In every Hundred let there be a Court, and let Twelve ancient Free-men, together with the Lord, or rather according to the Saxon, the Greve, i. e. the chief Officer amongst them, be sworn, That they will not condemn any person that is Innocent, nor acquit any one that is guilty.
• 3. When the Normans came in, William, though common­ly called the Conquerour,
  Continued by the Normans. See Spelmans Glossar. in the word Jurata.
  was so far from abrogating this Pri­viledg of Juries, That in the 4th year of his Reign, he con­firmed all King Edward the Confessors Laws, and the ancient Customs of the Kingdom (whereof this was an essential and most material part). Nay, he made use of a Jury chosen in every County, to report and certifie on their Oaths what those Laws and Customs were; as appears in the Proem of such his Confirmation.
• 4.
  Confirmed by Magna Charta.
  Afterwards when the Great Charter, commonly called Magna Charta, (which is nothing else than a recital, confir­mation and corroboration of our Ancient English Liberties) was made and put under the Great Seal of England in the 9th year of King Henry the 3d (which was Anno Domini 1225.) Then was this Priviledg of Tryals by Juries in an especial manner confirmed and establisht, as in the 14th Chapter, That no Amercements shall be assessed, but by the Oath of good and honest men of the Vicinage. And more fully in that Gold▪ on Nine and twentieth Chapter—No Freeman shall be taken, or imprisoned, nor be disseized of his Freehold or Liberties, or free customs, or be out-law'd, or exil'd, or any other way destroy­ed, nor shall we pass upon him, or condemn him, but by the law­ful judgment of his Peers, &c. Which Grand Charter having been confirmed by above thirty Acts of Parliament, the said right of Juties thereby, and by constant usage, and common custom of England, which is the common, Law, is brought down to us as our-undoubted Birth-right, and the best inhe­ritance of every English man. For as that famous Lawyer Chief [Page 5]Justice Cook in the words of Cicero, excellently avers,
  2. Institutes, fol. 56.
  Major Hereditas venit unicuique nostrum a jure & legibus quam a pa­rentibus: 'Tis a greater inheritance, and more to be valued, which we derive from the fundamental constitution and Laws of our Country, than that which comes to us from our respective Parents. For without the former, we have no claim to the latter.

But has this method of Trial never been attempted to be invaded or justled out of practice?

'Tis but rarely that any have arrived to so great a con­fidence:Essays made to overthrow Trials by Ju­ries, always unsuccessful, and severely punisht. For 'tis a most dangerous thing to shake or alter any of the rules or fundamental points of the common Law, which in truth are the main pillars and supporters of the fabrick of the Commonwealth. These are Judg Cooks words2. Institutes, pag. 74. Yet sometimes it has been endeavoured. But so sacred and valuable was the Institution in the eyes of our Ancestors, and so tenacious were they of their Priviledges, and zealous to maintain and pre­serve such a vital part of their Birth-right and Freedom, that no such attempts could ever prove effectual, but always end­ed with the shame and severe punishment of the rash under­takers. For example,

• 1. Andrew Horn an eminent Lawyer, in his Book Entituled, The Mirrour of Justices, (written in the Reign of K. Edw. 1. now near 400 years ago) in the fifth Chapter, and first Secti­on, records, That the renowned Saxon King Alfred caused four and forty Justices to be hang'd in one year as murtherers, for their false Judgments. And there recites their particular Crimes, most of them being in one kind or other Infringe­ments, Violations and Encroachments of and upon the Rights and Priviledges of Juries; amongst the rest, that worthy Au­thor tells us, he hanged one Justice Cadwine, because he judged one Hackwy to death without the consent of all the Jurors; for whereas he stood upon his Jury of twelve men, because three of them would have saved him, this Cadwine removed those three, and put others in their room, on the Jury, against the said Hackwy's consent. Where we may observe, that though at last twelve men did give a Verdict against him, yet those so [Page 6]put upon him, were not accounted his Jurors; by reason all, or any of them, who were first sworn to try him, could not (by Law) be removed, and others put in their stead. And that such illegal alteration was then adjudged a Capital Crime, and forth­with the said Cadwine was Hang'd.
• 2. A second instance I shall give you in the words of the Lord Chief Justice Cook. ‘Against this ancient and funda­mental Law (and in the face thereof) there was in the 11. year of King Henry 7.Cook 2. part of Institutes, fol. 51. cap. 3. an Act of Parliament obtain­ed (on fair pretences, and a specious preamble, as to avoid divers-mischiefs, &c)’ whereby it was Ordain'd, That from thenceforth, as well Justices Assize, as Justices of the Peace, upon a bare Information for the King before them made, with­out any finding or presentment by the Verdict of Twelve men, should have full power and authority by their discretions, to hear and determine all offences and contemts committed or done by any person or persons against the Form, Ordinance, or effect of any statute made and not repealed, &c. ‘By colour of which Act (saith Cook) shaking this Fundamental Law (he means, touching all Trials to be by Juries) it is not credible what HORRIBLE OPPRESSIONS and EXACTIONS, to the undoing of MULTITUDES of people, were commit­ted by Sir Richard Enipson Knight, and Edmund Dudley Esq (being Justices of the Peace) throughout England; and upon this unjust and injurious Act (as commonly in like cases it falleth out) a new Office was erected, and they made Masters of the Kings Forfeitures.’

But not only this Statute was justly soon after the decease of Hen. 7. repealed by the Statute of the 1 Hen. 8. cap. 6. but also the said Empson and Dudley (notwithstanding they had such an Act to back them, yet it being against Magna Charta, and consequently void) were fairly executed for their pains; and several of their under agents,See Sir Rich. Bakers Chron. p. 273. as Promoters, Informers, and the like, severely punisht, for a warning to all others that shall dare (on any pretence whatsoever) infringe our English Liberties. For so the Lord4 part Instit. fol. 41. Cook having (elsewhere) with [Page 7]detestation mentioned their story, pathetically concludes, Qui eorum vestigiis insistant, exitus perhorrescant: Let all those who shall presume to tread their steps, tremble at their dreadful end. Other Instances of a latter date might be given, but I suppose these may suffice.

Yes surely;The benefits of being tri­ed by Juries. and by what you have discoursed of the long continued use of Juries, and the zealous regards our An­cestors had, not to part with them; I perceive that they were esteemed a special priviledg. Be pleased therefore to ac­quaint me wherein the excellency and advantages to the people by that method of trial above others, may consist?

This question shew,See all this excellently made out, and more at large by the L. C. J. Fortescue, af­terwards Chancellor to K Hen. 6. in his Book, De laudibus Legum Angliae. cap. 26, 27, 28, & 29. you have not been much conver­sant abroad, to observe the miserable condition of the poor people in most other Nations, where they are either wholly sub­ject to the despotick arbitrary lusts of their Rulers; or at best under such Laws as render their Lives, Liberties, and Estates, liable to be disposed of at the discretion of strangers appointed their Judges, most times mercinary, and Creatures of Prerogative; sometimes malicious and oppressive, and often partial and corrupt. Or suppose them never so just and upright, yet still has the Subject no security against the attacks of un­conscionable Witnesses; yea, when there is no sufficient Evi­dence, upon bare suspicions they are obnoxious to the Tor­tures of the Rack, which often make an innocent man con­fess himself guilty, meerly to get out of present pain Is it not then an inestimable happiness to be born and live under such a mild and righteous Constitution wherein all these mischiefs (as far as humane prudence can provide) are prevented; where none can be condemn'd, either by the power of supe­rior enemies, or the rashness or ill will of any Judg, nor by the bold Affirmations of any profligate evidence; But no less than Twelve, honest, substantial, impartial men, his neighbours (who consequently cannot be presumed to be unacquainted either with the matters charged, the Prisoner's course of life, or the credit of the Evidence) must first be fully satisfied in their Consciences, that he is guilty, and so all unanimously [Page 8]pronounce him upon their Oaths. Are not these, think you very material priviledges?

