388 A Dialogue, by way of Appendix to Stud. That's no Excufe; for the more peaceable man you have been, the more fit you are for fuch Services. The Office of a Jury-man is confcientioufly to judg his Neighbour, who needs no more Law than is eafily learned to direct him therein.. Cit. I fhould willingly appear according to this Summon, but that the Mayor's and Recorder's carriage to Juries was fuch the laft Seffions, that I queftion whether I could undergo fo much hardship, and not endanger my Life; fo I find that all my Neighbours, as well as I, are endeavouring to get themfelves excus'd. Stud. Then it's a Reftraint from your Trade that deters you? Git. No truly, that's not all; but to be kept without Meat and Drink two days and nights together, and not to be allow'd the privilege of Nature's cafement, and after all, to be caft into Newgate, is hard fervice. Stud. I muft confefs this was very hard, yet it fhould not deter you from doing your Duty: and if thofe Jurors fuffer'd unjuftly (which I queftion not) their Service was the easier to them. Cit. I am of opinion they were unjustly dealt withal; many of them I know, who had the Repute of Honefty, especially thofe four, who yet lie in Durance: but I may fuffer by reason of my Ignorance of the Duty and Office of a Jury-man; therefore on that account principally I defire to be excus'd my appearance, which if I understood as well as many do, with all my heart I would do my service. Stud. Now you fpeak honeftly like an English-man; and in cafe that be all your caufe of fcruple, it may foon be remov'd my Advice. if you will take Cit. Yes, with all my heart: Then pray let me have your Anfwer to fome Queftions, which often of late I have had upon my thoughts to propound to you, or fome Practitioner of the Law, that would be plain with me. Stud. Offer what you think meet, and I will endeavour to give you that Satisfaction you defire. Cit. Since Jurors are thus of late menaced, threatned, fined, and imprifon'd by our Recorder at the Old Baily; pray wherein lies their Privilege and Safety? What fay the Fundamental Laws of England to fuch Practices? Stud. The Jurors Privileges, and every English-man's by them, as they are very confiderable, fo the Laws have very well guarded them againft Ufurpation, as I fhall fhew you. Cit. But pray firft let me know their Antiquity. I have heard it faid, That Tryals by Juries have been of long ftanding in this Nation, Stud. 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 eve ry Century there fhould be twelve good and honeft men to judg, c. And Camden in his Britannia corre&teth Polidore Virgil, for faying William the Conqueror firft brought in this way of Tryal; affirming that it was moft certain and apparent by the Laws of Etheldred, that fuch Tryals were in ufe many years before: Which Horn in his Mirror of Justice, written in the time of E. 1. doth well confirm and affure us. Cit. But what fay 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 9th year of H. 3. was made, and put under the Great Seal of England, then were thefe Tryals by Juries confirm'd down to us; and therein it was fta- 9 H. 3. 14.29. blish'd, That no Amercements fhould be af fefs'd upon any man, but by the Oaths of good and lawful Men of the Vicinage: And alfo that no Freeman of England fhould be imprifon'd in his Perfon, or deftroy'd in his Eftate and Liberties, without the lawful Judgment of his Equals. Which Charter has been confirm'd by thirty two Parliaments, and now ftands firm to juftify and Co. 2 Inft. 41. maintain the Freedom of this fort of Tryals, which Coke calls the Subjects Birthright; and which I must fay is the only Preferver of our Lives, Freedom and Property; as you may read in the Book of the Tryal of W. P. and W. M Jatt Seffions. Cit. I am very well fatisfy'd in this point; but pray, what fays the Law about menacing, threatning, fining and impri foning 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 againft the Prisoners that the Jury had in charge, and fo may be faid alfo of their fining and imprifoning 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 thefe following matters. 1. If a Jury-man take mony (from the Party to be try'd) before or after he be fworn. 2. If they receive any Writings from the Perfons they have in tryal. Cc 3 39 Aff. 19. Fitz. Exam. 17.14H.7.30. 3. If 36 H. 6. 27. per Cur. C.B. & B.R. 34 E. 3. Fitz. Of fice de Court 12. 40 Aff. pl. 10. Dyer 37.b. 218. a.b. Old Entries -251. If a Jury-man appear, and then depart before he be fworn, it is a contempt of the Court. 4. If a Juror, after he fhall be fworn, depart from his Fellows before they deliver in their Verdict. 5. If Eleven Jurors fhall give in their Ver dict without, or against the Confent of the Twelfth. 