" age when the liberty of the press is most scandalously abused, and libelling is become a "trade." Violent and inflammatory expressions, he added, were not to be mixed up with discussion, and to pass under the cloak of warm feeling for the public good. Let the Jury examine the publication be fore them, and see whether any good motive could reasonably be supposed to have actuated the writer. It was to be feared that many persons in this country were endeavouring to assist the enemy in his project of disgusting the people with institutions by which they were governed. With respect to the observations of the learned Gentleman (Mr. Brougham) on the subject of military flogging, he could not but think his speech of this day would have been better delivered in that hon. House of which he was a member; he hoped he should soon see him agitate the subject there if he did not, it must be inferred that the Gentleman did not mean as he said. The Learned Judge then alluded to the case of Mr. Finnerty, as an instance of the extraordinary temper for libelling which was prevalent, and the extravagant notions which prevailed about the right of saying and publishing whatever it was fancied could be justified. It was said that individuals had a right to discuss the very laws of the country; were we then to have a power beyond the Legislature itself? If such were the case, there was no security to our establishments; but the notion was not only highly dangerous, but in the highest degree unconstitutional. If the Jury could be of opinion that any thing but mischief was meant by the publication under their consideration, they would acquit the defendant; but he (the Judge), in the conscientious discharge of his duty, had no hesitation in saying, that he considered it a most wicked libel. The Jury withdrew for about ten minutes, and brought in a verdict of GUILTY. THE ENGLISHMAN'S RIGHT: A Dialogue between a Barrister at Law and a Juryman; plainly setting forth, I. The Antiquity, II. The Excellent Designed Use, III. The Office, and Just Privileges, OFJURIES, by the Law of England.By SIR JOHN HAWLES, Solicitor-General to King William III. Barrister. My old Client ! a good morning to you; whither so fast? you scem intent upon some important affair. Juryman. Worthy Sir! I am glad to see you thus opportunely, there being scarce any person that I could at this time rather have wished to meet with. Barr. I shall esteem myself happy, if in any thing I can serve you. The business, I pray? Jurym. I am summoned to appear upon a Jury, and was just going to try if I could get off. Now I doubt not but you can put me into the best way to obtain that favour. Barr. It is probable I could; but first let me know the reasons why you desire to decline that service. Jurym. You know, Sir, there is something of trouble and loss of time in it :and men's lives, liberties, and estates (which depend upon a jury's guilty or not guilty, for the plaintiff, or for the defendant) are weighty things, I would not wrong my conscience for a world, nor be accessary to any man's ruin. There are others better skilled in such matters. I have ever so loved peace, that I have forborne going to law (as you well know) many times, though it hath been much to my loss. Barr. I commend your tenderness and modesty; yet must tell you, these are but general and weak excuses. As for your time and trouble, it is not much, and, however, can it be better spent than in doing justice, and serving your country? To withdraw yourself in such cases, is a kind of sacrilege, a robbing of the public of those duties which you justly owe it. The more peaceable man you have been, the more fit you are; for the office of a Juryman is, conscientiously to judge his neighbour; and needs no more law than is easily learnt to direct him therein. I look upon you therefore as a man well qualified with estate, discretion, and integrity; and if all such as you should use private means to avoid it, how would the king and country be honestly served? At that rate we should have none but fools or knaves entrusted in this grand concern, on which (as you well observe) the lives, liberties, and estates of all England depend. Your tenderness not to be accessary to any man's being wronged or ruined, is (as I said) much to be commended. But may you not incur it unawares, by seeking thus to avoid it? Pilate was not innocent because he washed his hands, and said, He would have nothing to do with the blood of that just one. There are faults of omission as well as commission. When | of scruple, it may soon be removed, if you you are legally called to try such a cause, will but give yourself a very little trouble if you shall shuffle out yourself, and thereby of enquiry into the necessary provisions of persons perhaps less conscientious happen the law of Englaad relating to this matter. to be made use of, and so a villain escapes Jurym. There is nothing (of a temporal justice, or an innocent man is ruined, by a concern) that I would more gladly be inprepossessed or negligent verdict; can formed in; because I am satisfied, it is you think yourself in such a case wholly very expedient to be generally known. blameless? Qui non prohibit cum potest, And first, I would learn how long trials by jubet That man abets an evil, who juries have been used in this nation *. prevents it not, when it is in his power.' Nec caret scrupulo societatis occulta, qui 'evidenter facinori desinit obviare. Nor can he escape the suspicion of being a secret accomplice, who evidently declines the prevention of an atrocious 'crime.' Jurym. Truly, I think a man is bound to do all the good he can; especially when he is lawfully called to it. But there sometimes happen nice