Truth rescued from imposture, or, A brief reply to a meer rapsodie of lies, folly, and slander but a pretended answer to the tryal of W. Penn and W. Meade &c. writ and subscribed S.S. / by a profest enemy to oppression, W.P.

Part IV. The Grand Case in Controversie, about the Power of Juries, clearly Stated and rationally Resolv'd.

AS a deserted Path, over-grown by Time, makes men to question if it had ever been a Way: So the neglected case of Juries Power, over-run by the Inchroachments of the Bench, make many doubt if ever they had any.

I shall therefore endeavour to State and Vindicate the power of Juries, from the Assault of Innovation; and re-instate them of that Authority and Priviledge they are intituled to, and defended in, and by the Fundamental Laws of England.

1st [Per Judicium parum] As explained by the universal con∣currance of Laws and Lawyers, we are to understand, A Jury of our Equals.

2d That no man shall be Taken, or Imprisoned, or be Disseized of his Free-hold, Liberties, Free-Customs, or be Out-lawed, or Ex∣iled, or any other way destroyed; nor we shall not pass upon him, nor con∣demn him, but by the Lawful Judgment of his Peers, Or, by the Law of the Land, 3 Hen. 9.29.

This is the antient Law of the Land, Confirmed by thirty two Parliaments, acknowledged by all Lawyers; nay confest and quoted by the man in hand, pag. 3.

3d The Question will be this, Whether from this Clause, and what is recorded as Explenatory and Confirmatory of it,

there be sufficient to prove, That Juries are Judges of Law and Fact.

First, In order to the clear stating and full resolving of the Question, I shall explain briefly, and rescue the latter part of this Law-text, from the wretched construction of S.S. which is this.

OR, is either Disjunctive or Copulative; if Disjunctive, then it must imply some other Judges besides the Jury: If Copulative (Or for And) it still implies another Jurisdiction, besides that of the Peers or Jury; his consequence is, that Per Legem Terrae (or the Law of the Land) in that place, cannot (as this Novice insinuates) be understood to be the Tryal of the Jury, but to be the tryal both of Judge and Jury, according to that Maxim, Ex facto jus oritur.

I must confess my self to be a Novice to this preposterous way of Paraphrazing out of pure reputation.

Why if (Or) be disjunctive, it must imply some other Judges, I cannot see, and wonder at the mans impertenency (if whats so natural to him were to be wondred at) for though Expressi∣ons, or the manner of Phraizing things may be disjunctive, yet that does no way follow, that the matters included in them should be so disjunctive of each other, as to imply a thing not con-natural: For instance, If I should say by way of promise to a man, Do me such a service, and I will give thee an hundred Shil∣lings, or five pounds: Does, Or, imply another sum? or that such a Child is one thousand ninety and five Dayes, Or three Years old: Does Or suppose a Different Age?

In short, [Per Legem Terrae] or by the Law of the Land, cannot be understood Exclusive of a Judgment by Peers, it be∣ing but a more ample and comprehensive way of phraizing the peoples right and priviledge of tryal by Juries.

If (Or) be considered Copulatively, He thinks it will fetch in the Justices, as Co-Judges with Juries; but that conclusion is wrong; for as such copulation disowns an exclusion of judg∣ment by Peers, and makes it part of the Law of the Land; so let me tell him, that what is conceiv'd to be additional (as by

the Law of the Land) cannot so easily be understood of Justices, as of the whole legal form & method of tryal in the case mentioned with the whole rights and priviledges of Juries and Prisoners.

That this is not mine own sence, but the Laws, if his so much honored Lord Cook be to be credited, let him turn to fol. 50. of the 2d part of his Institutes, where he will find this Doctrine, Tryals by the Law of the Land, are by due course and process of the Law; and they are by Indictment and Presentment of good and lawful Men: And what is this, but, Per Juditium parum, or Iudgment by Iuries? But of this more in the Appendix.

Next, That as Iuries are Iudges of Law and Fact (as hath been unhappily distinguisht) mens interest, putting that assunder, that Reason and Law originally joyned tog••ther) I shall proceed to evidence.

1. The first Argument is drawn from the Record of their own Indictments.

The Indictment is found and given into the Court as Billa Vera, or a true Indictment, by the Grand Inquest, or Iury of twelve men, before the Court can take cognizance of the Cause; upon this its recommended to the Petty-Jury, to judge the whole matter, and to deliver in their Verdict or Opinion, whe∣ther A.B. be guilty in Manner and Form.

If then the Indictment comprehends both Law and Fact, and that the Jury is to give their Judgment in Manner and Form, and that Manner and Form takes in, and includes the whole Law and Fact of the Indictment (as they manifestly do) then, with great strength and clearness we may infer, That the Iury is Iudge of Law and Fact.

2. My Second Argument is drawn from the nature of the Verdict given.

Judgment is the determination and result of Law, therefore those who are Authors of s••ch Determinations or Resolutions must needs be I••••ges of the Law. How is it possible, that a Jury can pronounce Legale Iudit••um, Legal Judgment, and yet not

be Judges whether the Fact proved be obnoxious to the Law, or not. Juditium, quasi juris dictum, or the Mouth of Law; which being the Juries, they pronounce Law as well as Fact: A Verdict is a Child composed of Law and Fact, and inspirited with the Opinion of the Jury.

