Ignoramus VINDICATED, IN A DIALOGUE BETWEEN Prejudice and Indifference.  
Touching the Duty, Power, and Proceed of JURIES: Together, with some Material Points Relating thereunto, declared for Law by the Right Honourable Sir John Vaughan, Knight, late Lord Chief Justice of the Common Pleas.  Indifference. 
HOW go Causes now adays, Monsieur Prejudice?  Prejudice. 
Basely, Roguishly, Factiously, Whiggishly,, not according to Evidence. There are a sort of Folks called Ignoramus-men, that refuse some times to find Bills, though there be Positive Oaths before them.  Indiff. 
That may be, because perhaps, Posiitive Oaths are not always true Evidence; and therefore, for aught I know, these Folks may not be such Dishonest, or such Ignoramusfollows as you take them for: But Persons that have a due regard to their duty, and the weight of their Office, wherein other men's Lives, and their own Souls are concerned, and understand themselves so well as to know, That they are Judges (in some respect) as of Law, as well of Fact.  Pred. 
How, Juries Judges of Law, that's fine I saith?  Indiff. 
How fine soever you think it, 'tis true; I say in some respect: For, ex facto jus Oritur, the Law arises out of, and is complicated with the Fact; and no Man can well and truly try, and true deliverance make, nor well and truly Inquire and Present Crimes, without respect had to both of these, and comparing one with the other. 'Tis true, in difficult points Juries may, and aught to crave the Advice and Opinion of the Judgess and so they have ofttimes the Statutes read to them; and to what purpose, if not to judge of them, and compare the matter with them. But in Common Cases he is not fit to be a Grand-Jury-Man, that does not understand the Nature of Offences by our Laws; and to think that he is bound to find contrary to his Knowledge in such Cases, is Absurd: As, suppose a Man should be Indicted of High-Treason, for that he Traitorously, Maliciously moved by the Instigation of the Devil, had, and kept an English Bible in his House: Now let an hundred and fifty people swear positively the Fact, viz. That he had such a Book in his Custody, would you, if you were a Grand-Jury-Man, return this Indictment Billa vera, and charge the poor Man upon your Oaths, to answer for High Treason?  Prej. 
Well! This is nothing to my Business: There was no doubt or scruple in the late Cases, about matter of Law; and though there were positive proofs as to Fact, yet they did not find the Bills.  Indiff. 
That possibly may be, (as I told you but now) because, such positive proof was no good Evidence; for the Jury are Judges of Evidence, or else they signify no more than some would have them, that is just nothing: And therefore let Witnesses be never so Rampantly positive; yet if the Jurors have good and sufficient Grounds, not to believe them, they will, nay they must remain as Ignorant as before, because there comes no credible proof to satisfy them (who are upon their Oaths as well as the Winesses) that the Party is Guilty of the Crime charged, or aught to be put to Answer for the same. For that in Law is called EVIDENCE, by which we may Evidere quid sit Justum plainly see what is Just, or as Cook 1. Instit. fol. 283 saith, it is called Evidence, because thereby the matter is to be made Evident to the Jury.  Prej. 
Well for all your pratting, I hope to see good Christian Juries once again amongst us.  Indiff. 
What do you mean standing one's, People that made a Trade on't, got a Livelihood by the Groats and Sixteen Pences, and now and then a good Dinner, or small present by the by; Fellows that were Indigent in Estates as Understandings; That slept over an Evidence, found Bills of Course, Hanged or Saved, Pro-plantiffed or Pro-Defendanted it by pure chance; Threw Dice for their Verdicts, Esteemed themselves Returned and Sworn only to be the Courts Echoes, and thought it piacular not to incline that way the Judge Nodded his Reverend Head.  Prej. 
Better such say I than Ignoramus-men; But I meant, we shall have no Dissenters Jurymen, for don't you know, 'tis a late Ruled Case that such ought not to be Impanneled.  Indiff. 
I know no such matter, however for aught I see 'tis all one, for lately when there was not one Dissenter, there was as much Clamour as if they had been all so, nor did I ever hear of any Law of England that excludes any Protestant from being a Juryman, because he is a Dissenter from or Non-frequenter of Church Ceremonies, If qualified with Estate and Understanding; For at that rate, if Popery should ever get uppermost, no Protestant at all would be capable of being a Juryman, because a Nonconformist to Holy Church; Old Lawyers tell us, Vbi Lex non distinguit, nec nos distinguere debemus, we never ought to put a difference, where the Law puts none. Now if no Statute excludes Protestant's un-convict of any Crime, or Dissenters (Quadratus tales) to serve on Juries, I should think we ought to wait at least till an Act of Parliament be made to that purpose, before we deny them Liberam Legem, And to Act otherwise in my silly Opinion seems not only unwarrantable, but a daring Usurpation of Legislative Power, But what sentiments future Parliaments may have thereof — Ignoramus. But I pray what Reason can be assigned to exclude them.  Prej. 
