"son or persons against the form, ordi"nance, or effect of any statute made and "not repealed, &c." By colour of which act,' saith Coke, shaking this fundamental law', (he means, touching all trials to be by Juries) it is not credible what HORRIBLE OPPRESSIONS and EXACTIONS, to the undoing of MULTITUDES of people, were committed by Sir Richard Empson knight, and Edmond Dudley, esq. (being justices of the peace) throughout England; and upon this unjust and injurious act, as commonly in like cases it falleth out, a new office was erected, and they made masters of the 'king's forfeitures. But not only this statute was justly, soon after the decease of Henry VII. repealed by the stat. of the 1 Hen. VIII. cap. 6. but also the said Empson and Dudley (not withstanding they had such an act to back them, yet it being against Magna Charta, and consequently void) were fairly executed for their pains; and several of their under-agents, as promoters, informers, and the like, severely punished, for a warning to all others that shall dare, on any pretence whatsoever, infringe our English liberties*. For so the lord + Coke, having, elsewhere, with detestation mentioned their story, pathetically concludes; Qui eorum vestigiis insistant, exitus per horrescant. Let all those who shall presume to tread their steps, tremble at 'their dreadful end.' Other instances of a later date might be given, but I suppose these may suffice. Jurym. Yes, surely; and by what you have discoursed of the long-continued use of Juries, and the zealous regards our ancestors had not to part with them, I perceive that they were esteemed a special privilege. Be pleased, therefore, to acquaint me, wherein the excellency and advantages to the people, by that method of trial above others, may consist. Barr. This question shews you have been much conversant abroad to observe the miserable condition of the poor peo ple in most other nations, where they are either wholly subject to the despotic arbitrary lust of their rulers; or at best under such laws as render their lives, liberties, and estates, liable to be disposed of at the discretion of strangers appointed their judges; most times mercenary, and creatures of prerogative; sometimes malicious and oppressive; and often partial and corrupt *. Or suppose them ever so just and upright, yet still has the subject no security against the attacks of unconscionable witnesses. Yea, where there is no sufficient evidence, upon bare suspicions, they are obnoxious to the tortures of the rack, which often make an innocent man confess himself guilty, merely to get out of present pain. Is it not then an inestimable happiness to be born and live under such a mild and righteous constitution, wherein all these mischiefs, as far as human prudence can provide, are prevented? where none can be condemned, either by the power of superior enemies, or the rashness or ill will of any judge, nor by the bold affirmations of any profligate evidence; but no less than twelve honest, substantial, impartial men, his neighbours (who consequently cannot be presumed to be unacquainted either with the matters charged, the prisoner's course of life, or the credit of the evidence) must first be fully satisfied in their consciences, that he is guilty; and so all unanimously pronounce him upon their oaths? Are not these, think you, very material privileges? + Jurym. Yes, certainly; though I never so well considered them before. But now I plainly see our fore-fathers had, and we still have, all the reason in the world to be zealous for the maintenance and preservation thereof from subversion or encroachments, and to transmit them entire to posterity. For if once this bank * See all this excellently made out and more at large by the L. C.J. Fortescue. afterwards Chancellor to K. Hen. VI. in his Book De laudibus Legum Angliæ, cap. See Sir Rich. Baker's Chron. p. 254, 26, 27, 28, 29. printed in 1674. +part Institut. fol. 41. The Juryman having been instructed in the antiquity of Juries, is now going to enquire wherein their advantage consists. The Barrister accordingly shews the benefits which may arise from them. Thus the author performs the second part of what he proposed in the title page. + It may be of importance to add one observation here;-Though a parliament, to supply the necessities and purposes of an abandoned administration, should oppress us with taxes; while the constitution remains, in other respects, unviolated, the continuance of Juries in their legal force will secure our reputations, our personal liberties, our limbs and our lives. be broken down or neglected, an ocean of oppression and the ruins of infinite numbers of people, (as in Empson and Dudley's days) may easily follow, when on any pretence they may be made criminals, and then fined in vast sums, with pretext to enrich the king's coffers, but indeed to feed those insatiate vultures that promote such unreasonable prosecutions. But since you have taught me so much of the antiquity and excellency of juries, I cannot but crave the continuance of your favour to acquaint me somewhat more particularly of their office and power by law. Barr. I shall gladly comply with so reasonable and just a request. A jury ' of twelve men are by our laws the only 'proper judges of the matter in issue be'fore them.' As for instance, 1. That testimony which is delivered to induce a jury to believe, or not to believe, the matter of fact in issue, is called in law EVIDENCE; because thereby the jury may out of many matters of fact Evidere veritatem; that is, see clearly the truth, of which they are proper judges. 