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“son or persons against the form, ordi, | ple in most other nations, where they “nance, or effect of any statute made and are either wholly subject to the despotic " not repealed, &c.” By colour of which arbitrary lust of their rulers; or at best • act,' saith Coke, shaking this fundamental under such laws as render their lives, li
law', (he means, touching all trials to berties, and estates, liable to be disposed be by Juries) it is not credible what of at the discretion of strangers appointed · HORRIBLE OPPRESSIONS and EX- their judges; most times mercenary, and • ACTIONS, to the undoing of MULTI- creatures of prerogative; sometimes ma• TUDES of people, were committed by licious and oppressive; and often partial • Sir Richard Empson knight, and Edmond and corrupt*. Or suppose them ever so • Dudley, esq. (being justices of the peace) just and upright, yet still has the subject " throughout England; and upon this un no security against the attacks of unconjust and injurious act, as commonly in scionable witnesses. Yea, where there is like cases it falleih out, a new office was no sufficient evidence, upon' bare sus
erected, and they made masters of the picions, they are obnoxious to the tor. • king's forfeitures.
tures of the rack, which often make an But not only this statute was justly, soon innocent man confess himself guilty, after the decease of Henry VII. repealed merely to get out of present pain. Is it by the stat. of the 1 Hen. VIII. cap. 6. not then an inestimable happiness to be but also the said Empson and Dudley (not-, born and live under such a mild and withstanding they had such an act to righteous constitution, wherein all these back them, yet it being against Magna mischiefs, as far as human prudence can Churta, and consequently void) were fair. provide, are prevented ? where none can ly executed for their pains; and several be condemned, either by the power of of their under-agents, as promoters, in- superior enemies, or the rashness or ill will formers, and the like, severely punished, of any judge, nor by the bold affirmations for a warning to all others that shall dare, of any profligate evidence; but no less on any pretence whatsoever, infringe than twelve honest, substantial, impartial our English liberties *.
For so the lord + men, his neighbours(who consequently can. Coke, having, elsewhere, with detestation not be presumed to be unacquainted either mentioned their story, pathetically con with the matters charged, the prisoner's cludes; • Qui eorum vestigiis insistant, exitus course of life, or the credit of the evi* per horrescant. Let all those who shall dence) must first be fully satisfied in their
presumé to tread their steps, tremble at consciences, that he is guilty; and so all • their dreadful end.' Other instances unanimously pronounce him upon their of a later date might be given, but I sup- oaths ? Are not these, think you, very pose these may sulfice.
material privileges ? + Jurym. Yes, surely ; and by what Jurym. Yes, certainly ; though I never you have discoursed of the long-continued so 'well considered them before. But use of Juries, and the zealous regards our now I plainly see our fore-fathers had, ancestors had not to part with them, I per- and we still have, all the reason in the ceive that they were esteemed a special world to be zealous for the maintenance privilege. Be pleased, therefore, io ac and preservation thereof from subversion or quaint me, wberein the ercellency and encroachments, and to transmit them enudvantages to the people, by that method tire to posterity. For if once this bark of trial above others, may consist,
Barr. This question shews you have * See all this excellently made out been much conversant-abroad to observe and more at large by the L. C. J. Fortescue. the miserable condition of the poor peo afterwards Chancellor to K. Hen. VI.
in his Bock De lrudibus Legum Angliæ, cap. * See Sir Rich. Buker's Chron. p. 254, 26, 27, 28, 29. printed in 1674.
† It may be of importance to add one + 4 pari Institut. fol. 41.
observation here;– Though a parliament, The Juryman having been instructed
to supply the necessities and purposes of in the antiquity of Juries, is now going to an abandoned administration, should openquire wherein their advantage consists. press us with taxes; while the constitution The Barrister accordingly shews the be- remains, in other respects, unviolated, tbe nefits which may arise froin them. Thus continuance of juries in their legal force the author performs the second part of will secure our reputations, our personal what he proposed in the title page. liberries, our limbs and our lives.
