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Stud. Their Antiquity no one knows, but all Authors agree that they have been very antient.
Coke, the Oracle of our English
) Laws, writes, That long Co. 1 Inft.155. before the Conqueft it was order'd, that in every Century there should be twelve good and honeft men to judg, doc. And Camden in his Britannia correcteth Polidore Virgil, for saying William the Conqueror firft brought in this way of Tryal; affirming that it was most certain and apparent by the Laws of Ethelared, that such Tryals were in use many years before: Which Horn in his Mirror of Justice, written in the time of E. 1. doth well confirm and assure us.
Cit. But what say the Law-Books of later date, and our Predeceffors in later years about them?
Stud. When the great Charter of our English Liberties, in the oth year of H. 3. was made, and put under the Great Seal of England, then were these Tryals by Juries confirm'd down to us; and therein it was fta- 9H. 3. 14.29. blish’d, That no Amércements Mould be afsess’d upon any man, but by the Oaths of good and lawful Men of the Vicinage : And also that no Freeman of England should be imprison in his Person, or deftroy'd in his Estate and Liberties, without the lawful Judgment of his Equals. Which Charter has been confirm’d by thirty two Parliaments, and now ftands firin to justify and Co. 2 Inft. 41. maintain the Freedom of this sort of Tryals, which Coke calls the Subjects Birthright; and which I must say is the only Preserver of our Lives, Freedom and Property; as you may read in the Book of the Tryal of W. P. and w.m laft Sessions,
Cit. I am very well satisfy'd in this point; but pray, what says the Law about menacing, threatning, fining and imprio soning of Jurors, as before I mention'd to you?
Stud. As to the menacing and threatning Language which that Bench gave the Jurors, it only evidenced and manifested to the world their Envy and Malice against the Prisoners that the Jury had in charge, and so may be said also of their fining and imprisoning of the Jury afterwards.
Cit. Hath a Court then no power by the Law to fine and imprifon a Jury?
Stud. We find in our Law-Books, or Books of Cafes, that Jurors have been fined by a Court, for these following matters.
1. If a Jury-man take mony (from the Party 39 Al. 19. to be try'd) before or after he be sworn. Fitz. Exam.
2. If they receive any Writings from the 17.14H.7.30. Persons they have in tryal.
3: If a Jury-man appear, and then depart 36 H. 6. 27. per before he be sworn, it is a contempt of the Cur.C.B. do B.R. Court.
4. If a Juror, after he shall be sworn, de34 E. 3. Fitz. of- part from his Fellows before they deliver in fice de Court 12. their Verdict. 40 AL pl. 10. 5. If Eleven Jurors shall give in their Ver.
dict without, or against the Consent of the
Twelfth. Dyer. 37.b. 218. 6. If a Jury eat or drink after they are gone a. b. Old Entries from the Bar, and before they bring in their · 251.
Verdict (This, I suppose, is meant where the
Court will accept of the Verdict, when the Jurors tender it.) And for such like Misdemeanors as these, they have been Fined and Imprisoned, but how warrantable, is a Query.
Cit. As for these Miscarriages you have instanc’d, it seems reasonable they should be punilh'd, which no honeft Man will be found guilty of; neither do I fear to suffer for such like Misdemeanors. But what say you to the Fining a Jury fo: giving in a Verdiłt according to their Consciences, yet pre tended by the Court to be contrary to Evidence ?
Stud. To Fine them at all is an Abuse, tho it has been long practised; but to Fine them for giving their Verdict accord ing to their Conscience, such Practices are very much againf
Law and Reason too: For a Jury of twelve Me: €0.4. Inft,84are by the Laws the only proper Judges of mat
ter in issue before them: As for instance, First, That Evidence which is deliver'd to induce a Jury to believe, or not to believe the Matter of Fact in issue, is · call’d Evidence, because the Jury may out of many. Matters of Fact (videre veritatem) that is, fe. clearly the Truth, of which they are proper Judges.
Secondly, when any Matter is sworn, Deed read, or offer'd, whether it shall be believ'd, or not; or whether it be true or false in point of Fact, the Jurors are the proper Judges.
Thirdly, whether such Men met together intentionally to do such an Act or not, the Jurors are Judges; for the Court is not Julg of these Matters, which are Evidence to prove pr disprov the thing in iffue.
cit. What tien is the Court to take cognizance of in the Tryals of mens Liberties and Properties?
Stud. The Court, as their Duty is, are to do equal Justice and Right; so they in such Tryals do direct, whether such Matter shall be adınitted to be given in Evidence, or not; such Writing read, of not; or such a Man to be admitted a Wit
ness, ness, or not: And this belongs to the Judgment of the Court, as they are upon their Oaths to see Justice done 'twixt Party and Party. Therefore has the Common Law ordain’d, That Matters of Fact (which are drawn to an Issue) shall be try'd by Jurors, and Matters of Law (upon a Denurrer and special Verdiet, doc.) by the Justices, according to that Rule or Maxim of Sir Edw. Cook; Ad Quc- 11 Co. 10.b. ftionem fafti non respondent Judices, ita ad questionem 4. Inft. 84. Legis non respondent furatores : The Justices med 4 Inst. 207. dle not with Matter of fact, nor Jurors wih Matter of Law. So it's the Juror's Office to find ( veritatem Fa&ti) the Truth of the Fact in issue, and the Court's to give Judgment accordingly. By which we may see the Wisdom of the Law, in referring Things to Persons, in which they have cognizance, and are most expert, according to that Maxim, Quod quisque norit, in hoc se exer- 9 Cook 13. ceat.