Yes certainly, though I never so well consider'd them before. But now I plainly see our forefathers had, and we still have all the reason in the world to be zealous for the mainte­nance and preservation thereof from subversion or encroach­ments, and to transmit them intire to posterity. For if once this bank be broken down or neglected, an ocean of oppressi­on, and the ruins of infinite numbers of people, (as in Empson and Dudley's days) may easily follow, when on any pretence they may be made Criminals, and then fined in vast sums, with pretext to enrich the Kings Coffers, but indeed to feed those insatiate Vultures that promote such unreasonable Prosecuti­ons.The Office and power of Juries. But since you have taught me so much of the antiquity and excellency of Juries, I cannot but crave the continuance of your favour to acquaint me somewhat more particularly of their office and power by Law.

See Cook, 4th. part of Instit. fol. 84. I shall gladly comply with so reasonable and just a re­quest. A Jury of twelve men are by our Laws the only proper Judges of the matter in issue before them, As for instance,

• 1. That Testimony which is delivered to induce a Jury to believe, or not to believe the matter of Fact in issue, is called in Law EVIDENCE, because thereby the Jury may out of many matters of Fact, Evidere verilatem, that is, see clearly the truth, of which they are proper Judges.
• 2. When any matter is sworn, Deed read, or offered whe­ther it shall be believed or not, or whether it be true or false in point of Fact, the Jurors are proper Judges.
• 3. Whether such an act was done in such or such a manner, or to such or such an intent, the Jurors are Judges. For the Court is not Judg of these matters, which are evidence to prove or disprove the thing in issue. And therefore the Wit­nesses are always ordered to direct their speech to the Jury, they being the proper Judges of their Testimony. And in all Pleas of the Crown (or matters Criminal) the Prisoner is said, to put himself for trial upon his Country, which is explain­ed [Page 9]and referred by the Clerk of the Court, to be meant of the Jury, saying to them, Which Country you are.

Well then, what is the part of the Kings Justices, The office of the Court in Trials. or the Court? what are they to take cognizance of, or do, in the Trials of mens Lives, Liberties, and Properties?

Their office in general is to do equal justice and right: particularly,

• 1. To see that the Jury be regularly return'd and duly sworn.
• 2. To see that the Prisoner (in cases where 'tis permittable) be allowed his lawful challenges.
• 3. To advise by Law, whether such matter may be given in evidence or not, such a writing read or not, or such a man admitted to be a witness, &c.
• 4. Because by their learning and experience they are pre­sum'd to be best qualified to ask pertinent questions, and in the most perspicuous manner soonest to sift out truth from amongst tedious impertinent Circumstances and Tautologies; they therefore commonly examine the Witnesses in the Court, yet not excluding the Jury, who of right may, and where they see cause, ought to ask them any necessary questions, which undoubtedly they may lawfully do with modesty and discre­tion, without begging any leave. For if asking leave be ne­cessary, it implies in the Court a right when they list to deny it; and how then shall the Jury know the truth? And since we see that Council, who too often (—Pudet haec opprobria nobis) for their fees strive only to baffle Witnesses, and stifle Truth, take upon them daily to interrogate the evidence, 'tis absurd to think that the Jurors should not have the same priviledg, who are upon their Oaths, and proper Judges of the matter.
• 5. As a discreet and lawful Assistant to the Jury,
  Vanghan's Re­ports in Bush­ell's Case. fol. 144.
  they do often recapitulate and sum up the heads of the Evidence; but the Jurors are still to consider whether it be done truly, fully and impartially, (for one mans memory may sooner fail than Twelve's.) He may likewise state the Law to them, that [Page 10]is, deliver his opinion where the case is difficult, or they de­sire it. But since Ex facto jus oritur, all matter of Law arises out of matter of Fact, so that till the Fact is setled there is no room for Law, therefore all such discourses of a Judg to a Jury are or ought to be Hypothetical, not coercive; conditional, and not positive; viz. If you find the fact thus or thus, (still leaving the Jury at liberty to find as they see cause) then you are to find for the Plaintiff. But if you find the Fact thus or thus, then you are to find for the Defendant, or the like, Guilty, or not guilty, in cases Criminal.
• Lastly, They are to take the Verdict of the Jury, and there­upon to give judgment according to Law, For the office of a Judg (as Cook well observes) is jus dicene, not jus dare; not to make any Laws by strains of wit, or forced Interpretati­ons; but plainly and impartially to declare the Law already establisht. Nor can they refuse to accept the Juries Verdict when agreed: For if they should, and force the Jury to re­turn, and any of them should miscarry for want of accom­modation, it would undoubtedly be murder; and in such case the Jury may without crime force their liberty, because they are illegally confined, having given in their Verdict, and thereby honestly discharged their office, and are not to be starv'd for any mans pleasure.

How Jurors are Judges of Law as well as Fact. But I have been told, That a Jury is only Judg of na­ked matter of fact, and are not all to take upon them to meddle with, or regard matter of Law, but leave it wholly to the Court.

'Tis most true, Jurors are Judges of matters of Fact, that is their proper Province, their chief business; but yet not ex­cluding the consideration of matter of Law, as it arises out of, or is complicated with, and influences the Fact. For to say, they are not at all to meddle with, or have respect to Law in giving their Verdicts, is not only a false position, and contradicted by every days experience; but also a very dan­gerous and pernicious one, tending to defeat the principal [Page 11]end of the Institution of Juries, and so subtilly to undermine that which was too strong to be batter'd down.

1. It it false: for though the direction as to matter of Law separately may belong to the Judg, and the finding the matter of Fact does peculiarly belong to the Jury, yet must your Jury also apply matter of Fact and Law together; and from their consideration of, and a right judgment upon both, bring forth their Verdict: For do we not see in most General issues, as upon not guilty, pleaded in trespass, breach of the peace, or Felony, though it be matter in Law whether the party be a trespasser, a breaker of the Peace, or a Felon; yet the Jury do not find the Fact of the case by it self, lea­ving the Law to the Court; but find the party guitly, or not guilty, generally. So as though they answer not to the question singly, what is Law; yet they determine the Law in all matters where Issue is join'd. So likewise is it not every days practise, that when persons are Indicted for murther, the Jury does not only find them guilty or not guilty, but many times upon hearing and weighing of circumstances, brings them in, either guilty of Murther, Manslaughter, per Infortu­nitus, or se-defendendo, as they see cause. Now do they not herein complicately resolve both Law and Fact? And to what end is it that when any person is prosecuted upon any Sta­tute, the Statute it self is usually read to the Jurors, but only that they may judg, Whether or no the matter be within that Statute? But to put the business out of doubt, we have the suffrage of that Oracle of Law Littleton, who in his Tenures, Sect. 368. declares, That if a Jury will take upon them the knowledg of the law upon the matter, they may. Which is agreed to, likewise by Cook in his Comment thereupon. And therefore 'tis false to say, That the Jury hath not power, or doth not use frequently to apply the Fact to the Law; and thence taking their measures, judg of, and determine the crime or issue by their Verdict.

2. As Juries have ever been vested with such power by Law, so to exclude them from, or disseize them of the same, were utterly to defeat the end of their institution. For then if a person should be Indicted for doing any common innocent act, if it be but clothed and disguised in the Indict­ment with the name of Treason, or some other high crime, and prov'd by Witnesses to have been done by him; the Jury though satisfied in Conscience, that the Fact is not any such offence as 'tis called, yet because (according to this fond opinion) they have no power to judg of law, and the fact charged is fully prov'd, they should at this rate be bound to find him guilty. And being so found, the Judg may pronounce sentence against him, for he finds him a convict­ed Traytor, &c. by his Peers. And thus as a certain Phy­sician boasted, That he had kill'd one of his Patients with the best method in the world; So here should we have an in­nocent man hang'd, drawn, and quarter'd, and all according to law.

God forbid that any such thing should be practised; and indeed I do not very fully understand you.

