THE POWER and PRIVILEGE OF JURIES ASSERTED: In Opposition to the wilfully Blind, and malicious Humour of some Ill and Uncharitable MEN.  
Published for the INFORMATION of Heraclytus Ridens, AND THE Doting Observator,  
LONDON, Printed for Richard Janeway, 1681.   

REASONS why the Court can neither Fine or Imprison JURIES, &c. for Delivering a Verdict according to Law and Their own Consciences.  
BEcause such Commitment being without Process and Judicial Trial is against Law ( viz.) Magna Charta, and the Stat. of 28 Edw. 3. Whereby it is Enacted, That no man in what Estate or Condition soever he be, shall be put out of his Lands or Tenements, nor taken, nor imprisoned, nor disinherited without being brought in to answer by due Process of Law; and by another Stat. 42. Edw. 3, That no man be put to Answer without Presentment before Justices, or matter of Record, or by due Process and Writ Original according to the Law of the Land, and if any thing be done to the contrary it shall be voided in Law, and holden for Error and against the Petition of Right, 3 Car. 1.  
Tis against the very Institution and intent of JURIES, For,  
1. They are to be in number 12 at least.  
2. For quality lib ri & legales homines.  
3. They must be men of Substance and Estate.  
4. They must be summoned out of the Neighbourhood, where the Fact was done, as most knowing of the Fact and all the Circumstances thereof.  
5. They are sworn to find according to the Evidence.  
6. They may be challenged both to the Poll and to the Array: at last when they are fitted for their work they are upon Record said to be Electi, triati & jurati.  
Now all this caution and solemnity is used, because the Law hath entrusted them with so great a part of the Judicature, viz. The Trial of the Fact, before the judge can pronounce judgement touching the Law arising upon that Fact: And therefore the Rule of Law is, Ad questionem juris respondent judices, ad questionem facti respondent juratores; that is, to the question of Law the Judges give their Answer, to the question of Fact the Jury give their Answer: such Commitment is manifestly absurd, Because,  
1. It overthrows all Juries, and consequently all the solemnity in preparing them, as aforesaid.  
2. It ingrosses and resolves the whole trial of the Fact into the breast of the judge, contrary to the very end of Juries: For to what end are Juries, if having done their Duty, the judge may punish them for so doing?  
3. Tis besides, if not against, his Oath and Authority, as he is judge, both which are to dispense the Laws equally and indifferently according to the best of his skill and knowledge; but not to intermeddle with the Fact: but he that takes upon him the knowledge of the Fact without Authority, and thereupon pronounces the Law, cannot be said to dispense the Law, but to exercise his own Will. In like manner, where judgement is that a man shall be hanged, and the Sheriff beheads him, this is Felony in the Sheriff, although it is lawful for him to put him to death: so in the principal Case, although if the Fact were true, and the Judges judgement would have been according to Law; yet because the same Fact might not have been true, and the judge hath no Authority therein to deal, it follows that his judgement is Erroneous, for according to the general Rule of Reason, sublato antecedenti tollitur consequens, the trial of the Fact being a necessary Antecedent to the judgement of the Law.  
4. It puts Juries upon these dilemmas either to serve or not to serve, if they refuse to serve, they lose Issues, and are punished that way: if they do serve, then they must find according to their Consciences or not: if according to their Consciences, then they offend the judge, if it be against his Direction, and such Evidence as seems so to him, and so they incur Fine, Imprisonment, and consequently Death, Temporal Punishments: If not according to their Consciences, then they offend God, and incur Punishments both Temporal and Eternal.  
5. Again Juries are as ancient as Judges, and therefore the same Law that ordained both Judges and Juries gave them divisum imperium, a divided Authority, and therefore whosoever takes away the Authority of Juries; takes away the Authority of the Judge, I mean the regular and legal Authority, and besides equality in point of Antiquity, there are other very considerable Parallels between them; For if the Judges are sworn, so are the Juries; if the Judges are constituted by Patent, the Jury are constituted by Writ; If the Judges are to administer the Law truly and sincerely; the Jury are to find the Fact truly and sincerely; Now if the Judge give in an Erroneous or false judgement, yet shall not be questioned nor punished, if he proceed according to his Conscience; by the same reason ought not the Jury to be punished, when nothing of corruption or undue practise can be charged on them; so that if it be absurd to punish the one, itis also absurd to punish the other.  
6. Where a Jury can be charged with any undue or sinister matter, as by taking Bribes, or suffering themselves to be laboured with, the Law hath provided proper punishments for them; but the Law hath provided no punishments, where a Jury proceed according to their Conscience, and therefore what they do therein is without breach of any Law.  
