A GUIDE TO JURIES: Setting forth their Antiquity, Power and Duty, From the Common-Law and Statutes. With a TABLE.  
By a Person of Quality.  
ALSO A LETTER, to the Author, upon the same SUBJECT.  
London, Printed for Tho. Cockerill, at the Bible and Three-Leggs, over against Grocers-Hall in the Poultry. 1699.   

To all Honest JURYMEN.  
Gentlemen,  
IN a Word, You are England's Ephori, and Tribuni; The Boundaries of Prerogative and Privilege, and the living Bulwark of the Laws. Your Honour is Eclipsed, is unaccountably 
* Learned Dr. Cowel, in word Jury, speaks of Juries being (in his own words) Associates and Assistants to the Judges of the Court (anciently) in a kind of Equality; whereas, now adays (saith he) they attend them in great Humility, &c Citing also Lamb. and Cust. of Normandy agreeing with them.  shrunk: The Office yet is great: Here's demonstrated the great Privilege you be, that it may be seen how much all Englishmen ought, in Interest, to Value and Encourage you. Here's set forth What and How you may do, and What and How you may not Do, under what Penalties: Also the History of the Whole. The King is graciously pleased to Declare, He will Govern by Law; Is't fit you should know how to Govern yourselves according to Law. This is Concise, and a Breviate, rather than a Book, that, should it meet with a queasy Stomach, little Purse, or narrow Soul, the same might not stumble at it. If any thing by this means happen so general, as admit of any Exception, you may expect it in some other, if not in the same place. It's chief about Criminal Causes, where the King's Name's used for that of the Plaintiff, because, most Difficult and Greatest Concern; But is serviceable and sufficient for others too. It may, at least, serve to Stir up, and to Foil, if not Assist learneder Hands. Adieu.   

THE INDEX.  

ANtiquity of Juries, Pag. 1, 2.  
Assistants Judges be to Juries, 18, 19, 20, 26.  
Attaint lies for following Judges directions, 27.  
Age of a person tryable by Judges or Jury, 27, etc.  
Attaint lies not, where Witnesses were not sworn, 32. nor in Appeals, 32. is tried by 24 Men.  
According to the best of one's knowledge, what, 41, 42.  
Appeal is dangerous to bring, 45, 46.  
Affirmatives are not to be Sworn against, directly, 90.  
Altering Indictments is common, and how, 97, etc.  
Alteration may be of any thing, that is Recorded in Court, 102.  
Alteration by a petty Jury to make a fault less, 102.  
Billa vera mean what, etc. 40, 43, 50, 51, 52, 54.  
Challenge to Jurors, when and how, 6, to Jndges anciently, 10.  
Confirmation of Trial by Juries, 58 times, 12.  
Conclusion of the Jury against their Premises, void 18.  
Contempts in a Jury, punishable, 31.  
Concealment in Juries, where, and how punished, 32.  
Charge to Juries, 38, 39  
Circumstances alleged must be consistent, 64, 65, and when must be proved, 64, etc.  
Credit of Witnesses cousidered, 76, 77, 79, 80, 86, etc.  
Confession before trial, no Evidence, 87.  
Differences of Opinions oft on the same matter, 25.  
Directions of Judges ought not always be followed, 26.  
Discretion in Fining, etc. how understood, 33.  
Duty of Judges, 30, 31, 37, 38.  
Doubtful Cases are for Defendant, 50, etc.  
Difference in proof from the Accusation, 76 etc. which is material, and which immaterial, 77.  
Evidence is what, 75. its Credit and Authority is to be considered, 76, 77, 79, 80, 86, etc. it's extent must be well considered, 29, 30, can't be directly against an Affirmative, 90. Confession before trial is none, 87. is Juries own knowledge, 22, etc. 35, and saying and Swearing what's Law is none, 26.  
Embracery is punishable in them, 32.  
Error of Judgement is not punishable, 64.  
Estopels bind not Juries, 91.  
Examination of Witnesses ought to be by Juries, 91, 92.  
Fact is determined by Juries, not Judges, 13, etc.  
Fine at Discretion is what, 33.  
Fault must be considerable, 40, 62, etc. by Compulsion, of necessity, involuntary ignorance, etc. not punishable, 67.  
Felony is what, and how 69.  
Fraudulent sales, &. void, 99  
Hearing both parties, 54, etc.  
Implied is what, 66, etc.  
Judge's ought be able and upright, 2. hold their places at King's pleasure, 2, 3. are not punishable, 4. ought not be concerned where King is party, 12. meddle not with matter of fact, 13, etc. are but Assistants to Juries, 18, etc. 26. ought not influence Juries, 20, etc. 24, 26, 30, 31. their duty, 30, 31, 37, 38. say what shall be given as Evidence, 88  
Juries who may be of, 4, 5. anciently Knights only, 5, chosen by Sheriff or Coronor, 5, as capable as Judges or more 11. they only determine Fact. 13. and sometimes Law too, 17. sometimes called Judges, 20. ought not be biased, 35, etc. are Judges of the Credit of Testimony, 88 are bound by their own sense, 24.  
Indictment what and how, 39 ought not be found of course, 41, etc. is a trial as well as another, 44. is great damage to the party, 45.  
Ignorance in Juries excuses not, 53.  
Ignoramus means what, etc. 40, 50, 51, 52, 97.  
Knights were only on Juries anciently, 5.  
Legales, signifies what, 4, 5.  
Liberi is what, 4.  
Law is but improved and refined Reason, 27.  
Law determined by Jury, 17.  
Mercy is Justice. 49, etc.  
Material Circumstances, which, 64. difference, which, 77, etc.  
Number on a Jury indefinite anciently, 8. but now is Twelve, p. 9, etc. Of Judges determining any thing, was anciently Twelve; Of Witnesses ought to be Two, 80, etc.  
Negatives can't be Sworn, 90.  
Oath of Juries, its Form, 34. how must be performed, 35, 36. unalterable, but in Parliament, 42.  
Punishment is none for Judges, 4. for Juries in Civil Causes is by Attaint, 4. Juries punishable scarce any wise else, 28. etc. 31. 32. Quare, 53. are punishable for Contempts, Embracery, etc. 32. and the Grand Jury for wilful Concealments in a Sessions of Peace, 32. or for discovering their Evidence, etc. 33. are for refusing to be Sworn on the Jury, 43. or giving a Verdict Twelve, at last not agreed, 33. no punishment for Error in Judgement, 64. is what for Perjury, 85, 94. none for a Jury above Twelve, 32.  
Parliament can hardly take away Juries, 16.  
Perjury is what, and how, 25, 26, 38, 39  
Presentment is what, and how, 39  
Present is the same as say, 43.  
Peers exceedingly suffer by Indictments, 46. their future Judge and Jury are all without Oath; can't except against, or Challenge any of their Jury; if the major part of their Jury agree, it's enough, 47.  
Presumption of nothing but innocency, etc. 49, 73, 81.  
Proof of what Circumstances is requred, 64. etc. it ought be full and plain, 76, 79, 80. ought be very particular, and full upon a Statute, 76. differing from what one's accused of, 77, 78, 79. what is sufficient, 78, 79.  
Punishment was what anciently for Perjury, 94. Judges, 95. Lawyers, 94, 95.  
Records are Evidence, though Jury only know of them, 13.  
Special Verdict how, 14.  
Sense of the Jury themselves upon things is to Govern them, 24. of words, that must be taken which of most innocency, 78.  
Trial by Juries most safe, etc. 2, etc. is in effect twice, in Cases of Life, Member, etc. 7. 44. by one's Peers, why, 6, by Ordeal, etc. when, 51.  
Trial of one's Age, by Judge or Jury. 27, etc.  
Verdict of Petit Jury may lessen, not enlarge a Fault, 102.  
Verdicts must be positive what the fact is 13, 14, and special what and how be, 14, 97, etc.  
Value 1 s. anciently, was more than 40 s. now, 15.  
Vera signifies true, 43.  
Verdict General which and how, 97. etc.  
Verdict in Case of Life, or Member must be given in Court, only, 102.  
Words of form so called must be examined, 34, etc. 59, etc. which be such, 64.  
Witnesses ought be examined by Jury, 87, 91, and who be capable to be Witnesses, 86, etc. Judges determine who shall be Sworn, 88, must be two 80, etc.    

A GUIDE TO JURIES.  
OF what Date Juries be, is the same to say, as when was England first Inhabited, altogether uncertain. But that their Antiquity herein England runs to and beyond the Norman Conquest, among the Danes, the Saxons, and the Britain's, is most certain. Olaus Magnus, Olaus Wormius, Verteganus, Fortesc. Co. Lit. etc.  
The Saxons conquering the Britain's, mixed their Customs with the British, so the Danes those British and Saxon one's with theirs, and the Normans all these with theirs; every Conqueror making some alteration. Yet this Law was, and from time to time hath been preserved and continued an Inheritance indisputable and Sacred unto us through all Revolutions, without any Interruption.  
None but must acknowledge this of all others, the best and most effectual way to find out Truth. There is no other Way or Art in the whole World, says Fortescue, so remote from all Danger of Subornation and Corruption, 75.  
Aaron had, it's true, in plain Letters of Gold, Vrim and Thummim wrote on his Breast, signifying what he either had, or ought have had, lucem in monte, ac in voluntate rectitudinem, Ability in Parts, and Integrity in Practice. But have always all other Judges since had such Parts and Practices? Their Interests, Ambition, Pleasures, other Passions and Frailties influenced them too much, rather sufficient enough to render them, as the Prophet Isaiah, c. 33. v. 15. says, Idols with Eyes, Ears and Mouths, viz. Such as would neither hear the People's Complaints, regard the Oppressed, nor pronounce a just Judgement. Judges have Places and Preferments so extraordinary Honourable and Profitable: And what's their Tenure? Even during Pleasure, a term for so long as they do nothing but what and as pleases, etc. and do every thing which and as does please, etc. And whose Pleasure must it be? Truly every ones too, that any how has or can make any Interest, etc. Thus a short Syllogism proclaims them little other than Bondslaves to such men's pleasures, and menaces the People with the worst of all Miseries, Law-oppression, Oppression under colour of Law; unless it be conceivable men's pleasures were to have the Judges give Sentence against them. Judge's also were all Lawyers we know, used just before to take Fees, it's the more therefore all forget it now. Judges are concerned in so many Causes, they are subject to be tempted the oftener, and every Temptation is the greater, because they know, if would yield, their gain might be so often. Judges are so few, it's plain they may the easier be Corrupted. Judge's can't want Courage, they think themselves liable to no Action, etc. in any case, do what they will, but are absolutely dispunishable, Co. 12. 24, 25. Hutton. Whereas a Jury on the other side, if it err, in many cases it's liable to an Attaint, the greatest Funishment they know on this side Death. A Jury consists of many Persons. Those which be Jurymen in one Case, yet may be in few more. They be Men of other Professions, used never in any Case to take Fees, etc. They are not prejudiced with fear of losing their Offices, etc.  
And to further manifest the difference of Trial by Judges, and of this by Juries, Jurymen all are, and must be Liberi etc. legales homines: Liberi free of, and from all manner of Bondage, Obligations, Affections, Relations, Passions, Interests, and other Prejudices whatsoever, (as indeed it's ill Fishing in muddy or troubled Waters:) Legales, ones Peers or Equals, Mag. Ch. c. 29. West. 1. c. 6. Of full 21 Years old, not Outlawed, never Attainted or Convicted of Treason, Felony, False-Verdict, Perjury, any Conspiracy at King's-Suit, nor ever Adjudged to the Pillory, Tumbril. etc. whereby rendered Infamous; nor any Alien (unless an Allen be Tried, etc.) But such others as be most nigh, most sufficient, and least suspicious, 28 E. 1. c. 9 F. N. B. 165. Dy. 59 34 E. 3. c. 4. Regist. 177. 8 E. 3. 30. They were Anciently all Knights, Glanvil. l. 2. c. 14, 15. Bract. 116. They are, and must be yet Persons of Honour and Repute, 1 R. 3. c. 4 Brit. 39 Mir. 117, 118. 11 H. 7. 41. Young 116. 11 H. 4. 35. Stanf. 88 And Si l' Enditement ne the'rt een fait de croyable gens & de bone fame, n'est nul tenus à cette respondrue. If an Indictment be found, but not by Credible People, and those of good Repute, no Body's bound to take notice of it, Mir. 200. They must be such Persons as are named and returned at the Election of the Sheriff or Coroner. They must be every one Sworn every several Trial, and that in and by a particular Oath. If any of the Grand Jury be as aforesaid, any wise amiss, what they do is quashed and made void on bare motion to the Court. If any of the Petty-Jury happen so, Party by Challenging of them, as appear to be Sworn, either sets aside the Panel, viz. all of them, or may any of them, by taking Exception to the Poll, viz. to them severally, as the Case falls out; and peremptorily, without showing any Cause, may Challenge and set aside as many as will, under 36, in case of High-Treason or Misprision of High-Treason; or under 21, in case of any Felony. And showing any such Cause as aforesaid, as many as will, in any Case whatsoever, Co. L. 156. Now they are such Elect and Choice Men, because of the great Trust reposed in them: And must be Equals, that the Defendant may the better speak to, and expostulate with, or reflect upon them, if do amiss. And that they may not be over awed, etc. by's being greater than them; (whereas Magna stupem, superiora perstringunt. Greater things confound and astonish us, and things above us dazzle our Eyes.) Nor be careless or perfunctory for his being much less than them, (Inferiora ut exigua & minima contemnimus. We are apt to slight things beneath us, as small and contemptible, or inconsiderable.) And must be of the Neighbourhood, that coming from nigh where the Question arises, the Defendant, in all probability, may have the better knowledge of them, to except against, or to approve of them; and such may also the more likely know somewhat themselves of the Party, of the Matter, of the Credit of the Witnesses, and all Circumstances. Lex intendit vicinus vicini facta sciat. Co. L. 78. Thus if the Place happen disputable, whence the Jury shall come, they shall come from whence the matter is like best to be known, 21 E. 4. 8. Besides, in this way of or by Jury, where Life or Member is concerned, or in any danger, and in all other Criminal Causes, is required two Trials of the Party before he can be said Guilty, or any Judgement can be given against him: and the Party must also be found to be Guilty on both these Trials, else all is nothing. The Grand Jury must first Examine the matter, and the Petty-Jury after Examine all again, to prevent and secure against all Surprises of the Party, and Mistakes or Errors in the Jury. It seems as if very Anciently the number on a Jury was indefinite, but it was all the Persons present, come as would come, Brit. N. Bacon, etc. Like as of Old it was here of those we now call the House of Commons: Concil. Brit. 350. Ingulph. etc. And in the Trials at Rome, where Vox Populi was the Verdict, (except in Case of a Senator, which indeed was Tried by his Peers, other Senators.) Hence probably it was, that all Courts were at first to be open, and so accessible. Likewise Deut. 19 and some other Texts of the Old Testament, seems as if the Trial amongst the Jews were so: But in Analogy of late it's reduced to the number of twelve, like as the Prophets were twelve, to foretell the Truth, the Apostles twelve to preach the Truth; the Discoverers twelve, sent into Canaan to seek and report the Truth; and the Stones twelve, that the Heavenly Jerusalem is Built on: And as the Judges were twelve anciently to Try and Determine matters of Law, and always when there is any wageing Law, there must be twelve to Swear in it; and also as for matters of State, there were formerly 12 Councillors of State. And any thing now which any Jury can be said to do, must have the joint consent of twelve, West. 2. c. 13. Else it's in construction of Law, not the doing of the Jury, but of Private Persons, and void. Mir. 42. 200. 41. Ass. 11. 6 H. 4. 2. 21 E. 3. 31. 29 E. 3. 43. Finch. 58. The Grand Jury consists of more Persons commonly than twelve, but as aforesaid twelve agreeing, it's enough, and so many of them must. So that by the Law of Juries 24 Men in all, first and last, find one Guilty, etc. before the Judgement can be given, or one can be punished for the Fault one's accused of. And besides, every Man of the latter Jury, even all the whole twelve, must all and every of them agree, and be of that one and only Mind; (much to suspect, unless one be certainly and plainly Guilty. It's more for all twelve, than for twenty nine out of thirty to agree) Any of the Grand Jury giving in a Presentment or Indictment, without eleven more of the same Mind, and agreeing with him, aught to be Imprisoned, 40. Ass. 10. which also for any one of the Petty-Jury to do, none will deny but to be worse. A Judge was Hanged for giving Judgement on the Verdict of eleven Jurymen, Mir. 296. But on the other side, the Judges are not so many at a Trial scarce ever, the major part of them agreeing, it's enough; their Trial would be but one, or once only; they are never sworn at the Trial, nor ever at all, but only once, and that exceeding generally; they cannot any of them be excepted against, or Challenged, (though Anciently might, Lamb. Mir. Bract. Flota) be they never so great strangers, professed Enemies, and otherwise ill qualified; and though the King be Party, yet chooses them himself against one.  