I do not say it ever hath been, and I hope it never will be practised: But this I will say, that according to this Doctrine, it may be; and consequently Juries may thereby be rendred rather a snare or engine of oppression, than any advantage or Guardian of our Legal Liberties against Arbitrary Injustice, and made meer properties to do the drudgery, and bear the blame of unreasonable Prosecutions. And since you seem so dull as not to perceive it, let us put as Imaginary case, not in the least to abet any irre­verence towards his Majesty, but only to explain the thing, and shew the absurdness of this opinion.— Suppose then a man should be Indicted, For that he as a false Traytor not having the fear of God before his eyes, &c. [Page 13] did trayterously, presumptuously against his Allegiance, and with an intent to affront his Majesties Person and Govern­ment, pass by such or such a Royal Statue or Effigies with his hat on his head, to the great contempt of His Majesty and his Authority, the evil example of others, against the Peace, and his Majesties Crown and Dignity. Being hereupon ar­raigned, and having pleaded Not guilty, suppose that suffici­ent evidence should swear the matter of Fact laid in the In­dictment, viz. That he did pass by the Statue or Picture with his hat on; now imagine your self one of the Jury that were sworn to try him, What would you do in the matter?

Do? Why I should be satisfied in my Conscience. That the man had not herein committed any crime, and so I would bring him in not Guilty.

You speak as any honest man would do: But I hope you have not forgot the point we were upon; suppose therefore when you thought to do thus, the Court, or one of your Bre­thren, should take you up and tell you, That it was out of your power so to do; For look ye (saith he) my Masters! An ordinary Jury-man's wise Speech. we Ju­ry-men are only to find matter of Fact, which being fully prov'd as in this case before us it is, we must find the party Guilty; whether the thing be Treason or not, does not belong to us to in­quire; 'tis said so here, you see in the Indictment; and let the Court look to that, they know best, we are not Judges of Law: Shall we meddle with niceties and punctilio's, and go contrary to the directions of the Court [...] perhaps we shall bring our selves into a praemunire (as they say) and perhaps never be suffered to be Jury men again. No, no, The matter of Fact you see is proved, and that's our business, we must go according to our Evidence, we cannot do less; truly 'tis something hard, and I pity the poor man, but we cannot help it, &c. After these notable documents, what would you do now?

I should not tell what to say to it; for I have heard se­veral Anoi [...]nt Jury-men speak to the very same effect, and thought they talk's very wisely.

Well then, would you consent to bring in the man Guilty?

Truly I should be somewhat unwilling to do it; but I do not see which way it can be avoided, but that he must be found guilty of the Fact.

God keep every honest body from such Jury-men; have you no more regard to your Oath? to your Conscience? to Justice? to the Life of a man?

Hold! hold! perhaps we would not bring him in Guilty generally, but only Guilty of the Fact, Finding no more but Guilty of passing by the Statue with his Hat on.

This but poorly mends the matter, and signifies little or nothing; For such a finding hath generally been refused by the Court, as being no Verdict, though 'tis said it was lately allowed somewhere in a Case that required favour. But sup­pose it were accepted, what do you intend shall become of the Prisoner? must not he be kept in Prison till all the Judges are at leisure and willing to meet and argue the business? Ought you not, and what Reason can you give why you should not absolutely acquit and discharge him? Nay, I do aver, you are bound by your Oaths to do it, by saying with your mouths to the Court, what your Consciences cannot but di­ctate to your selves, Not Guilty: For pray consider, Are you not sworn, That you will well and truly Try, and true deliverance make? There's none of this Story of matter of Fact, distinguisht from Law in your Oath. But you are, Well, that is, Fully and Truly, that is, Impar­tially, [Page 17]to try the Prisoner, So that if upon the Consciences, and the best of the Ʋnderstanding by what is proved against him, you find he is guilty of that Crime wherewith he stands charg­ed, that is, deserving Death, or such other Punishment as the Law inflicts upon an Offence so denominated; then you are to say, he is Guilty. But if you are not satisfied, that either the Act he has committed was Treason, or other Crime, (though it be never so often called so) or that the Act it self, if it were so cri­minal, was not done, then what remains but that you are to ac­quit him? For the end of Juries it to preserve Men from op­pression, which may happen as well by imposing or ruining them for that as a Crime, which indeed is none, or at least not such or so great as is pretended, as by charging them with the Commis­sion of that which in truth was not committed. And how do you well and truly Try, and true Deliverance make, when indeed you do but deliver him up to others to be Condemned, for that which your selves do not believe to be any Crime?

Well; but the supposed Case is a Case unsupposable. It is not to be imagined, that any such thing should happen, nor to be thought, that the Judges will condemn any Man, though brought in Guilty by the Jury, if the Matter in it self be not so Criminal by Law.

'Tis most true, I do not believe that ever that Case will happen. I put it in a thing of apparent Absurdity, that you might the more clearly observe the unreasonableness of this Do­ctrine; but withal I must tell you, That 'tis not impossible that some other Cases may really happen, of the same or the like na­ture, though more fine and plausible. And though we apprehend not, that during the Reign of His Majesty that now is, (whose Life God long preserve) any Judges will be made that would so wrest the Law; Yet what Security is there, but that some Suc­cessors may not be so cautious in their Choice? And though our Benches of Judicature be at present furnish'd with Gentle­men of great Integrity, yet there may one day happen some Tresi­lian, or Kinsman of Empsons, to get in, (for what has been, may be) who Empson-like too, shall pretend it to be for his Masters [Page 18]Service, to encrease the number of Criminals, that his Coffers may be fill'd with Fines and Forseitures. And then such mis­chiefs may arise. And Juries having upon confidence parted with their just Priviledges, shall then, too late, strive to re­assume them, when the number of Ill presidents shall be vouch­ed to inforce that as of Right, which in truth was at first a Wrong grounded on Easiness and Ignorance. Had our wise and wary Ancestors thought fit to depend so far upon the Contin­gent Honesty of Judges, they needed not to have been so zea­lous to continue the usage of Juries.

Yet still I have heard, that in every Indictment, or Information, there is always something of Form or Law, and something else of Fact; and it seems reasonable, that the Jury should not be bound up nicely to find every Formality therein expressed, or else to acquit (perhaps) a notorious Criminal. But if they find the Essential Matter of the Crime, then they ought to find him Guilty.

You say true, and therefore must note, that there is a wide difference to be made between Words of Course, How far ag­gravating words, or those of course in In­dictments or Informations, are to be re­garded. rais'd by Implication of Law, and Essential Words, that either make, or really aggravate the Crime charged. The Law does suppose and imply every Trespass, Breach of the Peace, every Felony, Murder, or Treason to be done Ui & Armis, with Force and Arms, &c. Now if a Person be Indicted for Murder by Poison, and the Matter proved, God forbid the Jury should scruple the finding him Guilty upon the Indictment, meerly because they do not find that part of it, as to Force and Arms, proved. For that is implyed as a necessary or allowable Fiction of Law.

But on the other side, when the Matter in Issue in it self, and taken as a naked Proposition, is of such a Nature, as no Action, Indictment, or Information will lie for it singly, but it is work'd up by special Aggravations into Matter of Damage or Crime; as that it was done to scandalize the Government; to raise Sedition, to affront Authority, or the like, or with such or such an evil intent. If these Aggravations, or some overs Act to manifest such ill Design or Intention be not made [Page 19]out by Evidence, then ought the Jury to find the Party Not Guilty; for example.

