T.224 [1650.12.02] William Walwyn, Juries justified (2 December, 1650/1651).
William Walwyn, Juries justified: or, A word of Correction to Mr. Henry Robinson; for his seven Objections against the Trial of Causes, by Juries of twelve men. By William Walwin.
Job. 22. 28. Remove not the Ancient Land-Mark which thy Fathers have left.
Published by authority. London, Printed by Robert Wood; and are to be sold at his house, near the Flying-Horse in Grubstreet, 1651.
2 December, 1650/1651.
TT1, p. 819; Thomason E.618 
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THough a silence had seiz’d me, equal to his that was born and continued dumb, till his father was in danger of being murthered; yet retaining still a sincere and vigorous affection to my Native Countrey, and seeing this mans Knife offering at the throat of our preservers (such I esteem our Juries) for Englands, and for this its fundamental essential liberty, I could not hold my peace; but must tell Mr Robinson, he deals most injuriously with his Country, whereof he must either speedily repent, or be made ashamed: For how doth it appear, That there is not a competent number of understanding and fit men to be had in the lesser divisions of a County, for trial of all causes upon all occasions? which is his first frivolous objection. If by lesser Divisions, he means Hundreds, who doth not know it to be a most notorious slander? there being not the least in England, but affordeth a double competency of understanding and fit men; yea, should he mean Parishes, I verily beleeve, a sufficiency might even there be found, for trial of all the causes of each Parish; but that needs not, the divisions of Hundreds being more commodious, and the Hundred Courts being of ancient continuance, might soon be reduced to the former use; in which Courts (before the Conquest) all causes or matters in question, upon especial penalty were finally to be decided, in every Month.
And though William the Conquerour was so unjust and unworthy (indeed so perjured) as to alter this course so far, as to ordain that four times in the year, for certain days, the same businesses should be determined in such place as he would appoint, where he constituted Judges to attend for that purpose, and others, from whom (as from his own bosom) all litigators should have justice, from whom was no appeal; and appointed others for the punishment of malefactors: yet he never attempted to take away Juries, as finding by the resolute strugling of the people against what he did, that they would never bear it. So as this Mr Robinson does what he can, to induce the present Parliament, to deal worse with us then the Conquerour did with our Predecessors not minding as it should seem, how heinous an offence it hath been always judged, for any to endevour the subversion of the fundamental Laws of the Nation: nor regarding how frequently this Parliament have avowed to maintain inviolable, those fundamentals, in all things touching life, liberty, and estate, with all things incident thereunto; so as he invites them to do that, then which nothing could be more dishonourable. Insomuch, as it is a difficult thing to conceive, whence it is that he should engage himself in such a subject, nor can I imagin; except it be from his proneness to invention, a humour for the most part got by travel, but proving very unhappy to this Nation; as might be instanced, in our exchange of many of our substantial honest plain customs, for Frenchified and Italianated inventions, which have had no small share in our late distempers, new platforms of Government, sent English-fugitives abroad, to reduce us into the like depth of bondage with our neighbours, having been received with too great applause; but it is strange the ill success of the inventers & attempters, few of which have escaped exemplar punishment, should not as Land-marks warn travellers from such Shipwracks. And of all our English travellers (I say) well fare Col. Henry Marten, who returned a true English-man, and continued so ever after; always manifesting a most zealous affection to his Countries liberties, and especially to this, of Trials by 12 men or Juries; as eminently appeared by his demeanor upon the Bench at Redding, where it being his lot to give the charge to the Grand-Jury, in the first place, he wisht them to be rightly informed of their own places and authority, affirming it to be judicial, when as their own (meaning the Justices) was but ministerial; and therefore desired them not to stand bare any longer, but to put on their hats, as became them, and not to under-value their Country, which virtually they were; or words to this effect: which I the rather mention, to set traveller against traveller; for had he been a meer Country Justice, and not seen the world abroad, this our Anti-Juriman, possibly would have said it had been a vapour, sutable to one that had never been farther then the smoke of his own Chimney; for so our inventive innovating travellers, use to silence those that oppose their corrupt reasonings: And I have good hope our fear is our greatest harm, for certainly the Honourable Parliament would never have referred the care of the Regulating of Law and its proceedings, in so special a manner to Colonel Marten, but that they approve of his affection to Trials per Juries.