Besides, if Judges had Power of both determining the matter of Fact, and also the matter of Law, as must, if were no Juries, their Latitude of Erring, etc. must then be the greater, and their doing wrong or mischief might be the more, in as much as might wrong one then in both the Fact and Law; and their Encouragement so to do, would be Improved, since than it must be harder to detect them, as whether erred in the Fact, or in the Law, or partly in both; like as it's easier seeking a Bush than a Wood: And as it's said, Occasio facit furem: Opportunity makes many a Whore. But were Judges presumed Saints, and never so upright, etc. yet who can imagine but at a Trial, when Witnesses are all Examined, and Evidence all given, the Jury being so many Persons, and probably knowing something of the matter before, they may all assisting one another better observe, remember, and judge upon the whole matter, than any one or two, etc. others, though called Judges? Certainly one may do more with help than without. So the Proverb is, Ne Hercules quidem contra duos; oculi plus oculo vident: Two to one is odds at Football: And, Non omnes sed pauci decipi aut decipere possunt, The fewer may the more easily deceive, or be deceived Quandoque bonus dormit at Homerus. Nemo sine Crimine vivit. Humanum est errare. It's natural for Man to err. None's without fault, and the surest Foot may slip.  
Visc. St. Alban, Aph. 8. says, That's the best Law, which leaves the least to the Arbitrariness of a Judge; and Bract. 119. says, Judges represent the King's Person, they are his Officers, and Act in his stead, (and hence concludes) they ought not at all be concerned in Causes of Life or Member, etc. (Where the King's Party) for, says he, the King is thus Judge as it were in his own Cause.  
Thus appears what is the Difference of Judges and Juries, and something of the Reason why the Parliament has all along been so Zealous for Trials by Juries, as no fewer than 58 several times since the Norman Conquest, hath established and confirmed the Trial by Juries; no one Privilege else nigh so often remembered in Parliament.  
Now, for the Power and Authority of Juries, and how the Wisdom of the Law hath entrusted and enabled them in this Trial. The Law says, in Trials, whether any Complaints as made, or any matter as alleged be true or not, the Judges ought not, nor can say, nor have any thing at all to do therewith, but the Jury only. Ad questionem facti non respondent judices. All the whole, or most they can do, or at least ought, is only after and upon what the Jury, or the Parties themselves agree first to be true. What the Jury does, is called Verdictum, Veridictum, the declaring of what is the Truth in the Matter. What the Judges do, is called Judicium, Juris dictum, the telling only of what is the Law. Thus it is, that every finding of the Jury as their Verdict, etc. must be positive, what the Fact and Party's intent, etc. was, and not saying only what their Evidence is, that it was; for the Judges can't even so far meddle with, or take Conusance of the matter of Fact, as but to say, than the Fact, Case, etc. is so and so, if you agree, your Evidence to be so and so, and accordingly give Judgement. Co. 9 Downham's c. Co. 10. Oxford c. Benlow. 3 E. 6. Isaac & Clerks c. Hob. 167. As A. delivers B. Goods, and after demands them again of B. but he refuses to deliver them again; if A. sues B. for finding these Goods, and converting them to his own Use; the Judges will tell the Jury, since B. refuses to redeliver them, this is Evidence enough to find him Guilty of converting them to his own Use, etc. and is in Law a Conversion. But if the Jury gave their Verdict, etc. specially, as that A. delivered B. the Goods, and after redemanded them, but B. refused the delivering of them back, without saying positively B. converted them to his own Use, or not saying generally, we find for the Plaintiff, which is tantamount, the Judges can't say and judge B. Guilty, etc. but must discharge him. So where in a Trial, fraud is pretended by one Party done, etc. by the other, the Judges will tell the Jury, such and such parts of the Evidence prove the Fraud, or in construction of Law are Fraud. But if the Jury give their Verdict specially, that such and such things are true, (which the Judges said prove the Fraud) and not saying positively there was Fraud, the Judges can't say or judge Fraud, nor take the least notice of any thing as such. In the case of Roger Mortimer in Parliament, Ao. 1 E. 3. it was adjudged there, 28 E. 3. n. 10. that the matters he was accused of, though were notorious, and known to them all in Parliament, and all People else, yet they could not give Judgement upon this, nor any time ought proceed on any knowledge of their own. One Condemned of Trespass in the Common-Pleas, the Judges seeing him in Court, and knowing him never so well, yet it was adjudged, if he deny himself to be the same Person, they can't say he is, and so cause him apprehended; because they can't judge of any thing, nor take notice, but only of what is upon Record before them, 33 H. 6. 55. Thus if A. be Indicted of stealing five shillings, 
In Henry the Third's time, 1 s. was as much as 40 now, and before then, more; yet the Law was then, one must steal above the value of 1 s. to be Gullty of Felony: So that Merciful Juries now value by the Ancient shilling, and save many, not Guilty of above the value of 40 s. present Money.  the Jury may give a Verdict, that he is Guilty of stealing the five shillings, but only to the value of ten pence; and the Judges here can't say, the five shillings were more worth or less, though never so apparent. King Henry the fourth ask Judge Gascoyn, what if he saw A. kill B. and the Jury will find not that A. killed B. but that C. did? He answered, I can only Reprieve C, and then intercede with your Majesty for his Pardon. Pl. 83. The Infamous Empson and Dudley, proceeding to judge as Judges, of matters upon Information by Witnesses, etc. otherwise than by Juries; this was one indelible blot in their Escutcheon, though had an Act of Parliament, 11 H. 7. c. 3. to warrant them in so doing: Ander. l. 1. 156. When a Prisoner is Arraigned, he says, he puts himself on God and his Country (neither of which are the Judges) for his Trial; which Country is the Jury. So it is manifest, Juries have the sole Power and Conusance of the matters of Fact, as whether a thing be true or not, etc. and the Judges have at most only to do with matters of Law.  
Jury men have also the determination of Law, but with this difference from that of Fact, that it's necessary they determine the matter of Fact. But they may either refuse to meddle with any thing of Law, and leave it to the Judges, or at their Election, may take upon them knowledge of the Law, and determine both Fact and Law themselves. Lit. §. 368. and so is every days Experience, whereof see more anon, speaking of general Verdicts, and special Verdicts. Only if a Jury give a Verdict, setting forth specially or particularly how the matter was, and then draw an ill Conclusion as to the matter of Law thereupon, the Judges will judge against, and so make the Judgement of the Jury in the matter of Law void, Hob. 53. As suppose A. be Indicted of Murdering B. the 10th. of Feb. etc. And the Jury give their Verdict, that A. gave the Wound at C. the 5th. of Feb. and that B. died at D. the 10th. of Feb. And conclude, that A. murdered B. at C. or on the 5th. of Feb. Now the Law saying the Murder was on, and at the place and time, when and where the Party died, the Judges will judge against the Judgement of the Jury, Co. 4. 42. So Anno 1654. in B. R. between the Protector and Summoner, the Court said, the Jury had concluded contrary to their premises, finding he killed two Men on the Road, but calling it Manslaughter, se defendendo, and so the Judges ordered him to be Tried again.  
Thus we see, Judges are unessential and needless in a Trial by Jury, further than to assist it, by answering and informing what the Law is, where difficulties arise, or at least the Primitive Constitution might be thus. Like as also yet they be in the House of Lords, or when any Trial is by the Lords, but Assistants only, when consulted, and no Parties of or at the Trial, etc. Or as it is, and always has been in Courts Barons, Hundred Courts, Courts of Ancient Demesne, and County Courts, 6 E. 4. 3. Crompt. 232, 233. and where the Sheriff is made Judge, though by the King's Writ, etc. Co. 6. 11, 12. The very form of special Verdicts to this day, looks as if it were so. As in Murder, the Jury find and give their Verdict (first) how, and in what manner particularly the Fact was committed, and then say, but whether upon the whole matter aforesaid, the kill aforesaid of J. S. be Murder, (in construction of Law) the Jury is ignorant, and therefore ask the Advice of the Court; and (further saying,) if upon the whole matter aforesaid, it seem to the Judges and Court, that it is Murder, than the Jury on their Oath, say, the said I N. is Guilty in manner and form as by the Indictment against him is supposed. And if upon the whole matter, etc. it seem, etc. that it is not Murder, then, etc. I. N. is not Guilty in manner, etc. Co. 9 64. So all the Judges do is but Advice, though in matter of Law; and it's the Jury only that judges one Guilty or not Guilty of Murder, etc. and whether it be Murder, or what one is Guilty of, by the Advice and Assistance only of the Judges, without their being any wise any Parties of or in giving such Judgement. And the Reason, and only Reason, why it ever seems otherwise, may rise hence, that the Judges of Westminster-Hall keep the said inferior Courts to their due Bounds, Methods, and Order. And the Lords keep the Judges to theirs, when amongst them; but there's no Body does in Westminster-Hall. The like is hinted by the Stat. of Marlb. c. 26. which says, Murdrum, etc. non adjudicetur coram justitiarijs, Murder, etc. shall not be adjudged in the presence of the Judges: Showing the Judgement always to be in the presence of, not by the Judges. The Ancient Books call Jurymen Judges, as Mir. 209. And it's not for nothing, the Law is so tender of them: He that strikes one of them, it's perpetual Imprisonment, and forfeiture of the offending Hand, Judg. 174.  
It perhaps may be pardonable in Councillors, because for their Fees, and not pretending Authority: But why Judges, though apt to Indulge, Improve, and Extend their own Power and Jursdiction, should offer to browbeat, threaten, order, impose upon, or wheedle, flatter, tempt, insinuate with, or any wise lead, persuade, direct, incline or dispose Juries, how to find their Verdict, unless only directing them so far as Juries require of them, it's hard to say. People daily Rob, and so have done, on Salisbury-Plain, but it's ne'er the more Lawful. Thus are Judges Trumpets, and Juries the Echo, let who will blow. Thus are Juries but an empty Name: Thus is turned topsy-turvy all the whole thing of Juries. Thus might the Judges draw, and engross to themselves the whole Power in the Trial, and be in Effect Judges and Juries too. Thus is the Trial by Juries a colour, a shame, and really no Trial at all by Jury. Were this allowable by Law, we should never have had any; the having them would thus be only an unnecessary trouble, etc. whereas, Lex nunquam per plura quod possit per pauciora. The Law never sets up or requires any thing so vain or fruitless.  
But some will say, the Jury can do nothing, but on the Evidence given in Court, which the Judges hear as well as the Jury, and so may see the Truth, and know how the Verdict ought to be, as well as the Jury, and consequently they may Instruct, Assist, etc. the Jury. It's true, they may be helpful, they may assist, but however, it's no matter for their being as aforesaid, too Officious. And besides, as aforesaid, that the Jury is Neighbours of the Fact, of the Party, of the Witnesses, etc. but the Judge's strangers; and the Jury be more Persons, and the Judges fewer, etc. The Jury also is not bound up to the Evidence only given in Court, or that the Judges hear, but may go upon their own private knowledge. Suppose A. sues B. on a Bond forteen pounds, and B. pleads payment, but at Trial proves nothing: The Judges themselves say to the Jury, you must find for A. unless know the Money paid yourselves: Which shows, the Jury may find for B. if they know the Money paid, though the Judges knew nothing of it, 4 H. 7. 29. So Hob. So if one be Arraigned, and no Witness produced against him, the Court says the like; as was seen this Michaelmas Term, 81. in B. R. Bradley's Case, and by daily practice. They use their own knowledge besides, and often against the the Evidence in Court, Cr. El. 616. Groves and Short's Case. So in Ploughed. 410, 411. So a great Case adjudged in B. R. Hill. 21 C. 1. And another there, 22 C. 1. And so says Stanf. If a Jury know any thing of themselves, it's as much as by Evidence, 130. So Plowden says, a Petty-Jury is sometimes bound to give their Verdict, though have no Evidence, f. 12. Hence in all Cases at Common Law, one Witness is accepted of as sufficient; and doubtless any Verdict is good, though in such Cases, without any Evidence given in Court, because the Jury is presumed to know somewhat of themselves. Whereas in all other Countries in the World, where Juries be not used, and here when the Trial is without a Jury, there must be at least two, as hereafter shall be said more at large. Thus in any Attaint brought against a Jury, more Evidence may be given on that side the Jury passed of or for, or in behalf of the Jury, than was given before, Dy. 53. b. which could not be, if their own knowledge were not Evidence, as well as that given in Court. Styles says, 23 C. 1. in B. R. it was adjudged, that the Grand Jury are not bound to find an Indictment, though have Evidence, since they may know something of themselves to overbalance it. So is Plowden, A Jury may sometimes go against their Evidence given in Court, 8. b And one may read, Juries were Anciently punished for going though according to the Witnesses, if happened false ones, Mir. 48. The Evidence to a Grand Jury is seldom heard by the Judges, which yet could not be, if none were Evidence but what given in Court. Likewise, a Jury knowing of a Record, Statute, etc. may give their Verdict, etc. according to it, though never given in Evidence. Moor says, a Juryman delivered his Companions a certain Paper concerning the Question out of Court, yet the Verdict was adjudged good, Case 656. Besides, if it happen they have no other Evidence but what the Judges know as well as they, yet they ought by, and according to the true purport and meaning of their Oaths, to proceed on it in their own sense, and as they apprehend or understand it themselves, and no otherwise, though the Judges differ with them; else how can they discharge their Conscience? And it often falls out, they may differ. No two Lawyers, nay, Judges, reading or hearing the very same Case, but presently make different Inferences, Deductions, Collections, Conclusions and Arguments, yea, the same Person at different times; like as the Philosophers hold our Senses and Sentiments as different as Physiognomies. And why should A. impose his Opinion on B. rather than B. on A? So of Judges and Juries. One can't see by another's Eyes. And this is certain, every thing any Jury does, as a Jury, is on Oath, and they swear to be true by Virtue of the Oath at first administered them; therefore if any of them happen to join in a Verdict, etc. with the rest, against his Opinion, or not throughly satisfied in their own private judgement, such a Verdict, etc. though never so true and good in itself, yet makes the Party or Parties, as aforesaid, not satisfied, certainly forsworn, at least in foro Conscientiae, as to their Conscience: For Perjury is not only a Lie confirmed by Oath, but likewise either when any one being deceived, and believing that to be true which is not, rashly, or unadvisedly swears it to be true. Or either when any one thinking a thing not true, swears it is true, though indeed it be true, Flet. 334. Bract. 288, 289, 292. and all the Casuists. So is seen in Palmer's Reports. One was Indicted and Punished for swearing a thing so and so, because he did not know it to be true as he swore. So that upon the whole, one may see a Judge ought not to meddle at all with the Jury: If he differ not with them, it's needless and troublesome; if he differ, they are not to mind him; take it which way one will.  
But perhaps it will be urged, that this must be understood only as to trying matter of Fact, and that however, as to matter of Law, the Jury ought always to be advised and governed by the Judges though not as to matter of Fact: No no further than a mannerly deference that is payable to the Judges, as more Learned in the Laws. For if the Judges say, or any Witness swear the Law to be so and so, no Jury is by Law bound or any wise obliged beyond their own Reason, etc. at least to believe them in it, 9 H. 6. 38. Finch 58. If an Attaint be brought against a Jury, it's no Excuse, that the Verdict is according to the Judge's Directions, Cro. El. 309. 18.  