Bishop Latimer, (afterwards a Martyr in bloody Queen Maries days, for the Protestant Religion) in a Sermon preach­ed before the most excellent King Edward the sixth delivered these words. ‘I must desire your Grace to hear Poor Mens Suits your self; the Saying is now,See Latimers Sermons fo. 41. the se­cond Sermon before King Edward the sixth. That Money is heard e­very where; if he be Rich, he shall soon have an end of his Matter, others are fain to go home with weeping Tears for any help they can obtain at any Judges Hand. Hear Mens Suits your self, I require you in Gods behalf, and put them not to the Hearing of these Velvet-Coats, these Up [...]skips. Amongst all others, one especially moved at this time to speak; This it is, Sir! A Gentlewoman came and told me, that a Great Man keepeth certain Lands of hers from her, and will be her Tenant in spight of her Teeth. And that in a whole Twelve-month she could not get but one day for the Hearing of her Matter, and the same day, when it should be heard, the Great Man brought on his side a great sight of Lawyers for his Counsel, the Gentlewoman had but one Man of Law, and the Great Man shakes him so, that he cannot tell what to do; so that when the Matter came to the Point, the Judge was a means to the Gentlewoman, that she should let the Great Man have a quietness in her Land: I beseech your Grace, that ye yould look to these Matters. And you proud Judges! Hearken what God saith in his Holy Book; Audite illos ita parvum ut, magnum, Hear them (saith he) the Small as well as the Great, the Poor as well as the Rich, regard no Person, fear no man. And why? Quia Domini Judicium est, The Judgment is Gods. Mark this Saying, thou Proud Judge, The Devil will bring this Sentence against thee at the Day of Doom. Hell will be full of these Judges, if they repent not, and amend, they are worse than the wicked Judge that Christ speaketh of Luke the 19th, that neither feared God nor the World. Our Judges are worse than this Judge was ; for they will neither hear Men for God's [Page 20]sake, nor fear of the World, nor Importunateness, nor any thing elsePrison; yea some of them will command them to ⋆ ward if they be importunate. I heard say, That when a Suiter came to one of them, he said, What fellow is it that giveth these folks counsel to be so importunate? he deserves to be Punished and Committed to ward. Marry sir! punish me then, It is even I that gave them Counsel, I would gladly be punish­ed in such a Cause, and if you amend not, I will cause them to cry out upon you still, even as long as I live.— These are the very words of that good Bishop and Martyr Father Latimer.’

Truly they are somewhat Bold, but I think very Honest ones. But what signify they to our discourse?

Only this, suppose the Judges of those times, think­ing themselves agrieved by such his Freedom, should have brought an Indictment against him, setting forth, that falsly and maliciously intending to scandalize the Government and the Administration of Justice in this Realm, and to bring the same into Contempt, he did speak, publish and declare the false and scandalous words before recited.

I conceive the Judges had more Wit than to trouble themselves about such a Business.

That's nothing to the purpose, but suppose I say by them or any body else, it had been done, and his speaking the words had been proved, and you had then been Living and one of the Jury.

I would have pronounced him not Guilty, and been starv'd to Death before I would have consented to a contrary Verdict, Because the words in themselves are not Criminal, nor reflecting upon any particulars, and as for what is supposed to be laid in the Indictment or Information, that they were published or spoken to scandalize the Government and the Administration of Justice, or to bring the same into Contempt, nothing of that appears.

You resolve as every Honest, Understanding, Consci­entious man would do in the like Case, for when a man is Pro­secuted [Page 21]for that which in it self is no Crime, how dreadfully so­ever it may be set out, as the Inquisitors in Spain use to Cloath Innocent Protestants, whom they Censure to the flames, with Sambenito's (Garments all over bepainted with Devils) that the people beholding them in so Hellish a dress, may be so far from pitying them, that they may rather Condemn them in their thoughts as Miscreants not worthy to Live, though in truth they know nothing of their Cause, yet I say notwith­standing any such Bugg-bear Artifice, an Innocent man ought to be Acquitted, and not he and all his Family ruined and perhaps utterly undone, for words or matters harmless in them­selves, and possibly very well intended, but only rendred Cri­minal by being thus hideously dressed up, and wrested with some far-fetch'd, forced and odious Construction.

This is a matter well worthy the Consideration of all Juries, for indeed I have often wondred to observe the Adverbs in Declarations, Indictments and Informations in some Cases to be harmless Vinegar and Pepper, and in others Hen­bane steep'd in Aqua fortis.

That may easily happen, where the Jury does not di­stinguish Legal Implications, from such as Constitute, or ma­terially Aggravate the Crime, for if the Jury shall honestly re­fuse to find the latter in Cases where there is not direct proof of them, viz. That such an Act was done Falsly, Scandalously, Maliciously, with an intent to raise Sedition, defame the Go­vernment, or the like, their mouths are not to be stopt, nor their Consciences satisfied with the Courts telling them — you have nothing to do with that, its only matter of Form or matter of Law, you are only to examine the Fact, whether he spoke such words, writ or sold such a Book or the like; For, now if they should ignorantly take this for an Answer and bring in the Prisoner Guilty, though they mean and intend of the naked Fact or bare Act only, yet the Clerk Recording it, demands a further Confirmation, saying to them, thus, well then you say A. B. is Guilty of the Trespass or Misdemeanour in manner and form a he stands Indicted and so you say all, to which the [Page 22]Foreman Answers for himself and his fellows Yes. Whereupon the Verdict is drawn up— Juratores super Sacramentum suum dicunt, &c. The Jurors do say upon their Oaths, that A. B. ma­liciously, in Contempt of the King and the Government, with an intent to scandalize the Administration of Justice, and to bring the same into Contempt, or to raise Sedition &c. (As the words before were laid) spake such Words, publisht such a Book, or did such an Act, against the Peace, of our Lord the King his Crown and Dignity.

Thus a Verdict, so called in Law, quasi veritatis, because it ought to be the Voice or Saying of Truth it self,Dictum. may be­come composed in its material part of Falshood. Thus Twelve men ignorantly drop into a Perjury. And will not every con­scientious man tremble to pawn his Soul under the sacred and dreadful solemnity of an Oath, to attest and justisie a Lie up­on Record to all Posterity; besides the wrong done to the Prisoner, who thereby perhaps comes to be hang'd (and so the Jury in soro conscientioe are certainly guilty of his Mur­ther) or at lesst by Fine or Imprisonment) undone with all his Family, whose just Curses will fall heavy on such unjust Jurymen and all their Posterity, that against their Oaths and Duty occasion'd their causeless misery, And is all this think you nothing but a matter of Formality?

Yes really, a matter of Vast Importance and sad Consideration; yet I think you charge the mischiefs done by such Proceedings a little too heavy upon the Jurors; Alas good men! They mean no harm, they do but follow the di­rections of the Court, if any body ever happen to be to blame in such Cases it must be the Judges.

Yes, forsooth! That's the Jury-mens common-plea, but do you think it will hold good in the Court of Heaven? 'Tis not enough that we mean no harm, but we must do none neither, especially in things of that moment, nor will Igno­rance excuse, where 'tis affected, and where duty obliges us to Inform our selves better, and where the matter is so plain and easie to be understood.

As for the Judges they have a fairer plea than you, and may quickly return the Burther back upon the Jurors, for we, may they say, did nothing but our duty according to usual Pra­ctise, the Jury his Peers had found the Fellow Guilty upon their Oaths of such an Odious Crime, and attended with such vile, presumptions, and dangerous Circumstances. They are Judges, we took him as they presented him to us, and according to our du­ty pronounced the Sentence, that the Law inflicts in such Cases, or set a Fine, or ordered Corporal punishment upon him, which was very moderate, Considering the Crime laid in the Indict­ment or Information, and of which they had so sworn him Guil­ty; if he were innocent or not so bad as Represented, let his De­struction lye upon the Jury &c. At this rate if ever we should have an unconscionable Judge, might he Argue; And thus the Guilt of the Blood or ruin of an Innocent man when tis too late shall be Bandyed to and fro, and shufled off from the Jury to the Judge, and from the Judge to the Jury, but really sticks fast to both, but especially on the Jurors; because the very end of their Institution was to prevent all dangers of such oppression, and in every such Case, they do not only wrong their own Souls, and irreparably Injure a particular Person, but also basely betray the Liberties of their Countrey in General, for as without their ill-complyance and Act no such mischief can happen; so by it, ill precedents are made, and the Plague is encreased, honester Juries are disheartned or se­duc'd by Custome from their Duties, just Priviledges are lost by disuser, and perhaps within a while some of themselves may have an hole pickt in their Coats, and then they are Try­ed by another Jury just as wise and honest, and so deserved­ly come to smart under the Ruinating Effects, and Example of their own Folly and Injustice.

