English liberties, or, The free-born subject's inheritance containing, I. Magna Charta, the petition of right, the Habeas Corpus Act ... II. The proceedings in appeals of murther, the work and power of Parliament, the qualifications necessary for such ... III. All the laws against conventicles and Protestant dissenters with notes, and directions both to constables and others ..., and an abstract of all the laws against papists.

SECT. I.

Of the Advantages Englishmen enjoy by this Trial by Juries, above any other Nation under Heaven.

'TIS one of the miserable Follies of depraved humane Nature, that it commonly sleights present Enjoyments, and rarely rates the good things it possesses at their true value, till 'tis depri∣ved of them. This grand Priviledge of Trials per pais, by our Countrey, that is by JƲRIES, as it seems to have been as Ancient as the Go∣vernment or first form of Policy in this Island; for it was not unknown to the ancient Brittains (as ap∣pears by their Books and Monuments of Antiqui∣ty) Practised by the Saxons, [see King Ethelreds Laws in Lambert, p. 218. and Coke 1. part Instit. fo. 155.] and Confirmed since the Invasion of the Normans by Magna Charta as you have heard, and continual Usage; so it is a thing of the highest Mo∣ment and an essential Felicity to all English Subjects.

For look abroad in France, Spain, Italy, or in∣deed (almost) where you will, and observe the miserable Condition of the Inhabitants, either in∣tirely subjected to the Arbitrary Lusts of Tyrants, who plunder, dismember or slay them, according as the humour takes them, and many times with∣out the least provocation, meerly for sport, and to Gratifie a savage Cruelty: Or at best, you will behold them 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 mercenary, and Creatures of Prerogative; sometimes malicious and oppressive, and too often partial and corrupt. Or suppose them never so just and upright, yet still has the Sub∣ject no security against subornations and the attacques of malicious, false and unconscionable Witnesses; yea when there is no sufficient Evidence, upon meer suspicions they are obnoxious to the Tor∣tures of the Rack, which often make an Innocent man Confess himself Guilty meerly to get out of present pain: Or if he do with invincible Cou∣rage endure the Question (as they call those Tor∣ments) he is many times so spoiled in his Limbs as he scarce ever is his own man again.

Whereas such has been the goodness of God, and the prudent care of our Ancestors, that to our inestimable Happiness, we are born and live under a mild and Righteous Constitution, where all these mischiefs may be prevented, where none can be Legally condemned, either by the power of Superior Enemies, or the rashness or Ill will of any Judge, nor by the bold Affirmations of pro∣fligate Evidence: For by a fundamental Law in our Government, No mans Life (unless it be in Parlia∣ement, which is a Supream Court, and 'tis suppo∣sed will never do any man wrong) shall be touch∣ed for any Crime whatsoever, but upon being

found Guilty on two several Trials (for so may that of the Grand and Petty Jury be called) and the Judgment of twice Twelve men at least, all of his own Condition and Neighbourhood, and upon their Oaths, [Coke 3. part of Instit. p. 40.] That is to say, Twelve or more to find the Bill of Indict∣ment against him, and Twelve others to give Judg∣ment upon the General Issue of Not Guilty: All which Jurors must be honest, substantial, Impar∣tial men, and being Neighbours of the party ac∣cused, or place where the supposed Fact was com∣mitted, cannot be presumed to be unacquainted either with the matters charged, the Prisoners course of Life, or the Credit of the Evidence: And all these must first be fully satisfied in their Consciences, that he is Guilty, and so unanimously pronounce him upon their Oaths, or else he cannot be condemned. For the Office and Power of these Juries is Judicial: They only are the Judges, from whose sentence the Indicted are to expect Life or Death; upon their Integrity and Under∣standing, the Lives of all that are brought into Judgment do ultimately depend; From their Ver∣dict there lies no Appeal: By finding Guilty or Not Guilty, they do complicately resolve both Law and Fact.

Judges are made by Prerogative, and many times heretofore they have been preferred by Cor∣rupt Ministers of State, and may be so again in Time to come; and such advanced as would serve a present Turn, not always those of the most In∣tegrity and Skill in the Laws: Their places are so Honourable and Profitable, and their Tenure so Ticklish, viz. durante beneplacito, meerly during pleasure, that they lie under no small Tempta∣tions, which perhaps with some may be never the less unlikely to prevail, for their having generally been wont before to take Fees; They are con∣cern'd