2. When any matter is sworn, or [when a] deed [is] read, or offered, whether it shall be believed, or not, or whether it be true, or false, in point of fact, the jurors are proper judges. 2. To see that the prisoner, in cases where it is permittable, be allowed his lawful challenges. 3. To advise by law, whether such matter may be given in evidence, or not; such a writing read, or not; or such a man admitted to be a witness, &c.. 4. Because by their learning and experience, they are presumed to be best qualified to ask pertinent questions, and, in the most perspicuous manner, soonest to sift out truth from amongst tedious impertinent circumstances and tautologies: they therefore commonly examine the witnesses in the court; yet not excluding the jury, who of right may, and where they see cause, ought to ask them any necessary questions; which undoubtedly they may lawfully do with modesty and discretion, without begging any leave. For if asking leave be necessary, it implies in the court a right when they list to deny it; and how then shall the jury know the truth? And since we see, that council who too often Pudet hæc opprobria nobis) for their fees strive only to baffle witnesses, and stifle truth, take upon them daily to interrogate the evidence; it is absurd to think that the Jurors should not have the same privilege, who are upon their oaths, and proper judges of the matter. 3. Whether such an act was done, in 5. As a discreet and lawful assistant to such or such a manner, or to such, or such the jury,* they do often recapitulate and an intent, the jurors are judges. For the sum up the heads of the evidence: but court is not judge of these matters, which the Jurors are still to consider whether it are evidence to prove or disprove, the be done truly, fully and impartially; for thing in issue. And therefore the wit- one man's memory may sooner fail than nesses are always ordered to direct their twelve's. He may likewise state the law speech to the jury; they being the pro- to them; that is, deliver his opinion where per judges of their testimony. And in the case is difficult, or they desire it. But all pleas of the crown, or matters cri- since, ex facto jus oritur, all matter of law minal the prisoner, is said to put himself arises out of matter of fact, so that till the for trial upon his country;' which is ex-fact is settled there is no room for law: plained and referred by the clerk of the court, to be meant of the jury, saying to them Which country you are. Jurym. Well then, what is the part of the king's justices, or the court? what are they to take cognizance of, or do, in the trials of mens' lives, liberties and properties? Barr. Their office, in general, is to do equal justice and right; particularly, 1. To see that the jury be regularly returned and duly sworn. * The author now proceeds to the exeoution of the third, and last part of his proposed plan.. +See Coke, 4th part of Instit. fol. 8. therefore all such discourses of a judge to a Jury are, or ought to be, hypothetical, not coercive; conditional, and not positive viz. If you find the fact thus or thus' (still leaving the Jury at liberty to find as they see cause) then you are to find for the plaintiff; but if you find the fact thus, or thus, then you are to find for the defendant or the like;' guilty, or not guilty, in cases criminal. Lastly, they are to take the verdict of the Jury, and thereupon to give judgment according to law. For the office of a judge (as Coke well observes) is jus dicere, * Vaughan's Reports in Bushell's case, fol. 144. not jus dare; not to make any laws by strains of wit, or forced interpretations; but plainly, and impartially to declare the law already established. Nor can they refuse to accept the Jury's verdict when agreed for if they should, and force the Jury to return, and any of them should miscarry for want of accommodation, it would undoubtedly be murder; and in such case the Jury may, without crime, force their liberty; because they are illegally confined, (having given in their verdict, and thereby honestly discharged their office,) and are not to be starved for any man's pleasure. Jurym. But I have been told, that a Jury is only judge of naked matter of fact, and are not at all to take upon them to meddle with, or regard, matter of law, but leave it wholly to the court. of murder, manslaughter, per infortunium, or se defendendo, as they see cause? Now do they not, herein, complicately resolve both law and fact? And to what end is it, that when any person is prosecuted upon any statute, the statute itself is usually read to the Jurors, but only that they may judge, whether, or no, the matter be within that statute? But to put the business out of doubt, we have the suffrage of that oracle of law, Littleton, who, in his Tenures, sect. 368, declares, That if a Jury will take upon them the knowledge of the law upon the matter, they may.' Which is agreed to likewise by Coke in his comment thereupon. And therefore it is false to say that the Jury hath not power, or doth not use frequently to apply the fact to the law; and thence taking their measures, judge of, and determine, the crime, or issue, by their verdict.† * 2. As Juries have ever been vested with such power by law, so, to exclude them from, or disseize them of the same, were utterly to defeat the end of their institution. For then, if a person should be Barr. 