How I pray?

How? Why, did you never hear a Jury threatned to be Fined and Imprisoned, if they did not comply with the Sentiments of the Court?

I have Read of such doings, but I never heard, or saw it done, and indeed I do not doubt but our Seats of Ju&rehy;stice are furnisht with both better men, and better Lawyers, than to use any such Menaces or Duress, for undoubtedly 'tis a base and very Illegal Practise. But however will any man that fears God, nay that is but an honest Heathen debauch his Conscience, and forswear himself, do his Neighbour Injustice, betray his Countreys Liberties, and consequently enslave him&rehy;self and his Posterity, and all this meerly because he is He&rehy;ctor'd and threaten'd a little?

I know it should not sway with any, but alas, a Prison is terrible to most men, whatever the Cause be; And the Fine may be such, if one shall refuse to comply, as may utterly ruin ones Family.

Fright not your self, there is no cause for this Ague&rehy;fit, to shake your Conscience out of Frame; if you are Threat&rehy;ned tis but Brutum Fulmen, Lightning without a Thunder&rehy;bolt, nothing but big words, for it is well known That there is never a judge in England that can Fine or Imprison any Jury-man in such a Case.

Good Sir! I am half asham'd to hear a Barrister talk thus; have not some in our memory been Fin'd and Impri&rehy;son'd? And sure that which has actually been done is not al&rehy;together Impossible.

Your Servant Sir! Under favour of your mighty Wisdom and Experience, when I said no Judge could do it, I spake the more like a Barrister, for tis a Maxim in Law &horfill; Id possumus quod Jure possimus. A man is said to be Able to do only so much, as he may Lawfully do. But such Fining or Imprisoning cannot Lawfully be done; the Judges have no Right or Power by Law to do it, and therefore it may well be said, they cannot, or are not able to do it.

Well, but are Iurors not liable then to Fine or Im&rehy;prisonment in any Case whatsoever.

Now you run from the Point; we were talking of giving their Verdict, and you speak of any Case whatsoever. Whereas you should herein observe a necessary distinction, which I shall give you in the words of that Learned Iudge last Cited Vaughan Rep. fo. 152. Much of the Office of Jurors in order to their Verdict is Ministerial; as not withdrawing from their Fellows after they are Sworn, not receiving from either side Evidence not given in Court; Not eating and drinking before their Ver&rehy;dict; Refusing to give a Verdict, &c. Wherein if they Transgress they may be finable. But the Verdict it self, when given, is not an Act Ministerial, but Judicial and (supposed to be) accord&rehy;ing to the best of their Judgment, for which they are not Fi&rehy;nable, nor to be punisht but by Attaint; that is, by another Jury, in Cases where an Attaint lies, and where it shall be found that Wilfully they gave a Verdict false and Corrupt.

Now that Iuries otherwise, are in no Case punishable, nor can (for giving their Verdict according to their Consciences and the best of their Judgment) be Legally Fined or Impri&rehy;soned by any Iudge on Colour of not going according to their Evidence, or finding contrary to the directions of the Court, is a truth both founded on unanswerable Reasons and Con&rehy;firmed by irrefragable Authorities.

Those I would gladly hear.

They are many, but some of the most evident are these that follow.

As for Reasons.

1. A Iury ought not to be Fined or Imprisoned, because they do not follow the Iudges directions, for if they do fol&rehy;low his direction, they may yet be Attainted, and to say they gave their Verdict according to his directions is no Barr, but the Iudgment shall be revers'd and they punisht for doing that, which if they had not done, they should (by this O&rehy;pinion) have been Fined and Imprisoned by the Iudge, for not doing it. &horfill; Which is Unreasonable.

2. If they do not follow his direction, and be therefore Fined, yet they may be Attainted, and so they should be doubly punisht by distinct Iudicatures for the same Offence, which the Common Law never admits.

3. To what end is the Jury to be return'd out of the Vi&rehy;cinage (that is, the neighbourhood) whence the issue ariseth? To what end must Hundredors be of the Jury, whom the Law supposeth to have nearer knowledge of the Fact than those of the Vicinage in general? To what end are they challeng'd so scrupulously to the Array and Pole? to what end must they have such a certain Freehold, and be Probi & legales homines, and not of Affinity with the Parties concerned? &c. If after all this they implicitly must give a Verdict by the Dictates and Authority of another Man, under pain of Fines and Imprison&rehy;ment, when sworn to do it according to the best of their own knowledge; a Man cannot see by anothers Eye, nor hear by anothers Ear, no more can a Man conclude or infer the thing to be resolved by anothers understanding or reasoning, unless all Mens understandings were equally alike; and if meerly in compliance because the Iudge says thus or thus, a Iury shall give a Verdict, though such their Verdict should happen to be right, true, and just, yet they being not assured it is so from their own understanding, are forsworn, at least in Foro Con&rehy;scientiæ.