Now says a timorous Ignorant Juror, Oh! but whether the Law be thus or not, the Judges will Punish the Jury if comply not with them. This sure would be pretty! A Jury, perhaps, forsworn, and liable to an Attaint, if do comply, and yet punishable if do not: No, no, the Law (which is nothing but improved and refined Reason) was never so unreasonable to suffer this. A. levied a Fine of Lands to B. and B. paid A, the purchase-money: But after A. said, he was then at levying the Fine under Age of One and Twenty Years old, and therefore the Fine was void. The Law says here, the Judges shall determine by looking on the Party, whether he were of full Age or not, and the Jury shall not, (the true Reason being, that if the Party seem of full Age, though he be not, he shall not avoid the Fine, to prevent cheating, etc. Whereas, if the Jury were to try it, they must not go according to the seeming, but real true Age, and so if he want but a Day of One and Twenty Years, he must thus be adjudged under Age, as much as if he wanted Twenty Years, and B. should be cheated.) This Fine was after reversed by King's Bench, because A. did appear, and was also proved by four Witnesses to be under Age: But the Validity of the Fine coming after to be disputed in Common Pleas, on a Trial by Jury, though the Court here told the Jury, that notwithstanding some Witnesses prove to you A. was of full Age at levying the Fine, yet you ought not to heed them, for the Judges have the sole and only power of determining whether of full Age or not, and the Judges of the King's Bench have already determined it; nevertheless, the Jury being somewhat extraordinary, and not so very leadable Men, gave their Verdict contrary to the Direction of the Court, and as if A. were then of full Age: And an Attaint being after brought against the Jury, the Jury was acquitted and commended, Dy. 201. & 301. And the Jury is the more justifiable in it, since the Judges first altered the Law, in trying by Witnesses, and not only by Inspection, as Juries also do, which in Trials by Witnesses are, as aforesaid, the more competent, etc. Of this Nature is a memorable Case of Bushel, reported by Lord Chief Justice Vaughan, where Meade and Pen, two Quakers, were Indicted at the Old Bailie for their Meetings; and the Jury, whereof Bushel was the Foreman, would not find them Guilty: The Court, mighty angry, Fined and Committed the Jury, alleging for cause, that they (the Jurors) against the Law of the Realm, against full and manifest Evidence, and against the Direction of the Court in matter of Law, to them in Court openly given and declared, had acquitted the said Mead and Pen: But upon long and serious Debate, it was after adjudged, the Commitment, Fining, etc. was unlawful, and accordingly the Jury were discharged, etc. Another time also a Juryman dissenting with all the rest, and that no less than two days, the Judges asked him what he would do? Says he, rather starve and die in Prison than consent; the Court fined and committed him; But on better Consideration, discharged him without more ado: All the Court can do, being only to (carry them in Carts, if in the Circuit; along with them, and) keep them without Meat, Drink, etc. till will agree, 41 Ass. 11. says Mir. Juror's aught not to be threatened, but to be free, differing in Opinion, etc. 273. And it was resolved in Parliament, Anno 1677. That the Precedents and Practices of Fining, etc. Juries, in or for giving their Verdicts, are Illegal. And Keeling, Chief Justice of B. R. was called to Question in Parliament for such Practices.  
Coke upon Lit. f. 369. says, If any Labour a Jury, Instruct them, or put them in fear, or the like, it's Punishable, as Maintenance or Embracery, either at King's Suit, or at Parties; and perhaps, it would puzzle one to show, why a Judge is not within this Law; for how can he be said to do this as a Judge, when to do so is no part of his Office? And why should any usage alter the Case here, any more than in other Cases of breaking the Laws; it's much too, any Judge should offer such a thing, considering he that judges without a Jury, certainly judges without Authority: And he that judges with a Jury, but governed or led by him, judges only by colour of a Jury, and by colour of Authority, and thus makes himself forsworn in and by the Oath taken at his being Created Judge, makes the Jury all forsworn, violates the greatest Privilege of the Subject, infringes the most often confirmed Law of the Kingdom, and also does particularly the Party offended the greatest Wrong imaginable, in as much as by colour of Law, and makes all the Jury accessaries to the whole.  
Hence it's improbable any Judge should offer the contrary: But however, a Jury in any Indictment, Presentment, or Information, aught, and may give their Verdict, etc. according to their own Conscience, without any fear of Punishment one way or other.  
And in any other Case, as where the King is no Party, but an Attaint happens to lie, they may be punished no other way. Also no Punishment whatever lies for or against a Jury, which consists of above Twelve Men, 14. H. 7. 13. Nor does Attaint ever lie where the Witnesses are not on Oath, or for going against what any such Witness says; nor in any Appeal of Maim, Murder, or Felony, F. N. B. 107. Nor in other Appeals, as Regist. 122. Attaint. 59, 62. & 22 Ass. 82. say. Nor does ever any Action lie against any Jury for going against their Evidence: And where an Attaint is brought, it must be Tried by a Jury of Twenty four Men.  
The only Cases the Judges have any Power over Juries in, are, where in their Behaviours they become guilty of any such thing as the Judges may justly call an unlawful Contempt, 4 E. 4. 27. 36 H. 6. 27. Or be guilty of Embracery, 5 E. 3. c. 10. 34 E. 3. c. 8. as receiving Bribes, Promises, etc. before or at the Trial, etc. Or in Case of Concealment, the Justices of the Peace of every Shire, etc. may take by their discretion an Enquest, etc. to inquire of the Concealments of other Inquests taken afore them, and afore others, of such Matters and Offences as are to be inquired and presented afore Justices of Peace, whereof complaint shall be made by Bill or Bills, etc. And if any such Concealment be found of any Enquest, etc. had or made within one year, etc. The Justices may Amerce or Fine them at Discretion.  
3 H. 7. c. 1. viz. as much as is reasonable for such Offence, as is said in a like Case by Lord Coke, 10. 140. and in Dalton, p. 541, 23. If any refuse to be on a Jury, not offering sufficient Excuse, he is Finable, 7 H. 6. 12. So if any of either Jury give a Verdict, etc. as aforesaid, twelve not agreed. So the Grand Jury may not discover Evidence given them, Inst. 3. 107. Mich. 15 Ja●. in B. R. Smith and Hill's Case, 27 Ass. 63. Lamb. 402. Chron. 207, 272. Finch. 20. So the Petty-Iury, if without Licence of Court, depart any whither upon any Occasion whatsoever, after sworn, before Verdict given: Or that while, but especially after Evidence given, eat or drink: Or out of Court receive any Evidence from either side, may expect Fine and Imrisonment.  
Thus much for what a Jury may do: Now something more how, and what it ought to do. The Oath itself, but that it's so general, would else be Instruction as well as Obligation sufficient. The Oath of a Grand Juryman is, I will diligently inquire, and true Presentment make, of all such things and matters as shall be given me in Charge, or shall come to my knowledge concerning this present Service. The King's Council, my own and my Fellows, I well and will truly keep secret. I will Present nothing for Malice, Lucre, or Evil Will: Nor will I leave any thing unpresented for Love, Favour, Affection, Reward, or any hopes thereof: But in all things that shall concern this present Service, I will present the Truth, the whole Truth, and nothing else but the Truth. So help me God. The Oath of the Petty-Iury is, I will well and truly-Try, and true Deliverance make, between our Sovereign Lord the King, and the Prisoner at the Bar, according to my Evidence. So help me God. That of the Grand-Iury was part of it Anciently, Quod neminem accusare velint innocentem, To accuse no Person innocent, Ll. Ethelred. And pour rien ne leuray que je verite ne diray. Nothing shall hinder me from speaking the Truth, Brit. 12. 135. Crompt. 304.  
The Scripture teaches one his Duty upon an Oath: It says, One must swear in Truth, in Justice, and Judgement, Jer. c. 4. Deut. c. 16. Exod. c. 20. Dan. c. 5. Levit. c. 14. Zech. c. 13. Acts c. 5. and the Proverbs in several places. In Truth, with one's Eyes, neither in a Telescope or Microscope; not proceeding by appearance or seemingness of things, not by adding nor diminishing, not by aggravating or palliating, not by Equivocation or Reservation, not by Representing or Accepting the matter otherwise than really and truly it is, not presenting, etc. things, etc. doubtful, or not certainly true, as true; nor omitting any thing certainly true, but always as the naked Truth is, so and so. In Judgement▪ not at a venture, as by casting Dice, etc. not as matter of Form, not rashly, perfunctorily, or negligently passing or running over things, not by implicit Faith, or in complimental Obedience, etc. not upon trust or belief, further than with, and upon good and great Deliberation, Considerateness, Reasoning, and Satisfaction according to one's own Conscience, and because one's mature and settled Judgement is so and so. In Justice, proceeding fairly, impartially, with Integrity, and according to the Merits of the Cause, without charging one with Murder that's Guilty but of Man slaughter; and without Malice, Fear, Hope, Pity, Favour, Affection, Passion, Corruption, or other Prejudice, Byas, Consideration, or private or sinister End or Design: But all throughout purely, because is so and so more than otherwise. And consonant to Scripture, as well as generally in all other things, so also in this are even Morals and Politics. The Wise Men (so called) of Greece, were called so from their living Prudently, Justly, and Honestly, such also are they Aristotle calls so, 1 Metaph. etc. The Stoics say, He's the Wise Man that sticks to Truth, Neque quicquam fingit, and abhors and banishes every thing else, not so much as admitting of any Stories, Fictions, etc. whatsoever. Machiavelli says, Judex cujusquam gratiae nec potentiae cedet, neque misericordia nec invidia nec odio comovebitur sed vere semper & incorrupt ex legibus judicabit. Judge's must not be moved for the Power of any one, nor for any one's sake, one way or other, nor with Pity or ill Will, but always go according to Law, truly and without Byas. Justinian speaking of Judges, says, Eorum est manus puras Deo, Imperatori & Legi praestare. They must be inoffensive to God, the King, and the Law. Non illum populi fasces, non purpura regum flectunt, No Acclamations of the People, no Honours of the King, neither of these move them. Contra rempublicam, nec contra jus jurandum amici causa, vir bonus non faciet. Against the common good or an Oath, no Man will stir an Inch, if honest, though it be for a Friend's sake. Judex ponit personam amici cum, judicis induit. Judge Hales is a Friend, as Hales, but none as a Judge. Si omnia facienda sint quae amici velint non amicitiae tales sed conjurationes putandae sunt. Cicero. What a Judge does at the Request of his Friend, is really and truly no Friendship, but is making himself and Friend guilty both of a Crime. The Areopagites (were Judges that) heard Causes only in the dark, that they might take Notice what was said, and not who spoke. And what is said of Judges by these Authors, must by us in like manner be applied to Juries. The Book whereon Swearing one lays one's hand; is God's Everlasting Truth, and most Holy Word; so that if one forswears one's self, one virtually in so doing utterly forsakes God, and his Mercy and Truth. Says a Learned Man, part of the Oath is, So help me God, viz. I pray God he will never help me, if I shall not sincerely and faithfully keep this my Oath. Cajetanus says, 2 Qu. 98. Perjury is of its Nature a Contempt of God. And as the Proverb says, Malum est ludore cum Sanctis: It's however ill jesting with edged Tools.  
By the Oath of the Grand-Iury, one's bound to observe as well the Charge which shall be given by the Court, as the Form of the Oath itself. But this its plain must be understood, so far as the Charge is according to Law, and not contrary or repugnant to the Oath itself, and no further or otherwise.  
Anciently the Charge was given in Writing to the Jurors, Brit. 9 Bract. l. 3. c. 1. Dalton p. That the Jury might easier remember it, their Minds be refreshed, and perhaps, themselves Edified, etc.  
What the Grand Jury does, is by way either of Presentment or Indictment. By Presentment, when they know of a a Crime or Fault themselves, and give a short Note of the Parties Name, place of Abode, and Fault, without Form, referring it to the Court to put into Form. By Indictment, when the Party and Fault are ready brought them in Parchment, drawn up in Form: And indeed, the most true difference is only, that the one is in Form, and the other not.  
In an Indictment, first they must consider and understand it well and throughly: And if they can't understand it, ask the Assistance of the Court, either to give them a Clerk on Oath to English it for them, or otherwise as need shall require. Then they must consider, if the Fault, as alleged, with the Circumstances and Aggravations; amount to, and be a real Fault or not, and also worth complaining of; for De minimis non curat Lex. The Law minds not every little thing, and this is daily experienced in Indictments and Ac. of Case. If it be no Fault, or one not worth complaining of, which in Law, as aforesaid, is all one, they reject the Bill, and meddle no more with it. If they find it a Fault, and considerable, as aforesaid, than they consider, if know it true so of themselves; which if they do, or other Evidence satisfy them it is, they Endorse, or write on the Back side of it, Billa vera, this Bill is true: But if they do not know it themselves, nor be satisfied by the Evidence, than instead of Billa vera, they writ Ignoramus, We know not: And afterwards thus deliver all the Indictments into Court.  
The Clerks of Court, to get Fees, and perhaps, some others for one sinister end or other, will be apt to say, that the Grand-Iury ought to find an Indictment, or make a Presentment against any supposed Offence or Offender, though have but colour of Evidence, or a probability of the thing being true, and that what they do is but matter of Course, a Ceremony; matter of Form, barely an Accusation, etc. But that this is not so indeed, is apparent, for what end then is a Grand-Iury? Only for show. The Law would certainly then have never required one to be at all. We see they are obliged to be Sworn, and they are as much on their Oath as any other Jury, which then should be the contrary. The very form of their Oath teaches us better. The Oath is, Diligently inquire, etc. not negligently, etc. True Presentment make, not probable, etc. Nothing for lucre, etc. not excepting the Clerks, etc. According to Evidence, not Presumption: The whole Truth, and nothing else but the Truth, which how can be at such a rate as the Clerks, etc. speak of?  
But then they Object, that these words, According to the best of one's Knowledge; are added. If they be, it's against Law, Mir. 304. Brit. 12. 135. And altering an Oath, is imposing a new one, which cannot be without an Act of Parliament, Inst. 2. 479, 658, 719. But however, May Jurors in such case wink, etc. that they may not know, etc. These words are best of, etc. and not worst; they are Knowledge, not Ignorance; they imply the best one can know or find out: And not only what one already does know, for then what need the word best? And besides, they relate to the word inquire, as well as any other word, etc. So the more one considers them, the less one shall find they really alter the Oath.  
Then, say they, all a Grand-Iury does, is but presenting in form, and not in form as aforesaid, and is only suppositious as it were, and nothing positive or certain, grounding themselves only on this, that the Form of the Indictment is, The Jury upon their Oath Present, instead of The Jury upon their Oath say; and so infer, that if any thing in the Presentment or Indictment be false, yet it's no Perjury. Alas, to see Men in extremity, what hold they'll catch at! Can Argus himself have seen this Exception? No, unless blind. Present and say are undoubtedly here, and in such like cases, Synonymous Terms. To Present on Oath, is to give the Court to understand on Oath: And to say on Oath, is to tell the Court on Oath; and an infinite of Indictments be say instead of present, Rast. 263. Kitch. 100 Co. 9 114. And Fleta goes so far, as calls an Indictment a Verdict, f. 113. The words also of the Oath be, to truly present, and not say. And Lord Coke plainly calls the Grand Jurymen all wilfully Forsworn and Perjured, if wrongfully find an Indictment, Inst. 3. 33.  
Then, say they, but Endorsing Billa vera, as aforesaid, implies not that the Jury takes upon them to know, or say, the Bill, or the Contents, are true; but vera there signifies probable, or fit for Enquiry. But then, why not another word used more properly and usually Latin for such a sense than, and instead of vera? And what is Latin for true, if it be not? And is not true, the common accepted English word of, and for vera? And is not Billa vera the Answer made to their Oath, that they shall true Presentment make? This is like the rest.  
Then, say they, this is no Trial, but in Order to bring to Trial, and the Party is at no prejudice if the Bill be found. It's true, it's no determinative Trial that finally concludes either Party, because it's but one of two, which every one accused of a Crime must have as aforesaid. But it's so much a Trial, as Learned Fleta, f. 113. looks upon it no less one than any other. The form of their Indictment is the same of that of a Verdict. All things are, or aught to be alike in the whole Proceed, and to differ nothing, but the one to be before the other, and the latter to be final, the other not. The Stat. of 23 H. 8. c. 23. Enacts, One shall be Indicted of High Treason in what County the King pleases. And the Stat. 1, 2 P. M. c. 10. says, That Trials for Treason, shall be according to Common Law: This Act repeals the other, though speaks only of Trials, and the other of Indictments, Anders. (1.) 104, 105. Inst. 3. 27. which shows an Indictment is a Trial. One of the Grand Jury can't be afterwards on the other: And why? says the Law, for he has once already found the Party Guilty, and if should not again, he must Perjure himself, Brit. 12. 25 E. 3. c. 3. 7 E. 4. 4. Stanf. 158. It puts the Defendant to Disgrace, Trouble, Damage, Danger of Life, etc. It makes him liable to an Out-lawry, to Imprisonment, etc. and to every thing but very Death, etc. the final Judgement itself. It gains Credit, and gives Authority to avother Jury to find one Guilty. It produces this Effect, that if the other Jury find one guilty never so wrongfully, no Attaint lies against them, nor other Punishment: And what's the Reason? The Law says, because he is found Guilty not by these other twelve only, but in all, by Twenty four or more, this latter and the other Jury too, Attaint. 64, 60. Attaint R. a. 18. v. 8. H. 4. 23. ᵇ 14 H. 7. 13. So if one be Indicted, any one may bring an Appeal, though never so wrongfully, etc. against him, whereas he that brings one against any one that was never Indicted of the same Offence, may be liable to great Punishment, if wrongfully brought, Stanf. 172. ᵇ Cor●n. 178. 40 E. 3. 42.  
