416 



THE POP'tJLAfc EDUCATOR. 



believed what the defendant said under sanction of his oath. 

 The form of procedure was simply this. A man accused of 

 default, on civil or criminal process, was put on his oath if he 

 chose to be so, and then swore he was innocent of the offence 

 charged, or that his version of tho case between him and the 

 plaintiff was a true one. The compurgators, of whom the num- 

 ber varied from twelve to thirty-six, being also sworn, deposed 

 to their belief in what the defendant had said, and, as they were 

 commonly chosen from among the neighbours and- acquaintance 

 of the man, they were supposed to know something of the facts 

 connected with his case, as well as to be able to form an esti- 

 mate of the truth or falsehood of his statements. It can easily 

 be imagined that s-ach a tribunal was not one from which 

 to expect strict justice, and the shortcomings of the system 

 amounted in many instances to gross miscarriage of right. 

 Nevertheless, it continued to be used with other systems till 

 Henry II. (1154-1189) introduced the Norman form of trial 

 by jury for civil causes, and Henry III., or rather those 

 who represented him, introduced it about 1235 on criminal 

 process. 



The Norman-English jury was not like ours of to-day. Instead 

 of deciding upon the case according to evidence for and against, 

 and after hearing the summing-up of the judge, the jury included 

 all those who under our system would be witnesses, and would 

 be rigidly excluded from the jury for the very reason that they 

 knew most of the facts. Then it was the duty of the sheriff to 

 summon specially on the jury all those who were, or might be 

 supposed to be, acquainted with the material points in the case, 

 and these persons compared notes with their fellows, but without 

 being subjected to any cross-examination, and gave their verdict 

 according to what then appeared to them to be right. Common 

 rumour, repetitions of what somebody else had said, unsifted 

 testimony of various kinds, were received by these juries, and 

 sometimes constituted all the evidence they had to guide them. 

 All such would be utterly rejected now, and any person who had 

 evidence to give would be summoned as a witness would cer- 

 tainly be precluded from sitting on tho jury. It was not till the 

 twenty-third year of the reign of Edward III. (1327-1377) that 

 witnesses, though still added to the jury, were not allowed to 

 vote as to the verdict ; and it was not till the eleventh year of 

 Henry IV. (1399-1413) that they were made to give their evi- 

 dence in open court, under the scrutiny ot the judge, and without 

 being associated in any way with the jury. 



Under tho Plantagenet princes (from Henry II., 1154, to 

 Eichard II., 1399), though the grand provision in Magna Charta 

 that no free man should be tried by any but his peers was con- 

 stantly disregarded, it does not appear that juries as such 

 suffered any violence ; but with the Tudor princes came in this, 

 as in other respects, quite another order of things, and that 

 which the Tudors did the Stuarts did likewise. Juries were 

 called to account in the most direct and personal manner for 

 verdicts given according to their conscience (some authorities, 

 however, say they were frequently bribed), and were frequently 

 reprimanded by the judge or the king's council, and sometimes 

 cited before the Court of Star Chamber, where, if they did not 

 repent, they were heavily fined and also imprisoned. Some of 

 the fines imposed on individual jurymen were as much as .2,000, 

 a ruinous amount in Queen Mary's reign (1553-1558), when 

 such a fine was actually inflicted. Whether there was or was 

 not any ground for the interference of the Star Chamber on the 

 score of bribery of the jurors by the parties to suits, it is evident 

 that the offence might have been punished by more regular 

 means, and that the means actually adopted were liable to be 

 grossly abused. As a matter of fact they were grossly abused, 

 and the tyrannical conduct of the Star Chamber in dealing with 

 juries was one of the chief causes which contributed to its down- 

 fall. When the Star Chamber was abolished by Act of Parlia- 

 ment in 1641, with an indignant protest against its ever having 

 existed, and a solemn declaration that nothing of the kind should 

 be permitted in the time to come, this evil practice of threatening 

 and punishing juries, so as to compel them to give such verdicts 

 as the Crown wished, was abolished also. During the civil war 

 (1642-1648), and during the protectorate of Oliver Cromwell, 

 (1648-1658) it was not heard of ; jurymen were allowed to be 

 responsible alone to God and their conscience, and gave their 

 verdicts freely, no man making them afraid. 