4. Were Jurors so finable, then every Major and Bailiff of Corporations, all Stewards of Leets, Justices of Peace, &c. whatever Matters are try'd before them, shall have Verdicts to their minds, or else Fine and Imprison the Jurors till they have; so that such must be either pleased, humored, or grati&rehy;fied, else no Justice or Right to be had in any Court.

5. Whereas a Person by Law may Challenge the Sheriff or any Jury-man, if of Kin to his Adversary, yet he cannot chal&rehy;lenge a Major, Recorder, Justice, &c. who 'tis possible will have a Verdict for their Kinsman, or against their Enemy, or else Fine and Imprison the Jury till they have obtained it; so that by this means our Lives, Liberties, and Properties shall be solely tryed by, and remain at the Arbitrary dispose of eve&rehy;ry mercenary or corrupted Justice, Major, Bailiff, or Recor&rehy;der, if any such should at any time get into Office.

6. 'Tis unreasonable that a Jury should be Finable on pre&rehy;tence of their going against their Evidence, because it can ne&rehy;ver be Tryed whether or no in truth they did find with or a&rehy;gainst their Evidence, by reason no Writ of Error lies in the Case.

7. Were Jury-men liable to such Arbitrary Fines, they should be in a worse condition than the Criminals that are tryed by them; for in all Civil Actions, Informations, and Indict&rehy;ments, some Appeals, or Writs of false Judgment, or of Er&rehy;ror, do lie into Superior Courts to try the regular Proceedings of the Inferior. But there can be no After-Tryal or Examina&rehy;tion, but the Jury-man (if Fining at all were lawful) must either pay the Fine, or lie by it, without remedy, to decide whether in his particular Case he were legally Fined or not.

8. Without a Fact agreed, it is as impossible for a Judge or any other to know the Law, relating to that Fact, or direct con&rehy;cerning it, as to know an Accident that hath no Subject; for as where there is no Law, there is no Transgression, so where there is no Transgression, there is no place for Law; for the Law (saith Divine Authority) is made for the Transgressor. And as Cook tells us, Ex facto Jus oritur, upon stating the Fact or Trans&rehy;gression matter of Law doth arise, or grow out of the Root of the Fact. Now the Jury being the sole Judges of Fact, and Matter in Issue before them, not finding the Fact on which the Law should arise, cannot be said to find against Law, which is no other than a Superstructure on Fact; so that so say they have found against the Law, when no Fact is found, is absurd; an expression insignificant and unintelligible; for no Issue can be joyned of matter in Law, no Jury can be Charged with the Tryal 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 such Oath be given to, or taken by a Jury to try matter in Law, nor does an Attaint for such Oath, if false, &c. But if by find&rehy;ing against the Direction of the Court in matter of Law, shall be understood, that if the Judge having heard the Evidence given in Court, (for he can regularly know no other, though the Jury may) shall tell the Jury upon this Evidence, the Law is for the Plaintiff, or the Defendant, and the Jury are under pain of Fine and Imprisonment to Find accordingly; then 'tis plain the Jury ought of Duty so to do. Now if this were true, who sees not that the Iury is but a troublesome Delay, of great Charge, much Formality, and no real use, in determining right and wrong, but meer Ecchos to sound back the pleasure of the Court; and consequently that Tryals by them might be better abolish'd than continued? which is at once to spit Folly in the Faces of our Venerable Ancestors, and enslave our Posterity.

9. As the Iudge can never direct what the Law is in any Mat&rehy;ter Controverted, without first knowing the Fact, so he can&rehy;not possibly know the Fact but from the Evidence which the Iury have; but he can never fully know what Evidence they have, for besides what is sworn in Court, (which is all that the Judge can know) the Jury being of the Neighbourhood, may, and oft-times do know something of their own knowledge, as to the Matter it self, the Credit of the Evidence, &c which may justly sway them in delivering their Verdict, and which self knowledge of theirs is so far countenanced by Law, that it supposes them capable thereby to try the Matter in Issue, (and so they must) though no Evidence were given on either side in Court. As when any Man is Indicted, and no Evidence comes against him, the Direction of the Court always is, You are to acquit him, unless of your own knowledge you know him Guilty; so that even in that Case they may find him Guilty without any Witnesses. Now, how absurd is it to think, that any Iudge has power to Fine a Iury for going against their E&rehy;vidence, when he that so Fineth knoweth perhaps nothing of their Evidence at all, (as in the last Case) or at least but some part of it? For how is it possible he should lawfully punish them for that which it is impossible for him to know.