But it may be, he lays the most weight of his first Objection upon the word Understanding; that there is not a competent number of Understanding and fit men: Understanding indeed is very good, but as I take it, there is not so great a want thereof in England, as there is of Conscience, a faculty that puts on to the doing of what is approved to be ones duty, and to the resistance of what is not: a little quantity whereof (in my opinion) were very wholesom for one that is troubled with the rising of such Objections. But as for understanding sufficient to judge between right & wrong, in any case, where proof is to be made by witnesses openly and freely to be examined, and where a man shall be sure to have the help of eleven more equally engaged under oath to be careful therein; truly I wonder, that (any man not suspicious of his own judgment, or not over-weening it) should so much as doubt, that a competency of such understanding fit men, are not in every lesser Division or Hundred to be found.
Indeed, understanding is in great reputation; and so is utterance too; but yet nothing is so precious as a true conscience; not such a one as is satisfied with, touch not, tast not, handle not; nor with saying Carbun: nor with observation of days and times, no nor with saying Lord, Lord; but with doing judgment and justice, in delivering the Captive, and setting the Oppressed free; in feeding the Hungry, clothing the Naked, visiting the Sick and the imprisoned; and in faithfully keeping all promises and compacts amongst men, without which civil societies cannot be maintained.
And certainly, any one that hath such a good Conscience, would make a Conscience of removing so ancient a Land-mark, which our fore-fathers have set, Job. 22. 28. and more of such good Consciences I beleeve are to be found amongst our ancient English Gentry, and other our Free-holders, than among our sharp-sighted, smooth tongued Travellers; and such as (to the honour of our English nation) have in all times served their Country justly and faithfully, judging the causes both of rich and poor without fear or favour, as justly as can be expected amongst men, yea, without respect to persons or opions, as truly honouring God in their hearts, and trembling at an Oath taken to deal justly; and who with their lives and fortunes, in all times, have preserved this, the most essential Liberty of England.
For howsoever men in these days make bold to trample Magna Charta under their feet, making sport at the many absurd prerogative and superstitious things therein contained; it is to be noted, that these things are but as a French garb or cloathing, which the Conqueror and his successours, by main strength, forced our fore-fathers to put on: but yet, as an Englishman is to be known from a Frenchman amongst a thousand, though he labor to fashion himself as the most Frenchified Gallant; so are our true English Liberties, contained in Magna Charta, as easie to be differenced from amidst that superstitious and in some measure, tyrannical heap cast upon them, and which that worthy Parliament, in the third year of the late King, called out to, purpose, and reduced into that excellent Law (as this Parliament stiled it since his death) the Petition of Right, and wherein trials per Juries is the principal.
And therefore this is a strange kind of service or gratitude to the Parliament in Mr. Robinson, for so many profitable places and favoure conferred upon him, to invite them to take away Juries, and to erect another way of trial of Causes, whereby he must necessarily render them more odious to the people, than the worst of those they have removed; for certainly, had either party when these publick differences began, proposed the taking away of Juries, they had never had a thousand men to have taken part with them; so as if his counsel should take place, I wonder where the Parliaments Cause would be, which they have ever, hithereo, held forth, for the concurrence of the People is it not also as easie to judge for whom he labours to beget friends, by his so doing, it being no new thing with him to play the Lapwing.
As in also doth he repay the Army; for whereas they publish to all the world, That they esteemed all present enjoyment (whether of life or livelihood, or nearest relations,) a price but sufficient to the purchase of so rich a blessing, viz. That they, and all the free-born people of England might sit down in quiet under their own vines, under the glorious Administration of Justice, and Righteousness, and in full possession of those Fundamental Rights and Liberties, without which, they could have little hopes to enjoy either any comforts of life, or so much as life it self, but at the pleasure of some men, ruling meerly according to Will and Power.
What more fundamental liberty than the trial of causes by Juries of twelve men? What more constant, more glorious administration of Justice and Righteousness? Yet this true or false lover of the Army, insinuates, nay, invites the taking of this away, as the end of their conquest, as if they had conquered, not for the establishment of our fundamental liberties, but for their extirpation: if these are his mites he so much boasts of, to cast into the work of Reformation, sure it is not for the English, but the Scotch Treasury; where if he should be as acceptable as (time was) one was at Oxford and Newcastle, the new Office of Addresse may serve turn for private parties, with any body, and is a fit contrivance for him to be hic & ubique as formerly: What think yee of it? is it, or is it not? Is it not more likely, than that England should not be able to afford a sufficient number of judicious and conscionable men for Juries? for my part I professe I think it is.