You talk of Folly, and blame Jury-men, when in­deed they cannot help it, they would sometimes find such a Person Guilty, and such an one Innocent, and are perswaded they ought so to do, but the Court over-rules, and forces them, to do otherwise.

How I pray?

How? Why, did you never hear a Jury threatned to be Fined and Imprisoned, if they did not comply with the Sentiments of the Court?

I have Read of such doings, but I never heard, or saw it done, and indeed I do not doubt but our Seats of Ju­stice are furnisht with both better men, and better Lawyers, than to use any such Menaces of Duress, for undoubtedly 'tis a base and very Illegal Practise. But however will any man that fears God, nay that is but an honest Heathen debauch his Conscience, and forswear himself, do his Neighbour Injustice, betray his Countreys Liberties, and consequently enslave him­self, and his Posterity, and all this meerly because he is He­ctor'd and threaten'd a little?

I know it should not sway with any, but alas, a Prison is terrible to most men, whatever the Cause be; And the Fine may besuch, if one shall refuse to comply; as may utterly ruin ones Family.

Fright not your self,Jurors cannot be Fined or Imprisoned in any case for giving their Verdict ac­cording to their Consci­ences, though contrary to the direction or sense of the Court. there is no cause for this Ague­sit, to shake your Conscience out of Frame; if you are Threat­ned tis but Brutum Fulmen, Lightning without a Thunder­bolt, nothing but big words, for it is well known That there is never a judge in England that can Fine or Imprison any Jury-man in such a Case

Good Sir! I am half asham'd to hear a Barrister talk thus; have not some in our memory been Fin'd and Impri­son'd? And sure that which has actually been done is not al­together Impossible.

Your Servant Sir! Under favour of your mighty Wisdom and Experience, when I said no Judge could do it, I spake the more like a Barrister for tis a Maxim in Law — Id possumus quod Jure possumus. A man is said to be Able to do only so much, as he may Lawfully do. But such Fining or Imprisoning cannot Lawfully be done; the Judges have no Right or Power by Law to do it, and therefore it may well be said, they cannot, or are not able to do it.

And whereas you say, that some Juries in our Memory have been Fined and imprisoned, you may possibly say true, But tis as true that it hath been only in our Memory, for no such thing was practised in Antient times, for so I find it asserted by a late Learned Judge (d) in these possitive words;Lord Chief Justice Vaughan in his Reports fol. 146. No case can be offered, either before Attaints granted in General or after, that ever a Jury was punisht by Fine and Imprison­ment by any Judge, for not finding according to their evidence and his direction, until Pophams time, nor is there clear proof, that he ever Fined them for that Reason, seperated from other Misdemeanours. And Fol. 152 he Affirms— That no man can shew, that a Jury was ever punisht upon an Information either at Law or in the Star-Chamber, where the Charge was only for finding against their Evidence, or giving an untrue Verdict, un­less, Imbracery, Subornation, or the like were joyn'd. So that you see, the Attempt is an Innovation as well as unjust, a thing unknown to our Fore-fathers and the Antient Sages of the Law; and therefore so much the more to be watcht a­gainst, resisted and suppressed, whilst young, lest in time this crafty Cockatrices Egg hatcht and fosterd by Ignorance, and pusillanimous Compliance, grow up up into a Serpent too big to be master'd, [...]and so Blast and destroy the First-Born of our English Freedoms. And indeed (Blessed be God) it hath hitherto been rigorously opposed as often as it durst Crawl abroad, being Condemned in Parliament and knockt o'th head by the Resolutions of the Judges upon solemn Argu­ment. As by and by I shall demonstrate.

Welle but are Iurors not liable then to Fine or Im­prisonment in any Case whatsoever.

Now you run from the Point;Juries Office partly Ministe­rial, partly Judicial. Vaughan Rep­fo. 152. we were talking of giving their Verdict, and you speak of any Case whatsoever, Whereas you should herein observe a necessary distinction, which I shall give you in the words of that Learned Iudge last Cited (e) Much of the Office of Jurors in order to their Verdict is Ministerial; as not withdrawing from their Fellows after they are Sworn, not receiving from either side Evidence [Page 26]not given in Court; Not eating and drinking before their Ver­dict; Refusing to give a Verdict, &c. Wherein if they Transgress they may be finable. But the Verdict in self, when given, is not an Act Ministerial, but Judicial and (supposed to be) accord­ing to the best of their Judgment, for which they are not Fi­nable, nor to be punisht but by Attaint; that is, by another Jury, in Cases where an Attaint lies, and where it shall be found that Wilsully they gave a Verdict false and Corrupt.

Now that Iuries otherwise, are in no Case punishable, nor can (for giving their Verdict according to their Consciences and the best of their Judgment) be Legally Fined or Impri­soned by any Iudge on Colour of not going according to their Evidence, or finding contrary to the directions of the Court, is a truth both founded on unanswerable Reasons and Con­firmed by Irrefragable Authorities.

Those I would gladly hear.

They are many, but some of the most evident are these that follow.

As for Reasons.