7. It is absurd in respect of it's opposition to the general Rules of the Law of God, for it is said, God accepts a man not according to what he hath not, but according to what he hath: But in this case, if the Judge should punish the Jury, a Jury-man is bound to bring in his Verdict not according to what he hath ( viz.) in point of knowledge or belief, but according to what he hath not ( viz,) by the direction and suggestion of another Sc. the Judge; although it be against his own knowledge or belief.  
8. 'Tis contrary to this Rule, Whatsoever is not of Faith, is Sin: now if a Jury bring in a Verdict according to the direction of the Court, but contrary to their own Judgments and Consciences; then this doing of theirs is not of faith, in as much as they do not believe it and consequently it is Sin. 'Tis contrary to this Rule also, Thou shalt swear in judgement, Righteousness and Truth. Now forasmuch as the Verdict of the Jury is an effect of their Oath, it follows that it ought to have all those Concomitants, that is, it ought to be in judgement, to wit, according to the judgement of him that swears, for another mans judgement as such can not be his; it ought to be in Righteousness voided of all partiality and Passion, and so not to be biased by fear of the mighty, no not of any Judges direction; nor by pitty of the poor: It ought to be Truth, that is, in Truth towards themselves, to wit, in Conformity and Agreement to their own Consciences, in truth to the Prisoner, without falsehood or Dissimulation, in truth to the Fact, without Perverting, Adding, or Diminishing; So that if but a part of the Fact requisite to make a Guilt be proved, the Jury ought by no means to find the whole fact, for that were to deal falsely contrary to their Oaths.  
9. 'Tis contrary to that universal principal of Reason and Justice, of doing to one another as a man would be done unto, and e contra; but for a Judge to compel a Jury being upon their oaths to find according to his direction, and what he calls Evidence, is all one as if another Authority superior or Coordinate with the judge, should by punishment compel him being upon his Oath to pronounce the law according to the sense of that Authority, and not according to his own Conscience and best understanding, which I suppose no Judge will be willing to take for Law or Reason; why then should he put that in practise, which himself disalloweth in another? and therefore as he himself would be free in respect of his Oath, so ought the Jury to have the like freedom in respect of their Oaths: And from this general Rule of Nature, proceeds another Secondary Notion or Rule, Par in Parem non habet Potestatem, perfectly applicable in this Case, for although in some other respects there is a great disparity between the Judge and the Jury, and principally in the Education, Learning and Grandeur of the one, and the middle State of the other, &c. Yet in this case, as to the very point of acquitting the guiltless and condemning the guilty, they seem to me perfectly equal, and no Magis or Minus between them, but Coadjuvant and Co-working causes in bringing forth that great effect, Justice.  
10. Because the act of the one ( to wit) the judge is consequent to the Act of the other; so if the one do nothing, the other can do nothing; and as to the Judges direction, Tis no more than a direction which no doubt every Discreet and Sober Jury ought diligently to listen to for their information, because of the learning and ability in the Judge, to methodise and open what perhaps hath been confusedly and obscurely delivered by the witnesses: But if it exceed the bounds of a direction, and becomes clothed with the rough Garment of compulsion, it will seem then to degenerate from its own Nature, and first Reason and Institution.  
11. Moreover the Juries are triers, that is, are sole Judges of the fact, appears from hence, because the trial by the Jury is a trial by itself distinct from, and contradistinguished to other trials instituted by law; for there are trials( 1.) By Battle, an ancient manner of trial upon a Writ of Right.( 2.) By inspection of the Court upon a writ of error to reverse a Fine acknowledged by an infant( 3.) By the Ordinaries certificate upon a Writ of Dower, where the Tenant pleads the woman was not lawfully married to her dead Husband( 4) By witnesses before the Justices upon a writ of Dower; if the tenant pled the Husband be alive it shall be tried by witnesses( 5.) By the Country, that is, Juries as in the case in question. Now if a trial by a Jury be distinct from a trial by witnesses; then it is not the same: Whereas if the Jury were compellable to find according to the Saying or Swearing of the witnesses, then it will be clearly the same, that is, a trial by witnesses, and consequently the having of a Jury would be but troublesome, dilatory and impertinent, because the Judge in respect of his own Skill and Learning, can both better examine and understand their testimony than Juries, who are for the most part Gentlemen. Now if a trial by a Jury and a trial by witnesses be several things, then is not a Jury compellable by the Judge to give their Verdict, no not according to the testimony of the witnesses, for they may be Corrupt, Partial, Infamous or otherwise Unmeet, which is referred to the judgement of the Jury, who where supposed to be Cognizant of them, because they are of the neighbourhood, and is not referred to the Judge who may well be supposed to be ignorant of those circumstances and conditions of witnesses and parties, &c. And certainly it was the great wisdom of Antiquity, not to entrust the administration of Law, to the breast of one or a few great men alone, though never so Sincere or Learned, without the concurrence of a considerable number of the body of the people, which are the Jury. But of this there will be occasion to speak when it shall be shown what is meant by the word Evid●nce, neither is it superfluous to consider that this trial by a Jury in Criminal Causes, said to be a trial by God and the Country; which seems to Imply the absoluteness of it. So that the acquittal by the Country is an acquittal by God, and a finding Guilty by the Country, a finding Guilty by God.  