This is further evidenced from their own Proceedings at the Old Baily, where they imprisoned the Jury for not bring∣ing in their Verdict, so as to render our Meeting Ʋnlawful, which they could never do, and not be Judges of that Law the Meet∣ing was supposed to have transgrest.

In short, Since Guilty, and Not Guilty, are Verdicts; and that they cannot be given, but where a▪ Fact is obnoxious, or not obnoxious to Law; and since none are to give that Ver∣dict, but the Jury, it follow••, that the Jury are only Judges, because they only can criminate or clear. And where the power of determination is, there is the judgment of Law; but that is in the Jury.

Where there is no Law, there can be no Transgression. Now such Transgression being supposed, in the Verdict of Guilty, it is most plain, that Guilty cannot be pronounced but with a reference to the Law transgrest; and that reference can∣not be made, but by such as are Judges of the extent of the Law.

3. My third Argument shall be drawn from the Punishment of the Malefactors.

To Punish any as a Malefactor, it is requisit he be proved such; but it is impossible he should be so, but with respect to some Law transgrest: Nor can he be concluded such a Trans∣gressor, unless his Fact be judged obnoxious to the Law: And where thi•• judgmen•• is, there rests the judg-ship of Law and Fact; for that he should be legally punisht, pursuant to a legal Judgment, and yet the Authors of this Legal Judgment, not to be Judges o•• the Breach of Law, is some of the pro∣foundest

Non-sence in Nature: What is this but to render the Jury meer Cyphers, when they shall only tell the Court, that which the Witness shall have swear to their hand? But because their Verdicts are Guilty, or Not Guilty, which determine the Fact meritorious of Punishment, or Acquittance; therefore have they the only power of Judgment.

4. My fourth Argument shall be drawn from a Maxim of their own, viz. Ex facto jus oritur. Therefore, says S.S. The Iury are not only Iudges.

It is such a way of drawing consequences, as I have not been acquainted with; for nothing can be clearer then the con∣trary to this Conclusion.

If out of the Fact the Law arises, then those who are Judges of Fact, cannot escape being Judges of Law also; for Fact gives it.

This Passage puts a Ne plus ultra to the pretence of difficulty, and the necessity of alwayes asking Questions of the Justices; since the nature of the Fact clearly proved, carries the legality, or contrary in the bosom, if not in the front of it; and therefore obvious to the plainest and most rustick capa∣city.

5. My next Argument shall be drawn from the ill-conse∣quences of the opposite Opinion, viz. That men may be bought or sold out of their Lives, Liberties and Estates.

For if an enraged Bench, or otherways interested be the sole Judges of Law, then let any man be indicted of the most lawful act imaginable, it being such as he cannot deny, and which is prov'd by Evidences; the Jury must bring him in guilty, and so expose him to the sentence of the Justices, by leaving the Judgment of the Law, to their prepossest brests.

6. My last Argument will be this, that upon the opinion of our Adversaries, there must be two Evidence; one of the Fact, which is the Juries; and one of Law, which is the Justices. But because the Law knows no such conceit, and that the single

Verdict of twelve men, is, and must be legally binding; there∣fore are they Judges both of Law and Fact.

Object. Their main Objection is, That if the Justices be not Judges of Law, How comes it to pass that the Iury asks the sence of the Law at their Mouthes? according to that Maxime.

Ad questionem Iuris respondent Iudices, et ad questionem facti respon∣dent Iuratores, as in page 2. of the Libel under Examina∣tion.

Answ. This is so far from lessening the force of our prece∣ding Arguments, that from this Objection we will fetch matter enough, to make a subsequential one, and that of no small im∣port to the business controverted.

I grant a possibility of such an ignorance in Iuries, that there may be a necessity to inform them of the Law, by the better skill of the Iustices: But what then? therefore must they not be Iudges of Law, so far as concerns the Fact? nothing less; For though the Iustices may tell them the Law (and its their place) yet that's no part of the Verdict, as so said by the Iustices; but as understood, digested, and juditiously made the Iuries, by their own free-will and acceptance, upon their conviction of the truth of things reported by the Bench. As a man may be educated in any Religion; but to make it his proper Religion, 'tis requisite that he believe and embrace it juditiously, not implicitly.

Thus we frequently find the House of Lords to ask the opini∣on of the Justices in Parliament; is the Vote, Order, or Act, therefore the Judges, and not the Parliaments?

The like in the Kings Council; Is the opinion of the Kings At∣turney, or Solicitor, the Iudgment, Resolve, and Order of the Coun∣cil, because he said it, and not because they made it theirs, by submitting to the reason, or legality of the thing debated and deli∣vered?

And in London, Are the Orders of the Mayor Aldermen, and Common-Council, the Recorders, or City Council's, because his, or their Opinion in point of Law was ask'd? experience shews the con∣trary.

From all these Premisses, 'tis time we draw this one most evi∣dent Conclusion; That notwithstanding Juries of late are grown so out of fashion, and of power with some, that to shew any, is to incur the Threats and Menaces of the Court, to have their Noses Slit, their Throats Cut, their Bodies Impri∣soned, and drag'd at a Carts Tayle through the City, &c. Yet that they are by the antient Laws of England, and force of Rea∣son, the only right and proper Judges, as well of Law as Fact.