cases, wherein it may be difficult to discharge one's conscience without incurring the displeasure of the court, and thence trouble and damage may arise. Burr. That is but a vain and needless fear. For as the jurors privileges (and every Englishman's in and by them) are very considerable; so the laws have no less providently guarded them against invasion or usurpation. So that there needs no more than, first understanding to know your duty; and, in the next place, courage and resolution to practise it with impartiality and integrity, free from accursed bribery and malice, or (what is full as bad in the end) base and servile fear. Barr. Even time out of mind;-so. long, that our best historians cannot date the original of the institution; being indeed cotemporary with the nation itself, or in use as soon as the people were reduced to any form of civil government, and administration of justice. Nor have the several conquests or revolutions, the mixtures of foreigners, or the mutual feuds of the natives, at any time, been able to suppress or overthrow it. For, 1. That juries (the thing in effect and substance, tho' perhaps not just the number of twelve men) were in use among the Britons, (the first inhabitants of this island) appears by the ancient monuments and writings of that nation; attesting that their Freeholders had always a share in all trials and determinations of differences. 2. Most certain it is, that they were practised by the Saxons †, and were then the only courts, or at least an essential, and the greater part, of all courts of judicature: for so (to omit a multitude of other instances) we find in king Ethelred's Laws, In singulis Centuriis, &c.' ' every hundred let there be a court, and let twelve ancient freemen, together with the Lord, (or rather, according to the Saxon, the Greve, i. e. the chief of'ficer amongst them) be sworn, that they 'will not condemn any person that is in 3. When the Normans came in, William, tho' commonly called the Conqueror, was so far from abrogating this privilege of Juries, that in the fourth year of his Jurym. I am satisfied, that as it is for the advantage and honour of the public, that men of understanding, substance and honesty, should be employed to serve on juries, that justice and right may fairly be administered; so it is their own interest,nocent, nor acquit any one that is guilty.". when called thereunto, readily to bestow their attendance and service, to prevent ill precedents from men otherwise qualified; which may by degrees fatally, though insensibly, undermine our just birth-rights, and perhaps fall heavy one day upon us, or our posterity. But, for my own part, I am fearful lest I should suffer through my ignorance of the duty and office of a juryman; and, therefore, on that account principally it is, that I desire to be excused in my appearance; which, if I understood but so well as I hope many others do, I would with all my heart attend the service. Barr. You speak honestly, and like an Englishman. But if that be all your cause * Our author, in his title-page, told us, that he intended to point out, with respect to Juries, 1. their antiquity; 2. their excellent designed use; 3. their office and just privileges. In answer to the Juryman's question, and in compliance with his own promise, he is now going to treat of the antiquity of Juries. Lamb. p. 218. Coke, 1 part, Institutes. fol. 155. Jurata. F reign, he confirmed all king Edward the Confessor's laws, and the ancient customs of the kingdom, whereof this was an essential and most material part. Nay, he made use of a Jury, chosen in every county, to report and certify on. their oaths what those laws and customs were; as appears in the proem of such his confirmation. 4. Afterwards when the Great Charter, commonly called Magna Charta, (which is nothing else than a recital, confirmation, and corroboration of our ancient English liberties) was made and put under the great seal of England, in the ninth year of king Henry the Third, (which was anno Domini 1225) then was this privilege of trials by Juries in an especial manner confirmed and established; as in the fourteenth chapter, That no amerce'ments shall be assessed, but by the oath of good and horrest men of the vicinage.' And more fully in that golden nine-andtwentieth chapter- No freeman shall be taken or imprisoned, nor be disseised of his freehold or liberties, or free customs, or be out-lawed, or exiled, or any other way destroyed, nor shall we pass upon him, or condemn him, but by the lawful judgment of his peers,' &c. Which Grand Charter having been confirmed by above thirty acts of parliament, the said right of Juries thereby, and by constant usage, and common custom of England, which is the common law, is brought down to us as our undoubted birth-right, and the best inheritance of every Englishman. For as that famous lawyer, chief justice Coke*, in the words of Cicero, excellently avers, «Major hæreditas venit unicuique nos trum a jure & legibus, quam a parentibus.' It is a greater inheritance, and more to be * valued, which we derive from the funda'mental constitution and laws of our coun'try, than that which comes to us from our respective parents:' for without the former, we have no claim to the latter. Jurym. But has this method of trial never been attempted to be invaded or justled out of practice? has been endeavoured; but so sacred and valuable was the institution in the eyes of our ancestors, and so tenacious were they of their privileges, and zealous to maintain, and preserve such a vital part of their birth-right and freedom; that no such attempts could ever prove effectual, but always ended with the shame and severe punishment of the rash undertakers. For