Where Peers be indicted for Treason, Felony, or Misprision of either, they not only suffer in Honour, Liberty, Vexation, Danger, Trouble, Charges, and other Inconveniencies, as aforesaid, another does, but must with a more tender sense, and in a much greater measure, as they be so much greater Persons, etc. And they can have no other Trial on Oath, for their future Judges or Jury are none of them on Oath, Inst. 3. 89. Co. L. 156. They can except against none of their Jury, though have what cause soever possible, Co. L. 156. ᵇ They must be Tried by such as shall be chosen against them, such, as perhaps, shall not be Neighbours, but picked any where up and down the whole Kingdom; such a Jury, as perhaps, shall not be above twelve in all, whereof then if any seven, or any time the major part agree to find them Guilty, it shall be so, though the other five, or lesser number, be utterly against it: So that upon the whole, if a Peer have but seven Peers among all the rest that bear him ill will, or either any ill wisher, that can make him so many of them his Enemies, he must Die, etc. fall back, fall edge. And to help the matter, he shall always be sure of the ablest Council in the Kingdom, to manage the Cause against him.  
Suppose one should ask any Honest Man this Question: Were he not on his Oath, yet would he find an Indictment of Course, etc. to expose one, and put him to such Inconveniences, as aforesaid? Certainly, says he, No. And the Monster that would, does it wrongfully, because is not certain he does otherwise. And being on his Oath, as aforesaid, it's not only doing wrong, but tainting himself Crimson red in Perjury too; sure a Malicious way of doing wrong. It's doing wrong also by colour of Law and pretended Authority, the greatest Mischief and Injustice, says the Lord Coke, of all other, Inst. 2. 48. The damage, etc. too in all these Cases is the greater yet, that the Party can very scarcely, if at all, expect any Reparation or Amends: Whereas in all other Cases he may easily. For against the Grand Jury, or any of them, no Action lies, in as much as doing what they do on their Oaths, the Law will not presume, etc. any Malice, etc. in them. And though one be Indicted at the Instance, or upon the Endeavours of some other Person, (all the Jury, as aforesaid, being sworn to Secrecy) can one easily discover, and prove who this Person is, what he did, and prove it at a Trial? Which yet one must do fully, if expect any thing but making bad worse. And might one recover damage, etc. yet it's damage, etc. to be put to the Trouble and Hazard of the Recovery. Well therefore, says Fleta, f. 52. Valde necessarium est in omni presumptione in inquisitione de vita & membris; Juratores diligenter examinare: It's an exceeding necessary thing, that the Grand Jury should make diligent Examination, before presume any thing, either in Case of Life or Member. Iust. Dalton's Book, p. 539. says, no less Care or Concern at all lies on the Grand Jury, than does on the Petty Jury.  
The Law, (to see its Nature, how it inclines generally, that one may the better guess in this matter) it is not with us like those of Draco: It's as tender of the Lives, Liberties, and Credits of the People, (none can deny in all cases else) as a Mother of her Child, and why then not in this also? It will presume nothing dishonest, etc. in any one, or any time, but it will, and always does presume all Persons and Things Honest, True, Innocent, etc. till the contrary be proved, Co. L. 78. b As Ovid says, Sit piger ad poenas princeps ad praemia velox. So Lamb. Sax. Laws cry often Clemency and Forgiveness as well as Justice. And Lex Angliae Lex misericordiae est, Says Coke, Inst. 2. 315. Like the Laws of Scripture, whence it was first derived, which shows Mercy is not opposite to, but part of Justice, 1 John 1. 9 Psal. 71. 1, 2. jer. 18. 7, 8, 9, 10. Ezek. 33. 13, 14. The Laws of England, the Laws of Mercy. And says a Great Man, Justitia semper mitiorem sequitur partem. Justice leans that way which is the milder. One brings an Appeal, if the Jury be doubtful, the Defendant shall be acquit, and the Appellour imprisoned, Fleta 52. Mir. 224, 273. So a Jury being doubtful if one were a Villain or not, was therefore free, Fleta 238. Bene tibi praecipiunt (says Cicero) qui vetant quidpiam agere quod dubites aequum sit vel iniquum; aequitas enim lucet ipsa per se, dubitatio autem cogitationem significat injuriae. They do well, that forbidden, one doing a thing when dubious, whether right or wrong; for where it's right, the thing is necessarily as clear as the Sun: But any doubt speaks the thing not to be so. As if a Physician give one Physic, he must give one that he is sure will do one good, or no harm, and not what he doubts may do one harm. It's also plain, if I doubt, I must not say, I am certain, (as Billa vera) but I know not certainly, (as Ignoramus) else I tell a Lye. It's very remarkable too about all Indictments, the Jury only says, either it's true, or we know not, and never that it is not true; which shows, if they be doubtful, or not fully satisfied, the Indictments must be Endorsed not Billa vera, we know it is true, but Ignoramus, we do not not know it is true. And the Law does not put it upon the Grand Jury, to say the Bill is not true, if they do not find it, though does put it upon them to say positively, the Bill is true, if they find it, and so encourages the finding Indictments Ignoramus. Fortesc. says, It's better Twenty ill Men were unjustly saved, than one unjustly Condemned, 62. For Mercy and Pity is on the one side, but on the other Injustice and Cruelty. Says Bracton, Tutius est reddere rationem misericordiae quam judicij. It's safer giving an Account of one's being Merciful, than otherwise. The Saxons in doubtful Cases only Appealed to God for Discovery, and left all only to him, viz. Where the Case was doubtful, if Guilty or not, or clear and manifest Proofs wanted, they had four sorts of Trial, Spec. Sax. l. 1. First, Kamp-fight, or by Battle. Secondly, Fire-Ordeal, by holding red hot Iron in his Hands, or walking barefoot over it. Thirdly, Hot water-Ordeal, by putting one's Arms up to the Elbows, in seething hot water. Or, Fourthly, Cold Water-Ordeal, 
But a Jury first passed upon them, Rot. Temp. R. S. Io. Lord Hales his Collections.  by casting one into the Water with a Rope under his Arms. Whereof the three last were used, one or other of them, where the Party was most vehemently suspected; Versteganus and others. But Pope Stephen the 2d. by his Decree, utterly abolished them all, and afterwards so did the Parliament, 3 H. 3. Memb. 5. Judging it more fit the Party should be acquitted than prosecuted, where the Case was doubtful. So that one must know beyond all doubt, before say Billa vera, else say, Ignoramus, which is in English, we doubt, we do not know, we are not certain if it be true. Paribus, sententijs reus absolvitur, Inst. 4. 64. And says Brit. If a Jury doubt at any time, they must find for the Defendant, 245, 130, 136, 219, 213. Judge Fribern was Hanged for judging one to Death, where the Jury were doubtful in their Verdict, Mir. 298. Anciently if a Jury Indicted an Innocent Man, another might be impanelled to go upon this Jury, as Offenders, etc. Mir. 101. Aussi sont homicides de volunt, faux Jurours & ceux que Endictent fauxement: Jurors that falsely Indict any one, be guilty of wilfully killing Men, Mir. 34, 36. They shall be reputed and adjudged Infamous, and suffer Corporal Punishment, that find an Indictment against an Innocent Person, ibid. 251, 252. 254. 256. Or, if an Innocent Person be adjudged to Death, etc. if they could have helped it, ibid. 256. An Appeal lay against a Jury in such Cases, ibid. 136. Brit. 14. 137, 237. If they any wise offend so, Ignorantly, yet this excuses not at all, unless they could not possibly know better, ibid. 257. And negligence in, or of knowing better, makes their fault the worse, ibid. And the greatest Oracle of our Laws, Co. L. 115, 391, 45, 94, 113. has it, That whatever was Law, is yet, unless altered by Act of Parliament, which this never was. Whereas on the other side, if a Grand Jury do not find the Bill against any one, there can be no harm then to any Body; but another Indictment may some other time be brought, when there's better Evidence, or a worse Jury. For though one's Life, etc. shall come but once in danger, or on Trial, before the Petty-Iury, it may yet a Thousand times before the Grand-Iury, for they never say the Party is not Guilty, but at most say Ignoramus, as aforesaid.  
Any thing any Jury does, ought be Quoddam Evangelium, like what they laid their Hands on, taking their Oath. When they writ Billa vera on an Indictment, they undeniably compare the Truth of the Contents therein, to the Truth of the Gospel, and this upon Oath. Thus one would admire how it comes to pass, that they of the Grand Jury should often hear but one side: Their Oath, it's apparent, is against this: It says, Present the whole Truth, not concealing or omitting any part of it; which implies as well all one side can inform them as the other. And so appears by less strong Cases far, an Attaint lies against a Jury (swearing to well and truly Try the issue between the Parties) when every word of the Verdict may yet be true, only it not being the whole Truth. As if one having had common appendent time out of Mind, bring an Assize of the Common, making his Title that he hath had common time out of Mind, etc. (without speaking of the Appendency) and so the Jury find for him: For thus he should else have Common in gross, when his Right or Title is not to such, but to Common Appendent, F N B. 107. a. 10 E. 4. 17. 49 H. 6. 17. So one having had a Rent in Fee, as Forester of such a Forest, time out of Mind; in an Assize for it, makes Title, by saying he had a Rent out of that Land, time out of Mind, etc. (without saying as Forester, etc.) and the Jury find for him, for he hath not had the Rent by Prescription, as must be understood by the Claim and Verdict, as aforesaid, ibid. b. Co. 5. 78, 79. So that it is not enough for a Jury to say the Truth, but the whole Truth, though too no such Word as this of whole Truth, be mentioned in the Oath. It proceeds, and says, And nothing else but the Truth, which how can possibly, or any Juryman be satisfied in, unless hear both Parties? It says, You shall diligently Inquire, etc. not by halves, or but hearing one side only. It's a Maxim, Qui statuit aliquid parte inauditâ alterâ aequum licet statuerit haud aequus fuerit. He that judges or determines any thing, when but one side only is heard, does unjustly: And the Judgement, or Deternation, though in self be never so just or right, yet shall he no wise be accounted a Just Judge, etc. Is it not a common Saying, One Tale is good, while another is told? One at this rate might be Indicted for a Cutpurse, when but an Honest Glover; so might Chirurgeons, Sheriffs, Bailiffs, Jailers, Hangmen, Attorneys, etc. for but doing what belongs to their several and respective Professions, as the matter may be managed, and yet saying nothing but Truth neither, only not the whole Truth. Is there not in all Determinations else, the Hearer and Defendant, as well as Complainant? Thus erred Judah the Son of Jacob, in judging Thamar to be Burnt, upon Report, when she was unheard, Gen. 38. 24, 25, 26. So was Joseph faisly accused of Lying with his Mistress, and cast into Prison, Gen. 39 19, 20. So was Mephibosheth falsely accused by Ziba, and deprived of all he had, 2 Sam. 16. Which being all Precedents, and Damned in Scripture, must, or shall any one be so hardy as to embrace and follow them now? Either one's Guilty or not; if be, let him yet have fair play for his Life, etc. If not, why should he then be Indicted? So that, why should he not be heard? Else one's Condemned first, and Herd after; or indeed Hanged first, and Tried after, or little less. The true intent of the Law herein seems, as if Men were to be handled not thus, but that the Defendant should be heard at first, and if he than could give satisfaction, etc. he might be at no further trouble, etc. And if he could not, that he should have such trouble, &c, and having Notice thus, might prepare himself the better, and so not be surprised at the final and concluding Trial, or have any colour of Pretence that he was surprised, or any wise unprepared at this final Trial. This method being most Honourable for the King and the Law, and also most safe for the People. And the Reason why it was ever otherwise, seems barely a Result of some Artifice of the Clerks, to get themselves Money, imposing on the Juries; or from this, that Presentments being made without the Party heard, therefore the Jury thought they might find an Indictment likewise. Whereas, they ought always to distinguish; for a Presentment is on their own knowledge, when they know all the whole matter, even what the Defendant can say for himself; but an Indictment is found upon Witnesses, which tell their Tale to a hairs breadth, etc. as makes the most for the side they are produced of. And at length after some few Precedents, it has now grown into Practice: Dato uno absurdo mille sequuntur: All can be pretended why it should be so now, is but Practice and Precedent. And when it's against Justice, against Truth, against any one's Judgement, sure one ought rather to Correct than Approve of, or follow such Practice or Precedent. At least wise a Grand Jury ought hear both Parties, if present, or easily, or conveniently to be heard.  
It would likewise amaze one, to see how the Clerks, for their Gain, or others for other Ends, have often prevailed with Jurors to find a Bill true, etc. when in all the Circumstances of Aggravation, or most of them, false, if not in the Fact itself; and those Circumstances too altering the very Fact, as alleged about as much as white Feathers would a black Crow.  
Considering how true Presentments, Indictments, and Verdicts ought to be, and that the whole Truth, and nothing but the Truth must, or may be in them: That the Jury undertake the Bill is altogether true, not only as to the Substance, etc. or in general, but even in every particular, all the Circumstances, Aggravations, and every individual word, (for if it be not true in the least word, it's not true, but false, and Perjury.) Stanf. says well, f. 96. ᵇ De faire bon Enditement est requisite a conustre & d' aprendre que sera dit Treason. ou Felony ou non: To perform the Duty of one on the Grand Jury, it's necessary to learn and know what's called Treason, what Felony, etc. and what not: Hence also one learns, one must not in an Indictment, etc. call, or suffer called Felony, Treason; Manslaughter, Murder; nor one Crime by the Name of another: Or mention, or suffer mentioned, words spoke, or things done, other or after another manner than really or truly were said or done; and therefore the Judges give the Grand Jury to this day their Charge so distinguishing, particular, and directive of all, and all manner of the several Crimes, their Natures, and how to call them, etc.  