And how I pray doth it appear, that People are generally unwilling to be called upon for Jurie-men, whereby they neglect their own affairs? which is his second objection. What an unheard of grievance hath this tender hearted man found: out! even the most insensible burthen of serving upon Juries; wherein his care appears above and beyond all that ever petitioned the Parliament: not one Petition of the well-affected, in all their large Petitions, so much as minding or desiring to have it removed, no, not a one of the ill-affected: manifestly shewing, that either he is better then the best, or worse then the worst affected: say Scotch, or English, whether is it? (for he desires us to be tried by God and his Country) is it not right sterling. But certainly Mr Robinson is troubled, the plain people should be put upon occasions to understand themselves in any measure, or be able to discern of one anothers causes, but would have them so wholly fixt upon their own particular affairs, that they might remain as ignorant of the laws of the land, as in time of Popery they were of the laws of God; then, knowing no more but what the Priest pleased: and now he would have them put all their understandings (in the affairs of law) into the pockets of such Judges, as he in his own brain fancies, and would perswade them to it for their own good, then they might the better follow their more profitable callings; he finding, it seems that every man is born for himself, and not so much as a Jury-mans time to be spent for the publique: sure ’twill not be long but he will also find, Constables, Headboroughs, and all other Officers to their hands; but by the way, not without good pay, for so he carefully proposeth for his Judges, and so large as they may live upon it when they are out of their Offices; and thus he will devise waies to raise monies in such sort I warrant ye, as shall be no waies burthensome to the people, no so much as felt by them, if you will beleeve him, but so long till he hath brought you into his fooles Paradice, when he hath you there, beleeve or no, all is one, he will make you pay, and say too you feel it not; to such an end drives his Mountebank promises, in all he hath yet undertaken; for he hath made some believe, that he will shew how all the vast charges of the Common-wealth should be constantly defrayed without burthen to the people; but sure his meaning is, that he would have them at such a passe, as they should not dare to say the contrary, if he but say it is so: otherwise; where are the mountains he hath so often promised, are they in his office of addresse, or are they not? ’tis like there’s more, then such as truly love the Liberties of their Country can imagin.
Well, all the Jurie-men in England shall be excused from any further service, because they are generally unwilling: off with your hats, Country-men, and thank him; he onely takes care of you and your affairs: Not a Parliament man, God be praysed, hath had this wicked care of you, as for a poor complement, a little drawing back from your duty, to take you at your words, and smile you out of all your liberties at once; for beleeve it, lose this and lose all: No more complements, I beseech you; but upon the first call, pack up and be going, for if once Mr. Robinson take you napping, he may chance shew you a new Florentine trick for it.
For he further objecteth, that though they do come to avoid the penaltie, they seldome take the course to be rightly qualified and fitted to judge of the matter in controversie. But doth it appear to be a truth, that they come (only) to avoid the penalty? It may be some do so, & yet they may bring their consciences with them; (which, some think, have been as frequently found under Felt Hats and Worsted Stockings, as with people of a finer Stuff,) and then I hope, it is well they are there; but that one Swallow should make a Summer, or one Woodcock a Winter, is against our English proverb; and as ill reasoning it is, to imply (as he doth) that none come, but to avoid the penalty, when as it is impossible for him to know it, or to think it, so as to beleeve it: but some say, our decoy Ducks may twattle any thing, for what is this and all the rest but twatling? They seldome take the course to be rightly qualified and fitted to judge of the matter in controversie, What cours trow hath he seen beyond the seas in his travels, that are wanting here? are not our Juries and Jurie-men sufficiently known before hand, who shall be upon this, and who upon that cause, that the parties concerned might apply themselves to them by great letters and gifts, to make them sensible? what a horrible defect is this, and it seems would be perfectly supplied by such Judges as he fancies; then indeed they might be rightly qualified to judg, as should be best for their own and their Patrons advantage: And truly, in this way sure he ayms to be a Judg himself, and no doubt would soon come to have a feeling of the Cause; but if he do, I hope his itch will not yet be cured, and that he shall scratch where it doth not itch, first, as he hath done formerly; though now provender prick him to spur-gal his Country, as now he doth.