Cit. According to this Account you have given me of the Duty and Office, as well of the Court, as the Jurors; the Law seems to have dealt juftly and equally betwixt them both. But one Question further, Pray whence is it that Jurors are fummon'd
of the Neighbourhood, where the Fact is suppos’d to be done or acted ?
Stud. As the Common Law of this Lind is nothing else : than Common Right, pure and try'd Reason; so it never fails
to render a Reason of its own Actions: A Jury is therefore summond of the Vicinage, because it's always presum'd that the Neighbourhood are best acquainted with the Persons inhabiting, or the Actions and Facts done or acted within their own Limits and Jurisdiction ; and that they themselves may know something of the matter in controversy, being rde Vicineto) of the Vicinage where such matter was in action. There
fore the Jury must be return'd, de Vicineto, of the place where of the Fact was done, and of Men (per quos rei veritas melius scire s poterit) by whom the Truth of the matter may be better
known: So the Jury having some Self-knowledg of the Mat. ters afore-hand, besides hearing the Evidence, may the bet. ter pronounce ( veritatis di&tum) or a just Verdict of the Fait.
Cit. But wherein do you conceive a Jury-man may have Self-knowledg of Matter, that may not as fully be evidencid by Witness ?
Stud. It's probable, First, That they may know the Witness on the one fide, or the other, to be Persons of 110 Cre
dit ; or,
Secondly, They may know the Party accus'd to be a Man otherwise quafitý’d or principld, than to do such an act or thing that is charg'd against him. As for instance ; They may know a Man to be,
1. A quiet peaceable Quaker; therefore no Fighter or Rioter, or Routous Person.
2. A Protestant of the Episcopal Church of England; therefore np House-Preacher.
3. An honeft sober Man amongst his Neighbours; therefore probably no Thief or Robber. And many other Inftances might be offer'd to this purpose.
Cit. To Fine a Jury then for things, which probably they may know of their own knowledg to be true or false,' seems very hard; and surely our Jurors of London have met with hard usage, to be find and imprison’d for doing their Duty, in what the Laws of this Land have made them sole and proper Judges.
Stud. Their hard usage and severity to the Jurors is not so much as the ill consequence that such practices will be to every Fnglish-man, and their Posterity, if not timely reme died,
Cit. Truly the Citizens of London, in general, have much dreaded the late Procedure at the Old-Baily, and fear it's a Fore-runner of much Mischief that may be acted in the Country, who generally take London for a Precedent in their Courts of Justice. But pray what's your Thoughts about these things?
Stud. The Consequence of such Practices, the Parliament have very well set forth in Chief Justice Keeling's Case, 11 Dec. 1667. when they Voted, That Fining Juries were not only Inn novations, in the Tryals of Men for their Lives and Liberties
, but that it was of Dangerous Consequence to the Lives and ! Liberties of the People of England ; and tended to the introducing of an Arbitrary Government; And their Reason was very good; for the King fits not in Judgment upon his Subjects, but by his Juftices in his Courts : And if the Justices, who are commanded to be guided by the Law, shall, contrary to the Law, fine and imprison Juries, for giving Verdicts in such Matters which the Laws allow and appoint them to be! proper Judges of, where then is the English-man try'd by bis Peers, and by the Law of the Land ? To deny us this
free Tryal, is to rifle us of our Birth-right, Stat.3. 13 6.3. and nost arbitrarily and tyrannically to de
ny us Equal Law, Justice and Right.
Cit. Surely when the Parliament meets again, they will call these illegal Proceedings of that Bench to Question before them, as well as they did Keeling's.
Stúd. It as much concerns them, in behalf of themselves and Pofterity, as any of us, to curb these subordinate Judges, who have broken both their Oaths and the Law, to run into those Arbitrary and Illegal Practices; the consequence of which, if fuffer'd, in a fhort time will be, Sic volo, sic jubeo, fat pro ratione voluntas. And it will necessarily follow, That,
First, Every Judice of Peace, Mayor, Bailiffs of Corpora, tions, Stewards of Leets, &c. whatever Matters are try'd be. fore them, shall have Verdiets to their minds, or Fine and Im. prison the Jurors till they have ; so that such must be either pleas'd, humour’d, or gratify'd, else no Justice or Right to be had before them in their Courts.
Secondly, A further ill consequence will be, That altho a person may challenge a Jury-man, or Sheriffs, if they be of Kin to this Adversary, yet he cannot challenge a Juftice, Mayor, doc, who will have a Verdia for their Kinsman, or Fine and Imprison them till they have. So that by this means our Lives, Liberties and Properties shall be solely try'd, and wholly at the Will, and in the power of every mercenary of corrupted Juftice, Mayor, Recorder, Bailiff, doc.
Cit. But has it been practicable in former times to fine and imprison Juries, for finding contrary to Evidence, as the Re. corder pretends our Jurors have done?
Stud. No surely, we find not one Precedent in all our Books, till Keeling's; and he 'scaping that condign Punishment which the Parliament promis'd him, your Recorder and Mayor has trod in his Steps. And pray see how such Judgments on Jurors leave them remediless of relief, which is sufficient ground to conclude such practices to be against the Law,
First, It can never be try'd, whether they found with or againft their Evidence, by reason no Writ of Error lies in the Case.
Secondly, They are in worse condition than the Criminals that are try'd by them; for in all civil Actions, Informations, and Indiatments, Appeals and Writs of Error, do lie into fuperior Courts, to try their regular Proceedings of the Inferior: but here can be none.
Thirdly, In the way of an Attaint, the Truth or Falshaod of a Juror's Verdiet, in Matters of Faat, may be, try'd by another Jury: but in this case the Jurors are concluded, by reason that whether they have found with or againft their Evidence, can never be try'd. Litt, Set. 198