Reason stout and substantial, because they are Breakers of the Law, For can it be Rational to suffer one Breaker of the Law to give a Verdict against another Breaker of the Law, for every Verdict of a Grand-Jury is a kind of Evidence against a Prisoner in order to Trial or Discharge.  Indiff. 
Well then, if because they are Breakers of the Law, they must be excluded, let all Common Swearers, Drunkards, Profaners of the Lords Day, etc. be shut out, for these are Law-breakers too. To sell Claret is to Violate the Law Therefore no Vintner may be a Jury man (if they could not be Captains neither, what a sad case were we in!) Besides, if to be Breakers of the Law disable men to be Jurors, why should not the same take away the Credibility of a Witness? So that it seems if none give Evidence to a Grand-Jury but such as are Law-Breakers, they will have no Reason to Credit them, and if they do not believe the Evidence, what can they do but return an Ignoramus?  Prej. 
But how shall the Jurymen know the Witnesses are Law-Breakers?  Indiff. 
Oh, they have Engines called Interrogatives, will do that feat, as suppose a Person swears John a Styles spoke such or such Treasonable Words, the Grand-Jury ask when, and he names Four or Five Months ago, than they demand when he first discovered it to any Magistrate, and he say, but Two or Three days ago, now is it not plain, that here the Witness confesses himself. a Breaker of the Law. viz. Guilty of Misprision of Treason for concealing of Treason so many Months. And was not this the Case of all the Evidence against Rouse? and in my opinion concealing of Treason is a greater Breach of Law then going to a Conventicle.  Prej. 
But the Witnesses had got Pardon?  Indiff. 
All of them had not, besides tho' a pardon exempt a Man from Punishment and render him a Legal Witness, yet how far it makes him a Credible Witness, is only in the Breast of a Jury.  Prej. 
Why prey was Doctor Oats and others believed against the Papists?  Indiff. 
Because his and their Testimony was Backed by that undeniable Evidence of Colemans' Papers, Godfrey's Murder and a thousand other pregnant Curcumstances, which makes the Case much different from that where people of very suspected Credit, swear the Grossest Improbabilities.  Prej. 
But the very same Witnesses had lately been believed against the Papist?  Indiff. 
What then? May not a Man be very Honest and Credible at one time, and Six Months after by necessity, Suborn. ●on● Malice, or Twenty ways, become a Notorious Villain.  Prej. 
But what proof was there of any such Change?  Indiff. 
How know you, but the Jury or some of them knew it of their own knowledge, for I shall show you by and by that the Law supposes the Jury to know more of the Witnesses than the Court does. If one of the Evidence, shall in giving his Testimony, positively affirm things, which some of the Jury of their own knowledge know to be absolutely false, can you blame them if they give little Credit to all the rest that such a Fellow shall swear? Again the Law says, for such a Crime, a Man unless he be Prosecuted within such a time, shall not suffer the Pains or Penalties that otherwise are awarded, now if after this time elapsed an Indictment be brought, and Twenty Witnesses swear the Crime, and the Jury believe them too, yet they ought not to find the Bill, because the Law has already acquitted the Party for want of Prosecution; which is none of the Grand-Juries fault, And indeed delays in bringing men to Trial are apt to raise a strong suspicion that the Evidence is not Right, and that the Prosecutor himself thinks so, For a Trayter ought not to live an hour; a Witness against the Prisoner may die, and so a Traitor escape, or a Witness my dye that could have spoken materially for him, and so an Innocent Subject may lose his life, when he is Guiltless. And therefore certainly, a Prosecutor will never put off a Trial for Four or Five Months, unless he want Witnesses or the Witnesses want their Lesson, which may possibly be, for 'tis a difficult matter, especially for an Irishman to learn to spoke true English.  Prej. 
Irishman▪ why, what have you to say against Irishmen?  Indiff. 
Nothing, Sir, only I find in Baker's Chronicle, fol 347, That the Bishop of Rosse being questioned before Q Elizabeth's Council for Treason, and urged with somewhat that some English Gentlemen had testified against him: He lovingly requested their Lordships to give no Credit to it; for as much (says he) as by a received Custom, which hath the force of a Law, the Testimony of an Englishman against a Scotchman, or of a Scot against an Englishman is not to be admitted: Now I think there's as much Reason for such a Custom against an Irishman, as against a Scot  Prej. 