Lastly, Is any thing more common, than for two Lawyers or Iudges to deduce contrary and opposite Conclusions out of the same Case in Law? And why then may not two Men infer distinct Conclusions from the same Testimony? And consequent&rehy;ly may not the Judge and Jury honestly differ in their Opinion or Result from the Evidence, as well as two Iudges may, which often happens; and shall the Jury-men meerly for this diffe&rehy;rence of Apprehension merit Fine and Imprisonment, because they do that which they cannot otherwise do, preserving their Oath and Integrity? especially when by Law they are presum'd to know better and much more of the Business, than the Judge does as aforesaid.

If the Law, as you say, be Reason, then undoubt&rehy;edly this Practice of Fining of Juries is most Illegal, since there cannot be any thing more unreasonable; But what Authorities have you against it?

You have heard it proved to be a Modern up-start en&rehy;croachment, so you cannot expect any direct or express Con&rehy;demnation of it in Ancient Times, because the thing was not then set on Foot. And by the way, though Negative Arguments are not necessarily conclusive, yet that we meet with no Prece&rehy;dents of old of Iuries Fined, for giving their Verdict contrary to Evidence, or the Sense of the Court, is a violent presump&rehy;tion, that it ought not to be done; for it cannot be supposed, that this latter Age did first of all discover, that Verdicts were many times not according to the Iudges Opinion and Liking. Undoubtedly they saw that as well as we; but knowing the same not to be any Crime, or punishable by Law, were so Mo&rehy;dest and Honest as not to meddle with it. However, what en&rehy;tertainment it hath met with when attempted in our Times, I shall shew you in two remarkable Cases.

1. When the late Lord Chief Iustice Keeling had attempted something of that kind, it was complained of, and highly re&rehy;sented by the then Parliament; as appears by this Copy of their Proceedings thereupon taken out of their Journal, as follows.

Die Mercurii 11. Decembris 1667.

The House resumed the Hearing of the rest of the Report touching the matter of Restraint upon Juries, and that upon the Examination of divers Witnesses in several Cases of Re&rehy;straints put upon Iuries by the Lord Chief Iu&rehy;stice Keeling, and thereupon Resolved as followeth.

First, That the Proceedings of the said Lord Chief Iustice in the Cases now Reported are Innovations in the Tryal of Men for their Lives and Liberties. And that he hath used an Arbitrary and Illegal Power, which is of dangerous Conse&rehy;quence to the Lives and Liberties of the People of England, and tends to the introducing of an Arbitrary Government.

Secondly, That in the Place of Iudicature the Lord Chief Iu&rehy;stice hath undervalued, vilified, & contemned Magna Charta, the great Preserver of our Lives, Freedom, and Property.

Thirdly, That he be brought to Tryal in order to condign Punishment, in such manner as the House shall judge most fit and requisite.

Die Veneris 13. Decembris 1667.

Resolved, &c.

That the Precedents and Practice of Fining or Imprison&rehy;ing of Iurors for giving their Verdicts, is Illegal.

Here you see it Branded in Parliament: Next you shall see it formally condemn'd on a solemn Argument by the Judges. The Case thus.

The Sum of the Case of Bushel, and the rest of Mr. Pen and Mr. Meads Jury. At the Sessions for London Sept. 1670. William Pen, and William Mead (two of the People commonly called Quakers) were Indicted, for that they with others, to the number of 300, on the 14th Aug. 22. Regis, in Gray-Church-Street, did with Force and Arms, &c. unlawfully and tumultuously assemble and congregate themselves together to the distur&rehy;bance of the Peace; and that the said William Pen did there Preach and speak to the said Mead and other Persons in the o&rehy;pen Street; by reason whereof a great Concourse and Tumult of People in the Street aforesaid then and there a long time did remain and continue, in contempt of our said Lord the King, and of His Law, to the great disturbance of his Peace, to the great Terror and disturbance of many of His Liege People and Subjects, to the ill example of all others in the like Case Offenders, and against the Peace of our said Lord the King, His Crown and Dignity.

