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. 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.