^^^^iW^'ilK^lf::^;?^} : "^ ait ingUsfen's J^isl)t4 rial bp Ittrg, 1H39 75^/0 DATE DUE W^^T- - / / GAVL0q5/g/fe ed by Microsoft D PRINTED IN U.SA CORNELL UNIVERSITY r^r-r> 0^4MM<« Cornell Unlverslt SEP ^S 1909 ^° 7540.Z9H39 1883 University Library } 1883 The Englishman's right :a dialogue in re 3 1924 021 720 127 / legi- bus quam a parentibus : It is a greater inheritance, and more to be valued, which we derive from the fundamental conflitution and laws of our country, than that which comes to us from our refpe£live pa- rents. For without the former, we have no claim to the latter. jhirym. But has this method of trial never been attempted to be invaded or juftled out of pradlice ? Barr. It is but rarely that any have arrived to fo great a confidence : For it is a mofi dangerous thing tofhake, or alter, any of the rules, or funda- mental points, of the common law, which in truth are the main pillars, and fupporters of the fabric of the commonwealth : thefe are judge Cokeys words f. Yet fometimes it has been endeavoured : but fo facred and valuable was the inftitution in the eyes of our anceftors, and fo tenacious were they of their privileges, and zealous to- maintain, and pre- ferve fuch a vital part of their birth-right and freedom ; that no fuch attempts could ever prove effedtual, but always ended with the fhame and fe- vere punifhment of the raih undertakers. For example, I. Andrew Horn, an eminent lawyer, in his book, entitled, the Mirrour of yuflices, (written in the reign of king Edward I. now near 400 years ago) in the fifth chapter, and firfl: fedtion, records, That the renowned Saxon king Alfred caufedfour- andforty juflices to be hanged in one year, as murther- ers, for ihtirfalfe judgments. And there recites their particular crimes, moft of them being in one kind or other infringements, violations, & encroachments of and * 2 Infiit./o/. 56. t 2 Inftit./. 74. Digitized by Microsoft® [ 15 ] and upon the rights & privileges of Juries. Amongft the reft, that worthy author tells us, he hanged one jujlice Cadwine, becaufe he judged one Hackwy to death without the confent of all the furors; for whereas he flood upon his yury of ttiielve men, becaufe three of them would have faved him, this Cadwine removed thoje three, arid put others in their room on the jFury, againfl the faid Hackwy's confent. Where we may obferve, that though at laft twelve men did give a verdidt againft him, yet thofe, fo put upon him, were not accounted his yurors ; by reafon all, or any of them, who were firft fworn to try him, could not (by law) be removed, and others put in their ftead : And that fuch illegal alteration was then adjudged a capital crime, and forthwith the faid Cadwine was hanged. 2. A fecond inftance I fliall give you in the words of the lord chief juftice Coke % : ' Againft ' this ancient and fundamental law (and in the ' face thereof) there was in the eleventh year of ' king Henry VII. cap. 3. an aft of Parliament ob- ' tained (on fair pretences, & a fpecious preamble, as ' to avoid divers mifchiefs, ^fc.^) whereby it was ordained, That from thenceforth, as well juflices of qffize, as juflices of the peace, upon a bare informa- tion for the king before them made, without any finding or prefentment by the verdiB of twelve men, fhould have full power and authority by their dif- cretions, to hear and determine all offences and contempts committed or done by any perfon or per- fons againfl the form, ordinance, or effeH of any flatute made and not repealed, &c. ' By colour of ' which adl (faith Coke) fhaking this fundamental ' law (he means, touching all trials to be by Juries) 'it is' not credible what HORRIBLE OP- ' PRESSIONS and EXACTIONS, to the undoing Bz 'of % Coke, zpartoi \aSi.fol. 51. Digitized by Microsoft® [ 16 ] ' of MULTITUDES of people, were committed ' by Sir Richard Empfon knight, and Edmund ' Dudley, Efq; (being juftices of the peace) ' throughout England; and upon this unjuft and ' injurious adt (as commonly in like cafes it falleth ' out) a new office was erecSed, and they made ' mafters of the king's forfeitures.' But not only this ftatute was juflly, foon after the deceafe of Henry VII. repealed by the ftat. of the I Hen. VIII. cap. 6. but alfo the faid Emp- fon and Dudley (notwithflanding they had fuch an all to back them, yet it being againfl Magna Charta, and confequently void) were fairly executed- for their pains ; and feveral of their under-agents, as promoters, informers, and the like, feverely/«- nijhed, for a warning to all others that fhall dare (on any pretence whatfoever) infringe our Engli/h liberties *. For fo the lord t Coke having (elfe- where) with deteflation mentioned their ftory, pa- thetically concludes ; Qui eorum vejligiis injijlant, exitus perhorrefcant : Let all thofe who Jhall pre- Jume to tread their Jieps, tremble at their dreadful end. Other inftances of a later date might be gi- ven, but I fuppofe thefe may fuffice. jurym. Yes, furely; and by what you have difcourfed of the long-continued ufe of Juries, and the zealous regards our anceftors had not to part with them, I perceive that they were efleemed a fpecial privilege. Be pleafed, therefore, to ac- quaint me, wherein the excellency & advantages to the people, by that method of trial above others, may confift. JBarr. This queftion fliews you have not been much converfant abroad, to obferve the miferable condition of the poor people in moft other nations, where * See Sir Rich. Baker's Chron. p. 254. t 4 Part Inftitut/o/. 41. Digitized by Microsoft® [ 17 ] where they are either wholly JubjeH to the defpotic arbitrary luft of their rulers ; or at beil under fuch laws as render their lives, liberties, and eftates, li- able to be difpofed of at the difcretion of flrangers appointed their judges ; mofl: times mercenary and creatures of prerogative ; fometimes malicious and oppreffive; and often /«;-/?«/ and corrupt*. Or fuppofe them ever iojuji and upright, yet ftill has the fubjeil no fecurity againft the attacks of un- confcionable witnejjfes ; yea, where there is no fuf- ficient evidence, upon bare fulpicions, they are ob- noxious to the tortures of the rack, which often make an innocent man confefs himfelf guilty, mere- ly to get out of prefent pain. Is it not then an inejiimable happirufs to be born, and live under fuch a mild and righteous conflitution, wherein all thefe mi/chiefs (as far as human prudence can pro- vide) are prevented ? where none can be condemn- ed, either by \!s\& power of fuperior enemies, or the rajhnefs or ill-will of any Judge, nor by the bold 2i&.xma.iions oi s.ny profligate evidence : but no lefs than twelve honejl, fubjlantial, impartial men, his neighbours (who confequently cannot be prefumed to be unacquainted either with the matters char- ged, the prifoners courfe of life, or the credit of the evidence) mufl iirft be fully fatisfied in their con- fciences, that he is guilty ; and fo all unanimoufly pronounce him upon their oaths ? Are not thefe, think you, very material