The Prisoners Pleading Not Guilty, it was proved, that there was a Meeting at the time in the Indictment mentioned, in Gray-Church-Street, consisting of three or four hundred People, in the open Street, that William Pen was Speaking or Preaching to them, but what he said the Witnesses (who were Officers and Soldiers sent to disperse them) could not hear. Note, that the Qua&rehy;kers have a Meeting&rehy;house in that Street, out of which they were then kept by Sol&rehy;diers, and therefore they met as near to it as they could in the open Street. &horfill; This was the effect of the Evidence; which Sir John Howel, the then Recorder, (as I find in the Print of that Tryal P. 14) was pleased to sum up to the Iury, in these words.

"You have heard what the Indictment is, 'tis for Preaching to the People in the Street, and drawing a Tumultuous Com&rehy;pany after them, and Mr. Pen was speaking; if they should not be disturb'd, you see they will go on, there are three or four Witnesses that have proved this, that he did Preach there, that Mr. Mead did allow of it. After this you have heard by substantial Witnesses what is said against them; Now we are upon the Matter of Fact, which you are to keep to, and observe, as what hath been fully sworn, at your peril.

This Tryal begun on the Saturday; the Jury retiring, after some considerable time spent in debate, came in, and gave this Verdict, &horfill; Guilty of Speaking in Gray-Church-Street. At which the Court was offended, and told them, they had as good say no&rehy;thing; Adding, &horfill; Was it not an unlawful Assembly? you mean he was speaking to a Tumult of People there. But the Foreman saying, what he had delivered was all he had in Commission, and others of them affirming, That they allowed of no such word as an unlawful Assembly in their Verdict, They were sent back again, and then brought in a Verdict in writing, subscri&rehy;bed with all their Hands, in these words.

We the Jurors hereafter named do find William Pen to be Guil&rehy;ty of Speaking or Preaching to an Assembly met together in Gray-Church street the 14th of Aug. 1670. And William Mead not Guilty of the said Indictment.

Note, though this Jury for their excellent example of courage and constancy de&rehy;serve the commendation of every good English-man, yet if they had been better advis'd, they might have brought the Prisoners in Not Guilty at first, saved themselves the trouble and inconvenien&rehy;ces of these two Nights Restraint. This the Court resented still worse, and therefore sent them back again, and Adjourned till Sunday morning, but then too they insisted on the same Verdict, so the Court Adjourned till Monday morning; and then the Jury brought in the Prisoners generally Not Guilty, which was Recorded, and allowed of. But immediately the Court fined them Forty Mark a Man, and to lie in Prison till paid.

This Resolution hath, one would think (as you said) knock'd this Illegal Practice on the Head, beyond any possibility of Revival, but may it not one day be denied to be Law, and the contrary justified?

No such thing can be done without apparent violating and subverting all Law, Justice and Modesty; for though the Precedent it self be valuable, and without further inquiry is wont to be allowed, when given thus deliberately upon solemn debate by the whole Court; yet 'tis not only that, but the sound substantial and everlasting Reasons, whereon they grounded such their Resolves, that will at all times Justify Fining of Iuries in such Cases to be Illegal; besides, as the Reporter was most con&rehy;siderable, both in his Quality as Lord Chief Justice, and for his Parts, soundness of Iudgment, and deep Learning in the Law; so such his Book of Reports is approved and recommended to the World, (as appears by the Page next after the Epistle) by the Right Honourable the present Lord Chancellor of Eng&rehy;land, Sir William Scroggs, now Lord Chief Iustice of England, my Lord North, Chief Iustice of the Common-Pleas; and in a word, by all the Iudges of England at the time of Publishing thereof; so that it cannot be imagined how any Book can challenge greater Authority, unless we should expect it to be particularly confirm'd by Act of Parliament.

You have answered all my Scruples, and since I see the Law has made so good Provision for Jury-mens priviledges and safety, God forbid any Jury-man should be of so base a temper, as to betray that (otherwise) impregnable Fortress wherein the Law hath plac'd him, to preserve and defend the just Rights and Liberties of his Country, by treacherously surrendering the same into the hands of Violence or Oppressi&rehy;on, though maskt under never so fair Stratagems and Pre&rehy;tences; for my own part, I shall not now decline to appear according to my Summons, and therefore (though I fear I have detained you too long already) shall desire a little more of your direction about the Office of a Jury-man, in particu&rehy;lar that I may uprightly and honestly discharge the same.

Though I think from what we have discours'd be&rehy;ing digested and improv'd by your own Reason, you may suf&rehy;ficiently Inform your self, yet to gratifie your request, I shall add a few brief Remarques, as well of what you ought cauti&rehy;ously to avoid, as what you must diligently pursue and regard if you would justly and truly do your duty.

First, as to what you must avoid.

