and Mead were then indicted before the faid Juftices. Upon which Indictment the faid Penn and Mead pleaded they were not Guilty, for that they the faid Jurors, then and there the faid William Penn and William Mead of the faid Trefpaffes, Contempts, unlawful Affemblies and Tumults, contra Legem bajus Regni Anglia, & contra plenam & manifeftam Evidentiam, & contra dire&tionem Curia in materia Legis hic de & fuper pramiffis eifdem Juratoribus verfus prafatos Will. Penn & Will. Mead in Curia hic aperte datam & declaratam, de pramiffis iis impofitis in In diatamento pradi&to acquietaverunt in Contemptum Domini Regis n legumque fuarum & ad magnum Impedimentum & obftru&tionem Juftitia, necnon ad malum exemplum omnium aliorum Furatorum in confimili cafu delinquentium. Ac fuper inde modo ulterius ordinatum eft per Curiam hic quod prafatus Edw. Bufhell capiatur & committatur Gaola dicti Domini Regis de Newgate, ibidem remanf rus quoufque folvat dico Domino Regi 40 Marcas, pro fine fuo pradie, vel delibera'us fuerit per debitum Legis curfum. Ac eodem Edwardo Bufhell, ad tunc & ibidem capto de commiffo exiftente ad di&am Gaolam de Newgate, fub Cuftodia prafat. Johannis Smith & Jacobi Edwards ad tunc Vic. Civitatis Lond. pradi&t. & in eorum Cuftodia in Gaola pradit. exiftente & remanente virtute Ordinis pradi&t. iidem Johannis Smith & Jacobus Edwards, poftea in eorum exitu ab Offcio Vic. Civitatis Lond. pradi&t. fcilicet 28 die Septembris Anno 22. fupra dicto eundem Edwardum Bufhell, in di&a Gaola di&i Domizi Regis adtunc exiftentem, deliberaverunt nobis prafatis nunc Vicecomitibus Civitatis pradi&. in eadem Gaola falvo cuftodiendum fecundum te norem & effectum Ordinis prædi&ia. Et quia prædi&us Edwardus dum folvit dio Domino Regi pradi&tum finem 40 Marcarum, nos iidem Vicecomites Corpus ejufdem Edwardi in Gaola prædicta hucufque detinuimus; hæc eft Caufa Captionis & Detentionis prafati Edwardi, c jus quidem Corpus coram prafatis fuftitiariis paratum habemus.

The Writ of Habeas Corpus is now the moft ufual Remedy by which a Man is reftor'd again to his Liberty, if he have been againft Law depriv'd of it.

Therefore the Writ commands the Day, and the Caufe of the Caption and Detaining of the Prisoner, to be certify'd upon the Return, which if not done, the Court cannot poffbly judg whether the Cause of the Commitment and Detainer be according to Law, or against it.

Therefore the Caufe of Imprisonment ought by the Return to appear as specifically and certainly to the Judges of the Return, as it did appear to the Court, or perfon authoriz❜d to commit; elfe the Return is infufficient, and the Confequence muft be,

That either the Prifoner, because the Caufe return'd of his Imprisonment is too General, muft be discharg'd: whenas if the

Caufe

3 Caufe had been more particularly return'd, he ought to have been remanded; or elfe he muft be remanded, when if the : Caufe had been particularly return'd, he ought to have been difcharg'd: Both which are Inconveniences not agreeing with the Dignity of the Law. (There is a fpecious Exception. to this Rule, but doth not materially vary it, as fhall ap pear.)

In the present Cafe it is return'd, That the Prifoner being a Juryman among others, charg'd at the Seffions-Court of the Old Baily, to try the Iffue between the King and Penn and Mead, upon an Indictment for affembling unlawfully and tumul tuoufly, did contra plenam manifeftam evidentiam openly given in Court, acquit the Prifoners indicted, in contempt of the King, &c.

The Court hath no knowledg by this Return, whether the Evidence given were full and manifeft, or doubtful, lame, and dark, or indeed Evidence at all material to the Iffue; because it it not return'd, what Evidence in particular, and as it was deliver'd, was given. For it is not poffible to judg of that rightly, which is not expos'd to a man's Judgment. But here the Evidence given to the Jury is not expos'd at all to this Court, but the Judgment of the Court of Seffions upon that Evidence is only expos'd to us; who tell us it was full and manifeft. But our Judgment ought to be grounded upon our own Inferences and Understandings, and not upon

theirs.