With the restoration of Charles II., in 1660, some of the old 

 governmental vices were restored also. The Star Chamber men 



would not have back at any price, nor to please any one, but the 

 judges took upon themselves to revive the wicked old custom oi 

 polluting the very source of justice by intimidating those who 

 liad charge of it. Two Chief Justices of England, Hyde and 

 Keeling, were especially guilty of this crime, and made themselves 

 .o notorious that the Houso of Commons came to a resolution to 

 impeach the latter for his misconduct. He was suffered to speak 

 for himself at the bar of the House, and to go free on promise 01- 

 amendment. 



In the face of this, and in spite of the expressed opinions oi 

 most of the legal luminaries of the day, including Lord Chief 

 Justice Hale, the Recorder of London, in 1670, ventured, under 

 the circumstances stated above, to fine the jury which acquitted 

 Penn and Mead, and to commit Mr. Bushell to prison when 

 lie refused to pay. Here was what followed when the jury 

 remained obstinate in their simple verdict of "not guilty," 

 after having been browbeaten, threatened, and ridiculed, both 

 by chief magistrate and Recorder, and after having- been 

 sent back three times to consider their verdict, which indeed 

 they did alter to a simple verdict of "not guilty" as to both 

 prispners. 



CLERK : Are you agreed upon your verdict ? 

 JUKY : Yes. 



CLERK : Who shall speak for you ? 

 JUKY : Our foreman. 



CLERK : What say you ? Look upon the prisoners at the bar. 

 Is William Penu guilty of the matter whereof he standa indicted 

 in manner and form as aforesaid, or not guilty ? 



FOREMAN : William Penn is guilty of speaking in Gracechurch 

 Street. 



MAYOR : To an unlawful assembly ? 



BUSHELL (the foreman) : No, my lord, we give no other 

 verdict than what we gave last night. We have no other verdict 

 to give. 



MAYOR : You are a factious fellow. I'll take a course with 

 you. 



SIR T. BLOODWITH (alderman) : I knew Mr. Bushell would 

 not yield. 



BUSHELL : Sir Thomas, I have done according to my con- 

 science. 



MAYOR : That conscience of yours would cut my throat. 

 BUSHELL : No, my lord, it never shall. 

 MAYOR : But I will cut yours so soon as I can. 

 RECORDER : He has inspired the jury. He has the spirit of 

 divination. Methinks I feel him. I will have a positive verdict, 

 or you shall starve for it. 



PENN : I desire to ask the Recorder one question. Do you 

 allow of the verdict given of William Mead '( 



RECORDER : It cannot be a verdict, because you were indicted 

 for a conspiracy, and one being found not guilty, and not the 

 other, it could not be a verdict. 



PENN : If not guilty be not a verdict, then you make of the 

 jury and Magna Charta but a mere nose of wax. 

 MEAD : How ! Is not guilty no verdict ? 

 RECORDER : No, it is no verdict. 



After this fine judicial dictum there were other passages 

 between the jury and the court, and the jury being once more 

 asked as to William Penn's guilt, said, as before, that he was 

 guilty of speaking in Gracechurch Street. 



RECORDER : What is this to the purpose ? I say I will have a 

 verdict. (And speaking to Edward Bushell, said) : You are a 

 factious fellow. I will set a mark upon you ; and whilst I have 

 anything to do in the city I will have an eye upon you. 



MAYOR : Have you no more wit than to be led by such a 

 pitiful fellow ? I will cut his nose. 



PENN : It is intolerable that any jury should be thus menaced. 

 Is this according to the fundamental laws ? Are not they my 

 proper judges by the Great Charter of England ? What hope is. 

 there of ever having justice done when juries are threatened, and 

 their verdicts rejected? I am concerned to speak, and grieved 

 to see such arbitrary proceedings. Did not the Lieutenant of 

 the Tower render one of them worse than a felon ? And clo you 

 not plainly seem to condemn such for factious fellows who 

 answer not your ends ? Unhappy are those juries who are 

 threatened to be fined, and starved, and ruined if they give not 

 in verdicts contrary to their consciences. 



RECORDER ; My lord, you must take a course with that same 

 fellow. 