1. I am very Confident, that you would not willingly vi&rehy;olate the Oath which you take, but 'tis possible that there are such who as frequently break them, as take them, through their careless custome on the one hand, or slavish fear on the other, against which I would fully caution you; that you may defend your self and others, against any Enemies of your Countreys Liberties and happiness, and keep a good Conscience towards God and towards man.

2, 'Tis frequent, that when Juries are withdrawn that they may consult of their Verdict, they soon forget that Solemn Oath they took, and that mighty Charge of the Life and Liberty of men, and their Estates, whereof then they are made Judges, and on their Breath not only the Fortunes of the particular Party, but perhaps the preservation or Ruin of several Numerous Fa&rehy;milies does Solely depend, now I say without due Conside&rehy;ration of all this, nay sometimes without one serious thought, or Consulted Reason offered Pro, or Con, presently the Fore&rehy; man or one or two that call themselves Antient Jury-men (though in truth they never knew what belongs to the place more than a common School-Boy) rashly deliver their Opinions and all the rest in respect to their supposed Gravity and Expe&rehy;rience, or because they have the biggest Estates, or to avoid the trouble of disputing the Point, or to prevent the spoiling of Dinner by delay, or some such weighty Reason, forthwith a&rehy;gree blind fold, or else go to holding up of hands or telling of Noses, and so the Major Vote carries away Captive both the Reason and Consciences of the rest. Thus trifling with Sacred Oaths, and putting mens Lives, Liberties and Proper&rehy;ties (as it were) to the hap-hazard of Cross or Pile; This Practise or something of the like kind, is said to be too Custo&rehy;mary amongst some Jurors, which occasions such their extraordinary dispatch of the weightiest or most Intricate matters, but there will come a time when they shall be called to a severe Account for their Hast and Negligence, therefore have a care of such Fellow-Jurors.

3. Such a Slavish Fear attends many Jurors, that let the Court but direct to find Guilty, or not Guilty, though they themselves see no just Reason for it, yea oft-times though their own Opinions are contrary, and their Consciences tell them it ought to go otherwise; yet, right or wrong accordingly they will bring in their Verdict; and therefore many of them never regard seriously the course and force of the Evidence, what and how it was delivered more or less to prove the In&rehy;dictment, &c. But as the Court Sums it up, they find; as if Juries were appointed for no other purpose but to Eccho back, what the Bench would have done; such a base temper is to be avoided, as you would escape being Forsworn, even though your Verdict should be right; for since you do not know it so to be by your own Judgment or Understanding, you have abused your Oath and hazarded your own Soul as well as your Neighbours Life Liberty or Property, because you blindly depend on the opinion or perhaps passion of others, when you were Sworn well and truly to try them your selves. Such an implicite Faith is near of Kin to that of Rome in Religion, and (at least in the next degree) as dangerous.

4. There are some that make a Trade of being Jury-men that seek for the Office, use means to be constantly continued in it, will not give a disobliging Verdict lest they should be discharg'd and serve no more, these standing Jurors have cer&rehy;tainly some ill game to play, there are others that hope to Signalize themselves to get a better Trade, or some Prefer&rehy;ment by serving a Turn; there are others that have particu&rehy;lar Piques and a humor of Revenge against such or such Par&rehy;ties, if a man be but miscall'd by some Odious name, or said to be of an exploded Faction &horfill; streight they cry hang him, Find him Guilty, no punishment can be too bad for such a Fellow, in such a case they think it merit to Stretch an Evi&rehy;dence on the tenter-hooks, and strain a Point of Law because they fancy it makes for the Interest of the Government. As if Injustice or Oppression could in any case be for the true In&rehy;terest of Government when in truth nothing more weakens or destroys it, but this was an old stratagem, if thou suffer this man to escape, thou shalt not be Cæsars Friend. When Cæsar was so far from either needing or thanking them for any such base Services, that had he but truly understood them, he would severely have punisht their Partiality and Tyranny.

All these and the like pestilent Biases are to be avoided and abominated by every honest Jury-man.

But now as to the positive Qualifications requisite.

1. You that are Jury-men should first of all seriously re&rehy;gard the weight and importance of the Office; your own Souls other mens Lives, Liberties, Estates, all that in this World are dear to them, are at Stake, and in your hands; therefore consider things well before-hand, and come substantially fur&rehy;nished and provided with sound and well-grounded Conscien&rehy;ces, with clear minds, free from malice, fear, hope, or favour; lest instead of Judging others, thou shouldest work thy own Condemnation, and stand in the sight of God our Creator and Judge of all men, no better than a Murtherer, or Perjur&rehy;ed Malefactor.