It was faid by a Learned Judg, If the Jury might be fined for finding against manifeft Evidence, the Return was good, tho it did not express what the Evidence particularly was, whereby the Court might judg of it, because returning all the Evidence would be too long. A ftrange Reafon! For if the Law allows me Remedy for wrong Imprisonment, and that must be by judging whether the Cause of it were good or not, to fay the Caufe is too long to be made known, is to fay the Law gives a Remedy which it will not let me have, or I must be wrongfully imprifon'd ftill, because it is too long to know that I ought to be freed. What is neceffary to an end, the Law allows is never too long. Non funt longa quibus nihil eft quod demere poffis, is as true as any Axiom in Euclid. Befides, one manifeft Evidence return'd had fuific'd, without returning all the Evi. dence. But the other Judges were not of his mind.

If the Return had been, That the Jurors were committed by an Order of the Court of Seffions, because they did minus jufte acquit the Perfons indicted:

Or because they did contra Legem acquit the Perfons indicted:

Or

Or because they did contra Sacramentum fuum acquit them. The Judges cannot, upon the prefent, more judg of the legal Caufe of their Commitment, than they could if any of these Caufes, as general as they are, had been return'd for the Cause of their Commitment. And the fame Argument may be exactly made to juftify any of thefe Returns, had they been made, as to juftify the prefent Return; they being equally as legal, equally as certain, and equally as far from poffeffing the Court with the Truth of the Caufe: And in what condition fhould all Men be, for the juft Liberty of their Perlons, if fuch Caufes fhould be admitted fufficient Causes to remand Perfons to Prison?

To thofe Objections made by the Prifoner's Council againft the Return, as too general;

1. It hath been faid, That Inftitutum eft quod non inquiratur é difcretione Judicis.

2. That the Court of Seffions in London is not to be look'd on as an Inferior Court, having all the Judges Commiffioners. Tha the Court having heard the Evidence, it must be credited: that the Evidence given to the Jury of the Fact, was clear and not to be doubted.

As for any fuch Inftitution pretended, I know no fuch, not believe any fuch, as it was apply'd to the present Caufe: But taking it in another, and in the true fenfe, I admit it for truth; that is, when the King had conftituted any man a Judg under him, his Ability, Parts, and Fitness for his Place, are not to be reflected on, cenfur'd, defam'd, or vilify'd by any other Perfon, being allow'd and ftampt with the King's Approbation, to whom only it belongs to judg of the Fitnes of his Minifters.

And fuch fcandalous Affertions or Inquiries upon the Judges of both Benches is forbidden by the Statute of Scandalum Mag natum, 2 R. 2. c. 5. Nor muft we upon fuppofition only either admit Judges deficient in their Office, for so they fhould never do any thing right; nor on the other fide, mut we admit them unerring in their Places, for fo they should never do any thing wrong.

And in that fense the Saying concerns not the prefent Cafe.

But if any Man thinks that a Perfon concern'd in Intereft by the Judgment, Action, or Authority exercis'd upon his Perfon or Fortunes by a Judg, muft fubmit in all or any of thefe to the imply'd Difcretion or Unerringness of his Judg without feeking fuch Redress as the Law allows him; it is a Perfuafion againft Common Reafon, the received Law, and Usage both of this Kingdom, and almost all others.

If

If a Court Inferior or Superior hath given a falfe or erro neous Judgment, is any thing more frequent than to reverse fuch Judgments by Writs of falfe Judgment, of Error, or, Appeals, according to the Courfe of the Kingdom?

If they have given corrupt and difhoneft Judgments, they have in all Ages been complain'd of to the King in the StarChamber, or to the Parliament.

Horn's Mir

ror, fol. 296.

Andrew Horn in his Mirror of Juftices, mentions many Judges punish'd by King Alfred before the Conqueft for corrupt Judgments, and their particular Names and Offences; which cou'd not be had, but from the Records of thofe times.