in so many Causes, that they are the oftner subject to be tempted, and are so few that they may be the easier corrupted: They cannot be Challenged, and may be apt to think themselves above any Action, and thence be encouraged to strain a point now and then. The major part of them agreeing, is enough: they are never sworn at each particular Trial, nor ever at all but once, and that exceeding generally: I say all these things may possibly sometimes happen to Biass some Judges (for I intend not the least Reflection here∣by on any of those Honourable Persons who at present deservedly supply our seats of Justice.) But nothing of that kind can reasonably happen to a Jury. For, 1. They are return'd by a sworn Officer. 2. Must be men of a clear Reputation, and competent Estate. 3. Being Neighbours, they may know something of the business on their own knowledge. 4. Their Office is but a trouble, not accompanyed with any great Honour, nor any profit at all. 5. They are all solemnly sworn to each particular Cause. 6. The party may challenge 35 in case of Trea∣son and 20 of them in Felony, without shewing any cause, and as many more as he can assign cause against. 7. Of the Grand Jury Twelve at least must joyn in the Verdict, and of the petty Jury every man of the Twelve must consent upon his Oath, or else 'tis all nothing. And lastly, if they give a corrupt Verdict between Party and Party, they are liable to an Attaint. [But I do not find any Attaint lies in Criminal Causes, where the King is a Party.]

Now let any man of Sence consider, whether this method be not more proper for bolting out the Truth, for finding out the Guilty, and preserving the Innocent, than if the whole decision were left to the Examination of a Judge, or two or three, whose Interests Passion, Haste, or Multiplicity of

business may easily betray them into Error.

Deservedly therefore is this Priviledge of Try∣al by Juries rank'd amongst the choicest of our Fundamental Laws, which whosoever shall goe about openly to Suppress, or craftily to Ʋndermine, and render only a Formality, does Ipso Facto attacque the Government, and brings in an Arbitrary Pow∣er, and is an Enemy and Traitor to his King and Countrey; For which reason English Parliaments have all along been most Zealous for preserving this great Jewel of Liberty, Trials by Juries, ha∣ving no less than 58. several times since the Nor∣man Conquest been established and Confirmed by the Legislative Power, no one Priviledge be∣sides having been neer so often remembred in Parliament.

SECT. II.

What persons ought to be Jury-men, and how Qualified.

AS the Office of Juries is of such great Impor∣tance, so the Wisdom of our Law has pro∣vided that the same shall be supplyed with Per∣sons of Ability, Honesty, Integrity and Indifferen∣cy: for (as my Lord Cook saith, 1. part Instit. Sect. 234. fo. 155.) He that is of a Jury must be Li∣ber Homo, that is, not only a Free man, and not Bond, but also one that hath such Freedome of mind, as he stands indifferent, as he stands unsworn. 2. He must be Legalis, and by the Law every Juror that is returned for the Trial of any Issue or Cause, ought to have three properties. 1. He ought to be dwelling most near to the place where the Question is moved. 2. He ought to be most

sufficient both for understanding and Competency of Estate. 3. He ought to be least Suspicious, that is, to be indifferent as he stands Unsworn, and then he is acounted in Law, Liber & Legalis homo, otherwise he may be Challenged and not suffered to be Sworn; but a mans being Excommunicated, (as was said before) is no Barr to his being a Ju∣ry man, much less his being a Dissenter or Non∣frequenter of Church Ceremonies, if he be other∣wise qualified with Estate and Understanding; for at that rate, if Popery should ever get uppermost, No Protestant at all would be capable of being a Jury-Man, because a Non-Conformist to Holy Church. Now if no Statute excludes Protestants unconvict∣ed of any Crime, or Dissenters (quâ tales) to serve on Juries, I should think we ought to wait at least till an Act of Parliament be made to that pur∣pose, before we deny them Liberam Legem; and to Act otherwise, in my silly Opinion seems not on∣ly unwarrantable, but a daring Usurpation of Le∣gislative Power: In a word, Jurors must be free of and from all manner of Bondage, Obligations, Affections, Relations and Prejudices; they must be the Peers or Equals of the party they are to Try; they must be of full Age, 21 Years old or up∣wards, not Outlaw'd, never Attainted or Convicted of Treason, Felony, False Verdict, Perjury, or ad∣judged Infamous; they were anciently all Knights, as we read in Glanvil and Bracton, and they must still be persons of worth and repute; and as they are returned by a Sworn Officer, the Sheriff, so they of the petty Jury must be every one Sworn every several Trial by a particular Oath, the more to remind them of their Duty. Nay, it should seem in ancient times, thō the Office and Duty were still the same as at this day, yet their Ho∣nour and Dignity were much greater. The Mir∣rour of Justices, (a great part of which was Writ∣ten