6. If a Jury eat or drink after they are gone from the Bar, and before they bring in their Verdict (This, I fuppofe, is meant where the Court will accept of the Verdict, when the Jurors tender it.) And for fuch like Mifdemeanors as these, they have been Fined and Imprifoned, but how warrantable, is a Query. Cit. As for thefe Miscarriages you have inftanc'd, it seems reasonable they fhould be punish'd, which no honeft Man will be found guilty of; neither do I fear to fuffer for fuch like Mifdemeanors. But what fay you to the Fining a Jury fo: giving in a Verdict according to their Confciences, yet pre tended by the Court to be contrary to Evidence? Stud. To Fine them at all is an Abufe, tho it has been long practifed; but to Fine them for giving their Verdict according to their Confcience, fuch Practices are very much againft Law and Reafon too: For a Jury of twelve Me: Co. 4. Inft.84. are by the Laws the only proper Judges of matter in iffue before them: As for inftance, First, That Evidence which is deliver'd to induce a Jury to believe, or not to believe the Matter of Fact in iffue, is call'd Evidence, because the Jury may out of many Matters of Fact (videre veritatem) that is, fee clearly the Truth, of which they are proper Judges. Secondly, When any Matter is fworn, Deed read, or offer'd, whether it fhall be believ'd, or not; or whether it be true or falfe in point of Fact, the Jurors are the proper Judges. . Thirdly, Whether fuch Men met together intentionally to do fuch an Act or not, the Jurors are Judges; for the Court is not Judg of thefe Matters, which are Evidence to prove or difprove the thing in iffue. Cit. What then 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 Juftice and Right fo they in fuch Tryals do direct, whether fuch Matter fhall be admitted to be given in Evidence, or not; fuch a Writing read, or not; or fuch a Man to be admitted a Wit ness, II Co. 10. b. iz nefs, or not: And this belongs to the Judgment of the Court, as they are upon their Oaths to fee Juftice done 'twixt Party and Party. Therefore has the Common Law ordain'd, That Matters of Fact (which are drawn to an Iffue) fhall be try'd by Jurors, and Matters of Law (upon a Demurrer and fpecial Verdict, &c.) by the Juftices, according to that Rule or Maxim of Sir Edw. Cook; Ad Queftionem falti non refpondent Judices, ita ad queftionem Legis non refpondent Juratores: The Juftices meddle not with Matter of Fact, nor Jurors wih Matter of Law. So it's the Juror's Office to find (veritatem Fadi) the Truth of the Fact in iffue, and the Court's to give Judgment accordingly. By which we may fee the Wisdom of the Law, in referring Things to Perfons, in which they have cognizance, and are most expert, according to 4 Inft. 84. that Maxim, Quod quifque norit, in hoc fe 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 feems to have dealt juftly and equally betwixt them both. But one Queftion further, Pray whence is it that Jurors are fummon'd of the Neighbourhood, where the Fact is fuppos'd to be done or acted? Stud. As the Common Law of this Land is nothing else than Common Right, pure and try'd Reason; fo it never fails to render a Reason of its own Actions: A Jury is therefore fummon'd of the Vicinage, because it's always prefum'd that the Neighbourhood are beft acquainted with the Perfons inhabiting, or the Actions and Facts done or acted within their own Limits and Jurifdiction; and that they themselves may know fomething of the matter in controverfy, being (de Vicineto) of the Vicinage where fuch matter was in action. Therefore the Jury must be return'd, de Vicineto, of the place where the Fact was done, and of Men (per quos rei veritas melius fcire poterit by whom the Truth of the matter may be better known: So the Jury having fome Self-knowledg of the Matters afore-hand, befides hearing the Evidence, may the better pronounce (veritatis dictum) or a juft Verdict of the Fa&t. Cit. But wherein do you conceive a Jury-man may have Self-knowledg of Matter, that may not as fully be evidenc'd by Witness? Stud. It's probable, Firft, That they may know the Witnefs on the one fide, or the other, to be Perfons of no Credit; or, Secondly, They may know the Party accus'd to be a Man otherwife quafify'd or principl'd, than to do fuch an act or thing that is charg'd against him. As for inftance; They may know a Man to be, 1. A quiet peaceable Quaker; therefore no Fighter or Rioter, or Routous Perfon. 2. A Proteftant of the Epifcopal Church of England; therefore no House-Preacher. 3. An honeft fober Man amongft 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 furely our Jurors of London have met with hard ufage, to be fin'd and imprifon'd for doing their Duty, in what the Laws of this Land have made them fole and proper Judges. Stud. Their hard ufage and severity to the Jurors is not so much as the ill confequence that fuch practices will be to every English-man, and their Pofterity, 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 Juftice. But pray what's your Thoughts about these things? Stud. The Confequence of fuch Practices, the Parliament¦ have very well set forth in Chief Juftice Keeling's Cafe, 11 Dec, 1667. when they Voted, That Fining Juries were not only Ins novations, in the Tryals of Men for their Lives and Liberties, but that it was of Dangerous Confequence 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 Juftices, who are commanded to be guided by the Law, fhall, contrary to the Law, fine and imprifon Juries, for giving Verdicts in fuch 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 E.3. and moft arbitrarily and tyrannically to deay us Equal Law, Juftice and Right. Cit. |