men's understandings were equally alike.gression, matter of law doth arise, or grow And if, merely, in compliance, because out of the root of the fact. Now the Jury the judge says thus, or thus, a Jury shall being the sole judges of fact, and matter give a verdict; tho' such their verdict in issue before them, not finding the fact should happen to be right true and just; on which the law should arise, cannot be yet they being not assured it is so from said to find against law, which is no other their own understanding, are forsworn, at than a superstructure on fact: so that to least in foro conscientia. say they have found against the law, when no fact is found, is absurd; an expression insignificant, and unintelligible. For no issue can be joined of matter in law; no Jury can be charged with the trial of matter in law barely; no evidence ever was, or can be, given to a Jury, of what is law, or not; nor can any such oath be given to, or taken by a Jury, to try matter in law; nor does an attaint lie for such oath, if false, &c. But if, by finding against the directions of the court in mat

4. Were Jurors so finable, then every mayor, and bailiff of corporations, all stewarts of leets, justices of peace, &c. whatever matters are tried before them, shall have verdicts to their minds, or else fine, and imprison the Jurors till they have; so that such must be either pleased, humoured, or gratified, else no justice, or right, is to be bad in any court.

5. Whereas a person by law may chaldenge the sheriff, or any Juryman, if of kin to his adversary; yet he cannot chal-ter of law, shall be understood, that if the lenge a mayor, recorder, justice, &c. who 'tis possible will have a verdict for their kinsman, or against their enemy, or else fine and imprison the Jury till they have obtained it so that by this means our lives, liberties, and properties, shall be solely tried by, and remain at the arbitrary disposal of every mercenary, or corrupted justice, mayor, bailiff, or recorder, if any such should, at any time, get into office.

6. 'Tis unreasonable that a Jury should be finable on pretence of their going against their evidence; because it can never be tried, whether or no in truth they did find with, or against, their evidence, by reason no writ of error lies in the case.

7. Were Jurymen liable to such arbitrary fines, they would be in a worse condition than the criminals that are tried by them; for in all civil actions, informations, and indictments, some appeals, or writs of false judgment, or of error, do lie into superior courts to try the regular proceedings of the inferior. But here can be no after-trial, or examination; but the juryman (if fining at all were lawful) must either pay the fine, or lie by it; without remedy to decide, whether in his particular case he were legally fined, or not.

8. Without a fact agreed, it is as impossible for a judge, or any other, to know the law, relating to that fact, or direct concerning it, as to know an accident that hath no subject; for as, where there is no law, there is no transgression, so where there is no transgression, there is no place for law; for the law (saith divine authority) is made for the transgressor.' And as Coke tells us, Ex fucto jus oritur; upon stating the fact, or trans

judge having heard the evidence given in court, (for he can regularly know no other, though the Jury may) shall tell the Jury upon this evidence, the law is for the plaintiff, or for the defendant, and the Jury are, under pain of fine, and imprisonment to find accordingly; then it is plain, the Jury ought of duty so to do. Now if this were true, who sees not that the Jury is but a troublesome delay, of great charge, much formality, and no real use in determining right, and wrong, but mere echoes to sound back the pleasure of the court; and consequently, that trials by them might be better abolished than continued? which is at once to spit folly in the faces of our venerable ancestors, and enslave our posterity.

9. As the judge can never direct what the law is in any matter controverted, without first knowing the fact; so, he cannot, possibly, know the fact but from the evidence which the Jury have; but he can never fully know what evidence they have; for besides what is sworn in court, (which is all that the judge can know), the Jury being of the neighbourhood, may, and oft-times do, know something of their own knowledge, as to the matter itself, the credit of the evidence, &c. which may justly sway them in delivering their verdict; and which self-knowledge of theirs is so far countenanced by law, that it supposes them capable thereby to try the matter in issue, (and so they must) though no evidence were given, on either side, in court. As when any man is indicted, and no evidence comes against him, the di rection of the court always is, to acquit him; unless of your own know

You are

Are not all these, gross contradicting absurdities, and unworthy (by any manlives, freedom, and property. that descrves a gown) to be put upon the law of England; which has ever owned right reason for its parent, and dutifully submitted to be guided thereby?