'Tis most true. Jurors are judges of matters of fact; that is their proper province, their chief business; but yet not excluding the consideration of matter of law, as it arises out of, or is complicated with, and influences the fact. For to say, they are not at all to meddle with, or have respect to, law in giving their verdicts, is * Before the present disputes arose, an not only a false position, and contradicted able writer of our own times considers by every day's experience; but also a this, as a settled and allowed rule. See very dangerous and pernicious one; tend- Blackstone's Commentaries, vol. I, p. 8, ing to defeat the principal end of the in-vol. III, p. 377, 378, particularly vol. IV, stitution of Juries, and so subtilly to unp. 354, 355, 4th ed. dermine that which was too strong to be battered down. 1. It is false For, though the direction, as to matter of law separately, may belong to the judge, and the finding the matter of fact does, peculiarly, belong to the Jury; yet must your Jury also apply matter of fact and law together; and from their consideration of, and a right judgment upon both, bring forth their verdict: For do we not see in most general issues, as upon not guilty-pleaded in trespass, breach of the peace, or felony, though it be matter in law whether the party be a trespasser, a breaker of the peace, or a felon; yet the Jury do not find the fact of the case by itself, leaving the law to the court; but find the party guilty, or not guilty, generally? So as, though they answer not the question singly, what is law? yet they determine the law, in all matters, where issue is joined. So likewise is it not every day's practice, that when persons are indicted for murder, the Jury not only find them guilty, or not guilty; but many times upon hearing, and weighing of circumstances, bring them in, either guilty + Not only the express assertion of lawyers and the practice of the courts prove, that Juries are authorized to determine the law, so far as it relates to the fact; but, in the third place, the words, in which verdicts must be given, indicate, that they have this power. If Juries had been ap pointed to judge of fact only, the words done,' or not done,' or words of a like import, would have been substituted for the words guilty,' or 'not guilty.' How. ever, as our ancestors have placed it in their option to determine the law, so far as it is connected with the fact: the language of their verdicts comprehends, when necessary, their sentiments upon both. If an action is said to be criminal, it is necessary to determine whether the action happened:-So that when a Jury declares that a man is guilty, the fact is implied; because they cannot affix guilt, where there is no fact. When a Jury declares a man not guilty, the determination of the fact is left uncertain; because it is unnecessary; for the law concerns itself with actions, only so far as they are criminal. From the doctrine, that Juries in the indicted for doing any common innocent act, if it be but clothed, and disguised, in the indictment, with the name of treason, or some other high crime, and proved by witnesses, to have been done by him; the Jury, though satisfied in conscience, that the fact is not any such offence as it is called, yet because, according to this fond opinion, they have no power to judge of law, and the fact charged is fully proved, they shall, at this rate, be bound to find him guilty: And being so found, the judge may pronounce sentence against him, for he finds him a convicted traitor, &c. by his peers. And thus, as a certain physician boasted that he had killed one of his patients with the best method in the world; so here should we have an innocent man hanged, drawn, and quartered, and all according to law. Jurym. God forbid that any such thing should be practised! and indeed I do not very fully understand you. Barr. I do not say it ever hath been, and I hope it never will be practised: But this I will say, that according to this doctrine, it may be; and consequently Juries may case of libels, are not judges of the law, as well as fact, necessarily flows the following absurdity; viz. that it is the duty of Juries to declare men guilty, or not guilty, in whom they perceive neither guilt, or innocence.- Again: If, because a circumstance is established as a fact, it is to be reputed as a crime, every incident which happens, is a crime. Now, if printing and publishing only be criminal, it is criminal to print and publish the Book of Common Prayer, and the Rble. -It is hard to say, on what principles this right of Juries can be disputed. If Jurymen, because not bred to the law, are supposed incapable of knowing what is, or what is not, law; it follows that none but lawyers can justly be punished for a breach of the law for surely, that man is rather unfortunate, than faulty, who ignorantly transgresses the law."-Besides, if it is wise to vest the determination of law, where it concerns facts, in the Jury when any civil or criminal suit is in question certainly it is wise to entrust the Jury with the same power, in all suits which particularly concern the state: because, in such suits, the determination is always of more consequence, and judges are more likely to be under an influence, which is injurious to the rights of the people. thereby be rendered, rather a snare, or engine of oppression, than any advantage or guardian of our legal liberties against arbitrary injustice; and made mere properties to do the drudgery, and bear the blame of unreasonable prosecutions. And since you seem so dull as not to perceive it, let us put an imaginary case; not in the least to abet any irreverence towards his Majesty, but only to explain the thing, and shew the absurdness of this opinion. Suppose then a man should be indicted, For that he as a false traitor, not having the fear of God before his eyes, &c. did, traiterously, presumptuously, against his allegiance, and with an intent to affront his