When the Clerks draw an Indictment, Information, etc. they'll not only allege and insert in it the very Fact, etc. one is accused of, but craftily, and full of Art, stuff and load it, into the Bargain, with several fictitious and fleight Allegations of their own, to swell up, and aggravate the matter; as Circumstances of Malice, or Design, etc. in the Party, when did the Fact, spoke the words, etc. So that sometimes from a Mouse, a Mountain; from nothing, or what's inconsiderable, it will in such a Dress show and strut like a Giant, a Monster, etc. And all this, forsooth, they'll call matter of Form, and then endeavour to persuade a Jury, if they find the chief matter, or that part which they'll call the matter of Substance, true, they must of course find all the rest, which they please to call matter of Form, true also. This usual way of wording Indictments is so notorious, dangerous, hurtful and grievous, that it several times, and in all Ages, has been complained of by all Persons whatsoever, except the Clerks and Prosecutors themselves, whilst Clerks and Prosecutors. It has been a Complaint in and of Parliament, by King, Lords, and Commons; See 4 H. 4. c. 2. 37 H. 8. c. 8. This is that whereof may be said, as was in Courtin Hertsey's Case, Aliquid creare ex nihilo malum, Diabolicum est. It's the part of the Devil himself to make a small fault be, or seem a great one. But no Complaint, no Argument will, or can prevail with a Covetous Clerk, getting Fees, or a Malicious Prosecutor, troubling whom he has Envy or Malice against, to desist their Advantage. And as the true Circumstances of any Crime do always, or mostly aggravate or alleviate it, and all those suggested thus by the Clerk, if the Bill, etc. be found by the Jury, (though pretended only matter of Form) become thus as true, and the Judges must adjudge a Punishment accordingly, as if all were really true: Thus is a Trap set to catch the Jury and Defendant; the Jury to Perjure themselves, and wrong the Defendant, and the Defendant to be adjudged of a Crime, when perhaps guilty of none, or at least of a worse Crime than truly he is. A Jury therefore, ought first consider, as aforesaid, if the matter of Substance, or chief matter, be Criminal at all; and if be, then if considerable: And if be not Criminal, or considerably Criminal in itself; then if the Circumstances, as alleged, make it so; and if not, then to reject it. If it be considerably Criminal, with or without the Circumstances, then consider if you know it of yourselves, or by Evidence be satisfied it is true, both itself and the Circumstances: If the matter itself be not true you reject the Bill; (for where's no Body, is certainly no Shadow:) If the matter be true, but the difficulty be about the Circumstances, then consider if they be material; if not, you find the Bill; if be, then consider if they be consistent, or the matter will bear them; if not, then reject the Bill, etc. or at least strike them out of the Bill, etc. If be, then consider if they be true on your own knowledge, or by the Evidence given you; if be, then find the Bill, etc. if not, they must be struck out, or the Bill returned Ignoramus, etc. As for Example, The matter must be Criminal and Considerable: This partly appears before; but further, Suppose the Apprentice of A. get a Woman with Child, and secretly run away upon it, and A. procure a Warrant to Apprehend him for it: But B. a Stranger knowing of the Warrant, Lodges, Comforts, and Assists the Apprentice in unknown places, that the Warrant can't be served; the Stranger is not punishable, 15 Jac. B. R. Vaughan's c. If a Commission be granted to two, and one of them execute it alone, without the other, and accordingly Fine People, etc. yet no Indictment lies, for it was an Error of Judgement, 27 Ass. 23. If one say to a Justice of Peace, Executing his Office at his House, etc. and not on the Bench, certain scandalous words, touching his Office of Justice, yet he may not be Indicted for it, Hides c. Trin. 11. C. 1. B. R. And so was Sir— Sackfield's c. these being all inconsiderable Faults. And as to whether the Circumstances, or other matter than the Principal, be material or not: Those words or parts be only words of Form, and but those only which are necessarily employed, as that if the Principal, or the rest, be true, these must be so too, and can't possibly be otherwise, and thus become needless to be proved, being before proved, as and by the necessary consequence of the other Proof; so he that proves a Shadow, proves also a Body, since there must be a Body to cause it; and those words be material which may cause a different Judgement or Punishment, or that aggravate the Fault, make it greater, of another Nature, or any wise altar it, and therefore are not to be presumed, but must be proved. The Jury must observe also whether consistent, as an Indictment of or for Felony, saying, that one such a Day Feloniously cut down such Trees, and carried them away; or with Force and Arms such a dav cut down such and such Trees, and Feloniously carried them away; this is inconsistent, for Felony can never be about standing Trees, Indict. 4. So of growing Apples, of Houses, or any thing fixed to the freehold: But all it can amount to, is only Trespass, unless the falling appear by the Indictment to be one time, and the carrying away, another. So if a Madman, a Child, etc. which have no Discretion, be said to do things maliciously, or designing any thing, this is inconsistent, or impossible, in as much as no Malice or Design can be in such. If necessarily employed, for if be not, they must be proved, etc. Every Jury must go by Probata, what's proved, as well as Allegata, what is only alleged. Where one's Accused of knowingly keeping a Dog wont to worry Sheep, etc. the knowledge must be proved as well as the rest, Cockrain and Davies c. B. R. 17 C. 1. So the Lord Shaftsbury, when sued Lord Digby, for maliciously speaking such and such words, he proved the malice as well as words. If one pleads a Feoffment by Deed, and the other denies it, it must be proved to be by Deed, Co. L. 281, ᵇ So if one be Indicted of Murder, as that he with Malice, Forethought, killed such a one, the Malice fore thought must be proved; for in these Cases the kill might be either by chance, as the Glance of an Arrow, etc. by giving Physic, by a Champion in Trial by Battle, by a Hangman doing his Office, or by one non Compos mentis, etc. In which Cases is no Malice, and and therefore the Indictment not to be found: So the Words might be spoke in Jest, or a Thousand other ways, and not maliciously. So one might keep such a Dog, and not know he was such, and the Fault would then be none at all in him. The Law also may several times be broke in the Letter, yet without any Fault, if the Intent of the Law be not broke: As when things are done to avoid a greater Inconveniency, or by Compulsion, or for Necessity, or by involuntary Ignorance, etc. And in these and such like Cases, the Party ought not be Indicted, though the matter be true in itself. The Romans had a Law, He should die that climbs over the Wall in the Night; yet one doing so to discover their Enemies, was by the Senate adjudged Innocent, and Rewarded. So it's Lawful with us, to pull down another's House when a Fire happens, or in Time of War, to prevent a greater Mischief. So one being to appear to a Writ, but hindered by Floods, Sickness, etc. does not, he is Excused. One forces and uses one's hand to kill a third Person, he is only Guilty: So an Infant, or one non sanae memoriae, kills another, it's excusable. So that where any Fact or Words in an Indictment might be as well under any of these Circumstances, as what other the Clerk or Prosecutor is pleased to allege, these alleged must be proved, for it's plain, are not necessarily employed. And yet if a Man should do any wise thus, the Clerks will draw up the Indictment or Information, as if none of these Circumstances were in the Case, but that it was Maliciously, in contempt of the Laws, etc. So it seems hard a Man should be Hanged for stealing under a Necessity, where the taking is upon absolute Necessity indeed, and it's not the Parties Fault, but Misfortune, he fell into such Necessity: And especially if the Party whom the taking is from, have not the like necessity for the same thing, or the Person that takes, be very Serviceable or Profitable to the Kingdom or Common Good, etc. yet he must be, though the thing so taken be not of the Value of 13 d. if the Jury agree he did it Feloniously; whereas one Guilty of Perjury, though does one a Hundred thousand times more harm, shall only suffer an inconsiderable Rebuke. And why should a Jury in this Case find it done Feloniously, this was done under Force and Necessity, to preserve a Man's Life, etc. instead of an House, etc. and what's said Felonious, must be, Felleo animo, with an ill affected Mind, with a Mind not barely to do the thing, but an itching also to do Mischief; (only this itching indeed shall be presumed, unless Cause appear to the contrary.) As if one takes a thing out of another's Possession, claiming it with some colour as his own, etc. this is adjudged no Felony: Why? for not done with any Felonious Intent, as appears by his claiming, etc. So the like Stealing, as aforesaid, was not for Mischief sake at all, but for Necessity, etc. Thus David, against the Law, took and eat that Bread which was provided for the Table of God only, Exod. c. 29. 1 Kings 21. Our Saviour and his Apostles plucked off, and eat the Ears of another's Corn, Mat. 12. And he, because he had need of an Ass, took that was none of his, but another's; and had Lazarus, ready to perish, taken Dives' Crumbs against his Will, etc. yet it seems he had no more sinned than he mis-behaves himself, that does what the Lord bids, and the Steward forbids, under the Rules aforesaid. A Jury therefore, not observing the Rules aforesaid, gives a Verdict not only against the present and immediate Defendant, but also in him even against David, Christ, etc. represented thus in his Case. In the Civil Law, (that of the Admiralty particularly) if a distressed Ship takes water by force of another where is Plenty, it's no Theft; because of the necessity, so adjudged several times. If an Indictment mention one Seditiously, and designing to disturb the Government, and to withdraw from the King the Love of his Subjects, and said of him such and such Words, here the Words might, perhaps, be spoken within the Privilege of Discourse in Parliament, or in a Jocular Way, or Ironically, when one means the contrary; or by way of Supposition, in Argument, or when one meant a contrary thing, or no harm at all; and this perhaps too explained at the same time in other words accordingly, or the Words in the Indictment be but part of the Sentence, etc. or transposed, or some how else altered. So if a Complaint be, that one falsely and maliciously, and withal designing to break his Credit, and ruin his Trade, called such a one a Bankrupt, here, perhaps, he was a Bankrupt then, or no Tradesman at all; therefore in these and such Cases, the Circumstances alleged being not employed necessarily, though the Fact or words were spoke, they must be proved. But to instance some Cases adjudged by the Judges themselves: If A. bring an Appeal against B. and B. is after acquitted; now, should B. Indict A. for maliciously, etc. bringing the Appeal, the Indictment ought not be found, if B. were Indicted before of the same Fault, he was after Appealed against for, because his being before Indicted proves there was at least colourable Reason why the Appeal was brought, and not Malice only, Coron. 178. 40 E. 3. 42. A Chururgion was Indicted, for that he by Negligence in Curing one's Hand, maimed it; the Negligence must be proved, 48 E. 3. 6. 11 H. 6. 18. So in Actions for Words, which holds the same Law as in Indictments, etc. A. sues B. for falsely and maliciously calling him, being an Heir, a Bastard; Action will not lie, if B. pretend himself Heir, for than it was not maliciously, but only as it were in order to get or claim the Land, etc. And it's Lawful thus to slander another, justifying one's own Title, Co. 4. 10. So Molton sues Clapham, for that a Suit depending between them, upon reading certain Affidavits in Court, Clapham openly then and there, falsely and maliciously said, there is not a Word true in the Affidavits, and that he would prove it by 40 Witnesses; here the Words, though were agreed false, yet being not spoke maliciously, but out of other design, as in his Defence, etc. as aforesaid, Action does not lie, B. R. 14 C. 1. Rot. 459. So a Councillor calling one a Thief at a Trial, the like; for it's not malicious, etc. if material for the Cause he manages, Montagues c. So where A. says to his Friend B. that C. hath the French Pox, therefore advising him not to keep him Company; for spoke as Advice to a Friend, and not maliciously, James and Rudley's c. 40, 41, El. in B. And thus is further seen the Cause or Occasion of speaking words, or doing any thing, must be considered as well as the Words or Fact: And says Coke, This is a General Rule, Co. 4. 14. Also it's another Rule, All Offences in Fact or Word, aught in construction to be made the least of possible. Verba accipienda sunt in mitiori sensu. Words shall be taken spoke in that sense which is most innocent, etc. See of this several Examples, Co. 4. 17. Hob. 473. C. 4. 19 Co. 4. 13. for the Law will presume Innocency further than downright proved, as aforesaid, to the contrary. And if Juries should not be cautious, as aforesaid, one might be Indicted, etc. for saying The King is a fit Man to Govern, or for any thing in the World. Suppose A. be Indicted for maliciously, and with a design to withdraw the King's Subjects from their due Allegiance, etc. saying, The King is a fit Man to Govern, and A. should be found Guilty of it, because he said these words; A. would be in a sad case, the Judges must give Judgement, as if the Words were spoke Ironically, or in a contrary Sense than they were, for so the Circumstances alleged import, though be found of course. If a Jury find an Indictment, etc. with the Word felonicè in it, they find one Guilty of Felony, be the Fact what it will, and so as a Felon the Defendant must suffer: So also if the word proditoriè, for High Treason; and why may not they as justifiably find these words of course, as other not necessarily employed? Where an Indictment, etc. is grounded upon a Statute, than every little Word must be proved that is also in the Statute, though seeming employed, or little more than immaterial; this all agree. For want of these, and such like Observations, one Tho. Burdett, Esq was Condemned, Hanged and Beheaded at Tyburn, in Edward the Fourth's Time, when the matter proved was only, that he being absent, the King hunted in his Park, and killed a white Buck, which Mr. Burdett fancied above the rest of his Deer, and that Mr. Burdett hearing of this, wished the Bucks Horns in his Belly that Advised the King so to do, speeds Hist. 700. Much like was it also with one Walter Walker, who was Beheaded in Smithfield, Anno 1476. when all proved against him, was only, that he (Living at the Sign of the Crown in Cheapside, London) said to his Child, to pacify him when he cried, Peace, peace, Child, thou shalt be Heir of the Crown. But who can open some jurymen's Eyes, to see how like an Ox led to the Slaughter they be imposed upon, and cheated, to cheat others of their Lives, Fortunes, and all that's dear to them; though by their Example too of Acting thus, they make Precedents, and give countenance to after Juries to be like themselves, and consequently expose and render themselves, they know not how soon, in the same predicament, and to be punished as the Criminal was they punished. Or by the Evidence given you. Evidence is only such a Testimony that makes somewhat relating to the issue or matter in Question clear, manifest and plain to the Jury; hence says Coke Lit. 283. Probationes debent esse evidentes & perspicuae. And thus is it, all the Witnesses or Testimony in the World of things impossible, repugnant, inconsistent, etc. can be no more than bare Testimony, and cannot any wise amount to, or be called Evidence. Herein the Jury must consider the Credit and Authority of the Evidence, and the matter or extent of what is Evidenced. First, If the matter proved amount to such plain and full Proof as is required. An Indictment laid against three Persons, may not be found against all three, when the Evidence is only against one or two of them; nor if laid against one Person for three Faults, may it be found against that one for all the three matters, when but one or two of them are proved; nor when the Evidence is but to part of a Matter or Fault, may the Indictment be found for the whole; but, as aforesaid, all found must be proved. Indictments, etc. as aforesaid, brought upon, or referred to any Statute, the words of the Statute mentioned in such Indictment, etc. must be proved very strictly, even to a tittle; the Proof must hit the Bird in the Eye. As one Indicted on the Statute for Maliciously disturbing a Minister at Divine Service, every one of these Words must be proved; so for wilfully and corruptly forswearing one's self; so for one's gain keeping a Gaming-House. But in other Cases, as at Common Law, if the proof and words in the Indictment, etc. differ either in the matter, or the form, or manner, inconsiderably, or so as the difference be not somewhat considerable or material, as aforesaid; such is indeed no difference in Law, nor by the Jury to be taken as any. In the matter, as in a Complaint for these words, B. is a maintainer of Thiefs, and a strong Thief himself; here the word strong signifying little or nothing, need not be proved spoken, Dy. 21. 75. But if the Allegation and Proof materially differ, otherwise; as for these words, If B. might have his will, he would kill all the true Subjects in England, and the King too. Now, the Proof being that the Defendant said, I think in my Conscience, that if B. etc. the best Opinions in this Case are, that this is not sufficient Proof; for the Words alleged are more positive and absolute, and move Credit more in one's Ears than those proved, and so are not in effect the same, but materially differ. So of these Words, B. procured eight or ten Witnesses of his Neighbours, to Perjure themselves; the Proof being only that the Defendant said, B. had caused eight or ten, etc. This is no Proof, for one may be a Cause, and yet not a Procurer, there being remote Causes, Causa sine quâ non, as well as others so nigh, as that of procuring. Such a Cause as this B. might be, though only Plaintiff or Defendant in a Suit, for had there been no Suit, there could be no Perjury. And the most favourable and innocent Sense of Words is to be taken, and no other. As for the manner, An Indictment being for Murder by Poison; if the Proof be, it was not by Poison, but a Weapon, Burning or Drowning, etc. this will not do; for the manner proved, is of another Nature proved than alleged; but if the difference were only thus, that the Poison alleged were of one sort, and that proved of another, this being immaterial, (both agreeing it was by Poison) the Proof may serve. So Murder alleged to have been committed by a Dagger, the proof being it was by a Sword or Bill, may serve; but proof by Poisoning will not do. If an Assault and Battery be alleged to have been at A. the proof being it was not at A. but B. may serve, provided the Offence be neither greater or lesser, whether committed at A. or B. But if the place alleged aggravate the Fault, it's otherwise; or if both places be not in the same County. So of the like difference in time alleged and proved. Now, as to the Credit and Authority of what is Witnessed: It's no proof or Evidence to a Jury, which is against their own knowledge, nor any other but that only, which confirms them in what did know, or acquaints them with what did not know. The only Reason, said my Lord High Steward, at Lord Cornwallis' Trial, why a Prisoner is allowed no Council in matter of Fact, or in any thing but matter in Law, when Life or Member is concerned, is only this, The Evidence whereby he shall be Condemned, aught to be so plain and evident, that all the Council in the World may be presumed able to say nothing against it, or in his Defence. Nothing ought so much as raise a suspicion, says Horn, but what comes from grave and good People, those which be Credible, and heed what they say, Mir. 200. And not from others, as ill-tongued, ill disposed, etc. People, Bract. Brit. Stanf. The great Lord Coke says, of old time (as yet, says he, indeed it ought to be) Any Indictment was not to be found but on Credible Witnesses, and plain and direct Proof; and never upon Probabilities or Inferences, etc. Inst. 2. 384. The Famous Montagne, p. 1040. says, à tuer les gens il faut un clarté bien lumineuse & net. And the Lord Coke, Inst. 3. 25. It's most necessary, as many hold, there should be two good Witnesses produced to the Grand Jury to prove every Indictment: And the Proof, says he, aught to be more clear than Light. Every Jury must always remember, they may presume nothing but Innocency; and Innocency etc. they ought, until the contrary proved. Of Presumption and Argumentative Verdicts, etc. finding one Guilty, there be several very sad Examples. One the Lord Coke tells of, is, There being two Brothers, one dies, leaving an Estate, and an only Child, the other Educates it, and one Night correcting it, it cried, Good Uncle do not kill me, and next morning it was gone no Body knew whither. This Brother is Accused of its Death, upon Evidence of the matter aforesaid, that he beat it, it was Young, about Nine years old, it cried as aforesaid, it was never heard of since, and that the Uncle enjoys an Estate by this. The Jury find him Guilty, and he was Hanged, but about a year after it returned safe and well, Inst. 3. 232. The Scripture enjoins the use always of two Witnesses at least, when yet the Punishment then and there was so much less than now with us, for the Crimes to be punished, Deut. 17. 6. 16. 19 15. Mat. 18. 16. Jo. 18. 27. 2 Cor. 13. 1. Heb. 10. 28. Vox unius nullius vox. One is none, l. 8. C. de testibus. Quaedam sunt causae quae plures quàm duos exigunt testes, nulla tamen quae unius testimonio terminetur, says the Civil Law. In some Cases there must be more than two Witnesses, but never fewer, c. Licit. 23. in sin. extr. de test. By the Ancient Laws of England, no Indictment was to be received against a Presbyter, without three, or at least two Witnesses; against a Cardinal Deacon without twenty six, or at least twenty four; against a Cardinal Presbyter but with sixty four, or at least forty four; nor against a Cardidal Bishop without seventy two Witnesses. Lamb. 178. The general Rule is, In one dûum vel trium stet omne verbum si modo sint omni exceptione majores. Two or three Witnesses be enough, if liable to no Exception: Any one Person may invent or contrive any Story for Malice or Envy, or other End, to take away another's Life, etc. And who can disprove or detect him? But it's not so easy for two to do it; yet two may possibly also agree and contrive an Evidence together, and so form it, and frame Circumstances, all agreed of beforehand between them, that being false, it may yet seem very plausible; The Children of this World be wiser than the Children of Light. Jezebel had two Witnesses against Naboth; and two Witnesses were against Chaste Susanna, to prove her Avoutry, yet both ●ad false Evidence against them. Sussanna was acquitted, only because the Witnesses differed what Tree it was unde. In all Trials whatsoever in England, either at Civil Law, or Common Law, where is no Jury, there all will confess must be two Witnesses at least, Co. L. 6. ᵇ And always that Witnesses are to be joined to the Jury, they must be two at least, ibid. And in any Law any where must be always two Witnesses at least, and no place can be pretended of otherwise, except only England. And that it should be so here, even when there is a Jury too, see 48 Ass▪ 5. Barrec 241. Enquest. 42. Bract. l. 5. 400. 48 E. 3. 30. And so is expressly Mir. c. 3. etc. Fortesc. 73. Co. L. 6. ᵇ Inst. 3. 26. And so it was agreed in B. C. Trin. 9 El. And the only Reason why it should be otherwise, is as aforesaid, that the Jury be presumed to know themselves, to the Value of one Witness more. But if it so fall out, that really they know nothing themselves; then, should they find one Guilty upon a single Testimony, they make that Law, which other wise could not be Law, and find one Guilty the Law would have acquitted; and thus a Trial by a Jury would be less safe and more destructive than any other in all the whole World again. The Jury thus make one Witness as good as a thousand; for had a thousand Witnessed, the Jury could have done no more. This would occasion great Mischiefs, Perjuries, and other Inconveniencies. A. then being sufficiently Malicious or Interested, and so designing Bs. Death, an Italian would Poison, Spaniard Stab, Frenchman Pistol him; but being an Englishman, and expecting such a Credulous, Officious Jury, as aforesaid, to help him, will sure choose to swear him to Death; for A. has his Malice better answered. B. thus not only loses his Life, but also his Credit, Estate, and what not? Besides attainting his Blood, and utterly disgracing all his Relations; and at last, how shall A. be discovered in it? He is infinitely more safe this way than any other. Or, suppose one comes out of the Moon, and by chance should discover him, he knows he is safe of his Life, he shall not die by our Law: If any body happen too that will be at the Trouble, Charges, Hazard, and Danger, to Prosecute him never so severely. But by the Statute he shall forfeit 40 l. or at his Election stand a while on the Pillory, and half a year be in Prison; this is all. Likewise a cunning Rogue, suppose, Robs one, etc. no Witness by; if one offer to prosecute him, let him Prosecute first, and he Hangs one thus into the Bargain, and saves himself honourably. Or were there one or two Witnesses by, but he first Prosecutes, and Swears against all; it will go hard with them all.  