privileges \ i * See all this excellently made out, and more at large, by the L. C. J. Forte/cue, afterwards chancellor to K. Hen. VI. in his Book De laudibus Legum Angla, cap. 26, 27, 28, 29. t It may be of importance to add one obfervation here : — Though a parliament to fupply the neceffities and pur- pofes of an abandoned adminiftration, fhould opprefs us with taxes; while the conflitution remains, in other re- fpefts, unviolated, the continuance of Juries in their le- gal force will fecure our reputations, our perfonal liberties, our limbs, and our lives. Digitized by Microsoft® [ i8 ] Jurym. Yes, certainly ; though I never fo well confidered them before. But now I plainly fee our fore-fathers had, and we ftill have, all the reafon in the world to be zealous for the maintenance and prefervation thereof from fubverfion or encroach- ments, and to tranfmit them entire to poflerity. For, if once this bank be broken down or negledt- ed, an ocean of oppreflion, and the ruins of infinite numbers of people, (as in Empfon and Dudley'^ days) may eafily follow, when on any pretence they may be made criminals, and then fined in vafl fums, with pretext to enrich the king's coffers, but indeed to feed thofe infatiate vultures that promote fuch unreafonable profecutions. But fmce you have taught me fo much of the antiquity and excellency of juries, I cannot but crave the continuance of your favour, to acquaint me fomewhat more par- ticularly of their office and power by law. Barr. I (hall gladly comply with fo reafonable and jufl a requeft. * A jury of twelve men are by our laws the only proper judges of the matter in if- fue before them. As for inflance, 1. That teitimony which is delivered to in- duce a jury to believe, or not to believe, the matter of faa in iffue, is called in law EVIDENCE, be- caufe thereby the jury may, out of many matters of fadt, JSvidere veritatem ; that is, fee clearly the truth, of which they are proper judges. 2. When any matter is fworn, or when a deed is read, or offered, whether it fhall be believed, or not, or whether it be true, or falfe, in point of fadl, the jurors are proper judges. 3. Whether fuch an a(5t was done, in fuch, or fuch a manner, or to fuch, or fuch, an intent, the jurors are judges. For, the court is not judge of thefe matters, which are evidence to prove, or difprove, * See Coke, 4th Part of Inftit./^/. 84. Digitized by Microsoft® [ 19 ] difprove, the thing in iffue. And therefore the witnefles are always ordered to direH their fpeech to the jury, they being the proper judges of their teftimony. And in all pleas of the crown (or matters criminal) the prifoner is faid to put him- felf for trial upon his country, which is explained and referred by the clerk of the court, to be meant of the jury, faying to them, Which country you are. yurym. Well then, what is the part of the king's jujlices, or the court? what are they to take cognizance of, or do, in the trials of mens lives, liberties, and properties ? Barr. Their office, in general, is to do equal jujlice and right: particularly, 1. To fee that the jury be regularly returned and duXy /worn. 2. To fee that the prifoner (in cafes where it is permitable) be allowed his lawful challenges. 3. To advife by law, whether fuch matter may be given in evidence, or not, fuch a writing read, or not, or fuch a man admitted to be a witnefs, dr'C. 4. Becaufe by their learning, and experience, they are prefumed, to be beft qualified, to alk per- tinent queftions, and, in the mofl perfpicuous man- ner, fooneft to fift out truth from amongft tedious impertinent circumflances and tautologies : they therefore commonly examine the witneffes in the court, yet not excluding the jury, who of right may, and where they fee caufe, ought to afk them any necelfary queflions ; which undoubtedly they may lawfully do with modefly and difcretion, with- out begging any leave. For if afking leave be ne- cefTary, it implies in the court a right when they lift to deny it ; and how then fhall the jury know the truth ? And fince we fee, that council, who too often ( Pudet hcec opprobria nobis) for their fees flrive only to baffle witneffes, and ftifle truth, take Digitized by Microsoft® [ 20 ] take upon them daily to interrogate the evidence ; it is abfurd to think that the Jurors fliould not have ^& fame privilege, who are upon their oaths, and proper judges of the matter. 5. As a difcreet and lawful AJfiJlant to the Jury,* they do often recapitulate and fum up the heads of the evidence ; but the Jurors are ftill to confider whether it be done truly, fully and impar- tially, (for one man's memory may fooner fail than twelve's.') He may likewife flate the law to them, that is, deliver his opinion where the cafe is difficult, or they defcre it. But fmce, ex fallo jus oritur, all matter of law arifes out of matter of fadl, fo that till the faft is fettled there is no Kiom for law : therefore all fuch difcourfes of a judge to a Jury are, or ought to be, hypothetical, not coercive; conditional, and not pofitive : viz. If you find the fall thus or thus, ftill leaving the Jury at liberty to find as they fee caufe) then you are to find for the plaintiff. But if you find the fall thus, or thus, then you are to find for the defendant, or the like, (ruilty, or not Guilty, in cafes criminal. Laftly, they are to take the verdill of the Jury, and thereupon to ^we. judgment according to law. For the office of a judge (as Coke well obferves) is jus dicere, not jus dare; not to make any laws by ftrains of wit, or forced interpretations ; but plain- ly, and impartially to declare the law already efta- lilhed. Nor can they refufe to accept the Jury's verdift when agreed : for if they fhould, and force the Jury to return, and any of them Ihould mif- carry for want of accommodation, it would un- doubtedly be murther ; and in fuch cafe the Jury may, without crime, force their liberty, becaufe they are illegally confined, having given in their verdidt, and thereby honeftly difcharged their of- fice, * Vaughan's, Reports in Bujhell's za,ie,fol. 144. Digitized by Microsoft® [ 21 ] fice, and are not to be ftarved for any man's pleafure. jfurym. But I have been told, that a Jury is only judge of naked matter of fa£l, and are not at all to take upon them to meddle with, or regard, matter of law, but leave it wholly to the court. Barr. 