Jurym. If the law as you say, be reason, then undoubtedly this practice of fining of Juries is most illegal, since there cannot be any thing more unreasonable: but what authorities have you against it?

long time, did remain, and continue, in contempt of our said lord the king, and of his law, to the great disturbance of his peace, to the great terror and disturbance, of many of his liege people, and subjects, to the ill example of all others in the like case offenders, and against the peace of our said lord the king, his crown and 'dignity."

This the court resented still worse, and therefore sent them back again, and and adjourned till Sunday morning; but then too they insisted on the same verdict: so the court adjourned till Monday morning; and then the Jury brought in the prisoners generally not guilty; which was recorded, and allowed of. But immediately the court fined them forty marks a man, and to lie in prison till paid.

The prisoners pleading not guilty, it was proved, that there was a meeting at Being thus in custody, Edw. Bushell, the time in the indictment mentioned, in one of the said Jurors, on the ninth of Grace-church-Street, consisting of three or November following, brought his Habeas four hundred people, in the open street: Corpus in the court of Common-Pleas. Оп that William Pen was speaking, or preach- which the sheriffs of London made return, ing, to them; but what he said, the wit-That he was detained by virtue of an nesses (who were officers and soldiers sent to disperse them) could not hear. This was the effect of the evidence; which Sirothers, particularly named; and every of John Howel, the then recorder, (as I find in the print of that trial) was pleased to sum up to the Jury, in these words:

order of sessions, whereby a fine of forty marks was set upon him, and eleven

them being Jurors sworn to try. the issues joined between the king, and Pen, and Mead, for certain trespasses, con tempts, unlawful assemblies, and tumults, and who then, and there, did acquit the said Pen, and Mead, of the same, against the law of this kingdom, and against

You have heard what the indictment is; it is for preaching to the people in the street, and drawing a tumultuous company after them, and Mr. Pen was speaking. If they should not be dis-fuil, and manifest evidence, and against turbed, you see they will go on.

There

are three, or four witnesses that have proved this-that he did preach there, that Mr. Mead did allow of it. After

the direction of the court in matter of law, of, and upon the premises openly in court to them given, and declared; and that it was ordered they should be

this you have heard by substantial wit-imprisoned till they severally paid the nesses what is said against them: Now

WE ARE UPON THE MATTER OF FACT,

WHICH YOU ARE TO KEEP TO, AND OB-
SERVE, AS WHAT HATH BEEN FULLY SWORN,
AT YOUR PERIL.'

This trial began on the Saturday; the Jury retiring, after some considerable time spent in debate, came in, and gave this verdict, guilty of speaking in Grace'church Street.' At which the court was offended, and told them, they had as good say nothing;' adding, Was it not an unlawful assembly?—you mean he was speaking to a tumult of people there? But the foreman saying, what he had delivered was all he had in commission; and others of them affirming, that they allowed of no such words as an ' unlawful assembly' in their verdict; they were sent back again, and then brought in a verdict in writing subscribed with all their hands in these words: We, the Jurors ‹ hereafter named, do find William Pen, to be • guilty of speaking, or preaching, to an assembly met together in Grace-church Street, the 14th of Aug. 1670. And William Mead not guilty of the said indictment.'

said fine, which the said Bushell not having done, the same was the cause of his caption and detention +.'

The court coming to debate the validity of this return, adjudged the same insufficient: For, 1. The words, against full,

and manifest evidence,' was too general a clause: the evidence should have been fully, and particularly, recited; else how shall the court know it was so full and evident? they have now only the judgment of the sessions for it, that it was so: but said the Judges, our judgments ought to be grounded upon our own inferences,

*Note, Though this Jury for their excellent example of courage, and constancy, deserve the commendation of every good Englishman; yet, if they had been better advised, they might have brought the prisoners in not guilty at first, and saved themselves the trouble, and inconveniencies of these two nights restraint. State-Trials, vol. II. p. 606, in fol. Vide note † to page 700.