be broken down or neglected, an ocean 2. To see that the prisoner, in cases of oppression and the ruins of infinite where it is permittable, be allowed his lawnumbers of people, (as in Empson and ful challenges. Dudiry's days) may easily follow, when on 3. To advise by law, whether such any pretence they may be made crininals, matter may be given in evidence, or not; and then fined in vast sums, with pretext to such a writing real, or not; or such a enrich the king's coffers, but indeed to man admitted to be a witness, &c., feed those insatiate vultures that promote 4. Because by their learning and exsuch unreasonable prosecutions. But perience, they are presumed to be best quasince you have taught me so much of the lified to ask pertinent questions, and, in antiquity and excellency of juries, I cannot the most perspicuous manner, soonest to but crave the continuance of your favour sift out truth from amongst tedious imperto acquaint me somewhat more par- tinent circumstances and tautologies : they ticularly of their office and power by law. therefore commonly examine the witnesses . Barr. * I shall gladly comply with so in the court; yet not excluding the jury, reasonable and just a request. pA jury who of right may, and where they see
of twelve men are by our laws the only cause, ought to ask them any necessary proper judges of the matter in issue be questions; which undoubtedly they may .fore them. As for instance,
lawfully do with modesty and discretion, 1. That testimony which is delivered without begging any leave. For if asking to induce a jury to believe, or not to be- leave be necessary, it implies in the court a lieve, the matter of fact in issue, is called right when they list to deny it; and how in law EVIDENCE; because thereby then shall the jury know the truth? And the jury may out of many matters of faci since we see, that council who too often Evidere veritatem; that is, see clearly the Pudet hæc opprobria nobis) for their truth, of which they are proper judges. fees strive only to baffle witnesses, and
2. When any matter is sworn, or (when stifle truth, take upon them daily to intera) deed [is] read, or ofered, whether it rogate the evidence; it is absurd to think shall be believed, or not, or whether it that the Jurors should not have the same be true, or false, in point of fact, the jurors privilege, who are upon their oaths, and are proper judges.
proper judges of the matter. 3. Whether such an act was done, in 5. As a discreet and lawful assistant to soch or such a manner, or to such, or such the jury,* they do ofien 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 sull 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 fucto 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 ihe clerk of the therefore all such discourses of a judge to court, to be meant of the jury, saying to a Jury are, or ought to be, hypothetical, them - Which country you are.
not coercive; conditional, and not posiJurym. Well then, what is the part of tive : viz. • If you find the fact thus or the king's justices, or the court? what are • thus' (still leaving the Jury at liberty to they to take cognizance of, or do, in the find as they see cause) then you are to trials of mens' lives, liberties and proper- ' tind for the plaintiff; but if you find the ties?
'fact thus, or thus, then you are to find Barr. Their office, in general, is to do for the defendant or the like ;' guilty, equal justice and right; particularly, or not guilty, in cases criminal.
1. To see that the jury be regularly re Lastly, they are to take the verdict of turned and duly sworn.
the Jury, and thereupon to give judgment
according to law. For the office of a * The author now proceeds to the exe judge (as Coke well observes) is jus dicere, oution of the third, and last part of his proposed plan.
Vaughan's Reports in Bushell's case, + See Coke, 4th part of Instit. fol. 84. fol. 14%. :
not jus dare; not to make any laws by of murder, manslaughter, per infortunium, or strains of wit, or forced interpretations ; se defendendo, as they see cause ? Now do but plainly, and impartially to declare the they not, herein, complicately resolve both law already established. Nor can they law and fact? And to what end is it, that refuse to accept the Jury's verdict when when any person is prosecuted upon any agreed : for if they should, and force the statute, the statute itself is usually read to Jury to return, and any of them should the Jurors, but only that they may judge, miscarry for want of accommodation, it whether, or no, the matter be within that would undoubtedly be murder ; and in statute ? But to put the business out of such case the Jury may, without crime, doubt, we have the suffrage of that oracle force their liberty; because they are ille- of law, Littleton, who, in his Tenures, sect. gally confined, (having given in their ver- 368, declares, " That if a Jury will take dict, and thereby honestly discharged their upon them the knowledge of the law upon the office,) and are not to be starved for any • matter, they may. Which is agreed 10 man's pleasure.
likewise by Coke in his comment thereJurym. But I have been told, that a Jury upon.
And therefore it is false to say is only judge of naked matter of fact, and that the Jury hath not power, or doth not are not at all to take upon them to meddle use frequently to apply the fact to the with, or regard, matter of law, but leave it law; and thence taking their measures, wholly to the court.
judge of, and determine, the crime, or Barr. 'Tis most true. Jurors are judges issue, by their verdict.t of matters of fact; that is their proper 2. Aš Juries have ever been vested with province, their chief business ; but yet such power by law, so, to exclude them not excluding the consideration of matter from, or disseize them of the same, were of law, as it arises out of, or is complicated utterly to defeat the end of their instituwith, and influences the fact. For to say, tion. For then, if a person should be 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 un p. 354, 35.5, 4th ed. dermine thal which was too strong to be + Not only the express assertion of lawbattered down.