It's said of the Egyptians, they had no punishment for lying, and so had no measure in it; But thus our Law tempts, as well as scarce at all punishes Perjury. A Jury, though have two or more Witnesses, ought also consider and examine their Circumstances. Amongst the Turks only such may be Witnesses as are Freemen, can say their Prayers, have some knowledge in Law, be known of civil life and conversation, etc. Boschiner Academ. 19 By the Laws of Scotland (for the most part always like ours) none shall be Witness under 14 Years old; furious people, officer of the same Court, womans, Adulterous Persons, Thiefs, Poor, whipped for any Offence, Infamous, Convict and Ransomed from Justice, Kinsfolks, Companions or Parties of the same Crime, Clergy against Laity; nor any one's Tenant, Bailiff, Servant, or any other of his Robe, Council, Retinue, etc. nor any known Adversary, nor any Person Excommunicate, or Imprisoned for, or accused of a Crime. St. 2. Rob. 1. By our Laws none ought to be a Witness that's Indicted of Treason or Felony, and not acquitted, Persons excommunicate, outlawed, or otherwise defemed, nor Judges in any case where they shall be concerned as Judges, Brit. 39 Mir. 117. 108. Bract. 118, 119, 133, 141. Persons outlawed or otherwise infamous, 11 H. 7. 41. Young 116. Stanf. 88 11 H. 4. 35. Inst. 3. 36. And certainly they can't that be infamous, as attained of a false Verdict, of any Conspiracy at King's suit, of Perjury, of a Praemunire, of Forgery on the Stat. 5 El. c. 14. of Felony, or have by Judgement lost their Ears, or stood on the Pillory, or be Infidels, or Non sanae memoriae, of insufficient discretion, considerably interested in the matter, Cromp● 127. ᵇ Co. L. 6. ᵇ A Husband or Wife can't be Witness for, or against one another, Co. L. 6. ᵇ nor against any other in the same cause, Stanf. 26. ᵇ Except in▪ crimiminal cases, where he or she is the Party offended, and swears only for the King, and no other Evidence can be expected. The Confession of a Criminal gotten by Fright, or any Artifice used upon him, or made before comes to his Trial, is no Evidence against him. The Common Law was so strong in this point, that till 2, 3, P. & M. c. 10. no Justice of Peace could examine a Criminal; in short, 
Conditio, sexus, aetas, discretio, fama,  
Et fortuna, fides in testibus ipse requires.  
Ask his Estate, Fame and Religion,  
Quality, Sex, Age and Discretion.   
But the Judges use to Determine who shall be sworn, and what shall be produced as Evidence to the Jury, and the Jury what Credit or Authority the same's worthy of, Co. L. 6. ᵇ One that's burnt in the Hand for Felony, is by some held to be a Witness in Law; for, the Crime say they, is purged, so if pardoned by the King. And some hold many of those aforesaid are in Law good Witnesses, as Poor Men; but the Jury may consider such may easier be biased or corrupted, he has not so much to lose or forfeit for a Crime, he lies under several Necessities and Temptations a Rich Man does not, etc. In Solomon's (Proverbs) c. 30. praying against Poverty, the Reason's alleged, lest being poor, one should steal, and take the Name of the Lord in vain. And it's for something the Poet says, 
Quantum quisque suâ nummorum servat in arcâ,  
Tantum habet & Fidei—  Juvenal.  
As for Servants, etc. they are under the same Circumstances commonly of Poor Men, and worse, for more apt to do any thing in Obedience, or Favour, or else out of Malice, etc. against or for their Lord, etc. Before the Conquest the Oath of a Thane (one of like degree then, as a Yeoman is now) was in Law Equivalent to the Oath of six Villains, Pagans, etc. (Servants that were bound) Lamb. 56. 200. as for Persons any wise Infamous, such will not value or stand upon their Credit, or but the less, since have little or none to lose, and over shoes over boots. As for criminal Persons, It's a Maxim, Justitia non potest cum scelerato Commorcium habere. He that has been once wicked, or in one thing, may be suspected again, or in another thing, hence where a Desendant is supposed in Law guilty but of a Contempt, Trespass, Deceit or Injury; He shall not wage his Law, for the Law will not believe him, though would believe another against whom is an Action of Debt, Detinue or Account, Co. L. 295. As for one under 14 Years old, such are, as our Law says, not arrived at Discretion, such may Mistake, be Influenced, etc. and so of all the rest. But it were not amiss, if Juries heard all Persons, weighing their Testimony as aught. A Jury should mislike any Witness also, that in's Evidence varies, delivers himself in any passion, speaks at random, or not cautiously, or seems to side with or against either Party, or to argue, or to offer proving Negatives. None can swear a Negative, nor may be admitted to give Testimony directly against an Affirmative, 48 E. 3. 30. 12 H. 6. 6. Assize 408. 12 H. 4. 9▪ 50. E. 3. 16. 43 E. 3. 32. Fleta li● 6. c. FNB. 136. h. 97. c. A Jury may take Notice of particular Statutes, Patents, Judgements, and other Records given in Evidence, and may go against Estopels, Conclusions, etc. so it be according to the very truth; for they must speak the Truth in all cases, Co. 4. 53. It's much the Jury does not always examine Witnesses themselves. If he that examines them be corrupted, or any wise ill affect, he may easily misled the whole course of Evidence, he may countenance which side he will pleasedly, hearing the one side on one sort, but the other not without brow-beating and uneasiness; he may frighten, discountenance, divert, puzzle, distract, or otherwise abuse a Witness; he may flatter, wheadle, prompt, ask leading Questions, direct, etc. and thus darken and perplex the Truth.  
How does a Jury discharge its Conscience thus? The Jury is the only Judges also of what is said, and how the Verdict shall be given, and they whose Consciences are to be satisfied, and certainly know best what they want to know, etc. unless walk by implicit Faith, and therefore be the most proper to ask the Questions.  
All that is aforesaid should also the rather be as proposed, considering how the Law is now altered as to Accusers, Judges, Witnesses, Councillors, Solicitors, etc. Anciently, Omnis qui crimen objicit scribat se probaturum. Et non oportet quenquam Judicari vel Damnari priusquam legitimos Accusatores habeat presents, Ll. Guil. 1. c. 5. All Persons that Indicted any other, were to be sufficient, responsible, etc. Co. 5. 120. Accusers gave Security to answer Damages if the Accusation proved false, Mir. 19, 120, 124, 147, 195. Glanv. 75. longum carceris inducunt inclusionem cum redemptione, falsae appellationes & hujusmodi abettatores, Fleta 142. Fines were set on Appellours, 11 R. 2. Fines 2. 15 E. 3. Fines 49. 107. If A. brought an Appeal in any Case, and was either barred, nonsuited, or his Writ abated, he was fined and imprisoned immediately, without Defendants trouble, 8 H. 4. 17. 20. Brit. 245. 32. Ass. 9 42. E. 3. 26. Appellee acquit, the Appellour was by the same Judgement, without more Trouble, imprisoned a Year and Day, and was to repair the Damages of Credit, Trouble, Charges, etc. of Appellee, besides, undergo a grievous Ransom or Fine to the King; and so was it of Abettors or Encouragers of the Prosecution, Fleta 53. It was Death to appeal innocent Persons of any Mortal Crime, till H. 1. brought it to Corporal Punishment, and satisfying the Party grieved his Damages, Mir. 250, 251. So the Lawyers were punished for assisting the Accuser, and a year and a day's Imprisonment inflicted on a Sergeant, Lawyer, Attorney, or Clerk, to use Deceit or Collusion in a Court, or consent to it, either in Favour of the Court, or any Person else, Fleta 87. Councillors were to be suspended Practice, if tendered false Delays, false Witnesses knowingly, used Deceits, Fictions, or Untruths to the Court: And were to swear not to maintain or defend any Wrong or Falsity, Mir. 121, 122. And it's by a kind construction they be not yet liable in several Cases to be punished as Barrettors, Maintainers, etc. An Assize did lie against Councillors, Attorneys, etc. by whose ill practice or means any one lost but a freehold inland, Mir. 154. 209. Brit. 315. So Witnesses have formerly been punished severely. In the Scripture, the Story of Susanna, the Witnesses are put to Death. By Moses' Law it was Eye for Eye, and Tooth for Tooth, Life for Life, etc. against false Witnesses, Deut. 19, 21. By the Law, Cornel●a amongst the Romans, a Witness that occasioned fewer Death by false Testimony, lost his Head, if one of the greater Quality, else he was Hanged on the Cross, or given to wild Beasts, Simler. Before the Conquest, that of Moses was mostly; so with us, only sometimes it was Banishment, etc. Ll. Ed. c. 3. Ethelst. c. 10. 25. Edm. c. 6. 35, etc. Edw. & Gru. c. 11. Aussi sont homicides devolunt juges & tesmonis que fausses. Mir. 34, 36. False Judges, and false Witnesses are guilty of wilfully killing Men. After it came to cutting out of Tongues▪ Mir. c. 4. Ll. Canut. c. 15. As for Judges, they were accounted Disseissours, if wronged any one in his Title, Brit. 137. Mir. 154. 209. Brit. 315. In Scotland, Judex qui ter malè judicasse convictus fuerit perdit Officium & fit infamis, Stat. Rob. 1. c. 28. A Judge convicted of having thrice ill judged, loses his Office, and is adjudged infamous. Says Glanvil, Tenetur Curia Judicium suum tueri per duellum & maximè per illum qui Judicium reddidit. Et quidem si Curia de falso Judicio convicta fuerit, Dominus Curiae in misericordiâ▪ Regis manet & perpetuò Curiam amittit; prae●rea tota Curia in misericordia Regis renanet, Glanv. 66. Altresi qui faus jugement fuit pert sa Were si il ne pret prover for saintzes que melz ne post juger, Lamb. 162, 64. Also whosoever gives a false Judgement, shall forfeit his Were, (what's Life is worth) unless can prove on Oath he could judge no better. Judges, if Condemned one to Death against their Knowledge, or by Ignorance of, or in what they ought not, as Judges, be Ignorant of, they be Murderers, etc. and to die as such, Mir. 256. v. Bract. 412, King Alfred's Law was, That false Judges, because dishonour God, whose Vicars they be, (the Scripture calls them Gods) and the King, which raises them to such an Honourable Seat, as the Chair of God; they shall (first) make satisfaction to the Party grieved, forfeit what else they have, and suffer further Punishment at King's Will and Pleasure. And if they falsely put to Death any, then to die themselves, and always at least to suffer like for like, Mir. 265. 301. Appeal of one's Death lay against a Judge, for judging one falsely or wrongfully to Death, Mir. 136, 258, 298. Presentments were made against Chancellors, Judges, etc. for breaking their Oath, Mir. 144. There were 44 Judges hanged in one Year for wrongful Judgements, Mir. 296. etc. And says the same Book, it's an abuse, that all things are not so now, 296. What became of Tresilian and Belknap, of later years? But now the Law seems clear otherwise, we have little or no Punishment against Chancellors, Judges, Councillors, Attorneys, Clerks, Witnesses, etc. yet were Juries then so cautious, as aforesaid, with and against them, where now therefore how many times more Jealous and Cautious have they Reason, and should they be.  