See

+ See Bushell's Case in Vaughan's Re ports at large.

and understandings, and not upon theirs., 2. It is not said, that they acquitted the persons indicted against full and manifest evidence, corruptly, and knowing the said evidence to be full and manifest. For other wise it can be no crime; for that may seem full, and manifest, to the court, which does not appear so to the Jury.

of judgment, and deep learning in the law; so such his book of Reports is approved, and recommended to the world, (as appears by the page next after the epistle) by the right honourable the present lord chancellor of England; Sir William Scroggs, now lord chief justice of England; my lord North, chief justice of the Common Pleas; and, in a word, by all the judges of England at the time of publishing thereof; so that it cannot be ima gined how any book can challenge greater authority, unless we should expect it to be particularly confirmed by act of par liament.

3. The other part of the return, viz. That the Jury had acquitted those indicted, against the direction of the court in matter of law,' was also adjudged to be nought, and unreasonable; and the fining the Juries for giving their verdict in any case concluded to be illegal, for the several reasons before recited, and other authorities of law urged to that purpose; and all the precedents, and allegations, brought to justify the fine, and commitment, solidly answered. Whereupon the chief justice delivered the opinion of the court, That the cause of commitment was insufficient and accordingly the said Bushell, and other his fellow prisoners, were discharged, and left to the common law for remedy and reparation of the damages, by that tortuous illegal imprison-under ever so fair stratagems and prement, sustained.

Jurym. You have answered all my scruples; and since I see the law has made so good provision for Jurymen's privileges, and safety: God forbid any Juryman should be of so base a temper, as to betray that, otherwise, impregnable fortress, wherein the law hath placed him to preserve, and defend, the just rights, and liberties of his country, by treacherously surrendering the same into the hands of violence, or oppression, though masked

tences. For my own part, I shall not now Which case is (amongst others) reported decline to appear according to my sum by that learned judge Sir John Vaughan, at mons; and therefore (though I fear I have that time lord chief justice of the Common-detained you too long already) shall desire Pleas; setting forth all the arguments, a little more of your direction about the reasons, and authorities, on which the office of a Juryman in particular, that I court proceeded therein: from which I may uprightly, and honestly, discharge have extracted most of the reasons which I before recited for this point, and, for the greatest part, in the very words of that reverend author.

Jurym. This resolution hath, one would think, (as you said) knocked this illegal practice on the head, beyond any possibility of revival; but may it not one day be denied to be law, and the contrary jus

tified?

Barr. No such thing can be done without apparently violating, and subverting, all law, justice, and modesty for though the precedent itself be valuable, and without further enquiry is wont to be allowed, when given thus deliberately upon solemn debate by the whole court; yet, it is not only that, but the sound, substantial, and everlasting reasons, whereon they grounded such their resolves, that will, at all times, justify fining of Juries in such cases to be illegal. Besides, as the reporter was most considerable, both in his quality as lord chief justice, and for his parts, soundness

the same.

- Barr. Though I think, from what we have discoursed, being digested, and im proved, by your own reason, you may sufficiently inform yourself; yet, to gra tify your request, I shall add a few brief remarks, as well of what you ought cau tiously to avoid, as what you must dili gently pursue, and regard, if you would justly, and truly, do your duty.

First, As to what you must avoid.

1. I am very confident, that you would not willingly violate the oath which you take: but it is possible that there are such, who as frequently break them as take them, through their careless custom on the one hand or slavish fear on the other; against whom I would fully caution you: that you may defend yourself, and others, against any enemies of your country's liberties, and happiness, and keep a good conscience towards God; and towards man. (To be continued.)

Published by R. BAGSHAW, Brydges-Street, Covent Garden :-Sold also by J. BUDD, Pall-Mall,

LONDON :-Printed by T. C. Hansard, Peterborough @ourt, Fleet-Street,

VOL. XIX. No. 25.] LONDON, WEDNESDAY, MARCH 27, 1811.