• 1. A Iury ought not to be Fined or Imprisoned, because they do not follow the Iudges directions, for if they do fol­low his directions, they may yet be Attainted, and to say they gave their Verdict according to his directions is no Barr, but the Iudgment shall be revers'd and they punisht for doing that, which if they had not done, they should (by this O­pinion) have been Fined and Imprisoned by the Iudge, for not doing it. — Which is Ʋnreasonable.
• 2. If they do not follow his direction, and be therefore Fined, yet they may be Attainted, and so they should be doubly, punisht by distinct Iudicatures for the same Offence, which the Common Law never admits.
• 3. To what end is the Jury to be return'd out of the Vi­cinage (that is, the neighbourhood) whence the issue ariseth? To what end must Hundredors be of the Jury, whom the Law supposeth to have neare knowledge of the Fact than those of the Vicinage in general? To what end are they challeng'd so [Page 27]scrupulously to the Array and Pole? to what end must they have such a certain Freehold, and be Probi & legales homines, and not of Affinity with the Parties concerned? &c. If after all this they implicitely must give a Verdict by the Dictates and Authority of another Man, under pain of Fines and Imprison­ment, when sworn to do it according to the best of their own knowledge; a Man cannot see by anothers Eye, nor hear by anothers Ear, no more can a Man conclude or infer the thing to be resolved by anothers understanding or reasoning, unless all Mens understandings were equally alike; and if meerly in compliance because the Iudge says thus or thus, a Iury shall give a Verdict, though such their Verdict should happen to be right, true, and just, yet they being not assured it is so from their own understanding, are for sworn, at least in Foro Con­scientiae.
• 4. Were Jurors so finable, then every Major and Bailiff of Corporations, all Stewards of Leets, Justices of Peace, &c. whatever Matters are try'd before them, shall have Verdicts to their minds, or else Fine and Imprison the Jurors till they have; so that such must be either pleased, humored, or grati­fied, else no Justice or Right to be had in any Court.
• 5. Whereas a Person by Law may Challenge the Sheriff or any Jury-man, if of Kin to his Adversary, yet he cannot chal­lenge a Major, Recorder, Justice, &c. who 'tis possible will have a Verdict for their Kinsman, or against their Enemy, or else Fine and Imprison the Jury till they have obtained it; so that by this means our Lives, Liberties, and Properties shall be solely tryed by, and remain at the Arbitrary dispose of eve­ry mercenary or corrupted Justice, Major, Bailiff, or Recor­der if any such should at any time get into Office.
• 6. 'Tis unreasonable that a Jury should be Finable on pre­tence of their going against their Evidence. because it can ne­ver be Tryed whether or no in truth they did find with or a­gainst their Evidence, by reason no Writ of Error lies in the Case.
• 7. Were Jury-men liable to such Arbitrary Fines, they should be in a worse condition than the Criminals that are tryed [Page 28]by them; for in all Civil Actions, Informations, and Indict­ments, some Appeals, or Writs of false Judgment, or of Er­ror, do lie into Superior Counts to try the regular Proceedings of the Inferior. But here can be no After-Tryal or Examina­tion, but the Jury-man (if Fining at all were lawful) must either pay the Fine, or lie by it, without remedy, to decide whether in his particular Case he were legally Fined or not.
• 8. Without a Fact agreed, it is as impossible for a Judge or any other to know the Law, relating to that Fact, or direct con­cerning it, as to know an Accident that hath no Subject; for as where there is no Law, there is no Transgression, so where there is no Transgression, there is no place for Law; for the Law (saith Divine Authority) is made for the Transgressor. And as Cook tells us, Ex facto Jus oritur, upon slating the Fact or Trans­gression matter of Law doth arise, or grow out of the Root of the Fact. Now the Jury being the sole Judges of Fact, and Matter in Issue before them, not finding the Fact on which the Law should arise, cannot be said to find against Law, which is no other than a Superstructure on Fact, so that to say they have found against the Law, when no Fact is found, is absurd; an expression insignificant and unintelligible; for no Issue can be joyned of matter in Law, no Jury can be Charged with the Tryal of matter in Law barely, no Evidence even was, or can be given to a Jury of what is Law, or not. Nor can any such Oath be given to, or taken by a Jury to try matter in Law, nor does an Attaint for such Oath if false, &c. But if by find­ing against the Direction of the Court in matter of Law, shall be understood, that if the Judge having heard the Evidence given in Court, (for he can regularly know no other, though the Jury may) shall tell the Jury upon this Evidence, the Law is for the Plaintiff, or the Defendant, and the Jury are under pain of Fine and Imprisonment to Find accordingly, then 'tis plain the Jury ought of Duty so to do. Now if this were true who sees not that the Iury is but a trouble some Doldy, of great Charge, much Formality, and no real use in determining right and wrong, but meer Ecchos to sound back the pleasure of the [Page 29]Court; and consequently that Tryals by them might be better abolish'd than continued? which is at once to spit Folly in the Faces of our Venerable Ancestors, and enslave our Posterity.
• 9. As the Iudge can never direct what the Law is in any Mat­ter Controverted, without first knowing the Fact, so he can­not possibly know the Fact but from the Evidence which the Iury have; but he can never fully know what Evidence they have, for besides what is sworn in Court, (which is all that the Judge can know) the Jury being of the Neighbourhood, may, and oft-times do know something of their own knowledge, as to the Matter it self, the Credit of the Evidence, &c. which may justly sway them in delivering their Verdict, and which self knowledge of theirs is so far countenanced by Law, that it supposes them capable thereby to try the Matter in Issue, (and so they must) though no Evidence were given on either side in Court. As when any Man is Indicted, and no Evidence comes against him, the Direction of the Court always is, You are to acquit him, unless of your own knowledge you know him Guilty; so that even in that Case they may find him Guilty without any Witnesses. Now, how absurd is it to think, that any Iudge has power to Fine a Iury for going against their E­vidence, when he that so Fineth knoweth perhaps nothing of their Evidence at all, (as in the last Case) or at least but some part of it? For how is it possible he should lawfully punish them for that which it is impossible for him to know.
• Lastly, Is any thing more common, than for two Lawyers or Iudges to deduce contrary and opposite Conclusions out of the same Case in Law? And why then may not two Men infer distinct Conclusions from the same Testimony? And consequent­ly may not the Judge and Jury honestly differ in their Opinion or Result from the Evidence, as well as two Iudges may, which often happens; and shall the Jury-men meerly for this diffe­rence of Apprehension merit Fine and Imprisonment, because they do that which they cannot otherwise do, preserving their Oath and Integrity? especially when by Law they are presum'd to know better and much more of the Business, than the Judge does as aforesaid.

Are not all these gross contradicting Absurdities? and un­worthy (by any Man that deserves a Gown) to be put upon the Law of England, which has ever own'd Right Reason for its Parent, and dutifully submitted to be guided thereby?

If the Law, as you say, be Reason, then undoubt­edly this Practice of Fining of Juries is most Illegal, since there cannot be any thing more unreasonable; But what Authorities have you against it?

You have heard it proved to be a Modern up-start en­croachment, so you cannot expect any direct or express Con­demnation of it in Ancient Times, because the thing was not then set on Foot. And by the way, though Negative Arguments are not necessarily conclusive, yet that we meet with no Prece­dents of old of Iuries Fined, for giving their Verdict contrary to Evidence, or the Sense of the Court, is a violent presump­tion, that it ought not to be done; for it cannot be supposed, that this latter Age did first of all discover, that Verdicts were many times not according to the Iudges Opinion and Liking. Undoubtedly they saw that as well as we; but knowing the same not to be any Crime, or punishable by Law, were so Mo­dest and Honest as not to meddle with it. However, what en­tertainment it hath met with when attempted in our Times, I shall shew you in two remarkable Cases.

1. When the late Lord Chief Iustice Keeling had attempted something of that kind, it was complained of, and highly re­sented by the then Parliament; as appears by this Copy of their Proceedings thereupon taken out of their Journal, as follows.

Die Mercurii. 11. Decembris 1667.

Die Veneris 13. Decembris 1667.

Here you see it Branded in Parliament: Next you shall see it formally condemn'd on a solemn Argument by the Judges. The Case thus.

At the Sessions for London Sept. 1670. William Pen, The Sum of the Case of Bishel, and the rest of Mr. Pen and Mr. Meads Jury. and William Mead (two of the People commonly called Quakers) were Indicted, for that they with others, to the number of 300, on the 14th. Aug. 22. Regis, in Gray-Church-street, did with Force and Arms, &c. unlawfully and tumultuously assemble and congregate themselves together to the distur­bance of the Peace; and that the said William Pen did there Preach and speak to the said Mead and other Persons in the o­pen Street; by reason whereof a great Concourse and Tumult of People in the Street aforesaid then and there a long time did remain and continue, in contempt of our said Lord the King, and of His Law, to the great disturbance of his Peace, to the great Terror and disturbance of many of His Liege People and Subjects, to the ill example of all others in the like Case Offenders, and against the Peace of our said Lord the King, His Crown and Dignity.

The Prisoners Pleading Not Guilty, it was proved, that there was a Metting at the time in the Indictment mentioned, in Gray-Church-street, consisting of three or four hundred People, in the open Street, that William Pen was Speaking or Preaching [Page 32]to them,Note, the Qua­kers have a Meeting-house in that Street, out of which they were then kept by Sol­diers, and therefore they met as near to it as they could in the open Street. but what he said the Witnesses, (who were Officers and Soldiers sent to disperse them) could not hear. — This was the effect of the Evidence; which Sir John Howel, the then Recorder, (as I find in the Print of that Tryal P. 14) was pleased to sum up to the Iury, in these words.

This Tryal begun on the Saturday; the Jury retiring, after some considerable time spent in debate, came in, and gave this Verdict, — Guilty of Speaking in Gray-Church-Street. At which the Court was offended, and told them, they had as good say no­thing; Adding, — Was it not an unlawful Assembly? you mean he was speaking to a Tumult of People there. But the Foreman saying, what he had delivered was all he had in Commission, and others of them affirming, That they allowed of no such word as an unlawful Assembly in their Verdict, They were sent back again, and then brought in a Verdict in writing, subscri­bed with all their Hands, in these words.

Note, though this Jury for their excellent example of courage and constancy de­serve the com­mendation of every good English-man, yet if they had been better advis'd, they might have brought the Prisoners in Not Guilty ut first, saved themselves the trouble and inconvenien­ces of these two Nights Restraint. This the Court resented still worse, and therefore sent them back again, and Adjourned till Sunday morning, but then too they insisted on the same Verdict, so the Court Adjourned till Monday morning, and then the Jury brought in the Prisoners generally Not Guilty, which was Recorded, and allowed of. But immediately the Court fined them Forty Mark a Man, and to lie in Prison till paid.