example, 1. Andrew Horn, an eminent lawyer, in his book, entitled The Mirror of Justices, (written in the reign of king Edward 1, now near 400 years ago) in the fifth chapter, and first section, records, That the renowed Saxon king Alfred caused four and forty justices to be hanged in one year, as murderers, for their false judg ments. And there recites their particular crimes, most of them being in one kind or other infringements, violations, and encroachments of and upon the rights and privileges of Juries. Amongst the rest, that worthy author tells us, he hanged one justice Cadwine, because he judged one Hackwy to death without the consent of all the Jurors; for whereas he stood upon his Jury of twelve men, because three of them would have saved him, this Cadwine removed those three, and put others in their room on the Jury, against the said Hackwy's consent. Where we may observe, that though at last twelve men did give a verdict against him, yet, those, so put upon him, were not accounted his Jurors, by reason all, or any of them, who were first sworn to try him, could not (by law) be removed, and others put in their stead: And that such illegal alteration was then adjudged a capital crime, and forthwith the said Cadwine was hanged. 2. A second instance I shall give you in the words of the lord chief justice Coke*: Against this ancient and fundamental law, and in the face thereof, there was in the eleventh year of king Henry VII. cap. 3. an act of Parliament obtained (on fair 'pretences, and a specious preamble, as to avoid divers mischiefs, &c.) whereby it 'was ordained, "That from thenceforth, as well justices of assize, as justices of the peace, upon a bare information for the king before them made, without any finding or presentment by the verdict of "twelve men, should have full power and authority, by their discretions, to hear "and determine all offences and contempts committed or done by any per Barr. It is but rarely that any have arrived to so great a confidence: For it is a most dangerous thing to shake, or alter," any of the rules, or fundamental points" of the common law, which in truth are the main pillars, and supporters of the fabric of the commonwealth;' these are judge Coke's wordst. Yet sometimes it "son or persons against the form, ordi"nance, or effect of any statute made and "not repealed, &c." By colour of which act,' saith Coke, shaking this fundamental law', (he means, touching all trials to be by Juries) it is not credible what HORRIBLE OPPRESSIONS and EXACTIONS, to the undoing of MULTITUDES of people, were committed by Sir Richard Empson knight, and Edmond • Dudley, esq. (being justices of the peace) throughout England; and upon this unjust and injurious act, as commonly in like cases it falleth out, a new office was erected, and they made masters of the king's forfeitures." ple in most other nations, where they are either wholly subject to the despotic arbitrary lust of their rulers; or at best under such laws as render their lives, liberties, and estates, liable to be disposed of at the discretion of strangers appointed their judges; most times mercenary, and creatures of prerogative; sometimes malicious and oppressive; and often partial and corrupt * Or suppose them ever so just and upright, yet still has the subject no security against the attacks of unconscionable witnesses. Yea, where there is no sufficient evidence, upon bare suspicions, they are obnoxious to the tor tures of the rack, which often make an innocent man confess himself guilty, merely to get out of present pain. Is it not then an inestimable happiness to be born and live under such a mild and righteous constitution, wherein all these inischiefs, as far as human prudence can But not only this statute was justly, soon after the decease of Henry VII. repealed by the stat. of the 1 Hen. VIII. cap. 6. but also the said Empson aud Dudley (notwithstanding they had such an act to back them, yet it being against Magna Charta, and consequently void) were fair-provide, are prevented? where none can ly executed for their pains; and several of their under-agents, as promoters, informers, and the like, severely punished, for a warning to all others that shall dare, on any pretence whatsoever, infringe our English liberties*. For so the lord † Coke, having, elsewhere, with detestation mentioned their story, pathetically concludes; Qui eorum vestigiis insistant, exitus per horrescant. Let all those who shall presume to tread their steps, tremble at their dreadful end.' Other instances of a later date might be given, but I suppose these may suffice. Jurym. Yes, surely; and by what you have discoursed of the long-continued use of Juries, and the zealous regards our ancestors had not to part with them, I perceive that they were esteemed a special privilege. Be pleased, therefore, to ac'quaint me, wherein the excellency and advantages to the people, by that method of trial above others, may consist. Barr. This question shews you have been much conversant abroad to observe the miserable condition of the poor peo be condemned, either by the power of superior enemies, or the rashness or ill will of any judge, nor by the bold affirmations of any profligate evidence; but no less than twelve honest, substantial, impartial men, his neighbours (who consequently cannot be presumed to be unacquainted either with the matters charged, the prisoner's course of life, or the credit of the evidence) must first be fully satisfied in their consciences, that he is guilty; and so all unanimously pronounce him upon their oaths? Are not these, think you, very material privileges? † But Jurym. Yes, certainly; though I never so well considered them before. now I