'Tis mofl true, jfurors are judges of mat- ters of fall: that is their proper province, their chief bufmefs ; but yet not excluding the confidera- tion of matter of law, as it arifes out of, or is com- plicated with, and influences thefa6l. For to fay, they are not at all to meddle with, or have refpect to, law in giving their verdidts, is not only a falfe po- fition, and contradidted by every day's experience ; but alfo a very dangerous and pernicious one ; tending to defeat the principal end of the infl;itu- tion of Juries, and fo fubtilly to undermine that which was too flrong to be baftered down. I. It is falfe: For, though the direction, as to matter of law feparately, may belong to the judge, and the finding the matter of fadl does, peculiarly, belong to the Jury ; yet mufl your jFury alfo ap- ply matter of f adt and law together ; and from their confideration of, and a right judgment upon both, bring forth their verdiil : For do we not fee in mofl general iffues, as upon not guilty — pleaded in trefpafs, breach of the peace, ox felony, though it be matter in law whether the party be a tre/paffer, a breaker of the peace, or a felon ; yet the Jury do not find the fail of the cafe by it- felf, leaving the law to the court ; but find the party guilty, or not guilty, generally ? So as, though they anfwer not to the queftion fingly, what is law 1 yet they determine the law, in all matters, where iflue is joined. So likewife is it not every day's pradtice, that when perfons are indidted for murther, the Jury not only find them guilty, or not guilty ; but many times, upon hearing, and weighing Digitized by Microsoft® [ 22 ] weighing of circumftances, bring them in either guilty of murther, manjlaughter, per infortunium, OT/e defendendo, as they fee caufe ? Now do they not, herein, complicately refolve, both law & f a6t ? And to what end is it, that when any perfon is profecuted upon sxiy Jlatute, the fbatute itfelf is ufually read to the Jurors, but only that they may Judge, whether, or no, the matter be within that ftatute ? But to put the bufmefs out of doubt, we have the/uffrage of that oracle of law, Littleton, who in his Tenures, Sedt. 368. declares. That if a yury will take upon them the knowledge of the law upon the matter, they may. Which is agreed to likewife by Coke in his comment thereupon *. And therefore it is falfe to fay that the Jury hath not power, or doth not ufe frequently to apply the fadt to the law ; and thence taking their meafures, judge of, and determine, the crime, or ij/ue, by their verdidtj. 2. As * An able writer of our own times, before the prefent difputes arofe, confiders this, as a fettled and allowed rule. See Blackftone's Commentaries, vol. III. p. 377, 378. particularly vol. IV. p. 354, 355. 4th ed. X Not only the exprefs qffirtion of lawyers — and the prailice of the courts, prove, that Juries are authorized to determine the law, fo far as it relates to the fa(5V; but, in the third place, the words, in which verdifts muft be given, indicate, that they have this power. If Juries had been appointed to judge of fafts only, the words 'done,' or ' not done,' or words of a like import, would have been fubftituted for the words ' guilty,' or ' not guilty.' However, as our anceftors have placed it in their option to determine the law, fo far as it is coimefted with the faft, the language of their verdicSs comprehends, when necejffary, their fentiments upon both. If an ac- tion is faid to be criminal, it is neceffary to determine whether the aflion happened .• — So that when a Jury de- clares that a man is guilty, the fa^ is implied ; becaufe they cannot affix guilt, where there is no faft. When a Jury declares a man not guilty, the determination of the faft Digitized by Microsoft® [ 23 ] 2. As yuries have ever been vefted with fuck power by law, fo, to exclude them from, or diffeife them of the fame, were utterly to defeat the end of their inftitution f. For then, if a perfon fhould be indiSled for doing any common innocent a&, if it be but clothed, and difguifed, in the indiUment, -ttjith the name oftreafon,orfome other high crime, &• proved, by witnefjes, to have beeti done by him ; the Jury, though fatisfied in confcience, that the fall is not any fuch offence as it is called, yet becaufe {according to this fond opinion) they have no power to judge of law and the fadt charged is fully proved, they fhall, at this rate, be bound to find him guilty : And be- ing fo found, the judge may pronounce fentence againfl faft is left uncertain; becaufe it is unnecejfary ; for the law concerns itfelf with aftions, only fo far, as they are criminal. t From the doftrine, that Juries, in the cafe of libels, are not judges of law, as well as faft, neceifarily flows the following abfurdity, viz. that it is the duty of Juries to declare men guilty, or not guilty, in whom they per- ceive neither guilt, or innocence. Again: If becaufe a circumftance is eftabliflied as a faiH, it is to be reputed as a crime, every incident which happens, is a crime. Now, if printing and publifliing only be criminal, it is criminal to print and publiih the Book of Common Prayer, and the Bible. It is hard to fay, on what principles this right of Juries can be difputed. " If Jurymen, becaufe not bred to the law, are fuppofed incapable of knowing what is, or what is not, law; it follows that none but lawyers can juftly be puniflied for a breach of the law; for, furely, that man is rather unfortunate, than faulty, who ignorant- ly tranfgreffes the law." — Beiides, if it is wife to veft the determination of law, where it concerns fafts, in the Jury when any civil or criminal fuits is in queffion; certainly it is wife to entruft the Jury with the fame power, in all fuits which particularly concern the ftate : becaufe, in fuch fuits, the determination is always of more confe- quence, and judges are more likely to be under an in- fluence, which is injurious to the rights of the people. Digitized by Microsoft® [ 24 ] againjl him, for he finds him a conviHed traitor, &c. by his peers. And thus as a certain phyfician boafted, that he had killed, one of his patients with the befl method in the world; fo here fliould we have an innocent man hanged, drawn, and quar- tered, and all according to law. jfurym. God forbid that any fuch thing fliould be pradlifed ! and indeed I do not very fully under- fland you. Barr. I do not fay it ever hath been, and I hope it never will be prailifed: But this I will fay, that according to this do6trine, it may be; and confe- quently Juries may thereby be rendered, rather a fnare, or, engine of oppreflion, than any advantage or guardian of our legal liberties againfl. arbitrary injuftice, and made mere properties to do the drud- gery, and bear the blame of unreafonable/w/few/'/- ons. And fince you feem fo dull as not to perceive it, let us put an imaginary cafe ; not in the leaft to abet any irreverence towards his majefly, but only to explain the thing, and fhew the abfurdnefs of this opinion. Suppofe then a man fliould be indi6led. For that he as a falfe traitor, not having the fear of God before his eyes, &c. did, traiteroufly, frefumptuoufly, againfl his allegiance, and with an intent to affront his majefl^s perfon, and govern- ment, pafs by fuch, or fuch, a royal flattce, or effigies, . with his hat on his head, to the great contempt of his majefly, and his authority, the evil example of o- thers, agaitifl the peace, and his majefly s crown and dignity. Being hereupon arraigned, and having pleaded Not Guilty, fuppofe that fufficient evidence fliould fwear the matter of fadt laid in the indi<5t- ment, viz. That he