12. Again if Juries be compellable by a Judge to give their verdict as aforesaid, in vain are those Eulogiums and Praises everywhere resounding concerning Juries both in Law, History, and Policy of our English Nation: In vain doth that learned and Sincere judge Fortescue place the most principal parts of the commendations of the Laws of England, in trials by a Jury, ab●ve and beyond the trials by witnesses in the Civil Law. Whereas if this in question be admitted, That Juries may be fined by the judge as aforesaid, then is this trial by a Jury far worse than by witnesses, in the Civil Law; Because that kind of trial is not viva voice, but by examination upon Interrogatories by Officers appointed in that behalf, which examination is taken in writing of every witness apart, and several, the one not knowing what the other hath said, and so remains upon record to posterity, and then the plaintiff or Defendant may across examine each others witnesses, and that leisurely with deliberation for bolting out the truth, and discovery of falsehood and contradiction. Whereas in our Case the witnesses are examined viva voice, upon a sudden altogether: So that there can be neither such sifting them, nor if they forswear themselves by contradictions, can it be so well observed or remembered, for vox audita perit and so remains not to posterity to take notice of: In like cases, shall it therefore be thought reasonable that mens Lives, Liberties, and Estates should be bound up in so narrow and dangerous a Compass, as the direction of a judge against Evidence seeming so to him? Moreover in vain doth Sir Thomas Smith cries up the peaceable and happy policy of this Kingdom, by that one thing of Juries, wherein no man if he be condemned can blame the King or the Nobles, or the Judges, or the Men of Power, the frequent objects of envy, but his own Peers, and so every man rests content, and the Government secured. In vain also may the Prisoner at the Bar in Capital Causes, challenge peremptorily 35 Jurours; without showing cause. If when the next Jury, which is supposed to be most indifferent for the Prisoner, shall be compellable to give their verdict according to the Judges direction and what he calls evidence.  
But doubtless all this defence for Juries needs not, if there was no colour or pretence of reason for the said Fine and Commitment. 'Tis said therefore, that there are several Precedents and Cases in Law, whereby it appears that Judges in criminal causes, have Fined and Imprisoned Juries for not finding according to evidence. For answer; To find against Evidence, is manifestly unlawful; for that is to Fine against conscience, and to speak with the mouth, what is not believed in the heart. What therefore in Natural and Rational signification, Evidence is, and what that word means, is the question.  
1. By what hath been said it should seem in general, that that is no Evidence( that is, binding Evidence) which only seems so to the Judge; for if it were, then whether it seem so to the Jury or not, they would be bound to find according thereunto, contrary to the reasons aforesaid.  
2. Nor is it what seems so to the people ( viz.) the Spectators, or standards by in Court; for they have no share in the administration at all.  
3 It follows then, It is what ever appears to the Jury, to be necessary to inform their Consciences and Judgments, concerning the truth of what is inquirable before them.  
And that this is so, appears from hence, because admitting in an indictment of Robbery, Evidence be that the Prisoner such a day and at such an hour of the day, and at such a place, did rob a man, and one of the Jury knows the Prisoner, who perhaps is his neighbour: he knows also that the same day, and at the same hour of the day, the Prisoner was at another place, perhaps in his own company upon such or such an occasion. The question is, whether the Ju●or shall proceed according to his evidence, Id est, his own knowledge, or according to the external evidence or swearing of the witnesses. I suppose it will be answered, According ●o his own knowledge, and is it not likely that a Jury will, nay ought they not to be sooner moved with the Evidence of one of their fellows, than the Evidence of a stranger. If so? shall they be punished afterwards for their verdict thereupon?  
'Tis true the Judges do use to determine the pertinency of Evidence that is, whether this or that thing be necessary and meet to be shown to the Jury, and therefore in civil causes either party may Demur to the Evidence, and then the Judges rule; whether it shall be made use of or not. But when the Evidence is given, 'Tis still in the conscience of the Jury, what credence they will give to it, otherwise all the absurdities aforespoken of will follow.  