Prithee no more of Irish, we shall have the Irish Evidence Eves drop us, by and by.  Indiff. 
God shield Man; I'll have nothing to do with them, If I can help it, and therefore, because we have hitherto been dull, I'll tell you a Story.  Prej. 
Ay, do, I love Stories dearly; but especially Thompson-Stories, and Observator Stories.  Indiff. 
Mine is of neither of those sorts but an honest Country Calve-shire Story. for it comes from about Deed ham in Essex— There was a Londoner that had a Farm thrown upon his Hands, came down with several of his Friends to Buy Cattle to stock it; and there was a farmer (a Rich Jolly Blade, for all he wore a Red Jacket) brought him into a public Field, where was an Herd of Irish Cattle, and some English amongst them; the Londoner and his Companions first handled the English Cattle, though very gently; for they would scarce endure to be touched, which made them suspect they were not sound as they should be: Then they handled one of the Irish Cattle and found it not only Rascally Lean, but that it had a kind of base Disease Contracted, as 'tis supposed by eating some Hired Pasture, or else by feeding amongst other infected Irish Cattle: Then they handelled a second Irish Bullock that looked more lusty, yet had the same Distemper; and in a word, they perceived that all the rest were Diseased and Rotten within; and enquiring the Reason, were told, that one Gaffer Mouse or House, or such a kind of Name, had been Herdsman, who not allowing so much Pasture, as they craved for mere Hunger made them leap out of those short Commons into the Grounds of one of the Richest men of all the Country, and there had surfeited themselves with too greedy feeding. So upon full view the Londoner and his Friends could not believe there was one sound Beast among them, neither English nor Irish: For all grazing in the same Ground, and drinking in the same Pond, they had all Contracted an In-Credible Distemper, and indeed they smelled strangely, and a lewd Hogo came from their very Breath. And therefore they would have no such Cattle to stock their Ground with, and told the Farmer that he would do well to separate his Irish from the English Cattle; for that by the Late Act of Prohibition of Irish Cattle, all English were to be forfeited, that should be found in the same Herd with the Irish; or rather that he should send all the Irish back, to see if their own Native Soil would Recover them. And 'tis thought he'll take their Council, for these and some other Londoners, have so blown upon the whole Herd; that 'tis believed no Essex or Middlesex Graziers, nor Oxford-shire Butchers, nor scarce a Chapman in the whole Country will meddle with them; so that the last news I heard from thence it was thought the whole Herd would die in a Ditch, and be made Carrion or Hawksmeat of.  Prej. 
What a vengeance is all this story of rotten Cattle and a Cock and a Bull to our Discourse?  Indiff. 
Nothing that I know of, but I love to humour the World sometimes and talk Impertinently; But if we must have t'other crash about Juries, than I say, That if an Indictment be laid against a Man for Criminal Words, said to be uttered in a Colloquium or Discourse, now the Witnesses roundly swear all the Words in the Indictment, yet unless they will relate and set forth the substance of the whole talk, 'tis impossibe the Jury should judge of the Matter, For the foregoing and subsequent words may render expresions that are Innocent and Loyal, which taken to halfs, may be rank Treason: As if one should say, to affirm the King has no more Right to the Crown of England than I have (which is the Opinion of the Jesuits of his Majesty, if once Excommunicated by the Pope) Is detestable Treason▪ And two Men at some distance, not well hearing or remembering, or maliciously designing against his Life, should swear— That he said the King had no more Right to the Crown than he had; now that the Man did utter these very Words is true, but if you ask the Evidence the rest of the Coloquium, they shall tell you there was much more discourse but they cannot remember it, what satisfaction is this to a Jury, or would it not be hard for a man to be put to hold up his Hand at the Bar, under the frightful charge of Treason in this Case. Or if a Minister in his Sermon, should recite that of the Psalms, The Fool hath said in his Heart there is no God. Jesuited Evidence now may come and charge him with Blasphemy, and swear that he said there was no God, and ask them what expressions besides he used, may excuse themselves and say, 'tis a great while a go we cannot remember a whole Sermon, but this we all positively swear-He said there was not God.  