Our Stories mention many punifh'd in the time of Edward the Firft. Our Parliament Rolls of Edward the Third's time, of Richard the Second's time, for the pernicious Refolutions given at Nottingham Caftle. afford Examples of this kind. In nt latter times the Parliament Journals of 18 and 21 Jac. the Judgment of the Shipmony in the time of Charles the Firft, queftion'd, and the particular Judges impeach'd. Thefe In ftances are obvious, and therefore I but mention them.

In Cafes of Returns, too general upon Writs of Habeas Corpus, of many I could urge, I will inftance in two only. One Afwick brought by Habeas Corpus to the

King's Bench, was return'd to be committed 9 Eliz. Moore per mandatum Nicolai Bacon militis Domini Cuftodis fol. 839. magni Sigilli Anglia virtute cujufdam Contemptus in Curia Cancellar. fadi; and was prefently bail'd. One Apfley Prifoner in the Fleet, upon a Habeas Corpus, was return'd to be committed per. confiderationem Curia Cancellar. pro contemptu eidem Curia illato; and upon this Return fet at liberty.

13 Jac. Moore fol. 839.

In both thefe Cafes no Inquiry was made, nor Confideration had, whether the Contempts were to the Law-Court or equitable Court of Chancery; either was alike to the Judges, left any man fhould think a difference might arife thence.

The Reafon of difcharging the Prifoners on thofe Returns, was the generality of them being for Contempts of the Court, but no particular of the Contempt exprefs'd, whereby the King's Bench could judg whether it was a Caufe for Com

mitment or not.

And was it not as fuppofable, and as much to be credited, That the Lord Keeper and Court of Chancery did well underftand what was a Contempt deferving Commitment, as it is now to be credited, that the Court of Seffions did underftand perfectly what was full and manifeft Evidence againft the

-Perfons

Perfons indicted at the Seffions? and therefore it needed not to be reveal'd to us upon the Return.

Hence it is apparent, that the Commitment, and the Return pursuing it, being in it felf too general and uncertain, we ought not implicitly to think the Commitment was, re vera, for caufe particular and fufficient enough, because it was the A&t of the Court of Seffions.

And as to the other part, That the Court of Seffions in London is not to be resembled to other Inferior Courts of Oper and Terminer, because all the Judges are commiffion'd here (which is true) but few are there at the fame time, and as I have heard when this Tryal was, none of them were prefent. However Persons of great Quality are in the Commifions of Oyer and Terminer, thro the Shires of the Kingdom, and always fome of the Judges; nor doth one Commiffion of Oyer and Terminer differ in its Effence, Nature, and Power from another, if they be general Commiffions; but all differ in the Accidents of the Commiffioners, which makes no Alteration in their A&tings in the eye of Law.

Another fault in the Return is, that the Jurors are not faid to have acquitted the Perfons indicted against full and manifeft Evidence, corruptly, and knowing the said Evidence to k full and manifeft against the Perfons indicted. For how manifeft foever the Evidence was, if it were not manifeft to them, and that they believ'd it fuch, it was not a finable Fault, nor deferving Imprisonment; upon which difference the Law of punishing Jurors for falfe Verdicts principally depends.

A Paffage in Bratton is remarkable to this purpose, concern ing Attainting Inquefts.

Brafton, 1.4. Committit Furator perjurium propter falfum Sa c. 4. f. 288.b. cramentum ut fi ex certa Scientia aliter juraverit quam res in veritate fe habuerit, fi autem Sacramentum fatuum fuerit, licet falfum, tamen non committit perjurium, licet re vera res aliter fe habeat quam juraverat, & quia jurat fecundum Confcientiam, eo quod non vadit contra mentem. Sunt quidam qui verum dicunt mentiendo, fed fe perjerant-quia contra mentem vadunt. The fame Words, and upon the fame occafion Fleta,1.5.c.22. are in effect in Fleta: Committit enim Jurator f.336. n. 9. perjurium quandoque propter falfum Sacramentum, ut fi ex certa Scientia aliter juraverit quam res in veritate fe habuerit fecus enim propter fallum quamvis falfum. And left any fhould think that these Paffages are to be understood only of Jurymens Perjuries in foro Confcientia, it is clearly other. wife by both thofe Books, which fhew how by the discreet Examination of the Judg, the Error of the Jury not wilful, may be prevented and corrected, and their Verdict rectify'd.

And