Being thus in Custody, Edw. Bushel, one of the said Iurors, on the 9th of Nov. following brought his Habeas Corpus in the Court of Common-Pleas. On which the Sheriffs of London made Retorn, ‘That he was detained by vertue of an Order of Sessions, whereby a Fine of forty Marks was set upon him and eleven others particularly named, and every of them be­ing Iurors sworn to try the Issues joyned between the King, and Pen, and Mead, for certain Trespasses, Contempts, unlaw­ful Assemblies and Tumults, and who then and there did ac­quit the said Pen and Mead of the same, against the Law of this Kingdom, and against full and manifest Evidence, and a­gainst the direction of the Court in matter of Law of and upon the Premises openly in Court to them given and declared; and that it was ordered they should be imprisoned till they several­ly paid the said Fine, which the said Bushel not having done,See Bushels Case in Vaughans Re­ports at large. the same was the cause of his Caption and Detention.’

The Court coming to debate the validity of this Retorn, ad­judged them same insufficient; for

• 1. The Words, — Against full and manifest Evidence, was too general a Cause; the Evi­dence should have been fully and particularly recited, else how shall the Court know it was so full and evident; they have now only the Iudgment, of the Sessions for it, that it was so; but, said the Iudges, Our Judgments ought to be Grounded upon our own Inferences and Ʋnderstandings, and not upon theirs.
• 2. It is not said, that they acquitted the Persons Indicted a­gainst full and manifest Evidence, corruptly, and knowing the said Evidence to be full and manifest, for otherwise it can be no Crime; for that may seem full and manifest to the Court, which does not appear so to the Iury.
• 3. The other part of the Return, viz. That the Iury had ac­quitted those Indicted, against the direction of the Court in matter of Law, was also adjudged to be naught, and unreasona­ble, and the Fining of the Juries for giving their Verdict in any Case concluded to be illegal, for the several Reasons before re­cited, and other Authorities of Law urged to that purpose; and all the Precedents and Allegations brought to justify the [Page 34] Fine and Commitment solidly answered; whereupon the Chief Iustice delivered the Opinion of the Court, That the Cause of Commitment was insufficient; and accordingly the said Bushel, and other his Fellow-prisoners, were discharged, and left to the Common Law for Remedy and Reparation of the Damages by that tortious illegal Imprisonment sustained.

Which Case is (amongst others) Reported by that Learned Iudge Sir John Vaughan, at that time Lord Chief Iustice of the Com­mon-Pleas, setting forth all the Arguments, Reasons, & Authorities on which the Court proceeded therein; from which I have extra­cted most of the Reasons which before I recited for this Point, & for the greatest part in the very words of that Reverend Author.

This Resolution hath, one would think (as you said) knock'd this Illegal Practice on the Head, beyond any possibility of Revival, but may it not one day be denied to be Law, and the contrary justified?

No such thing can be done without apparent violating and subverting all Law, Justice, and Modesty; for though the Precedent it self be valuable, and without further inquiry is wont to be allowed, when given thus deliberately upon solemn debate by the whole Court; yet 'tis not only that, but the sound substantial and everlasting Reasons, whereon they grounded such their Resolves, that will at all time Justify Fining of Iuries in such Cases to be Illegal; besides, as the Reporter was most con­siderable, both in his Quality as Lord Chief Justice, and for his Parts, soundness of Iudgment, and deep Learning in the Law; so such his Book of Reports is approved and recommended to the World, (as appears by the Page next after the Epistle) by the Right Honourable the present Lord Chancellor of Eng­land, Sir William Scroggs, now Lord Chief Iustice of England, my Lord North, Chief Iustice of the Common Pleas; and in a word, by all the Iudges of England at the time of Publishing thereof; so that it cannot be imagined how any Book can challenge greater Authority, unless we should expect it to be particularly confirm'd by Act of Parliament.

You have answered all my Scruples, and since I see [Page 35]the Law has made so good Provision for Jury-mens priviledges and safety, God forbid any Jury-man should be of so base a temper, as to betray that (otherwise) impregnable Fortress wherein the Law hath plac'd him, to preserve and defend the just Rights and Liberties of his Country, by treacherously surrendering the same into the hands of Violence or Oppressi­on, though maskt under never so fair Stratagems and Pre­tences; for my own part, I shall not now decline to appear according to my Summons, and therefore (though I fear I have detained you too long already) shall desire a little more of your direction about the Office of a Jury-man, in particu­lar that I may uprightly and honestly discharge the same.

Though I think from what we have discours'd be­ing digested and improv'd by your own Reason, you may sus­ficiently Inform your felf, yet to gratifie your request, I shall add a few brief Remarques, as well of what you ought cauti­ously to avoid, as what you must diligently pursue and regard if you would justly and truly do your duty.

First, as to what you must avoid.

1. I am very Confident, that you would not willingly vi­olate the Oath which you take, but 'tis possible that there are such who as frequently break them, as take them, through their careless custome on the one hand, or slavish fear on the other, against which I would fully caution you; that you may defend your self and others, against any Enemies of your Countreys Liberties and happiness, and keep a good Conscience towards God and towards man.

2, 'Tis frequent, that when Juries are withdrawn that they may consult of their Verdict, they soon forget that Solemn Oath they took, and that mighty Charge of the Life and Liberty of men, and their Estates, whereof then they are made Judges, and on their Breath not only the Fortunes of the particular Party, but perhaps the preservation or Ruin of several Numerous Fa­milies does Solely depend, now I say without due Conside­ration of all this, nay sometimes wihout one serious thought, or Consulted Reason offered Pro, or Con, presently the Fore­man [Page 36]or one or two that call themselves Antient Jury-men (though in truth they never knew what belongs to the place more than a common School-Boy) rashly deliver their Opinions, and all the rest in respect to their supposed Gravity and Expe­rience, or because they have the biggest Estates, or to avoid the trouble of disputing the Point, or to prevent the spoiling of Dinner by delay, or some such weighty Reason, forthwith a­gree blind fold, or else go to holding up of hands or telling of Noses, and so the Major Vote carries away Captive both the Reason and the Consciences of the rest. Thus trisling with Sacred Oaths, and putting mens Lives, Liberties and Proper­ties (as it were) to the hap hazard of Cross or Pile; This Practise or something of the like kind, is said to be too Custo­mary amongst some Jurors, which occasions such their extra­ordinary dispatch of the weightiest or most Intricate matters, but there will come a time when they shall be called to a severe Account for their Hast and Negligence, therefore have a care of such Fellow-Jurors.

3. Such a Slavish Fear attends many Jurors, that let the Court but direct to find Guilty, or not Guilty, though they themselves see no just Reason for it, yea oft-times though their own Opinions are contrary, and their Consciences tell them it ought to go otherwise; yet, right or wrong accordingly they will bring in their Verdict; and therefore many of them never regard seriously the course and force of the Evidence, what and how it was delivered more or less to prove the In­dictment, &c. But as the Court Sums it up, they find; as if Juries were appointed for no other purpose but to Eccho back, what the Bench would have done; such a base temper is to be avoided, as you would escape being Forsworn, even though your Verdict should be right; for since you do not know it so to be by your own Judgment or Understanding, you have abused your Oath and hazarded your own Soul as well as your Neighbours Life Liberty of Property, because you blindly depend on the opinion or perhaps passion of others, when you were Sworn well and truly to try them your selves. Such an [Page 37] implicite Faith is near of Kin to that of Rome in Religion, and (at least in the next degree) as dangerous.