before the Conquest, and augmented by An∣drew Horn, a Learned Lawyer in the time of King Edw. the 2d.) p. 209. [in the French, and 153. in the English] makes no scruple to call them JƲDGES, Judges Ordinaries sunt Suitors; and Dr. Cowel in his Interpreter, tells us, Juries were [anciently] Associates and Assistants to the Judges of the Court in a kind of Equality, whereas now a dayes they attend them in great Humility: And cites the Customary of Normandy, and Lambert, as being of the same Sentiment. Nay, many Wise and Learned men have wondred, that since the Law has conferr'd such ample power on Jury-men, why they should have no kind of mark of Honour or Distinction, as liberty to Sit with their Hats on, from the time they are Sworn to the Delivery of their Verdict, or the like; For as the Custom is now a dayes, they sitting amongst the Croud with their Caps off, as well as the worst Male∣factors they are to Trye, 'tis not easie knowing them from the rest of the Spectators. But this Obiter, I desire not to bring in Innovations, but only that English men may preserve their anci∣ent undoubted Priviledges, to which purpose it will concern all that are liable to be Summoned to serve on Juries, heedfully to Inform themselves of their Duty and Office by Law, that so they may uprightly discharge the same to God and the King, and their fellow Subjects.

SECT. III.

Of Grand Juries, their Duty, and the great Importance of their Office.

JUries are of two sorts. 1, The Grand Jury so called, both because it consists of a greater num∣ber than Twelve, as commonly 21, 19, 17. or the like, [but note they can make no Ver∣dict * 1.1 or Presentment, unless Twelve at least of them agree, and then what they do, is Valid, thô the rest do not Consent;] as also because generally they are of the greater quality, and likewise in respect of their Power, because the extent of their Office is more great and general, as extending to all Offences throughout the whole County for which they serve. 2. The Petty Jury (in Cases Criminal, called commonly the Jury of Life and Death) which alwaies consists of Twelve men, neither more nor less, who must every Man agree, or else it is no Verdict.

The Oath of a Grand Jury-man, as I find it In∣serted in the Collection, Intituled The Book of Oaths, p. 206. is as follows.

YE shall truly inquire and due presentment make of all such things as you are charg∣ed withall on the Kings behalf: The Kings Council, your own, and your Fellows, you shall well and truely keep, and in all other things the Truth present: So help you God, and by the Contents of this Book.

But according to modern practice, and as we find it Published in the account of the late Pro∣ceedings against the Right Honourable the Earl of Shaftsbury, said to be Publisht by his Majesties special Command, is expressed somewhat more largely.

The Oath Administred to the Grand Jury, as follows.

YOU shall diligently Inquire and true Pre∣sentment make of all such matters, Arti∣cles; and things as shall be given you in charge, as of all other matters and things as shall come to your knowledge touching this present Service, the Kings Council, your Fellows and your own, you shall keep secret; you shall present no per∣son for Hatred or Malice, neither shall you leave any one unpresented for Fear, Favour or Affection, for Lucre or Gain, or any hopes there∣of, but in all things you shall present the truth, the whole Truth, and nothing but the Truth, to the best of your knowledge. So help you God.

The Office of a Grand Jury, or Grand Inquest, (for by both those Names 'tis promiscuously call'd) is principally concern'd in two things, Presentments and Indictments, the difference of which is thus: The First is when the Jury themselves of their own knowledge or Inquiry do take notice of some Crime, Offence or Nusance, to the injury of the Publick, which they think fit should be Punished or removed; and in Order thereunto do give the Court notice thereof in Writing briefly and with∣out Form, onely the Nature of the thing, and the Persons Name, and the Place. And this is call'd a Presentment, being the matter whereon to form an Indictment, from which the Presentment differs

in these two respects. 1. In that is always Ori∣ginally the Act of the Grand Jury. And, 2. That is not yet drawn up in Form; whereas Indict∣ments are commonly drawn up either by the Order of the Court, or at the Instance of some Prosecutor, and are brought before, and deliver∣ed unto the Grand Jury, and the Witnesses Sworn attend them, who Examine the said Witnesses, and as they think fit, Return the Indictments in∣dors'd either Billa Vera, [that is a true Bill,] or Ignoramus, [We are Ignorant] that is, we do not find the matter, or there does not appear to us such sufficient Grounds for the Accusation, that the Persons Life and Reputation should be brought into question.