The Inquiry of a Grand-Jury should be suitable to their Title, a Grand Inquiry, else instead of serving their Country, and presenting real Crimes, they may oppress the Innocent, as in the Case of Samuel Wright and John Good the very last Sessions, Good Indicts Wright for Treasonable Words, and swore the Words positively, but after a Grand Inquiry, the Grand-Jury found that Wright only spoke the Words as of others, thus they say, so and so,— and concluded with this — They are Rogues for saying it; And also Good at last confessed that Wright was his Master, and corrected him for misdemeanours, and then to be revenged he comes and swears against him, which he confessed he was Instigated to by one Powel, so the Grand-Jury finding it to be but Malice, returned the Bill Ignoramus, whereas if they had not Examined him strictly, they had never discovered the Intrigue, and the Master had causelessly been brought to great Charge, Ignominy and Hazard.  Prej. 
Well, still I say Juries ought to go according to Evidence.  Ind. 
What is, or is not sufficient Evidence to sway with the Consciences of a Jury, they themselves are the only Judges.  Prej. 
You mightily magnify Juries I'll warrant you would have them sit with their Hats on.  Indiff. 
Truly since they are a necessary part of every Court, and have a Power vested in them by Law, of determining the Lives and Estates of their Fellow Subjects, I know not why they should sit creeping with Cap in Hand; Nay, I conceive when Grand-Juries are forced (as of late, for I know no ancient precedents for it) to hear and Examine Evidence in Court, if they should put on their Hats, the Court cannot by Law Fine them; For by Immemorial Custom, they have taken such Examinations sitting with their Hats on, which Conciliated a respect to them from the Witnesses, whereas if they sit in a Crowd truckling like Schoolboys, the Witnesses will not regard to Answer their Questions, or Discover the Truth. And the reason (as I conceive) why the Law provides that Grand-Juries should take Examinations in private, is on purpose that Men or their Crimes might not be exposed, before it appeared to a Grand Jury, that the matter ought to be Publicly Tried; Whereas when they are compelled to take it in public, 'tis a kind of Arraigning a Man before the Bill be found against him. To what purpose is it for the Court, to hear the Evidence given to the Grand-Jury, the Jury are upon their Oaths, and aught to follow the Dictates of their own belief and understanding, the Court have nothing to do to meddle, or interrupt. For they are bound by the Verdict, not by the Evidence.  Prej. 
Well but if the Jury goes contrary to Evidence, cannot the Court Punish them.  Indiff. 
Not at all, the Law has provided no punishment and very reasonably, For 'tis impossible the Court can know that a Jury goes contrary to Evidence. But to satisfy you fully as to the Law in this matter I shall here recite an Adjudged Case, that of Bushel in the Two and Twentieth year of His Majesty, reported by the Learned Sir John Vaughan, whose Book is Licenced by the present Lord chancellor, the Lord Chief Justice North and all the Judges then in England, the said Case gins fol. 135 and continues to 150. The whole well worth reading, but I shall only select certain passages.  
The Case was this, Bushel and others of a Jury having at a Sessions not found Pen and Mead (Two Quakers) Guilty of a Traspass, Contempt, unlawful Assembly and Tumult, whereof they had been Indicted, were Fined Forty Pound a Man, and Committed till they should pay it. Bushel brings his Habeas Corpus, and upon the return it appeared he was Committed— For that contrary to Law, and against full and clear Evidence openly given in Court, and against the directions of the Court in mat-of Law, they had acquitted the said W. P. and W. M. to the great obstruction of Justice, etc.  
Which upon solemn Argument, was by the Judges resolved to be an insufficiant cause of Fineing and Committing them, and they were discharged, and afterwards brought Actions for their Damage. The Reasons of which Judgement are reported by Judge Vaughan, and amogst them he useth these that follow, which I shall give you in his own Words.  
Fol. 140. One fault in the return is, That the Jurors are not said to have acquitted the Persons Indicted, against full and manifest Evidence, Corruptly, and knowing the said Evidence to be full and manifest against the Persons Indicted; for how manifest soever the Evidence was, if it were not manifest to them, and that they Believed it such, it was not a Fineable fault, nor deserving Imprisonment; upon which difference the Law of punishing Jurors for false Verdicts principally depends.  
And fol. 141. I would know whether any thing be more Common, than for two Men, Students, Barristers, or Judges, to deduce contrary, and opposite Conclusions, out of the same Case in Law? And is there any difference that two Men should infer distinct Conclusions from the same Testimony? Is any thing more known, than that the same Author, and place in that Author, is forceably urged to maintain contrary Conclusions, and the Decision hard, which is in the right? Is any thing more frequent in the Controversies of Religion, than to press the same Texts for opposite Tenets? How then comes it to pass, that two persons may not apprehend with Reason and Honesty, what a Witness, or many, say, to prove in the understanding of one plainly one thing; but in the apprehension of the other, clearly the contrary thing, must therefore one of these Merit Fine and Imprisonment, because he doth that which he cannot otherwise do, preserving his Oath and Integrity? And this often is the Case of the Judge and the Jury.  