yers and the practice of the courts prove, 1. It is false : For, though the direc. that Juries are authorized to determine tion, as to matter of law separately, may the law, so far as it relates to the fact ; belong to the judge, and the finding the but, in the third place, the words, in which matter of fact does, peculiarly, belong to verdicts must be given, indicate, that they the Jury ; yet must your Jury also apply have
have this power. If Juries had been apmatter of fact and law together; and from pointed to judge of fact only, the words their eonsideration of, and a right judg. done,' or not done,' or words of a like ment upon both, bring forth their verdict : import, would have been substituted for For do we not see in most general issues, the words "guilty,' or 'not guilty.' How as upon not guilty-pleaded in trespass, ever, as our ancestors have placed it in breach of the peace, or felony, though it their option to determine the law, so far be matter in law whether the party be a as it is connected with the fact : the lantrespasser, a breaker of the peace, or a guage of their verdicts comprehends, when felon; yet the Jury do not find the fact of necessary, their sentiments upon both. If the case by itself, leaving the law to the court; an action is said to be criminal, it is nebut find the party, guilty, or not guilty, cessary to determine whether the action generally ? So as, though they answer not happened :-So that when a Jury declares the question singly, what is law? yet they that a man is guilty, the fact is implied; ' determine the law, in all matters, where because they cannot affix guilt, where josue is joined. So likewise is it not every there is no fact. When a Jury declares a day's practice, that when persons are in man not guilty, the determination of the dicted for murder, the Jury not only find fact is left uncertain ; because it is u. them guilty, or not guilty ; but many necessary; for the law concerns itself with times upon hearing, and weighing of cir actions, only so far as they are criminal. cumstances, bring them in, either guilty From the doctrine, that Juries in the
indicted for doing any common innocent thereby be rendered, rather a snare, or act, if it be but clothed, and disguised, in engine of oppression, than any advantage the indictment, with the name of treason, or guardian of our legal liberties against or some other high crime, and proved by arbitrary injustice; and made mere prowitnesses, to have been done by him; the perties to do the drudgery, and bear the Jury, though satisfied in conscience, that blame of unreasonable prosecutions. And the fact is not any such offence as it is since you seem so dull as not to perceive called, yet because, according to this fond it, let us put an imaginary case; not in opinion, they have no power to judge of the least to abet any irreverence towards law, and the fact charged is fully proved, his Majesty, but only to explain the thing, they shall, at this rate, be bound to find and shew the absurdness of this opinion. him guilty : And being so found, the judge --Suppose then a man should be inmay pronounce sentence against him, for dicted, For that he as a false traitor, not he finds him a convicted traitor, &c. by having the fear of God before his eyes, &c.
And thus, as a certam physi-did, traiterously, presumptuously, against cian boasted that he had killed one of his his allegiance, and with an intent to afpatients with the best method in the world; front his Majesty's person, and governso here should we have an innocent man ment, pass by such, or such, a royal hanged, drawn, and quartered, and all ac- statue, or effigies, with bis hat on his head, cording to law.
to the great contempt of his Majesty and Jurym. God forbid that any such thing his authority, the evil example of others, should be practised ! and indeed I do not against the peace, and his Majesty's crown very fully understand you.
and dignity. Being hereupon arraigned, Barr. I do not say it ever hath been, and and having pleaded not guilty, suppose I hope it never will be practised : But this that sufficient evidence should swear the I will say, that according to this doctrine, matter of the fact laid in the indictment, it may be; and consequently Juries may viz. That he did pass by the statue, or pic
ture, with his hat on; now imagine yourcase of libels, are not judges of the law, self one of the Jury that were sworn to as well as fact, necessarily flows the fol- try him ; what would you do in the lowing absurdity; viz. that it is the duty matter? of Juries to declare men guilty, or not Jurym. Do ? why I should be satisfied guilty, in whom they perceive neither in my conscience, that the man had not, guilt, or innocence. -Again : If, be- herein, committed any crime, and so I cause a circumstance is established as a would bring him in, not guilty. fact, it is to be reputed as a crime, every Barr. You speakas any honest man would incident wbich happens, is a crime. Now, do: but I hope you have not forgot the point if printing and publishing only be crimi- we were upon. Suppose therefore, when nal, it is criminal to print and publish the you thought to do ihus, the court, or any Book of Common Prayer, and the Bible. one of your brethren, should take you up. -It is hard to say, on what principles this and tell you, that it was out of your power right of Juries can be disputed. « If Ju so to do: . For look ye, saith he, my masfymen, because not bred to the law, are ters! we Jurymen are only to find matsupposed incapable of knowing what is, or 'ter of fact ; which being fully proved, what is not, law; it follows that none but as in this case before us it is, we must lawyers can justly be punished for a find the party guilty. Whether the thing breach of the law : for surely, that man is be treason, or not, does not belong to us rather unfortunate, than faulty, who ig- to enquire; it is said so bere, you see, in norantly transgresses the law." -Besides, the indictment; and let the court look to if it is wise to vest the determination of that, they know best. We are not judges law, where it concerns facts, in the Jury of law. Shall we meddle with niceties when any civil or criminal suit is in ques and punctilios, and go contrary to the tion : certainly it is wise to entrust the • directions of the court? So perhaps we Jury with the same power, in all suits shall bring ourselves into a Prævunire, as which particularly concern the state: be they say, and perhaps never be suffered: cause, in such suits, the determination is 'to be Jurymen again. No, no, the matter always of more consequence, and judges of fact you see is proved, and that is our are more likely to be under an influence, business; we must go according to our which is injurious to the rights of the evidence, we cannot do less : truly it is people.