plainly see our fore-fathers had, and we still have, all the reason in the world to be zealous for the maintenance and preservation thereof from subversion or encroachments, and to transmit them entire to posterity. For if once this bank * See all this excellently made out and more at large by the L. C.J. Fortescue. afterwards Chancellor to K. Hen. VI. in his Book De laudibus Legum Angliæ, cap. See Sir Rich. Baker's Chron. p. 254, 26, 27, 28, 29. printed in 1674. +4 part Institut. fol. 41. The Juryman having been instructed in the antiquity of Juries, is now going to enquire wherein their advantage consists. The Barrister accordingly shews the be nefits which may arise from them. Thus the author performs the second part of what he proposed in the title page. It may be of importance to add one observation here;-Though a parliament, to supply the necessities and purposes of an abandoned administration, should oppress us with taxes; while the constitution remains, in other respects, unviolated, the continuance of Juries in their legal force will secure our reputations, our personal liberties, our limbs and our lives. be broken down or neglected, an ocean of oppression and the ruins of infinite numbers of people, (as in Empson and Dudley's days) may easily follow, when on any pretence they may be made criminals, and then fined in vast sums, with pretext to enrich the king's coffers, but indeed to feed those insatiate vultures that promote such unreasonable. prosecutions. But since you have taught me so much of the antiquity and excellency of juries, I cannot but crave the continuance of your favour to acquaint me somewhat more particularly of their office and power by law. Barr. I shall gladly comply with so reasonable and just a request. A jury of twelve men are by our laws the only 'proper judges of the matter in issue be'fore them.' As for instance, 1. That testimony which is delivered to induce a jury to believe, or not to believe, the matter of fact in issue, is called in law EVIDENCE; because thereby the jury may out of many matters of fact Evidere veritatem; that is, see clearly the truth, of which they are proper judges. 2. When any matter is sworn, or [when a] deed [is] read, or offered, whether it shall be believed, or not, or whether it be true, or false, in point of fact, the jurors are proper judges. 2. To see that the prisoner, in cases where it is permittable, be allowed his lawful challenges. 3. To advise by law, whether such matter may be given in evidence, or not; such a writing read, or not; or such a man admitted to be a witness, &c. 4. Because by their learning and experience, they are presumed to be best qualified to ask pertinent questions, and, in the most perspicuous manner, soonest to sift out truth from amongst tedious impertinent circumstances and tautologies: they therefore commonly examine the witnesses in the court; yet not excluding the jury, who of right may, and where they see cause, ought to ask them any necessary questions; which undoubtedly they may lawfully do with modesty and discretion, without begging any leave. For if asking leave be necessary, it implies in the court a right when they list to deny it; and how then shall the jury know the truth? And since we see, that council who too often (Pudet hæc opprobria nobis) for their fees strive only to baffle witnesses, and stifle truth, take upon them daily to interrogate the evidence; it is absurd to think that the Jurors should not have the same privilege, who are upon their oaths, and proper judges of the matter. 3. Whether such an act was done, in 5. As a discreet and lawful assistant to such or such a manner, or to such, or such the jury, they do often recapitulate and an intent, the jurors are judges. For the sum up the heads of the evidence: but court is not judge of these matters, which the Jurors are still to consider whether it are evidence to prove or disprove, the be done truly, fully and impartially; for thing in issue. And therefore the wit- one man's memory may sooner fail than nesses are always ordered to direct their twelve's. He may likewise state the law speech to the jury; they being the pro-to them; that is, deliver his opinion where per judges of their testimony. And in the case is difficult, or they desire it. But all pleas of the crown, or matters cri- since, ex facto jus oritur, all matter of law minal the prisoner, is said to put himself arises out of matter of fact, so that till the for trial upon his country; which is ex-fact is settled there is no room for law: plained and referred by the clerk of the court, to be meant of the jury, saying to them Which country you are." Jurym. Well then, what is the part of the king's justices, or the court? what are they to take cognizance of, or do, in the trials of mens' lives, liberties and properties ? Barr. Their office, in general, is to do equal justice and right; particularly, 1. To see that the jury be regularly returned and duly sworn. therefore all such discourses of a judge to a Jury are, or ought to be, hypothetical, not coercive; conditional, and not positive viz. If you find the fact thus or thus' (still leaving the Jury at liberty to find as they see cause) then you are to find for the plaintiff; but if you find the 'fact thus, or thus, then you are to find for the defendant or the like;' guilty, or not guilty, in cases criminal. Lastly, they are to take the verdict of the Jury, and thereupon to give judgment according to law. For the office of a *The author now proceeds to the exe-judge (as Coke well observes) is jus dicere, cution of the third, and last part of his. proposed plan. Vaughan's Reports in Bushell's case, † See Coke, 4th part of Instit. fol. 64, fol, 144. |