From whence it appears that the end of their Office is likewise two-fold. 1. To inquire after, and give notice of all Crimes, Offences, Nusan∣ces, &c. in the County for which they Serve, which by reason of their Inhabitancy and Estates therein they are presumed to have best opportu∣nity to discover, and to find Bills against Male∣factors where there are good Grounds for the same, that so they may be brought to Trial if they are forth-coming, or may be proceeded against to the Outlawry if they are fled, for their said Of∣fences. 2. To preserve the Innocent from the disgrace and hazards which ill men may design to bring them to, out of malice, or through suborna∣tion or other sinister ends; for so tender is the Law of the Reputation and Life of a man, that it will not suffer the one to be sullied, by the Par∣ties holding up his hand at the Barr, and the other endanger'd by a Trial, untill first the Matter and Evidence against him have been scann'd, ex∣amined, and found by a Grand Jury upon their Oaths against him. Therefore you see by their Oaths, They are sworn not only to Inquire, but

diligently to inquire, not to be negligent or sloth∣ful, nor to take things upon trust or hurry them over carelesly, but to weigh the Circumstances and sift the Witnesses, and search out the Truth of such Informations as come before them, and to reject the Indictment if it be not sufficiently proved; and if they have reasonable Suspicion of Malice, Subornation or wicked Designs against any mans Life or Estate in such as offer or come to Swear to the Bill of Indictment, they are bound by Law as well as in Conscience to use all dili∣gence to discover the Villany; and if it appear to them (whereof they are the Legal Judges) to be a Conspiracy or malicious Conspiracy against the Accused, they are bound not only to reject such Bill of Indictment, but forthwith to Indict all the Conspirators with their Associates and Abet∣tors; and that this is a main part of the Grand Juries Office, appears not only from Legal rea∣son, but by an express Statute, viz. 25 Edw. 3, 4. and 42 Edw. 3, 3. which sayes, That for preventing Mischiefs done by FALSE ACCƲSERS, none should be put to answer, unless it be by Indictment or Presentment of good and lawful People of the same Neighbourhood where such Deeds be done, that is to say, by a Grand Jury.

The Grounds upon which Grand Juries are to proceed in giving their Verdicts, are either,

1. From their own knowledge, and so they may find an Indictment against a person thô there be never a Witness at all to it, and a Petty Jury may in like manner find a person Guilty of a Felony or Murder whereof he stands Indicted, thô no Witnesses appear against him to prove it, and the reason thereof is, because the Juries being always of the Vicinage, the Law supposes they may know the matter of their own knowledge, and therefore in all such Cases when a Jury is charged with a

Prisoner, and after the Indictment read, Witnes∣ses fail to appear, the Court always speaks thus to the Jury: Gentlemen, here is A. B. stands Indict∣ed of such a Crime, but here's no Witnesses come against him, so that unless on your own knowledge you know him Guilty, you must Acquit him; and certainly if the Juries knowledge of a mans Guilt, is enough to Condemn him, I see not why their personal know∣ledge of a Prisoners Innocency, or of the Witnes∣ses Swearing falsely, should not be sufficient to Acquit him.

2. The other ground upon which the Grand Juries are to Proceed, is Testimony of Witnesses, and this is call'd EVIDENCE, because it ought to be such as may make the matter clear, manifest, plain and evident to the Jury; and of this Evidence the Jury are the proper and only Judges, there∣fore they ought (according to their Oath) dili∣gently Inquire into the Quality, Repute, and Cir∣cumstances of the Witnesses, the likelyhood of what they Depose, and whether they do not Swear out of Malice, Subornation, Self-Interest, Combi∣nation, or some ill design; which to Discover, they will do well to Examine them apart, to note their Variations and Contradictions, to ask them sudden questions, and what questions are perti∣nent, not the Judges, but the Jury only can de∣termine; for they may know how to make use of them towards Discovery of the Truth, thô the Judge does not, and 'tis They are upon their Oaths, not he, 'tis they must satisfy their own Conscien∣ces, the Judge has nothing to do to Intermeddle, he is bound by their Verdict: Let Witnesses be never so rampantly positive, yet if the Jurors have good and reasonable grounds not to believe them, they will, they must remain as Ignorant to the parties Crime as before: we find this ex∣presly asserted for Law in our Books, as Stiles's

Reports, L. 11. thô there be Witnesses who prove the Bill, yet the Grand Inquest is not bound to find it, if they see cause to the contrary, so Coke L. 6. The Judges use to determine who shall be Sworn, and what shall be produced as Evidence to the Jury, but the Jury are to consider what Credit or Authority the same is worthy of. If a Grand Jury are not Judges of Evidence, they signifie nothing. If (as some would per∣swade us) because People Swear desperately, thô they do not believe them, they shall be bound to find the Bill, then they signifie nothing, and are no security to preserve Innocency. A lewd Wo∣man once resolv'd to Indict the then Arch-bishop of Canterbury for a Rape, she Swore it no doubt very heartily, according to this new Doctrine of going according to Evidence, the Jury must presently have found the Bill, the Arch-bishop must have been Committed to Prison, Suspended from Ecclesiasti∣cal Jurisdiction, his Goods and Chattels through∣out England Inventoried by the Sheriffs; would it, think you, in that Case have been a good Excuse for the Grand Jury, to have said, that thô they believ'd in their Conscience the Bag∣gage swore false, yet she Swearing it positively, they as so many Parish Clerks were but to say Amen to her Oath of the Fact, and to find Billa Vera against that eminent Prelate? And if the Jury be Judges of the Credibility of Evidence in this Case, and may go contrary to it, why I pray may they not have the same Liberty where they find good Cause in others?