4. There are some that make a Trade of being Jury-men that seek for the Office, use means to be constantly continued in it, will not give a disobliging Verdict lest they should be discharg'd and serve no more, these standing Jurors have cer­tainly some ill game to play, there are others that hope to Signalize themselves to get a better Trade, or some Prefer­ment by serving a Turn; there are others that have particu­lar Piques and a humor of Revenge against such or such Par­ties, if a man be but miscall'd by some Odious name, or said to be of an exploded Faction — streight they cry hang him, Find him Guilty, no punishment can be too bad for such a Fellow, in such a case they think it merit to Stretch an Evi­dence on the tenter-hooks, and strain a Point of Law because they fancy it makes for the Interest of the Government. As if Injustice or Oppression could in any case be for the true In­terest of Government when in truth nothing more weakens or destroys it, but this was an old stratagem, if thou suffer this man to escape, thou shalt not be Caesars Friend. When Caesar was so far from either needing or thanking them for any such base Services, that had he but truly understood them, he would severely have punisht their Fartiality and Tyranny.

All these and the like pestilent Biases are to be avoided and abominated by every honest Jury-man.

But now as to the positive Qualifications requisite.

1. You that are Jury men should first of all seriously re­gard the weight and importance of the Office; your own Souls other mens Lives, Liberties, Estates, all that in this World are dear to them, are at Stake, and in your hands; therefore consider things well before-hand, and come substantially fur­nished and provided with sound and well-grounded Consciences, with clear minds, free from malice, fear, hope, or favour; lest instead of Judging others, thou shouldest work thy own Condemnation, and stand in the sight of God our Creator and Judge of all men, no better than a Murtherer, or Perjur­ed Malefactor.

2. Observe well the Record, Indictment or Information that is read, and the several parts thereof, both as to the mat­ter, manner, and form,

3. Take due notice and regard to the Evidence offered for Proof of the Indictment, and each part of it, as well to man­ner and form as matter; and if you suspect any Subornation, foul Practise, or tampering hath been with the witnesses, or that they have any malice or sinister design, have a special regard to the Circumstances or Incoherencies of their Tales, and endeavour by apt Questions to sift out the truth, or dis­cover the Villainy. And for your better satisfaction endeavour to write down the evidence or the Heads thereof that you may the better Recall it to memory.

4. Take notice of the nature of the Crime charged, and what Law the Prosecution is grounded upon, and distinguish the supposed Criminal Fact which is proved, from the aggra­vating Circumstances which are not proved.

5. Remember that in Juries there is no Plurality of Voices to be allowed; 7 cannot over-rule or by vertue of Majori­ty Conclude 5. no, nor 11, 1. But as the Verdict is given in the name of all the 12, or else it is void: So every one of them must be actually agreeing, and satisfied in his par­ticular Understanding and Conscience, of the truth and Righ­teousness of such Verdict, or else he is forsworn; and there­fore if one man differ in Opinion from his fellows, they must be kept together, till either they by strength of Reason or Argument can satisfy him, or he convince them. For he is not to be Hecktor'd, much less punisht by the Court into a Compliance;Rep. fol. 151. for as the L. Ch. Justice Vanghan says well, if a man differ in Judgment from his Fellows whereby they are kept a day and a night, though his dissent may not in truth be as reasonable as the Opinion of the rest that agree, yet if his Judgment be not satisfied, one disagreeing can be no more Cri­minal than four or five disagreeing with the rest. Upon which occasion the said Author recites a remarkable Case out of an antient Law-Book a Juror would not agree with his fellows [Page 39]for two days,41 Iss. p. 11.and being demanded by the Judges, if he would agree, said, he would first die in Prison, whereupon he was Committed and the Verdict of the the eleven taken, but upon better Advice, the Verdict of the eleven was Quasht, and the Juror discharged without Fine, and the Justices said the way was to carry them in Carts (this is to be understood at Assizes where the Judges cannot stay but must remove in such a time into another County) until they agreed, and not by Fining them. And as the Judges err'd in tak­ing the verdict of Eleven, so they did in Imprisoning the Twelve. And there­fore you see on second thoughts Reales'd him.

6, Endeavour as much as your Circumstances will permit at your spare Hours to Read and Understand the Fundamental Laws of the Country; such as Magna Charta, the Petition of Right, the late excellent Act for Habeas Corpus's, Horns Mirrour of Justices, Sir Edw. Cook in his 2d 3d and 4th parts of the Institutes of the Law of England, and Judge Vaughans Reports, these are Books frequent to be had, and of excellent use to in­form any Reader of Competent Apprehension, of the true Liberties and Priviledges which every English man is Justly Intituled unto, and Estated in by his Birth-right, as also the nature of Crimes and the punishments severally and respectively Inflicted on them by Law, the Office and du­ties of Judges, Juries, and all Officers and Ministers of Justice, &c. Which are highly necessary for every Jury-man in some Competent measure to know, for the Law of England hath not placed Tryals by Juries to stand between men and Death or Destruction to so little purpose as to Pronounce men Guilty, without regard to the nature of the Offence, or to what is to be Inflicted thereupon.

For want of duly understanding and considering these things, Juries many times plunge themselves into lamentable perplexities; as it befel the Jury who were the Tryers of Mr. Ʋdal a Minister, who in the 32d year of Q. Eliz. was Indicted and Arraigned at Creydon in Surry, for High-Treason, for defaming the Queen and Her Government in a certain Book Intituled, A Demonstration of the Discipline, &c. And though there was no Direct, but a scambling Shadow of Proof, and though the Book duly con­sidered contained no matter of Treason, but certain words which by a forced construction were laid to tend to the defamation of the Govern­ment, and so the thing prosecuted under that Name; yet the Jury not thinking that in pronouncing him Guilty, they had upon their Oath pro­nounced him Guilty of Treason, and to die as a Traitor; but supposing that they had only declared him Guilty of making the Book, hereupon they brought him in Guilty, but when after the Judges Sentence of Death a­gainst him (which they never in the least intended) they found what they had done, they were confounded in themselves, and would have done any [Page 40]thing in the world to have Revok'd that unwary pernicious Verdict, when, alas! it was too late. Dr. Fuller has this witty note on this witty Gen­tlemans Conviction, that it was Conceived rigorous in the greatest, which at best (saith he) is Cruel in the least Degree. And it seems so Queen Elizabeth thought it, for she suspended Execution, and he dyed natural­ly. But his Story survives to warn all Succeeding. Jury-men to endea­vour better to understand what it is they do, and what the Consequences thereof will be.

7. As there is nothing I have said intended to encourage you to partiali­ty, or tempt any Jury-man to a Connivance at Sin and Malefactors, where­by those Pests of Society should avoid being brougt to condign punish­ment, and so the Law cease to be a terror to evil-doers; which were in him an horrible Perjury, and indeed a foolish Pitty, or Crudelis misericordia, a Cruel Mercy; for he is highly injurious to the Good that absolves the Bad, when real Crimes are proved against them; so that I must take leave to say, That in Cases where the matter is dubious, both Lawyers and Di­vines prescribe rather favour than rigour; an eminent and learned JudgeFortesene, Ca. 27. of our own has in this Advice and Wish gone before me, Mallem reverà viginti Facinorosos mortem pictate evadere, quam justion unum injustè condem­nari. I verily (saith he) had rather twenty evil-doers should escape death through Tenderness or Pitty, than that one Innocent Man should be unjustly con­demned.

I shall conclude with that excellent Advice of my Lord Cook, In the Epi­logue of his 4th Part of Institutes. which he generally addresses to all Judges, but may no less properly be applyed to Jurors.—

Fear not to do Right to all, and to deliver your [Verdicts] justly accord­ing to the Laws; for Fear is nothing but a betraying of the Succours that Reason should afford; and if you shall sincerely execute Justice, be assured of three Things.

• 1. Though some may malign you, yet God will give you his Blessing.
• 2. That though thereby you may offend Great Men and Favourites yet you shall have the favourable Kindness of the Almighty, and be his Fa­vourites.
• And lastly, That in so doing, against all scandalous Complaints and pragmatical Devices against you, God will defend you as with a Shield. mdash;For than Lord wilt give a Blessing unto the Righteous
  Psal. 5.15.
  , and with thy favou­rable Kindness wilt thou defend him as with a Shield.