And fol. 142 I Conclude therefore, That this return, Charging the Prisoners to have acquitted P. and M. against full and manifest Evidence first, and next without saying that they did know and believe that Evidence to be full and manifest against the Indicted Persons, is no Cause of Fine and Imprisonment.  
In the Margin of that fol. 142. it is thus noted : Of this mind were ten Judges of Eleven; the Chief Baron Turnor gave no Opinion because not at the Argument.  
And in the same fol. 142. he saith The Verdict of a Jury, and Evidence of a Witness, are very different things, in the truth and falsehood of them▪ A Witness Swears but to what he hath heard or seen, generally or more largely, to what hath fallen under his senses: But a Jury man swears to what he can Infer and Conclude from the Testimony of such Witnesses, by the Act and Force of his Understanding, to be the Fact inquired after, which differs nothing in Reason, though much in the Punishment, from what a Judge, out of various Cases considered by him, infers to be the Law in the question before him.  
If the meaning of these words, finding against the direction of the Court, in matter of Law, be, That if the Judge having heard the Evidence given in Court, (for he knows no other) shall tell the Jury upon this Evidence, the Law is for the Plaintiff, or for the Defendant, and you are under the pain of Fine and Imprisonment to find accordingly; and the Jury ought of duty so to do: Then Every Man sees that the Jury is but a troublesome delay, great Charge, and no use in determining right and wrong, and therefore the Trials by them, may be better Abolished than Continued, which were a strange New found Conclusion, after a Trial so Celebrated for many hundred years.  
It is true, if the Jury were to have no other Evidence for the Fact, but what is deposed in Court, the Judge might know their Evidence, and the Fact from it, equally as they, and so direct what the Law were in the Case, though even then the Judge and Jury might honestly differ in the Result from the Evidence, as well as two Judges may, which often happens. But the Evidence which the Jury have of the Fact, is much otherwise then that: For,  
1. Being returned of the Vicinage where the Cause of Action ariseth, the Law supposeth them thence to have sufficient Knowledge to Try the Matter in Issue (and so they must) though no Evidence were given on either Side in Court; but to this Evidence the Judge is a Stranger.  
2. They may have Evidence from their own Personal Knowledge, by which they may be assured, and sometimes are, that what is deposed in Court is absolutely false; but to this the Judge is a Stranger, and he knows no more of the Fact than he hath learned in Court, and perhaps by false Depositions; and consequently, knows nothing.  
3. The Jury may know the Witnesses to be Stigmatised and Infamous, which may be unknown to the Parties, and consequently to the Court.  
Fol. 148. To what end is the Jury to be Returned out of the Vicinage where the Cause of Action ariseth? To what end must Hundredors' be of the Jury, whom the Law supposeth to have nearer knowledge of the Fact than those of the Vicinage in general? To what end are they Challenged so scrupulously to the Array and Poll? To what end must they have such a certain , and be Probi & Legales homines, and not of affinity with the Party concerned? To what end must they have in many Cases the View for their exacter Information chiefly? To what end must they undergo the heavy Punishment of the Villainous Judgement, if after all this they implicitly must give a Verdict by the Dictates and Authority of another Man, under Pains of Fines and Imprisonment, when sworn to do it according to the best of their own knowledge?  
A Man cannot see by another's Eye, nor hear by another's Ear; no more can a Man conclude or infer the thing to be resolved, by another's Understanding or Reasoning: And though the Verdict be right the Jury give, yet they being not assured that it is so from their own Understanding, are forsworn, at least in Foro Conscientiae.  
Fol. 149. And it is absurd to Fine a Jury for finding against their Evidence, when the Judge knows but part of it; for the better and greater part of the Evidence may be wholly unknown to him; and this may happen in most Cases, and often doth.  
THUS far Judge Vaughan, whose Words I have faithfully recited; which, I conceive, will be sufficient to silence this Controversy for ever, and stop the Mouths of all those scandalous Observators, Heraclitus', and other yelping Curs, which so impudently have presumed to Bark or Hiss against the Legal Verdicts of some late Grand-Juries.   

London, Printed for William Inghall the Elder, 1681.