If an Indictment be laid against a man for Cri∣minal words, said to be utter'd in a Colloquium, or Discourse, thô the Witnesses roundly Swear all the express words in the Indictment, yet unless they will Relate and set forth the Substance of the whole talk, 'tis impossible the Jury should Judge

of the matter; for the foregoing and subsequent words may render Expressions that are Innocent and Loy∣al, which taken to halfs, may be rank Treason; as if one should say, To affirm the King has no more Right to the Crown of England than I have, (which is the Opini∣on of the Jesuits, of his Majesty, if once Excommunicated by the Pope) is detestable Treason: And two men at some distance, not well Hearing or Remembring, or Ma∣liciously designing against his Life, should Swear—That he said, The King had no more Right to the Crown than he had: Now that the Man did utter these very words is true, but if you ask the Evi∣dence the rest of the Colloquium, they shall tell you there was much more Discourse, but they cannot remember it; what satisfaction is this to a Jury? or would it not be hard for a Man to be put to hold up his Hand at the Bar under the frightful Charge of Treason in this Case? Or if a Minister in his Sermon should Recite that of the Psalms, The Fool hath said in his Heart there is no God: Jesuited Evidence now may come and Charge him with Blasphemy, and Swear that he said, There was no God: and ask them what Expressions be∣sides he used, may excuse themselves and say, 'Tis a great while agoe, we cannot remember a whole Sermon, but this we all positively Swear, He said there was no God.

The Inquiry of a Grand Jury should be suita∣ble to their Title, a Grand Inquiry; else instead of serving their Countrey, and presenting real Crimes, they may Oppress the Innocent, as in the Case of Samuel Wright and John Good, at a Sessi∣ons in the Old Baily, about December 1681. Good Indicts Wright for Treasonable words, and Swore the words positively; but after a Grand Enquiry, the Grand Jury found that Wright only spoke the words as of others, thus, They say so and so—and concluded with this—They

are Regnes for saying it; and also Good at last Con∣fessed that Wright was his Master, and Corrected him for Misdemeanours, and then to be Reveng'd he comes and Swears against him, which he Con∣fessed he was Instigated to by one Powel; so the Grand Jury finding it to be but Malice, Return'd the Bill Ignoramus: whereas if they had not Exa∣min'd him strictly, they had never discover'd the Intreigue, and the Master had Causelesly been brought to great Charge, Ignominy and Hazard.

The Judicious Dalton, p. 539 says well, No less care or Concern at all lies on the Grand Jury, than does on the Petty Jury: People may tell you, That you ought to find a Bill upon any probable Evidence, for 'tis but matter of Course, a Ceremony, a Business of Form, only an Accusation, the party is to come be∣fore another Jury, and there may make his Defence: But if this were all, to what purpose have we Grand Juries at all? why are the wisest, best men in a County (for such they are or should be) troubled? why are they so strictly Sworn? Do not Flatter your selves, you of the Grand Jury are as much upon your Oaths as the Petty Jury, and the Life of the man against whom the Bill is brought, is in your Hands: The Lord Cook 3. Iustit. 33. plain∣ly calls the Grand Jury-men all wilfully forsworn and Perjured, if they wrongfully find an Indict∣ment; and if in such a Case the other Jury thro Ignorance, &c. should find the person Guilty too, you are Guilty of his Blood as well as they: but sup∣pose he get off there, do you think it nothing to Ac∣cuse a man upon your Oaths, of horrid Crimes, your very doing of which puts him, thô never so Innocent, to Disgrace, Trouble, Damage, danger of Life, and makes him liable to Outlawry, Imprisonment, and every thing but Death it self, and that too for ought you know may wrongfully be occasion'd by it, your rash Verdict gaining Credit, and giving Authority to