And as concerning Precedents, though it be true they ought to be weighed and regarded with great sobriety and humility, and A communi observantia non est recedendum, yet none of them ought to be made use of against Reason and the Principles of Justice; nor are they further Argumentative than they are agreeable thereunto; for if it be true, Uno absurdo dato mill sequuntur; no reason if when one inconvenient Precedent is formed by reason of some incident circumstances of that particular Case, it be afterwards vouchsafe to warrant another like Case, the nature of man being more ready to embrace error and falsehood, rather than Truth and sound Reason. Nor is it rare and strange for later times as they are more or less virtuous and knowing than the former, to differ from and reject the actions and precedents of their Ancestors. Nor can any of those Precedents pled any such Antiquity, as the most ancient and bottonles Custom and Law of Juries, with their Privilege and Authority. Nay, I suppose it will be hard to make them reach beyond the time of Hen. 8. which perhaps is not beyond the memory of some men living.  
Another reason which is objected for punishing Juries, for going against Evidence in Criminal Causes is,  
Because in Civil Causes there lies an Attaint, but in these Cases none: and therefore if a Jury should not be punished, there would be no remedy, but persons manifestly guilty might be acquitted, to the great hurt and damage of the King and Kingdom. As touching the Non-remedy enough hath been spoken before, and more may be said; for in all States and Governments the Administration of the Law must be entrusted somewhere, and there must be a Ne plus ultra in all controversy whatsoever, for Interest reipublicae ut sit finis litium. Now the Law hath prudently and carefully lodged that Trust by way of distribution between the Judge and Jury, as is said before; and if they do not their duty, it may be said in such case as a most Divine Author doth in such a like, If the light within thee be darkness, how great is that darkness! As touching the Damage arising by Acquittal, there is little reason to infer a Spring from one or two Swallows; that is, to conclude because one or two Juries in an Age are mistaken, that therefore they will universally so do, I say there is little reason so to think.  
1. Not to reiterate any thing before spoken, because Juries are or ought not to be standing but successive.  
2. It is or rationally should be chiefly their care to prevent it, because persons of their condition are most obnoxious to the prejudice proceeding from the Impunity, when persons of greater Rank are perhaps better guarded, and so exempted from such danger. And if the Offence be of an Epidemical nature striking at the State, they also will have a greater share pro ratione mali, of the mischief of the Impunity of any, both in themselves and their Posterity. As to the Attaint,  
1. The Non-allowance or institution of that in Criminal Causes perhaps( and very rationally) might be in favorem vitae, in favour of life, by not drawing a mans Life, Estate, and Posterity in effect, in question twice for the same thing. The Law as all good and laudable Laws inclining more to Mercy than Justice, and this upon the self same reason as the said Challenge of 35 is allowed.  
2. Because in Criminal Causes two Juries pals upon the prisoner, viz. the Grand Jury and the Petty Jury, both of which have their several Office and Effects; and there the Petty Jury are in lieu of a Jury upon an Attaint, and therefore no reason when the Petty Jury hath acquitted him, he should be subject to be found guilty by another Jury after, and the Petty Jury punished as in Attaint, for that were to punish one Jury after another in infinitum.  
3. The judgement, amongst other things, upon an Attaint is, that the Party grieved by the first Verdict and judgement, shall be restored to what he lost thereby; and therefore if an Attaint should lye in Criminal Causes, it should be for the beheof of the Prisoner, that he might be restored. On the other side, if it doth not lie, the King loses nothing by it, but the Acquittal by the Petty Jury preserves the Subject; and certainly, when any thing is doubtful, it is better to preserve than to destroy.  
The second General Head, or Reason, upon which the Jurors ought to be discharged, is for the Erroneousness of the judgement and Execution by which they stand committed.  
1. The Fine is one entire Fine of 100 Marks, and imposed jointly and severally; so that every one is punished for the Offence of the other, contrary to all the Precedents; for though one be willing to pay his proportion, yet shall he not be discharged till he hath paid the proportions of all the rest; so one shall pay all the Fine, and others pay nothing, or else he cannot be discharged; and this is like to fall upon the weakest, both in Person and Estate,( that is to say) that is less able to endure imprisonment.  
2. Because the Capiatur is until they shall pay their several Fines, and there are no several Fines, but one entire Fine; and so the sense is, that they shall be imprisoned until they pay nothing, and then the Commitment is voided.  
The Reason of the judgement is, because the Jurors gave their Verdict against full Evidence, and it doth not particularise the Evidence that was given, whereby it may appear whether it was full or not. Now inasmuch as the Court which pronounced the judgement is an inferior Court, so that a man may Appeal from their judgement to a superior, and there is nothing for the superior Court to Judge upon, but the Body of the Record; it follows, if that Record be obscure, too general, or uncertain, that the superior Court cannot give judgement, and consequently that the Record is voided: for if the question be whether the Evidence was full or not, it must either be determined by the superior Court, or by the inferior Court; if by the inferior Court, then the Appeal is in vain; if by the superior Court, then there is nothing before them to guide and govern their Judgments, but that very thing which is the cause of the Complaint of the Parties grieved, and so the Appeal is in vain.  
FINIS.