did pafs by theflatue, or piShire, with his hat on ; now imagine yourfelf one of the Jury that were fworn to try him, what would you do in the matter ? yurym. Digitized by Microsoft® [ 25 ] yurym. Do ? why I fliould be fatisfied in my confcience, that the man had not, herein, com- mitted any crime, & fo I would bring him in, not guilty. Barr. Yom. /peak as any honeft man would do : but I hope you have not forgot the point we were upon. Suppofe therefore when you thought to do thus, the court, or one of your brethren, fliould take you up, and tell you, that it was out of your power fo to do: For look ye (faith he) my mafiers I we yurymen are only to find matter of faM, which be- ing fully proved, as in this cafe before us it is, we muflfind the party guilty : whether the thing be trea- fon, or not, does not belong to us to enquire ; it is faidfo here, you fee, in the indiBment ; and let the court look to that, they know befl ; we are not jud- ges of law : fhall we meddle with niceties &• punc- tilio's, and go contrary to the direflions of the court 'i So perhaps we fhall bring ourfelves into a Praemu- nire (as they fay) and perhaps never be fuffered to be yurymen again. No, no the matter of fall you fee is proved, and that is our bufmefs ; we mufl go according to our evidence, we cannot do lefs : truly it is fomething hard, and I pity the poor man, but we cannot help it, &c. After thefe notable do- cuments, what would you do now ? yurym. I fliould not tell what to fay to it; for I have heard feveral ancient Jurymen fpeak to the very fame eifedt, and thought they talked very wifely. Barr. Well then, would you confent to bring in the man guilty 1 yurym. Truly I fliould be fomewhat unwilling to do it ; but I do not fee which way it can be avoided, but that he muft be found guilty of the fadt. Barr. God keep every honefl body from fuch yurymen / have you no more regard to your Oath ? to your Confcience 1 to yuflicei to the Life of a man ? C yurym. Digitized by Microsoft® [ 26 ] Jurym. Hold! hold! perhaps we would not bring him in guilty generally, but only guilty of the^^*, finding no more, but, guilty ofpaffmg by thejlatue with his hat on. Barr. This but poorly mends the matter, and fignifies little or nothing : for fuch a finding hath generally been refujed by the court, as being no ver- dill; though, it is faid, it was lately allowed fome- where in a cafe that required favour. But, fup- pofe it were accepted, what do you intend Ihould become of the prifoner ? Mufl not he be kept in prifon till all the judges are at leifure, and wil- ling to meet, and argue the bufinefs ? Ought you not, and what reafon can you give why yoM fhould not, abfolutely acquit, and difcharge him ? Nay, I do aver, you are bound, by your oaths to do it, by faying with your mouths to the court, what your confcience cannot but didtate to yourfelves, Not Guilty: For pray confider, are you not fworn. That you will well and truly try, and true deliver- ance make ? there is none of this flory, of matter of fall, diflinguifhed from law in your oath. But you are, well, that is, fully, and truly, that is, impartially, to try the prifoner. So that if upon your confciences, and the beft of your underfland- ing, by what is proved againft him, you find he is guilty of that crime wherewith he ftands charged, that is, deferving Death, or fuch other punifhment as the law inflidts upon an offence fo denominated; then you are to fay, he is Guilty. But if you are not fatisfied, that either the AH he has committed, was treafon, or other crime, (though it be never fo often called fo) or that the aft itfelf, if it were fo criminal, was not done; then what remains, but, that you are to acquit him ? for the end of Juries * Is not this exaftly fimilar to a late verdift given in the cafe of the King againjl Wood/all? Digitized by Microsoft® [ 27 ] Juries is to preferve men from Oppreffion ; which may happen, as well by impqfing, or ruining them for that as a crime, which indeed is none, or at lead not fuch, or fo great, as is pretended; as by charging them with the commiffion 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 yourfelves do not believe to be any crime 1 yurym. Well ; but the fuppofed cafe is a cafe un/uppofable. It is not to be imagined, that any fuch thing ftiould happen ; nor to be thought, that the judges will condemn any man, though brought in guilty by the Jury, if the matter, in itfelf, be not fo criminal by law. Barr. It is moft true, I do not believe that ever that cafe will happen. I put it in a thing of ap- parent abfurdity, that you might the more clearly obferve the unreafonablenefs of this dodlrine ; but withal I muft tell you that it is not impoflTible that fome other cafes may really happen, of the fame, or the like nature, though more fine, and plau- fible. And, though we apprehend not, that du- ring the reign of his majefty that now is, {wko/e life God long preferve) any Judges will be made, that would fo wrefi the law; yet what fecurity is there, but that ioxae. fucceffors may not be fo cau- tious in their choice .■• and, though our benches of judicature be at prefent furnifhed with gentlemen of great integrity, yet, there may one day happen fome Trefdian, or kinfman of £mpfon's, to get in, (for what has been may be) who, Empfon like, too, fhall pretend it to be for his mafter's fervice to in- creafe the number of criminals, that his coffers may be filled with fines & forfeitures : and then fuch mifchiefs may arife. And Juries, having C 2 upon Digitized by Microsoft® [ 28 ] upon confidence parted with their jujl privileges, Jhall then, too l3.te,firive to re-affume them, when the number of ill precedents Jhall be vouched to in- force that as of right, which in truth was atfirji a wrong, grounded on eafinefs and ignorance. Had our wife, and wary anceftors, thought fit to de- pend fo far upon the contingent honefly of judges, they needed not to have been fo zealous to continue the ufage of juries *■ yurym. Yet ftill I have heard, that in every indidlment, or information, there is always fome- thing oiform, or law, and, fomething elfe, oifafl; and it feems reafonable, that the Jury Ihouldnot be bound up nicely to find every formality therein exprefled, or elfe to acquit (perhaps) a notorious criminal. But if they find the effential matter of the crime, then they ought to find him guilty. Barr. You fay true, and therefore mufl note, that there is a wide difference to be made between words of courfe, raifed by implication of law, and effential words, that either make, or really aggra- vate, the crime charged. The law does fuppofe and imply every trefpafs, breach of the peace, every felony, murder, or treafon, to be done Vi ET Armis, with force, and arms, ^fc. Now, if a perfon be indidted for murder hy poifon, and the matter proved, God forbid the jury fhould fcruple the finding him guilty upon the indidlment ; mere- ly becaufe they do not find that part of it, as to force, and arms, proved ! For that is implied as a