another Jury to find him Guilty: for if the Petty Jury find a man Guilty never so unjustly, the Law suffers no Attaint or other Punishment to lie against them, for this very reason, because another Jury, viz. the Grand Inquest as well as they, have found him Guilty. If a Grand Jary find a Bill wrongfully against a person, and it prove never so much to his damage, he has no Remedy: for being upon their Oaths, the Law will not suppose any malice. One of the Grand Jury cannot afterwards be of the petty Jury, and why? Because, says the Law, he has once already found the party Guilty, and if he should not again, he must perjure himself. From all which it appears, what a weigh and stress the Law puts upon the Verdict of a Grand Jury; and 'tis remarkable too, that the Law directs them only to say, either, Billa vera, It is true, Or, Igno∣ramus, We know not; and never, That it is not true: Which shews, That if they be doubtfull, or not fully satisfied, The Indictment must be Endorsed not Billa Vera, We know 'tis true, but Ignoramus, We doubt it, We do not know it, We are not certain it be true. If they find a Bill where they ought not, they wound their own Consciences, and do an irreparable damage to the party; but where they do not find the Bill, there is no harm done to any body, for another Indictment may be brought when there is better Evidence.

SECT. IV.

That Juries are Judges of Law in some respects as well as Fact.

AMongst other devices to undermine the Rights and Power of Juries, and render them Insignificant, there has an opinion been

advanced, That they are only Judges of Fact, and are not at all to Consider the Law; so that if a Per∣son be Indicted for a Fact which really is no Crime in it self by Law, but is workt up by Words of form, as Treasonably, Seditiously, &c. if the Fact be but proved to be done, though the said wicked Circum∣stances do not appear, they shall be supplied by the Law, which you are not to take notice of, but find the Bill, or bring in the Person Guilty, and leave the Consideration of the Case in Law to the Judges, whose business it is—Thus some people argue, but this is an apparent Trapp, at once to Perjure Igno∣rant Juries, and render them so far from being of good use, as to be only Tools of Oppression, to Ru∣ine and Murder their Innocent Neighbours with the greater Formality: For though it be true, that mat∣ter of Fact is the most common and proper Object of a Juries determination, and matter of Law that of the Judges, yet as Law arises out of, and is compli∣cated with Fact, it cannot but fall under the Juries Consideration. Littleton, Sect. 368. teaches us, That the Jury may at their Election either take upon them the Knowledge of the Law, and Determine both the Fact and Law themselves, or else find the matter specially, and leave it to the Judges: 'Tis by applying matter of Fact and Law together, and from their due Consideration of, and right Judgment upon both, that a Jury brings forth their Verdict. Do we not see in most General Issues, as upon Not Guilty pleaded in Trespass, breach of the Peace, or Felo∣ny, 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 par∣ty Guilty or Not Guilty generally; so that though they Answer not to the Question singly, what is Law, yet they determine the Law in all matters where Issue is Joined. Is it not every dayes practice,

when persons are Indicted for Murther, the Ju∣ry does not only find them Guilty or Not Guil∣ty, but many times upon hearing and weighing of Circumstances, brings them in either Guilty of the Murder, or else only of Man-slaughter, per misadventure, or se defendendo, as they see Cause? Besides, as Juries have ever been vested with such Power by Law, so to exclude them from, or Disseize 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 Cloathed and disguised in the Indictment with the name of Treason, or some other High Crime, and proved 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 be∣cause (according to this fond Opinion) they have no power to Judge of Law, and the Fact charged is fully proved, they should at this Rate be bound to find him Guilty: And being so found, the Judge may pronounce Sentence a∣gainst him, for he finds him a Convicted Trai∣tor, &c. by his Peers: And so Juries should be made meer Properties to do the Drudgery and bear the blame of unreasonable Prosecuti∣ons. But all this is absur'd, and abhorr'd by the Wisdom, Justice and Mercy of our Laws.

In every Indictment, Information, &c. there are certain words of Course, called matter of form, as Maliciously, Seditiously, with such and such an Intention, &c. And these sometimes are rai∣sed by a Just and reasonable Implication in Law, and sometimes are thrust in meerly to raise a pretence or Colour of Crime where there is really none. So that every Jury-man ought well to understand this Distinction, where the Act or

naked matter of Fact charged, is in it self a Crime or offence against Law; as killing of a Man, Levying of War against the King, &c. there the Law does in pleadings require, and will supply those words; and if the Jury do find, and are satisfied, That the substance of the Charge is such a Crime, and the person Guilty thereof, they are bound to find it, though no direct proof be made of those Circumstantials. But where the Act or matter of Fact is in it self Innocent or Indifferent, there the purport of these Words (as that it was done maliciously, or with such or such a design) is necessary to be proved: For else there is no Crime, and con∣sequently no fit matter to be put to Trial. In which Case, the Grand Jury is bound in Consci∣ence and Law to return an Ignoramus, and a Petty Jury Not Guilty.