The Law considering the great Burden; that lies upon the Consciences of Jurymen, has favoured them with this Liberty. They may, as aforesaid, take upon them the knowledge of what the Law is in the matter, or upon the truth of the Fact, as well as the knowledge of the Fact, and so give in a Verdict generally, that the Defendant is Guilty or not. Or they may give in only the matter of Fact, particularly how they find it to be, and then leave it to the Judges to determine. Or, they may acquaint the Judges, how the matter of Fact stands, and then ask the Judges their Opinion, as to the matter of Law, and then determine the whole matter themselves. The Grand Jury strikes out of the Indictment what they be not certain is true; or may any wise altar it to what they be certain is true: Or, if any thing be in it they be doubtful of, they may superscribe it Ignoramus, at their Election in all these Cases. Thus if a Jury find the Words not spoke, or the Fact not done, with, and according to the Aggravations and Circumstances in an Indictment, etc. mentioned: They ought either not find the Indictment, (for one not being Guilty as the Indictment mentions, is consequently not Guilty of that Indictment, but rather seems, if guilty at all, guilty of some other matter than which he stands Indicted of, and so of some other Indictment only; and then let the Prosecutor, if so fond of troubling his Neighbours, bring such other) Or strike out what they have not sufficient Evidence of, as do often in Indictments of Murder, (which say the Defendant of his malice forethought Feloniously Killed and Murdered such a one) strike out the words of his malice forethought and murdered, having no Evidence of the Malice, but sufficient of the rest, and then endorse it Billa vera, and so find the Bill Manslaughter, instead of Murder. So was it of an Indictment against Ld. Chandois and Count Arundel his second in a Duel. In like manner, when the Evidence proves a Fact done only by mischance, defending one's self, in time and place of War, when Defendant was non Compos mentis, an Officer doing his Office, etc. the Grand Jury alter the Indictment accordingly. So of the Petit Jury, only it does not alter the Indictment, etc. but instead of altering Murder to Manslaughter, etc. as aforesaid, in the Indictment, they only say, Guilty of Manslaughter, and not of Murder; or guilty of Chance-medley, Se Defendendo, etc. Or they may tell the Court particularly and plainly how they find the truth in, and of the whole matter to be so far as concerns the Fact, or what was done or said. As in Cases of Words, what were spoke, where, to what intent, &c, and so leave it to the Court to judge on it according to Law, and to tell what the Law is thereupon, and so be discharged themselves, which is called giving a special Verdict. Suppose A. bring an Action of Debt on a Bond against B. as Heir of C. and B. pleads he hath nothing from C. to pay any thing with; and A. replies, that he has, etc. and so the Issue is joined (or what the Jury be to Try, is) whether B. has any thing, as aforesaid, or not. A. proves that B. had before the Action, brought something so, but aliened by Fraud and ill Practice, to deceive A. of his Debt. Now, they finding the matter or case to be thus indeed, and the Law being (for there is a Statute, 13 El.) that such aliening shall be void, and consequent, the Heir chargeable nevertheless: They may, if will, as aforesaid, either take upon them to know the Law, and in this, or any Case, say generally, they find for A. Or not take Notice of the Law, but only of the Matter, and so tell the Court how, and what they find the matter to be; and thus leave it to the Court to judge in Law, whether ought to be found for, and this is their most safe way. To this end was the Stat. of West. 2. c. 3. that if a Jury doubt on the Evidence what the Law is, and therefore what to do, they might leave it to the Judges to determine. But, says Coke, this Statute is only in affirmance of the Common Law, Inst. 2. 425. 13 E. 1. 39 See a special Verdict in Case of Murder, Co. 4. 44. Co. 9 63. One in an Information, N. B. Entr. 375, 378. Co. 1. 22. One in Attaint, Dy. 173. So in a Case about Murder, the Jury tell the Court; they find the Killing itself to be true, but not the Killing Feloniously, as mentioned in the Indictment, and so ask the Opinion of the Court if it be Murder, Go. 9 69. So the Jury found the Parties Indicted for Riotously tearing the Petition, Guilty of tearing the Petition, but not of the Riot, etc. It's true, it's doubted in Moor, c. 1002. whether in a Writ of Right a Jury may give a special Verdict. But as there is no Reason, that if the Cause be indifferently plain, as to the Law, the Jury themselves should not put an end to it, giving a General Verdict, as Guilty or not Guilty, etc. without so much further Charge, loss of Time, increase of Trouble, as otherwise must needs follow; yet on the other hand, there is as little why if there be difficulty in Law upon the case that they being mostly unlearned in Law should be bound to find generally Guilty or not, etc. and so find and say on a sudden what is the very Law, as well as Fact, when some such Cases have several years puzzled all the Judges to resolve. And it's against all Reason, that the Election of giving a special Verdict, or general Verdict, should be in the Judges too; for the Jury best knowing themselves, their own Capacities and Strength, do therefore best know when meet with difficulties to them in Law, and so when to give the one or other: And accordingly are 〈◊〉 best Opinions that the Jury may choose▪ 〈◊〉 the Action, etc. real, personal, or mixed, Civil, Criminal, Public, or Private; and be the Issue general or special, or in any Case whatsoever: And that the Judges must accept of, and can't refuse such Verdict, 13 E. 1. 30. Fitz. I. of P. 114. Co. 9 14. Inst. 2. 425. Inst. 4. Co. L. 227, 228.  
Either Jury may at any time alter their Opinion or Verdict, etc. before Recorded in Court, Fitz. I. of P. 114. Co. L. 227.  
All said any where above of Grand juries, may be applied to the other Juries; and no Body will offer to deny, but other Juries ought to be as strict, circumspect, and careful, etc. as aforesaid, though would pretend otherwise of Grand Juries.  
A Petit Jury may abridge a fault a Grand jury finds one Guilty of, but can't enlarge it: As one indicted of Murder, may by the Petit jury, be found Guilty of Manslaughter, Chance-medley, etc. instead thereof; but one being Indicted of Manslaughter, can't by the Petit Jury be found guilty of Murder, or any greater Crime than Manslaughter.  
A Petit Jury can't give any Verdict against any one, where Life or Member is in question or danger, but only in the Court, whilst also it's sitting, etc. though in other cases may.   

A Letter to the Author.  
SIR,  
HAving by your Friend received your Treatise concerning Juries, with desire that I should show it to one, whose course of Study is so well known to be Conversant with Ancient Records and Books, as his Judgement is worthily Esteemed, I did, after I had read it over, perform that Trust, by showing it to that Learned Gentleman, whose Opinion your Friend told me was desired; and further by that Gentleman, it was Communicated to another Worthy Person of the same Course of Study; and both of them having read it over, I from them return it to you, with Assurance, that they, as well as I, have had much Satisfaction and Delight, by seeing so useful Subject Matter so Learnedly Treated of, in a time, when the Publishing it seems not only Seasonable, but Necessary.  
I wish we might have the Happiness to know you, but being assured by your Friend, that you have taken a Resolution as yet, to Conceal your Name, we must for the present, think it enough to believe that Treatise is composed by a Worthy, as we find it could be done by no other than a Learned Man.  
And I must, in returning your Manuscript, present you some Matters and Cases which occurred to our Thoughts in Reading it; which being agreeable with yours on that Subject, yet some of those Cases and Instances, I am about to mention, not being so particularly Expressed in your Book, though two or three Passages which are in yours, [as concerning all the Twelve of a Jury of Trial to consent in Verdict; and in Grand Juries, Twelve at the least to Consent in making Presentments, or Indictments; and the Matters of Empson and Dudley.] I shall herein repeat, because they will relate to the other Paragraphs here intended, what may seem not mentioned in yours, are offered to you to consider, whether you will insert them in some proper Places among the Leaves, and Parts of your Book, and reject the rest that I shall Write in these Papers, unless you please to receive them all together as they will be sent to you, by way of Letter▪ which yet must want the Ceremonial Form of Address, whilst you forbear to let me know, to whom to direct my Respects.  
What I am about to present to you, relating to this Matter, are:  
Let any Sober Citizen consider, how Legal, Just, and Reasonable, he would think it, if being of clear Reputation, Credit, and Innocency, he should be indicted for some Base, yet Capital Crime, upon the Oath of a strange or bad Fellow's Evidence, who should be altogether unknown to the Grand Jury, or vehemently suspected to be a Rascal, notwithstanding which they should (by the Judge's Directions) find the Bill, and thereupon the Citizen should be publicly arrested by Officers, haled from his House or Shop, committed to Prison, his Goods inventoried, and Guards set upon his House to prevent pretended Imbezlements, and his Credit and Reputation utterly ruined without Remedy. And after all this, that it should be said, the Grand Jury did well to find the Bill, from whence all these sad and woeful Consequences followed, upon such late applauded Notions, that the Grand Jury are not to be Judges of the Credibility of the Evidence; or that though Citizen is not in danger of his Life, till his Trial by another Jury.  
Again; How much would such Principles have been abhorred, and declaimed against, if a Woman, notorious for being a Common Whore, should have indicted the late Archbishop of Canterbury for a Rape, and the Grand Jury should have found the Bill, whereupon the Archbishop was to be committed to Prison, suspended from Ecclesiastical Jurisdiction, his Goods and Chattels all over England inventoried by the Sheriffs? Would the Plea have excused the Grand Jury, in the Opinion of any unbiased and Impartial Man, that though they believed in their Conscience, that the lewd Woman swore false, yet, they being to find according to her positive Evidence, they, as so many Parish-Clarks were but to say Amen to her Oath of the Fact; and so find Billa vera against that Eminent Prelate?  
It may be also considered, whether the Statute 13 Car. 2. cap. 1. which requires that Persons shall be Indicted and Accused by the Testimony and Depositions of Two Lawful and Credible Witnesses upon Oath, can be interpreted to make the Testimony of Two Witnesses not Credible, sufficient Evidence? If the Witnesses are to be Credible, as the Statute plainly declares they ought to be, than it may be further asked, Who are to be Judges thereof? If the Judges; Then they take upon them to determine Matter of Fact, and so becomes Judges both of Law and Fact: And what need then is there of Grand Juries? But that the Credibility of the Lives, as well as the Circumstances of the Evidence of the Witnesses is entirely lest to the Grand jury, is plain from this; That if one of the Judges be produced as a Witness, he must in that respect, for that time, leave his place as a Judge, and be sworn, and appear before the Grand Jury, as any other ordinary Witness.  
Besides, If the Entire Judgement of the Evidence had not by the Law been left to the Jury, than they would be finable if they should refuse to find according to the direct Swearing of the Witnesses, (whether true or false, probable or improbable to them,) and if they should not implicitly follow the Pleasure and Direction of the Judges.  
But that the Jury is not finable, is adjudged in the Case you remember of Bushel, in the Lord Vaughan's Reports, by solemn and seasonable Resolution of the Judges.  
And should not the Grand Jury be Judges of the credibility of the Evidence before them, the Affidavits of Two Persons, who should swear Treasonable Words against any Man, would be sufficient to bring him immediately upon the Jury of Life and Death, and then the Trouble of a Grand Jury would seem only a piece of needless Formality, which our wise Ancestors never thought so slightly of before; and certainly the Use of them would never have been continued, nor would Men of so Great Worth, as they generally are, or should be, serve therein; where Sheriffs make a Conscience of their Duty to return such.  
It may not seem Impertinent here, to mention a Memorial, or Credible Report, of what happened in the Reign of Queen Elizabeth, concerning a Jury at a Trial, whereof the Substance is; That a Murder being committed, a Man, who was suspected for the Fact, was Arraigned before the Lord Chief Justice Anderson, at the Assizes; the Evidence was so strong, that the Judge directed the Jury to find the Prisoner Guilty; and they going together to consult of their Verdict, Eleven were for finding him Guilty, but the Twelfth Man was against it: This begat great Dispute, and the Judge expecting a present Verdict, sent for them, to know the Reason why they stayed so long, he being ready to rise; the Jury told him, they were all agreed but one, whereupon the Judge ask him, why he did not agree with his Fellows, to find the Prisoner guilty, seeing there was so plain and full Evidence? To this the twelfth Man gave no Answer, (where by the way may be noted, that none of the Jury are bound to declare their Reason for their Opinion.) So the Jury was sent out again; but no Persuasions could prevail with the twelfth Man to agree with the rest: Therefore the Jury were to be shut up all Night without Meat or Drink, and in the Morning great were the Complaints from the Eleven, of the Indisposition of their Health; so that the Judges in Commiseration sent for them, and they agreeing with the Twelfth Man, the Prisoner was found Not guilty, and so acquitted. After the Jury had given in their Verdict, the Chief Justice desired to speak with the twelfth Man, and that he should come to his Lodgings after the Court should rise: When he came, his Lordship taking him aside, told him, that the Country looked on him as an Honest Man, but in what he had done, he much doubted there was something extraordinary, and desired him to tell him what it was: The Juror, with a disturbed Mind, told him, that if it might not turn to his Prejudice, he would discover the whole Business: To which the Chief Justice replied, that it should not, and gave him his Hand upon it; whereupon the Juror with tears told him, that he was the Person that had unfortunately killed the Man, and that the Prisoner was not guilty of it; and that this Juror had not sought to serve in the Jury; and confessed, that after he was sworn, upon his Lordship's Directions, and the Juries Importunities, he had once resolved to comply, and find the Prisoner guilty; but when he considered, that was to add Perjury, and another Murder unto Murder, he resolved to be starved to Death, rather than to agree thereunto. When the Chief Justice had heard him out, you have, saith he, done a very ill thing; but seeing you have not added one crying sin to another, Pray God for Pardon, and I will get you the Queen's Pardon.  
Sir, You having mentioned in your Book, I might omit to say any thing, that Juries of Trial every one of the twelve must agree, or no Verdict can be given, and no way should be introduced to go to the Vote, and Poll amongst themselves for the major part. But I could not forbear mentioning it again, because special Notice should be taken thereof.  
And also of what you have very well observed, that Grand Juries ought not to find any Bill, or make any Present men or Indictment, unless twelve of their number agree to the Presentment or Indictment. The Rule of Law being very clear 〈…〉 as may appear by the Statute that direct Enquiry to be by the Oath of twelve Men: And all the said Statutes prove, and some of them expressly declare, that Enquiry by the Oath of twelve Men hath always been the laudable Custom and Usage of this Realm: Therefore though Grand Juries consist of a greater Number, and may put matters that come before them to the Vote and Poll, yet the major part of them ought to be twelve at the least, to agree to any Bill of Presentment or Indictment; for there cannot lawfully be any Presentment or Indictment, unless twelve of them consent thereunto, which I could not forbear the more expressly to repeat; It being fit and necessary for all Gentlemen, and others who serve in Grand Juries to know, to prevent Mistakes of what is so plainly the Law, in all Cases of Presentment and Indictment by Grand juries.  
That Juries are Judges not only of Fact, but of Law, by your Treatise may more fully be seen, and may clearly appear by their Power to give Special Verdicts as well in Capital as Common Matters, as in Case of ●●dictment of Burglary, they may find only the Felony, and acquit of the Burglary, and many such like Cases, as where Indictment for stealing Goods therein mentioned, of the Value of Ten Pounds, they may find the same to be but Ten Pence, and so to be but Petit Larceny.  
And I hope it will not seem tedious to show that Juries, as well of Inquiry as Trial, have sometimes been Judges also in Matters of the Church and Religion, even in time of Popery.  
As in Cases of Praemunire, such anciently was the Care and Watchfulness, which our Law provided against the Danger and Encroaching Jurisdiction of the Popes and Church of Rome, which have always had Designs against England, our Laws and theirs being incompatible.  
Therefore from the time of King Edward the Third, and the Reigns of the succeeding Kings, there have been Laws made, That if any of the King's Subjects obtain Provision or Promotion to Benefices, or if any Appeal from the King's Courts of Justice to the Court of. Rome, etc. they shall be Imprisoned during Life, and forfeit their Lands and Goods, and be out of the King's Protection. And we know, that the way of Inquiry and Trial in these Cases hath always been by Juries.  
There are some other Matters comprised within the Construction of the Statute of Praemunire, as the drawing Matters any where else to another Examination than in the King's Courts of Law. And many other Offences made to be under the like Punishment, and called Praemunire by other Statutes, which we need not here mention; my Intention being only hereby to show, that Juries have been anciently Judges of Ecclesiastical Matters, even in time of Popery.  
And for their having been Judges of Religion also, we may see after King Henry the Eighth had cast off the Pope's usurped Supremacy, and by the Power of a Parliament restored the Crown and Laws of England in Church Matters, to their ancient Rights and Usage, but had not then cast off the Popish Religion; He, with the Lords Spiritual and Temporal, and the Commons in Parliament, in the Thirty first Year of his Reign, even at the Instigation of the Clergy. (as is recited in the Record of that Statute, and in Rastal's Printed Book of Statutes at large, 31 H. 8. c. 14.) Enacted that the Statute (commonly called) of six Articles; whereby,  
1. The Real Presence in the Sacrament was to be believed.  
2. That the Communion in both kinds was not necessary.  
3. That Priests ought not to Marry.  
4. That Vows of Single Life are to be kept.  
5. That Private Masses were agreeable to God's Word.  
6. That Auricular Confession was necessary, and that if any one should Publish, Declare, Say, Affirm, Argue or Hold any Opinion against the said Articles, he should suffer Pains of Death, without Benefit of Clergy, and forfeit all his Estate, Real and Personal, and Commissions were to be directed to the Bishops of the Diocese, their Chancellors, Commissaries, and other Persons, as the King should appoint, to Inquire by the Oaths of Twelve Men concerning these Matters.  