neceflary, or allowable, _;f(Si5i« of law. But * If the reader is defirous of feeing tlie many unhappy confequences, to which fuch a dependance would fubjeA. us ; let him read the fecond poftfcript to the Letter to Al- mon in matter of Libel. There are many obfervations . in that publication, which give great confirmation to the do(5lrines here laid down, and thew the writer to have been poffefled of exceedingly great abilities, judgment, and learning. Digitized by Microsoft® [ 29 ] But on the other fide, when the matter in iffue, m itfelf, and taken as a naked propofition, is of fuch a nature, as no adtion, indidlment, or infor- mation will lie for it fmgly, but it is worked up by fpecial aggravations into matter of damage, or crime; as that it was done to/candalize the govern- ment, to raife /edition, to affront authority, or the like, or with fuch, or fuch, an evil intent : If thefe aggravations, or fome overt adl to manifefl fuch ill defign, or intention, be not made out by evidence, then ought the Jury to find the party, Not Guilty. For example : Biihop Latimer («StMR«HdaiAi«Wi^MHBiW«ariy 11 1 :, juiu/ i T linj i ; fai ihi j-MKjfTmur M l i„ i« ii ) in his fermon preached before the mofl excellent king Edward VI. delivered thefe words : " I muft de- " fire your grace to hear poor mens fuits yourfelf. " The faying is now, That money is heard every " where : If he be rich, he fhall foon have an end " of his matter ; others are fain to go home with " weeping tears for any help they can obtain at " any judge's hand. Hear men's fuits yourfelf, I " require you in God's behalf, and put them not " to the hearing of thefe velvet-coats, thefe up- " fkips. Amongfl all others, one efpecially moved " me at this time to fpeak.- 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 fpite of her teeth. And that " in a whole twelvemonth flie could not get but " one day for the hearing of her matter, and the " fame day, when it fliould be heard, the great " man brought on his fide a great fight of law- " yers for his council ; the gentlewoman had but " one man of law, and the great man fhakes him " fo, that he cannot tell what to do. So that " when the matter came to the point, the judge C 3 " was Digitized by Microsoft® [ 30 ] was a means to the gentlewoman, that flie (hould let the great man have a quietnefs in her land. 1 befeech your grace, that ye would look to thefe matters. And you proud judges! hearken what God faith in his holy book; Audite illos, ita parvum, ut magnum, Hear them (faith he) the fmall as well as the great ; the poor as well as the rich ,• regard no perfon, fear no man. And why ? Quia Domi- ni judicium eft, The judgment is God's. Mark this faying, thou proud judge; the devil will bring this fentence againft thee at the day of doom. Hell will be full of thefe judges, if they repent not, and amend : they are worfe than the wicked judge that Chrifl: fpeaketh of, Luke the 19th, that neither feared God nor the world. Our judges are worfe than this judge was ; for they will neither hear men for God's fake, nor fear of the world, nor importunate- nefs, nor any thing elfe ; yea, fome of them will command them to *ward if they be im- portunate. I heard fay, that when a fuitor came to one of them, he faid. What fellow is it that giveth thefe folks counfel to be fo importu- nate ? He deferves to be punilhed, and commit- ted to ward. Marry, Sir, punifli me then ; it is even I that gave them counfel ; I would gladly be punilhed in fuch a caufe ; and if you amend not, I will caufe them to cry out upon you (till ; even as long as I live." ■ — Thefe are the very words of that good bilhop, and martyr, father La- timer : " But now-a-days the judges be afraid to " hear a poor man againft the rich ; infomuch, " they will either pronounce againft him, or fo " drive off the poor man's fuit, that he Ihall not " be able to go through with it f." jfurym. * Prifon. t See alfo Latimer's Third Sermon. Digitized by Microsoft® [ 31 ] yurym. Truly they are fomewhat bold, but I think very honejl ones. But what fignify they to our difcourfe ? £arr. Only this ; — Suppofe the judges of thofe times, thinking themfelves aggrieved by fuch his freedom, ftiould have brought an indiilment againft him, fetting forth, thatfaljly, and malici- oujly, intending to fcandalize the government, and the adminijlration of jujlice, in this realm, and to bring the fame into contempt, he did fpeak, publifh, and declare the falfe, and fcandalous, words be- fore recited. yurym. I conceive, the judges had more wit than to trouble themfelves about fuch a bufmefs. Barr. That is nothing to the purpofe ; but fup- pofe,I fay,by them,or any body elfe,it had been done, and his fpeaking the words had been proved, and you had then been living, and one of the Jury ? yurym. I would have pronounced him Not Guil- ty, and he.&n.flarved to death before I would have confented to a contrary verdidl ; becaufe the words in themfelves are not criminal, nor refledting upon any particulars ; and as for what is fuppofed to be laid in the indidtment, or information, (that they were publiflied, or fpoken, to fcandalize the government, and the adminijlration of jujlice, or to bring the fame into contempt) nothing of that ap- pears. Barr. You refolve, as every honeft, underftand- ing, confcientious man, would do in the like cafe ; for when a man is profecuted for that, which, in itfelf, is no crime, how dreadfully foever it may be fet out, as the inquifitors in Spain ufe to clothe innocent Proteflants, whom they confign to the flames with Sambenito's, garments all over bepaint- eft with Devils, that the people beholding them in fo hellifli a drefs, may be fo far from pitying them, that they may rather condemn them in their thoughts Digitized by Microsoft® [ 32 ] thoughts as mijcreants not worthy to live, though in truth they know nothing of their caufe ; — yet I fay, notwithftanding any fuch bugbear artifices, an innocent man -ought to be acquitted, and not he and all his family ruined, and perhaps utterly undone, for words, or matters, harmlefs in them- felves, and poflibly very well intended, but only rendered criminal, by being thus hideoufly drelTed up, and wrefted with fome far-fetched, forced, and odious conftruftion. yurym. This is a matter well worthy the con- fideration of all Juries ; for indeed I have often wondered to obferve the adverbs in declarations, indidtments, and informations, in fome cafes to be harmlefs vinegar and pepper, and in others, henbane Jieeped in aquafortis. Barr. That may eafily happen, where the Jury does not difiinguijh legal implications, from fuch as conftitute, or materially aggravate, the crime : for if the Jury fliall honeftly refufe to find the latter in cafes where there is not direiSt proof of them, (viz. That fuch an adt was done faljly, Jcandaloujly, malicioujly, with an intent to raijefe- dition, defame' the government, or the like,) their mouths are not to be flopt, nor their confciences fatisfied with the court's telling