SECT. V.

That Juries are not finable, or any way to be punisht under pretence of going contrary to Evidence, or against the Judges Directions.

MUch of what we have said of Grand Ju∣ries, is also applicable to Petty Juries, so that we need not repeat it, only must Answer one Objection. Some Jury-men may be apt to say,—If we do not find according to Evi∣dence, though we have reason to suspect the truth of what they Swear, or if we do not find as the Judge directs, we may come into trouble, the Judge may Fine us, &c.—I Answer, this is a vain fear: No

Judge dare offer any such thing: you are the proper Judges of the matters before you, and your Souls are at stake, you ought to Act freely, and are not bound, though the Court demand it, to give the Rea∣sons why you bring it in thus, or thus; for you of the Grand-Jury are sworn to the Contrary, viz. To keep secret your fellows Counsel and your own; and you of the Petty Jury are no way obliged to declare your motives, it may not be convenient. Tis a notable Case before the Chief Justice Anderson in Q. Eliz. daves. A Man was Arraigned for murder, the Evi∣dence was so strong that 11. of the Jury were pre∣sently for finding him Guilty, the 12^th man refused, and kept them so long that they were ready to starve, and at last made them comply with him, and bring in the Prisoner not Guilty: The Judge, who had several times admonisht this Jury-man to join with his Fellows, being surprized, sent for him, discours∣ed him privately; to whom upon promise of Indemp∣nity, he at last own'd that he himself was the man that did the Murder, and the Prisoner was Innocent, and that he was resolv'd not to adde Perjury and a second Murder to the first.—But to satisfie you that a Jury is no way punishable for going according to their Conscience, though against seeming Evidence, and the Reasons why they are and ought not to be que∣stion'd for the same, I shall here Recite an Adjudg∣ed Case, that of Bushel, in the two and twentieth year of His Majesty, Reported by the Learned Sir John Vaughan, whose Book is Licensed by the present Lord Chancellor, the Lord Chief Justice North, and all the Judges then in England: the said Case begins fol. 135. and continues 150. The whole well worth Reading: but I shall only Select Certain Passages.—

The Case was this:

BUshel and others of a Jury having at a Sessions not found Pen and Mead (Two Quakers) Guilty of a Trespass, Contempt, Ʋnlawful Assembly and Tumult, where∣of

they had been Indicted, were fined forty pound a man, and Committed till they should pay it. Bushel brings his Habeas Corpus, and upon the Return it appeared he was Commit∣ted,—For that contrary to Law, and against full and Clear Evidence openly given in Court, and against the Directions of the Court in matter of Law, they had Ac∣quitted the said W. P. and W. M. to the great Obstru∣ction of Justice, &c. Which upon solemn Argument was by the Judges Resolved, to be an Insufficient Cause of fining and committing them, and they were discharg∣ed, and afterwards brought Actions for their Dammage. The Reasons of which Judgment are reported by Judge Vaughan, and amongst them he Useth these that follow, which I shall give you in his own words.

Fol. 140. One fault in the Return is, That the Jurors are not said to have Acquitted the persons Indicted, against full and manifest Evidence, Corruptly, and Knowing the said Evidence to be full and manifest against the Persons Indicted; For how manifest soever the Evidence was, if it were not manifest to them, and that they Believed it such, it was not a Finable fault, nor Deserving Im∣prisonment; Ʋpon which Difference the Law of punish∣ing Jurors for false Verdicts, principally Depends,

And Fol. 141. I would know, whether any thing be more Common, than for two men, Students, Barristers, or Judges, to deduce Contrary and opposite Conclusions out of the same Case in Law? And is there any Difference that two men should Infer distinct Conclusions from the same Testimony? is any thing more known, than that the same Author and place in that Author, is forceably urg'd to maintain contrary Conclusions, and the Decision hard which is in the Right? is any thing more frequent in the controversies of Religion, than to press the same Texts for Opposite Tenets? How then comes it to pass, that two persons may not apprehend with Reason and Honesty, what a Witness, or many say, to prove in the Ʋnderstanding of one plainly one thing, but in the Apprehension of the other clearly the contrary thing? must therefore one of these Me∣rit

Fine and Imprisonment, because he doth that which he cannot otherwise do, preserving his Oath and Integri∣ty? And this is often the Case of the Judge and the Jury.

And Fol. 142. I conclude therefore, That this Return, charging the Prisoners to have Acquitted P. and M. a∣gainst full and manifest Evidence first, and next without saying that they did know and Believe that Evidence to be full and Manifest against the Indicted persons, is no Cause of Fine and Imprisonment.