Of which Statute, the Learned Dr. Burnet in his History of Reformation, Folio 266. hath observed, That there was but one Comfort which the poor Reformers could pick out of the whole Act, That they were not left to the Mercy of the Clergy in their Ecclesiastical Courts, but were to be Tried by a Jury, where they might expect more Candid and Gentle Dealing.  
But though these Matters were thereby to be brought before a Jury, yet so great were the Arts and Industry of the Bishops, and those who were then most Zealous to uphold Popery, that they endeavoured sometimes to bring back these things to their way of Determining without, and to lay aside Juries, and often when these Matters were brought before Juries, they did over-awe them, and overstrained this Law, and so dreadful were the Storms, and so grievous the Persecutions against the then Dissenters, that in the 35th. Year of the same King's Reign, to qualify the Severity, (as by the Record thereof, and Rastal's Book of Printed Statutes at large, 35 H. 8. cap. 5. may be seen) that whereas by force of the former Statute of 31 H. 8. Certain false Accusations and Presentments were brought against the King's Subjects; and such Accusations and Presentments were kept secret from the knowledge of the Accused, till time espied, and they by Malice Convict, to the great Peril and Danger of the Subject. It was therefore Enacted, that Presentments and Indictments on the said Statute, whereunto any Person shall be called to answer, shall be in open Court, upon the Oaths of Twelve indifferent persons, according to Equity and good Conscience, and as other Presentments have been used to be taken in this Realm in such 〈◊〉 Causes, according to the good and laudable Custom and Usage of the same. And that the Inquiry and Trials upon the said Presentments and Indictments, may justly and Charitably proceed without Corruption or Malice accordingly.  
If any Object against this last recited Act, That the Statute of 31. H. 8. of the six Articles, was afterwards, in the time of King Edward the Sixth, Repealed, and that this latter Statute of 35 H. 8. is also Repealed, or of none Effect. It is to be answered, That though the first be repealed, and that the latter Statute, in what it relates to the former Statute in that respect be Repealed, or of no Use, yet as to what it doth Declare and Affirm to be the Ancient and long used Course of Law, that Juries should proceed according to the Laudable Custom and Usage of this Realm, and agreeable to good Conscience and Equity, and Charity, without Malice or Corruption, and that the Lives of the Subjects ought not to be drawn into danger by False and Malicious Accusations, and Secret or Corrupt Practices.  
These are such Fundamental Maxims, and Rules of Law, as cannot be repealed, and no Judges whatsoever may give any Expositions to the contrary, any more than they can do against Magna Charta, or any other Fundamental Maxims or Rules of our Laws and Government.  
Thus you may see, what was then declared by the greatest Authority on Earth, the King, Lords and Commons in Parliament, that the Laudable Custom and Usage of this Realm, hath ever been for Grand Juries to make their Presentments and Indictments according to good Conscience and Equity, and that they ought to proceed therein, as well Charitably as Justly.  
Since therefore in such Matters as belong to Grand Juries to inquire, or are brought before them, they have as large Power as a Lord Chancellor hath, in matters within his Cognisance. Well might Antiquity call them Grand Juries, as Magna Charta is called the Great Charer, from its great and weighty Contents.  
Here I would not have it thought a Digression to add, that having seemed before to speak only of Grand Juries, and Juries of Trial in Criminal Causes, that the like Rules are to be observed concerning Juries a Trial of Actions between Party and Party, that the Judge should always leave the matter impartially and fairly before them, which would much diminish the number of trivial Actions, as of slander for Words, etc. whereof there may be some doubt, whether some of them would bear an Action, if the Judge would be pleased at the Trial not to countenance either Party; where a great Man sometimes will bring Action against a mean or poor Man, for Words it may be but slightly proved, though by Witnesses of seeming Gravity, and not give Directions thereupon, to give excessive Damages by reason of the great Quality of the Plaintiff.  
I shall further take leave to Observe, that both Juries of Inquiry, and Juries of Trial, with their Power and Privileges, are so naturally the Rights of Englishmen, that even when strong Endeavours were used to say them aside by an Act of Parliament, which Empson and Dudley (whom, though you mentioned in your Book, and I must take occasion to repeat with some Observation thereon) had procured in 11 H. 7. to proceed without Juries; yet when, like wicked gardiner's; (for gardiner's may be a Simile for Councillors and Ministers of Justice and Government, and be styled good or bad as they behave themselves) the aforesaid Empson and Dudley, instead of using the Power they possessed in their Master's favour, which should have been for preserving, had cut down some of those Ancient Trees of wholesome Fruit, [the way of Enquiry and Trial by Juries] and digged deep to bury them by the Act of Parliament they had obtained to that purpose, and hoped they would never rise again: Yet, there being a lasting Life in our good old Laws, (though sometimes as little to be discerned, as when the Life of Trees in Wintertime retires invisibly to their Roots:) The Act of 11 H. 7. was repealed by an Act of Parliament, 1 H. 8. and the Use of Juries restored and sprang up again, to the Confusion and Destruction of those Treacherous gardiner's, of whom the History is Famous enough, to be a warning to all others to avoid the like mischief.  
And how careful Judges have since been, and aught to be to maintain the Ancient and Rightful Course of Law, and not to go out of it, may be seen in Anderson's Reports, fol. 156. where Empson's Indictment is recited at large. That Act of Parliament by which he and Dudley, being as in the 94th. Psalms, ver. 20. like the seeking to establish Mischief by a Law, and so contrary to the good Fundamental Law of England, to Inquire and Try by Juries; That though it was an Act of Parliament they acted by, it proved too weak to save their Heads; and became Fatal to them who procured, and were chief Instruments in the Execution of it, and the inferior Instruments, the Informers and Promoters, were also severely punished, and died shortly after, as mentioned by the History of King Henry the Eighth, Written by the Lord Herbert.  
As an Appendix to the Treatise of Juries, might be also recommended to your Consideration, the late increase of Informations in the Crown-Office of Court of the King's Bench in Criminal Cases, not specially and particularly expressed or directed by any Statute; for thereby the Subject is drawn into hazard of Liberty and Estate, without Presentment or Indictment of Grand Jury, and thereby deprived of that great and good out-guard of his Liberty and Property, the Inquest by Oath of twelve Men, before he should be brought to Trial, which is worth the Judges Care to rectify, or will he worthy the Consideration of a Parliament by a Law, more fully to remedy for the future.  
By having after named Empson and Dudley's History, mentioned the Mischief, which if not carefully prevented, would grow by the Increase of the last mentioned Informations in the King's Bench, I do not in either of these Cases, intent any Reflection on any of the Judges; for as I am a Son of a Judge, who whilst he lived made it his Care to maintain, as well as use the Rules and due course of Law, and often, as well in public as private Discourse, would praise the Excellency of our Laws, and particularly those of Enquiry and Trial by Juries; I bear such Honourable Respect and Kindness to the present Judges, as to believe and hope, that whatsoever (may sometimes happen) they always do, and will for the future, make it their Care to preserve the Law in its due Course, and to prevent any Mischief or Inconvenience from Entering or Growing in the Use or Practice of it.  
I would here close, but that I could not totally forbear to take some Notice of the Ways, which are used to punish those Protestants, who do not Conform in the Outward Manner of Worship and Ceremonies, though they agree with our English Church in the Main Doctrines thereof, and in all respects behave themselves Peaceably, whereof I crave leave freely to say my Mind.  
That, though I love our Church, and frequently and duly receive the Sacrament, and I, and all my Family come constantly to Church every Sunday, (except hindered by Sickness, or other Extraordinary Impediment) and continue decently there, during all the Time of Divine Service; and I so well love the Common-Prayers thereof, that I use part of them in my Family; and would persuade all I can to the like Conformity; yet I have that Kindness to all those Protestants, commonly called Dissenters, who by reason of Tenderness of Conscience, different Education, or Use of other manner of Worship, and who, though they differ in Opinion, concerning some lesser Matters, yet hold the main Doctrine of Christianity, wherein all Protestants agree, notwithstand their different manner of Worship.  
And I could use many Arguments for Gentleness towards them; whereof I shall here only name the Topics of some of them; which are,  
From the common sense of Humanity.  
From Principles of Right Reason.  
From Christian Charity.  
From Divine Command, and the Holy Scriptures.  
From its being well pleasing to God, and the Way to have his Blessing.  
That the beginning of Persecution of, and among Christians, was from Antichristian Principles.  
That Persecution is chief used by the Pope and Church of Rome.  
That Union of Protestants is the Common Interest of the Protestant Religion, both here and abroad.  
That Union of Protestants is the best way to preserve and defend us from the Idolatry, Policy, and Force of Popery.  
That the safety of Christendom depends upon it.  
That it is the best way to preserve the English Monarchy, so as thereby it would Balance, and hinder the French King from gaining the Universal Monarchy, and be a means to preserve the Countries and Dominions of all other Princes of Europe in Safety.  
That it would much increase the Peopling of this Land by quiet dwelling here.  
That it would infinitely enrich this Nation by increase of Trade, and Value of Land.  
That Trade being thereby increased, his Majesty's Customs will be also very much increased.  
That Gentleness, Mercy and Kindness, are: honourable Qualities.  
That these Qualities are agreeable unto the Gracious Expressions of his Majesty, to his Protestants Subjects concerning the fame.  
That it is suitable to the Kindness he shows to the Persecuted French Protestants.  
That we hope some of his Counsellors and our Best Magistrates, are of the like Honourable Mind, concerning Gentleness to be used to Protestant Dissenters, and that the Measure of their Goodness, will be esteemed and taken by the Degrees of their Disposition to such Gentleness.  
I could name more Particulars, from whence much might be said on every of them to this purpose; which Task, though it would be rather pleasant than difficult, I shall not meddle with, but leave it to some other, who will better perform it than I can, it being unnecessary here to say more thereof, because it is here only proper to Observe how some late Acts of Parliament, relating to Church Matters, leaving the Trust of punishing thereby, to the Discretion of the Magistrates, without the use of Juries (which is so great a Trust, as was not usally left to any Judges in former Ages) those who have that Power ought to be the more careful, discreetly and prudently to use it with Moderation, and not to abuse so great a Trust by overstraining such Laws hunting after, and taking all Occasions they can to punish their fellow Subjects with the utmost, or beyond the Rigour, and contrary to the Intention of those Laws.  
And whereas one of the late Acts, allows an Appeal, it may yet seem hard for an Englishman, to be put to that aftergame of a hopeless Trial of his Appeal by a Jury, when he is deprived of his first legal Guard, a Grand Jury, to whom by the Laudable and Ancient Usage of England, all Presentments and Indictments in Criminal Matters do belong. And it is further to be considered, that the Person who is brought into this Trouble, may be under great Difficulties, whether to desire, or how to manage his Appeal, when, perhaps, all his Goods, by selling whereof he might provide Money to deposit, as the Law requires, before he can be admitted to Appeal, are taken from him by Distress, and at last his Appeal shall be tried before the same Justices, that inflicted the Penalty on him, and also that the Prosecution at the Trial shall be managed by the Informers, who are to be Sharers of the Profit, they can get by the poor Man's ruin.  
These are some of the Considerations I could not omit to mention, together with my wish, that the good Reputation of our Ancient Laws, may not be clouded by any more such New Laws, as herein seem to imitate Ecclesiastical Courts, where Proceed are without Juries, which it seems some of our Clergy in times past, did think to bring to pass, whereof, though I could mention some Instances, I shall only cite one fully to our purpose, out of the Lord Coke 2d. part of Institutes, being his Exposition on some Statutes, fol. 599, etc. where he saith, It will conduce much to the understanding of this matter, to report unto you what Articles Archbishop Bancrost exhibited in the Name of the Clergy, in Michaelmas Term, 3 Jacobi, to the Lords of the Council, against the Judges of the Realm, Entitled, Certain Articles of Abuses, which are desired to be reform in granting Prohibitions. And the Answers thereunto, upon mature Deliberation and Consideration, in Easter Term following by all the Judges and Barons of the Exchequer, with one unanimous consent under their Hands, Resolutions, which were by them delivered to the Lords of the Council, and for distinction-sake, because there might be occasion often to cite them, called, Articuli Cleri, 3 Jacobi.  
These Articles, and their Answers being very long, I must refer to be there read, as being very material to be known, how the Clergy endeavoured to get the multitude of Businesses into their Courts, to be determined without Juries, and so encroach upon, and alter the Course therein, of our good English Laws and Government. At the end of those Articles and Answers, the same Author further saith,  
That the Clergy claimed to Interpret all Statute-Laws, concerning the Clergy; but it was resolved by all the Judges of England, That the Interpretation of Statutes concerning the Clergy, being a parcel of the Laws of the Realm, belong to the Judges of the Common Law. And saith, Magna est veritas & praevalet. To which, as agreeing to the truth thereof, I may add, Lex Angliae optima est, & praevalebit.  
I would not have any of our present Clergy think I reflect on them, for I truly and hearty Honour, some of our Bishops and Dignified Clergy, and any others of them, whose soundness of Doctrine, great Learning, and good and sober Lives, are, and might be, Examples for all the rest, and for whose sake, I bear Civil Respect to the rest that are not altogether so praise worthy, as those Good and most Reverend Men, to whom I bear my chief Respects, but shall say no more of any of them here, but that I hope, they will leave off severe Punishing their fellow-Christians, and for bear one another, Col. 3. 13 And study to be quiet, and meddle with their own Business, 1 Thes. 4. 11. And that by a review of these Laws, these things will in due time receive prudent and gentle as well as sufficient Cure and Remedy in Parliament.  
And now, Sir, I hope you will pardon me, for having, perhaps, been too tedious, seeing your excellent Treatise contains so much on the behalf of Juries, that all that I can say, may seem needless; and you may think fit to lay aside what I have written; yet if it only have the effect, to dispose you to let us know, to whom we own our Acknowledgements for your so good Book, which is fit for every Englishman, who may think himself concerned in our Rights, to read and understand, I shall think it enough to testify that among those you will infinitely Oblige thereby; I shall desire to be  
Dec. 29. 1681. Your Friend and Servant, J. M.   

I Shall here add a necessary Post script concerning 3 H. 7. Cap. 1. Wherein there is a Clause, how in some special Case, a Jury of Enquiry may be fined, That it only concerns such Matters and Offences, whereof Indictments may be brought before Justices of the Peace in their County Sessions; if the matter plain and fully proved, and they wilfully conceal the same, the said Justices of the Peace might cause a new Inquest to be returned (but the words, take Inquest, do not give the Justice's power to name, who shall be returned, which is the Sheriff's Office) and it is to be only and purposely to inquire of such Concealment; and doth not extend to inquire of any other Offences whatsoever; and then after such wilful Concealment is found by such Inquest, The same Justices of the Peace in the County Sessions, might fine the Jury of the former Inquest. By which may be observed, That the said clause of the said Act of 3 H. 7. doth fully and clearly prove, that by the common Law, Juries were not finable concerning their Presentments, Indictments and Verdicts. And even that Clause, since that time, being One hundred, Ninety and four Years, or thereabouts, hath seldom or never been used. Our Books of Reports of Lawcases not affording any plain or full Instance of any Proceeding on that Clause of that Statute. Therefore it may seem, as Littleton saith in his Book, Sect. 108. That in as much as it was never seen or heard, that any Action was brought on the Statute of Merton (which was made 20 H. 3.) For the matter he treats of in that Section, no Action could be brought thereon. For if any Action might have been brought for that matter, it shall be intended, that it would some time or other have been put in ure. And with this agrees the Ld. Coke, in his Comment on that place. And also the Judges, in their Arguments on a late case of Action brought on the Statute, about the Return of Members of Parliament, did cite the said place of Littleton. By which appears concerning such unusual manner of final Juries by the Clause of 3 H. 7. how there ought to be great Caution, in Executing any Acts or Statutes, where they altar the Common Law and Course thereof; seeing that Act of 3 H. 7. in that particular, and other memorable things therein, made then such Alterations of the Common Law of this Realm, as I forbear any further here to mention.  
FINIS.