them — You have nothing to do with that ; it is only matter of form or matter of law : you are only to examine the fall, whether he fpoke fuch words, wrote, or fold fuch a book, or the like * : For now, if they (hould igno- rantly take this for an anfwer, and bring in the prifoner Guilty, though they mean and intend, of the * A prophet 1 — Our modem patriots have often been the fubjefts of ridicule, on account of their apprehenfions : however, we have lived to fee the completion of feveral prediftions, here made by one of our anceftors; and our pofterity may, in the fame manner, have reafon to be con- vinced, that thofe made in our times are not entirely without foundation. Digitized by Microsoft® [ 33 ] the naked faEi, or bare adt, only ; yet the clerk recording it, demands a further confirmation, fay- ing to them, thus ; Well then, you fay A. B. is guilty of the trefpafs, or mif demeanour, in manner, and form, as heflands indiSled; andfo you fay all) To which the foreman anfwers for himfelf and his fellows, Yes. Whereupon the verdidl is drawn up — jfuratores fuper facramentum fuum dicunt, &c. The yurors do fay upon their oaths, that A. B. ma- licioujly, in contempt of the king and the government, with an intent to fcandalize the adminiflration of fuflice, Of to bring the fame into contempt, or to ratfe fedition, &c. (as the words before were laid) ; fpake fuch words , publifhed fuch a book, or did fuch an ail, againfl the peace of our lord the kingj his crown and dignity. Thus a VERDICT, fo called in law, quafi veri- tatis, becaufe it ought to be the voice, or saying, of TRUTH t itfelf, may become compofed in its material part of falfhood. Thus twelve men ig- norantly drop into aperjury. And will not every confcientious Man tremble to pawn his foul under the facred, and dreadful, folemnity of an oath, to attelt, and juftify, a lye upon record to all pofleri- ty ? befides the wrong done to the prifoner, who thereby perhaps comes to be hanged, (and fo the Jury in foro confcientice are certainly guilty of his murther-^ or at leafl. hy fine, or imprtfonment, un- done, with all his family ; whofe juft curfes will fall heavy on fuch unjuft Jurymen, and all their poflerity, that againfl their oaths, and duty, occa- fioned their caufelefs mifery. And is all this, think you, nothing but a matter oi formality 2 yurym. Yes, really, a matter of vafi impor- tance, and fad confideration ; yet I think you charge the mifchiefs done by fuch proceedings a little t Vere didlum. Digitized by Microsoft® [ 34 ] little too heavy upon the Jurors : Alas, good men ! they mean no harm, they do but follow the direc- tions of the court ; if any body ever happen to be to blame in fuch cafes, it muft be the Judges. Barr. Yes, forfooth ! that's the Jurymens 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 muft do none neither, efpeci- ally in things of that moment; nor will igno- rance excufe, where it is affe£led, and where duty obliges us to inform ourfelves better, and where the matter is fo plain and eafy to be underftood. As for the judges, they have a fairer plea than you, and may quickly return the burthen back upon the Jurors : For we, may they fay, did nothing but our duty, according to ufual prallice : the Jury, his peers, had found the fellow guilty upon their oaths, of fuch an odious crime, and attended with fuch vile prefumptions, and dangerous circumflances. They are Judges; we took him as they prefented him to us ; and according to our duty pronounced thefen- tence, that the law infli£ls in fuch cafes, or fet a fine, or ordered corporeal punifhment upon him, which was very moderate, confidering the crime laid in the indi^ment, or information, and of which they had fo fworn him guilty. If he were innocent, or notfo bad as reprefented, let his deflrullion lie upon the yury, &c. At this rate, if ever we fhould have an unconfcionable Judge, might he argue ; and thus the guilt of the blood, or ruin, of an innocent man, when it is too late, fliall be bandied to and fro, and Jhuffled off from the Jury to the Judge, and from the Judge to the Jury ; but reaWy flicks fafl to both, but efpecially on the Jurors ; becaufe the very end of their infdtution was to prevent all dangers of fuch oppreffion ; and in every fuch cafe, they do not only wrong their own fouls, and irreparably Digitized by Microsoft® [ 35 ] irreparably injure a particular perfon, but alfo bafely betray the liberties of their country in gene- ral : for as without their ill compliance and aS, no fuch Tnifchief can happen ; Jo by //, ill precedents are made, is' the plague is increafed; honejler jfuries are diftieartened, or /educed by cujtomfrom their du- ties ; jujl privileges are lojl by difufer ; and perhaps within a while fame of them/elves may have an hole picked in their coats, and then they are tried by ano- ther yury juJl as wife, and horufl, andfo defervedly come to fmart under the ruinating effedts, and ex- ample, of their own folly and injuflice. yurym. You talk oi folly, and blame Jurymen, when indeed they cannot help it. They would fometimes find fuch a perfon Guilty, and fuch an one Innocent, and are perfuaded they ought fo to do ; but the court over-rules, and forces them to do otherwife. Barr. How, I pray ? yurym. How ? why, did you never hear a Jury threatened to be fined and imprifoned, if they did not comply with the fentiments of the court ? Barr. I have read of fuch doings, but I never heard, or faw it done ; and indeed I do not doubt but ova feats of juflice are furnifhed with both bet- ter men, and better lawyers, than to ufe any fuch menaces or durefs ; for undoubtedly it is a bafe, and very illegal, pradlice. But however, will any man \!a.zX fears God, nay, that is but an honefl heathen, debauch his confcience and forfwear himfelf, do his neighbour injuftice, betray his country's liberties, and confequently enflave himfelf, and his poflerity, and all this, merely, becaufe he is hectored, and threatened a little ? yurym. I know it fliould not fway with any : but alas, z.prifon is terrible to moft men, whatever the caufe be ; and the_;?