something hard, and I pity thc poor man,
..but we cannot help it,' &e. After these | nominated; then you are to say, he is notable documents, what would you do guilty. (To be continued.) now? Jurym. I should not tell what to say to
COBBETT'S it; for I have heard several ancient Jury
men speak to the very same effect, and Parliamentary History
thought they talked very wisely.
Burr, Well then, would you consent to bring in the man guilty ?.
ENGLAND, Jurym. Truly I should be somewhat un- From the Norman Conquest in 1066 tó willing to do it; but I do not see which the year 1803. The SEVENTH Volume way it can be avoided, but that he must of this work, comprizing the Period from be found guilty of the fact.
the Accession of GEO. 1. 1714, to the Barr. God keep every honest body from opening of the Sixth Parliament of Great such Jurymen! Have you no more
Britain in Oct. 1722,-is now ready for gard to your Oath to your Conscience delivery. to Justice ! to the life of a man?
ADVERTISEMENT Jurym. Hold! hold! perhaps we would not bring him in guilty generally, but only
TO THIS VOLUME. guilty of the facı; * finding no more, but, THE present Volume embraces the guilty of passing by the statue with his · Period from the Accession of King George hat on.
the First, in the month of August 1714;" Barr. This but poorly mends the matter, to the Meeting of the Sixth Parliament and signifies little or nothing: for such a of Great Britain (being the Second of the finding bath generally been refused by said King's Reign) in the month of Octhe court, as being no verdict; though, it tober 1722. The Materials have been is said, it was lately allowed somewhere in principally collected froni the following a case that required favour. But, suppose « Works : i. The Journals of the House it were accepted, what do you intend of Lords: 2. The Journals of the House should become of the prisoner? Must of Commons: 3. The Political State of not he be kept in prison till all the judges · Great Britain, by Mr. A. Boyer; of are at leisure, and willing, to meet, and · which Chandler's History and Proceedargue the business? Ought you not, and ings of the House of Commons, during what reason can you give why you should < this period, is a careless Abridgment : not, absolutely acquit, and discharge him? «4. The Historical Register: 5. TimberNay, I do aver, you are bound, by your land's History and Proceedings of the oaths, to do it; by saying with your mouths - House of Lords: 6. Tindal's Continuato the court what your conscience cannot - tion of Rapin's History of England : and, but dictate to yourselves, ' not guilty. For 7. Mr. Coxe's Memoirs of the Life and pray consider, are you not sworn, That · Administration of Sir Robert Walpole ; you will well and truly try, and true de. together with the valuable original Corliverance † make? There is none of this respondence and authentic Papers constory; of matter of fact, distinguished from tained therein. law, in your oath; but you are,
"well,' • The whole of the very important Prothat is, fully, and truly,' that is, inparti ceedings, relating to the fatal South Sea ally, to try the prisoner. So that if upon Project, bave been detailed with great your consciences, and the best of your accuracy: and it is confidently preunderstanding, by what is proved against sumed, that the Reader will find in the him, you find he is guilty of that crime following pages, the fullest and most wherewith he stands charged, that is, de complete History of that disastrous serying Death, or such other punishment Scheme, from the first Proposition of the as the law inflicts upon an offence so de • South Sea Company to Parliament, in
January 1720, to the passing of the Bill ** Is not this exactly similar to a late of Pains and Penalties against the Direcverdict given in the case of the King tors of the said Company, in July 1721, against Woodfall ?
that has hitherto appeared.-- February 1, + Of their verdict, this is meant.
Published by R. BAGSHAW, Brydges-Street, Covent - Garden :-Suld also by J. BUDD, Pall-Mall,
LONDON :- Printed by T. C. Hapsard, Peterborough-Court, Fleet Street,