Majesty's person, and government, pass by such, or such, a royal statue, or effigies, with his hat on his head, to the great contempt of his Majesty and his authority, the evil example of others, against the peace, and his Majesty's crown and dignity. Being hereupon arraigned, and having pleaded not guilty, suppose that sufficient evidence should swear the matter of the fact laid in the indictment, viz. That he did pass by the statue, or picture, with his hat on; now imagine yourself one of the Jury that were sworn to try him; what would you do in the matter? Jurym. Do? why I should be satisfied in my conscience, that the man had not, herein, committed any crime, and so I would bring him in, not guilty. Barr. You speak as any honest man would do: but I hope you have not forgot the point we were upon. Suppose therefore, when you thought to do thus, the court, or any one of your brethren, should take you up, and tell you, that it was out of your power so to do: For look ye, saith he, my masters! we Jurymen are only to find matter of fact; which being fully proved, as in this case before us it is, we must 'find the party guilty. Whether the thing 'be treason, or not, does not belong to us to enquire; it is said so here, you see, in the indictment; and let the court look to that, they know best. We are not judges of law. Shall we meddle with niceties and punctilios, and go contrary to the directions of the court? So perhaps we 'shall bring ourselves into a Præmunire, as 'they say, and perhaps never be suffered to be Jurymen again. No, no, the matter ' of fact you see is proved, and that is our business; we must go according to our evidence, we cannot do less: truly it is 'something hard, and I pity the poor man, ་ but we cannot help it,' &c. After these notable documents, what would you do now? Jurym. I should not tell what to say to it; for I have heard several ancient Jury nominated; then you are to say, he is guilty. (To be continued.) COBBETT'S men speak to the very same effect, and Parliamentary History thought they talked very wisely. Barr, Well then, would you consent to bring in the man guilty?. Jurym. Truly I should be somewhat unwilling to do it; but I do not see which way it can be avoided, but that he must be found guilty of the fact. Barr. God keep every honest body from such Jurymen! Have you no more regard to your Oath? to your Conscience? to Justice! to the life of a man? Jurym. Hold! hold! perhaps we would not bring him in guilty generally, but only guilty of the fact; * finding no more, but, guilty of passing by the statue with his hat on. Barr. This but poorly mends the matter, and signifies little or nothing for such a finding hath generally been refused by the court, as being no verdict; though, it is said, it was lately allowed somewhere in a case that required favour. But, suppose it were accepted, what do you intend should become of the prisoner? Must not he be kept in prison till all the judges are at leisure, and willing, to meet, and argue the business? Ought you not, and what reason can you give why you should not, absolutely acquit, and discharge him? Nay, I do aver, you are bound, by your oaths, to do it; by saying with your mouths to the court what your conscience cannot but dictate to yourselves, not guilty.' For pray consider, are you not sworn, That you will well and truly try, and true de liverance + make? There is none of this story, of matter of fact, distinguished from law, in your oath; but you are, 'well,' that is, fully, and truly,' that is, impartially, to try the prisoner. So that if upon your consciences, and the best of your understanding, by what is proved against him, you find he is guilty of that crime wherewith he stands charged, that is, deserving Death, or such other punishment as the law inflicts upon an offence so de OF ENGLAND. From the Norman Conquest in 1066 to the year 1803. The SEVENTH Volume of this Work, comprizing the Period from the Accession of GEO. 1. 1714, to the opening of the Sixth Parliament of Great Britain in Oct. 1722,-is now ready for delivery. ADVERTISEMENT TO THIS VOlume. THE present Volume embraces the Period from the Accession of King George the First, in the month of August 1714, to the Meeting of the Sixth Parliament ‹ of Great Britain (being the Second of the said King's Reign) in the month of Oc-" tober 1722. The Materials have been principally collected from the following Works: 1. The Journals of the House of Lords: 2. The Journals of the House ⚫ of Commons: 3. The Political State of Great Britain, by Mr. A. Boyer; of which Chandler's History and Proceedings of the House of Commons, during this period, is a careless Abridgment: 4. The Historical Register: 5. Timberland's History and Proceedings of the House of Lords: 6. Tindal's Continuation of Rapin's History of England; and, 7. Mr. Coxe's Memoirs of the Life and Administration of Sir Robert Walpole; together with the valuable original Correspondence and authentic Papers con tained therein. The whole of the very important Proceedings, relating to the fatal, South Sea Project, have been detailed with great accuracy and it is confidently presumed, that the Reader will find in the following pages, the fullest and most complete History of that disastrous • Scheme, from the first Proposition of the South Sea Company to Parliament, in January 1720, to the passing of the Bill of Pains and Penalties against the Directors of the said Company, in July 1721, that has hitherto appeared.-February 1, 1811.' Published by R. BAGSHAW, Brydges-Street, Covent Garden :—Sold also by J. BUDD, Pall-Mall, LONDON:-Printed by T. C. Hansard, Peterborough-Court, Fleet-Street, |