«^ may be fuch, if one fhall refufe to comply, as may utterly ruin one's family. Barr. Digitized by Microsoft® [ 36 ] Barr. Fright not yourfelf ; there is no caufe for this ague-fit, to fhake your confcience out of frame : if you are threatened, 'tis but Brutunt 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 Juryman in such a Case. yurym. Good Sir ! I am half afhamed to hear a Barrijler talk thus : have not fome in our memo- ry been fined & imprifoned ? And fure that which has alhially been done, is not altogether impoffible. Barr. Your fervant. Sir ! under favour of your mighty wifdom, & experience, when I said no judge could do it, I fpake the more like a Barrijler ; for it is a maxim in law — Id pojfumus, quod Jure pof- fumus ; a man is faid to be able to do only fo much, as he may lawfully do. But fuch fining, and im- prifoning, cannot lawfully be done ; the judges have no right, or power, by law, to do it ; and therefore it may well be faid, they cannot, or are not able to do it. And whereas you fay, that fome juries in our memory have been fined and imprifoned, you may pofTibly fay true ; but it is as true, that it hath been only in our memory ; for no fuch thing was praftifed in antient times ; for fo I find it afTerted by a late learned judge *, in thefe pofitive words : No cafe can be offered, either before attaints grant- ed in general, or after, that ever a jFury was punijh- ed by fine and imprifonment by any judge, for not finding according to their evidence, and his direltion, until Popham's tim£ ; nor is there clear proof , thdt he ever fined them for that reafon, feparated from other mtf demeanours. And fol. 152, he affirms, — That no man can fhew, that a Jury was ever pu- nifhed upon an information, either at law, or in the Star-Chamber, where the charge was only for find- ing * Lord chief juftice Vaughan in his Reports, fol. 146. Digitized by Microsoft® [ 37 ] ing againft their evidence, or giving an untrue ver- diH; unlefs imbracery, fubordination, or the like were joined. So that, you fee, the attempt is an innovation as well as unjujt ; a thing unknown to our fore-fathers, and the ancient ^^i?j of the law : and therefore fo much the more to be watch- ed agaxnti., refifted, and fuppreffed,whilftj'i?««^; left in time this crafty cockatrices egg, hatched, and foftered by ignorance, and pufiUanimous compli- ance, grow up into z-ferpent too big to be mafter- ed, and fo blafl, and deftroy the firji-born of our Englijh freedoms. And indeed (bleffed be God) it hath hitherto been rigoroufly oppofed as often as it durft crawl abroad ; being condemned in par- liament, and knocked o'th' head by the refolutions of ^e^ judges upon folemn argument : as, by and by, I Ihall demonftrate. yurym. Well, but are Jurors not liable then to fine or imprifonment, in any cafe whatfoever ? JBarr. Now you run from the point ; ijve were talking of giving their verdidt, and you fpeak of any cafe whatfoever. Whereas you fhould herein ob- ferve a neceflary diftinftion, which I fliall give you in the words of that learned judge lafl; recited * : Much of the office of furors, in order to their ver- diB, is Ministerial : as not withdrawing from their felloivs after they are fworn ; not receiving from either fide evidence not given in court ; not eating and drinking before their verdiil ; refufing to give a verdiB, &c. wherein if they tranfgrefs, they may befineable. But the verdict itfelf when given, is not an ail minifierial, but Judicial, and (Jup- pofed to be) according to the befi of their judgment ; for which they are not finable, nor to be punifhed, but by attaint ; that is, by another jfury, in cafes where an attaint lies, and where it ihall be found that wilfully, they gave a verdi6t,/«^ and corrupt. D Now * Vaughan% Reports, fol. 152. Digitized by Microsoft® [,38 ] Now that Juries, otherwife, are in no cafe punijh- able, nor can (for giving their verdift according to their confciences, and the beft of their judgment) be legally ^«^^ or imprifoned by any judge, on co- lour of not going according to their evidence, or finding contrary to the dir^flions of the court j is a truth, both founded on unanfwerable reajons, and confirmed by irrefragable authorities. yurym. Thofe I would gladly hear. Barr. They are many, but fome of the moft e- vident are thefe that follow. As for reafons : 1. A Jury ought not to be fined, or imprifoned, becaufe they do not follow the judge's direftions ; for if they do follow his diredtions, they may yet be attainted : and to fay they gave their verdi(5t according to his diredtions, is no bar but the judgment fhall be rever/ed, and ihty J)unijhed for doing that, which if they had not done, they fhould (by this opinion) have been fined, and im- prifoned by the judge. — Which is unreafonable. 2. If they ^1? not follow his diredtion, and be therefore fined, yet they may be attainted, and fo they (hould be doubly punilhed by diflindt judica- tures for the fame offence ; which the common law never admits. 3. To what end is the Jury to be returned out of the vicinage (that is, the neighbourhood) whence the iffue arifeth ? to what end muft hundredors be of the Jury, whom the law fuppofeth to have near- er knowledge of the fa6t than thofe of the vicinage in general ? to what end are they challenged fo fcrupuloufly to the array and polli to what end muft they have fuch a ct\ta.\n freehold, and h&probi, df legates, homines, and not of affinity With the par- ties concerned, dr'c. if after all this, they implicitly muft give a verdidl by the didtates, and authority of another man, under pain oi fines, and imprifon- ment, when fworn to do it according to the beft of their Digitized by Microsoft® [ 39 ] their own knowledge i A man cannot fee by ano- ther's eye, nor hear by another's ear ; no more can a man conclude, or in/er, the tiling to be refolved by another's underftanding, or reafoning j unlefs all mens underftandings were equally alike. And if, merely in compliance, becaufe the judge fays thus, or thus, a Jury fliall give a verdidt ; tho' fuch their verdidt (hould happen to be right, true, & juft ; yet they being not affured it isfo from their own un- derftanding zx&for/wom, at leaft inforo con/cientice. 4. Were Jurors fo finable, then every mayor, and bailiff of corporations, all ftewards of leets, juftices of peace, &>€. whatever matters are tried before them, (hall have verdills to their minds, or elfe fine, and imprifon the Jurors till they have ; fo that fuch mufl be either pleafed, humoured, or gratified, elfe no juftice, or right, is to be had in any court. 5. Whereas a perfon by law may challenge the Iheriff, or any Juryman, if of kin to his adverfary ; yet he cannot challenge a mayor, recorder, juftice, &'€. who 'tis poflible will have a verdidt for their kin/man, or againft their enemy, or elfe fine and im- prifon the Jury till they have obtained it : fo that by this means our lives, liberties, and properties, fliall be folely tried by, and remain at the arbitrary difpofal of every mercenary, or corrupted juftice, mayor, bailiff, or recorder, if any fuch Ihould, at any time, get into office. 6. 'Tis unreafonable that a Jury fhould be finable on pretence of their going againft their evi- dence; becaufe it can never be tried whether or no in truth they did find with, or againft, their evidence, by reafon no writ of error lies in the cafe.