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. 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.