In the Margent of that Fol. 142. it is thus Noted: Of this Mind were ten Judges of Eleven; the Chief Baron Turner gave no Opinion, because not at the Argument.

And in the same fol. 142. he saith, The Verdict of a Jury, and Evidence of a Witness, are very Different things, in the Truth and Falshood of them: a Witness swears but to what he hath heard or seen generally, or more largely, to what hath fallen under his Senses: But a Jury-man swears to what he can Inferr and conclude from the Testimony of such Witnesses, by the Act and force of his Understanding, to be the Fact Inquired after; which differs nothing in Reason, though much in the Punish∣ment, from what a Judge, out of Various Cases consi∣der'd by him, Infers to be the Law in the question before him.

If the meaning of these Words, finding against the Direction of the Court, in matter of Law, be, That if the Judge having heard the Evidence given in Court (for he knows no other) shall tell the Jury upon this Evi∣dence, the Law is for the Plaintiff, or for the Defendant, and you are under the pain of Fine and Imprisonment to find accordingly; and the Jury ought of duty so to do; then every man sees, that the Jury is but a troublesome delay, great Charge, and no use in determining Right and Wrong; and therefore the Tryals by them may be better Abolished than continued: which were a strange new found Conclusion, after a Tryal so Ce∣lebrated for many hundred Years.

It is true, if the Jury were to have no other Evi∣dence for the Fact, but what is Deposed in Court, the

Judge might know their Evidence, and the Fact from it, equally as they, and so direct what the Law were in the Case; though even then the Judge and Jury might honestly differ in the Result from the Evidence, as well as two Judges may, which often happens; but the Evidence which the Jury have of the Fact, is much otherwise than that. For,

1. Being Returned of the Vicinage where the Cause of Action ariseth, the Law supposeth them thence to have sufficient Knowledge to Try the matter in Issue (and so they must) though no Evidence were given on either side in Court; but to this Evidence the Judge is a stranger.

2. They may have Evidence from their own Personal Knowledge, by which they may be assured, and sometimes are, that what is deposed in Court is absolutely false: but to this the Judge is a stranger, and he knows no more of the Fact than he hath Learned in Court, and perhaps by false Depositions, and consequently knows nothing.

3. The Jury may know the Witnesses to be Stigmati∣zed, and Infamous, which may be unknown to the par∣ties, and consequently to the Court.

Fol. 148. To what end is the Jury to be Returned out of the Vicinage, where the Cause of Action ariseth? to what end must Hundredors be of the Jury, whom the Law supposeth to have nearer knowledge of the Fact, than those of the Vicinage in General? to what end are they Challenged so scrupulously to the Array and Poll? to what end must they have such a certain Free-hold, and be Probi & Legales homines, and not of Affinity with the party concern'd? to what end must they have in many Cases the View for Exacter Information chiefly? to what end must they undergo the Punishment of the Villanous Judgment, if after all this they Implicitly must give a Verdict by the Dictates and Authority of another Man, under Pains 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 ano∣thers Ear; no more can a man conclude or Infer the thing

to be Resolved by anothers Ʋnderstanding or Reasoning; and though the Verdict be right the Jury give, yet they being not assured that it is so from their own Ʋnderstand∣ing, are Forsworn, at least in foro Conscientiae.

Fol. 149. And it is Absurd to Fine a Jury for find∣ing against their Evidence, when the Judge knows but part of it; for the better and greater part of the Evidence may be wholly unknown to him, and this may happen in most Cases, and often doth.

Thus far Judge Vaughan, whose words I have faithfully Recited, and with it shall conclude this Subject; Recommending those that would be fur∣ther satisfied in the Law touching the Power and Duty of Juries, to those two Excellent, Learned Treatises lately published, the one Intituled, A Guide to English Juries, &c. to be Sold by Mr. Cockeril at the Three Legs over against the Stocks-Market; the other, The Security of English-mens Lives, or the Trust, Power and Duty of the Grand Juries of England, Print∣ed for Benj. Alsop in the Poultrey; both which are extreamly well worthy of every English mans Peru∣sal, that is liable to be call'd to that Office.

And now I shall take Leave of the Reader, who I hope will join with me and all English Protestants in this Prayer:

THat Almighty God would preserve our Religion, put a stop to the Growth of Popery, Confound all their Plots, Protect our present Gracious King, Defend us both from a Forreign Yoak and Domestick Slavery, but conti∣nue to us the Enjoyment of our good old Laws, Liberties and Priviledges, and bring all those to exemplary Justice that have or shall dare attempt to Subvert, Diminish or Ʋndermine them.

Amen.

Notes

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