* D 2 7. Were * And the5r may of their own knowledge have infor- mation of various matters to exculpate, or condemn, of which the judge is wholly ignorant. Digitized by Microsoft® [ 40 ] 7- Were Jurymen liable to fuch arbitrary fines, they would be in a worfe condition than the cri- minals that are tried by them ; for in all civil ac- tions, informations, and indictments, fome appeals, or writs of falfe judgement, or of error, do lie into fuperior courts to try the jegular proceedings of the inferior. But here can be no after-trial, or ex- amination ; but the Juryman (if fining at all were lawful) mufl either pay the fine, or lie by it ; without remedy to decide, whether in his particular cafe he were legally fined, or not. 8. Without a fadt agreed, it is as impofTible for a judge, or any other to know the law, relating to that fadl, or direH concerning it, as to know an ac- cident that hath no fubjeft ; for as, where there is no law, there is no tranfgrejjlon, fo where there is no tranfgrejfion, there is no place for law : for the law (faith divine authority) is made for the tranf- grejjbr. And as Coke tells us, Ex Faflo jhis oritur, upon ftating the fadl, or tranfgreffion, matter of law doth arife, or grow out of the root of the fa(5l. Now the Jury being the fole judges of fail, and matter in ifjue before them, not finding the fadl on which the law fliould arife, cannot be faid to find againfl law, which is no other than a fuperflrudture on fadl ; fo that to fay they have found againfb the law, when no fall is found, is abfurd ; an expreffion infignificant, and unintelligible. For no tffue can be joined of matter in law, no Jury can be charged with the trial of matter in law barely, no evidence ever was, or can be, given to a Jury of what is law, or not : nor can any fuch oath be given to, or taken by a Jury, to try matter in law, nor does an attaint lie for fuch oath, if falfe, ^'c. But if by finding againfl the direflions of the court in mat- ter of law, (hall be underftood, that if the judge having heard the evidence given in court, (for he can regularly know no other, though the Jury may) fliall Digitized by Microsoft® C 41 ] fliall tell the Jury upon this evidence, the law is for the plaintiff, or for the defendant, and the Jury are under /«/« of fine, and imprifonment, to find accordingly ; then it is plain, the Jury ought of duty fo to do. Now if this were true, who fees not that the Jury is but a troublefome delay, of great charge, much formality, and no real ufe in deter- mining right, and wrong, but mere echoes to found back the pleafure of the court ; and confequently, that trials by them might be better abolifhed than continued ? which is at once to fpit folly in the faces of our venerable anceftors, and enflave our pofterity. 9. As the judge can never direct what the law is in any matter controverted, ■mXhovXfirfl knowing Has. fan ; fo, he' cannot, poffibly, know thefadt but from the evidence which the Jury have: but he can never fully know what evidence they have ; for befides what is fworn in court, (which is all that the judge can know) the Jury, being of the neighbourhood, may, and oft-times do, know fome- thing of their own knowledge, as to the matter it- felf, the credit of the evidence, dfc. which may juftly fway them in delivering their verdi<5l, and which felf-knowledge of theirs is fo far countenanced by law, that it fuppofes them capable thereby to try the matter in ifiue, (and fo they muft) though no evidence were given, on either fide, in court. As when any man is indidted, and no evidence comes againft him, the direction of the court al- ways is. You are to acquit him, unlefs of your own knowledge you know him guilty ; fo that even, in that cafe, they may find him guilty, without any witnefles. Now how abfurd is it to think, that any judge has power to fine a jury for going againft their evidence, when he that fo fineth, knoweth perhaps nothing of their evidence at all, (as in the laft cafe) or at leaft but fome partot it ? D3 For Digitized by Microsoft® [ 42 ] For how is it poiEble he fliould lawfully punifli them for that, which it is impoffible for him to know ? Laflly, Is any thing more common, than for two lawyers, or judges, to deduce contrary, and oppofite conclufions out of ihe.fame cafe in law ? And why then may not two men infer diflindt conclufions from the fame tejiimony 1 And confequently, may not the Judge, and Jury, honeftly differ in their opinion, or refult from the evidence, as well as two judges may, which often happens ? And fhall the yurymenv!\e.xe\^iot this difference of apprehenfion, merit fine, and imprifonment, becaufe they do that which they cannot otherwife do, preferving their oath and integrity ? efpecially when by law they are prefumed to know better, and much more of the bufinefs, than the judge does, as aforefaid. Are not all thefe, grofs contradicting abfurdi- ties, and unworthy (by any man that deferves a gown) to be put upon the law of England, which has ever owned right reqfon for its parent, and du- tifully fubmitted to be guided thereby ? jfurym. If the law, as you fay, be reajon, then undoubtedly this pra6tice oifining of Juries is moft illegal, fince there cannot be any thing more un- rea/onable : but what authorities have you againft it? JSarr. You have heard it proved to be z: mo- dern upflart encroachment, fo you cannot expedt any diredt, or exprefs condemnation of it in ancient times; becaufe the thing was not the.n fet on foot. And, by the way, though negative arguments are not neceffarily conclufive, yet that we meet with no precedents of old of Juries fined, for giving their verdidl contrary to evidence, or the fenfe of the court, is a violent prefumption that it ought not to be done .■ for it cannot be fuppofed, that this latter age didfr/l of all difcover, that verdidts were many Digitized by Microsoft® [ 43 ] many times not according to the judge's opinion and liking. Undoubtedly they faw that as well as we j but knowing the fame not to be any crime, or punijhable by law, were fo modejl and honejl, as not to meddle with it. However, what entertain- ment it hath met with, when attempted in our times, I fhall fliew you in two remarkable cafes. I. When the late lord chief juftice Keeling had attempted fomething of that kind, it was complain- ed of, and highly relented by the Xhexv parliament ; as appears by this copy of thtir proceedings there- upon, taken out of their journal, as follows. Die Mercurii, ii Decembris, 1667. ' The houfe refumed the hearing of the refl: of ' the report touching the matter of rejlraint upon ' juries, and that upon the examination of divers ' witneffes in feveral cafes of reflraints put upon ' Juries by the lord chief juftice Keeling; and there- ' upon refolved as followeth : ' Firfb, That the proceedings of the faid lord ' chief juftice, in the cafes now reported, are inno- ' vations in the trial of men for their lives, and li- ' berties. And that he hath ufed an arbitrary, and ' illegal power, which is of dangerous confequence ' to the lives and liberties of the people of England, ' and tends to the introducing of an arbitrary go- ' vernment. ' Secondly, That in the place of judicature the ' lord chief juflice hath undervalued, vilified, and ' contemned Magna Charta the great Preser- ' VER of our lives, freedom, and property. ' Thirdly, That he be brought to trialin order to ' condign puni/kment, in fuch manner as the houfe ' fhall judge rnofl. fit, and requifite.' I?ie Veneris, 13 Decembris, 1667. ' Refolved,