For yet again he sticks them in the sides, with this; That, Most commonly, one or two active and nimble-pated men over-sway all the rest of the Jury; and too often for the worst: which is his 4th Objection. But truly, with us in England, our nimble-pated men are not in so great credit, as possibly they are in other parts, we are generally of somewhat a more dullish complexion, which renders most so considerate as to suspect those few nimble-pated men as are amongst us; and for the most part not without cause: so as the nimble-pated seldom carry anything, except they have reason and equity of their side, and then the more they sway therewith the better: And those dull men (as he accounts them now it serve his turn) were he to deal with them in buying, selling, letting or setting, I beleeve he would not think them so easily caught with Chaff or Nut-shels: Nor is right and wrong so difficult to be discerned in Causes and Controversies, but that an ordinary capacity (careful to keep a good conscience, and that is tender of an oath) shall soon perceive the true state thereof; and be able to do right therein according to evidence: Nor will this nimble-pated Mr Robinson with all his quickness of wit, be able to make this (the most desperat project he ever undertook, or was ever offered at in England) pass for currant Coyn with our dullest apprehensions; and in time may be made to know, that none are so apt to mistakes as the quick-sighted; nor any so sottish, as those that are conceiptedly wise.
Another gird he gives Our good men and true, is; That, Though never so many of them dissent in judgment from the rest, they must notwithstanding all concur in the Verdict, or be wearied into it; which is his 5th Objection: And truly (how strong soever he beleeves it) nothing in my opinion is more commendable in the institution of Juries, than the provision that all must agree, and agree necessarily and finally in so short a time; for should it rest on a major part, there might be some won for partiality, and some won for complaint in the parties against whom the Verdict is given; and some cause of quarrel ever after amongst the Jury-men themselves: but in that all 12 must be agreed, all these mischievous inconveniences are manifestly to be avoided; and in that it is provided that they must make an end before they shall either eat or drink, it supposeth (what is said before) that right and wrong are not hard to be discerned, and that those that are convinced of the truth and yet desire to carry it otherwise, wanting that strength of a good conscience, to bear them out in such a strait of time, will yeeld to the truth rather than die in it; which those that labour to keep a good conscience, even dare to die: besides, had they further time, what means would be un-assayed to corrupt their Verdict? So as all things justly considered, doubtless it is the best provision that ever was in the world.
But he hunts farther to finde matter against them, and hath found; That if they give corrupt or erroneous Verdict, there cannot justly be any penalty inflicted on them, because they may pretend, they did at first declare themselves unfit for such employment; that they undertook it not willingly, but were compelled thereunto: This is a long-winded Objection. But (if any part of it were true, as I do not see it is) may they not justly be unfit for a corrupt Verdict? what a vast difference is there in judgment between our forefathers and some of their white sons? They no doubt, in the time of the institution of Juries, fore-saw as much as this man objects, and yet provide the most heavie and reproachful punishment for a false Verdict, found per Attaint, as ever the wit of man devised; As, that every one of their Houses should be razed to the ground, their Trees stockt up by the roots, and all their Ground turn’d up and made useless, &c.
And all this justly too, as being fully convinced, it could not be, except it were wilfully and wickedly done, and deserving to bee made exemplary; and is so good a provision against corruption, that very seldom hath such a case befaln: but either men have had consciences for right, or have been deterred from daring to be confederates in so high a wrong, as to give a false or corrupt Verdict; as knowing it in vain to say in excuse, as this man goes on: That they undertook it unwillingly, and were compelled thereunto; and when they saw there was no avoiding it, they endeavoured to proceed therein according to the uprightness of their Consciences, if they be thought to have done amiss, it was but what they could not remedy, and are heartly sorry for it. Such Childish toyes, as fitter for Children than men, were of no value with them; and therefore supposing every man, a Man, and bound to serve his Country in any place as he shall be lawfully called thereunto (willing or unwilling) and to discharge his trust judiciously and faithfully, or to suffer for it.
His last Objection is; That, The keeping the Jury without Fire-light, Bread, or Drink, as the Law requires, may possibly make the major part of them, if not all, agree upon a Verdict contrary to their Consciences, to be freed from any of these exigencies; at least, some of them to strike up with the rest in a joint-Verdict, since it is well near impossible for twelve men, all circumstances considered, much more in a doubtful case, to bee of one opinion; and though the case were never so clear, yet one peremptory man of a strong constitution, whether his judgment be right or wrong, may sterve all the rest, unless they will give Verdict as he will have them. Certainly, he thinks most men of such a kinde of tenderness in conscience, as soon is crackt a sunder; beleeve it Sir, a true English conscience is of more solid stuff, and will endure every one of these, yea death it self, rather then be so base and unworthy; and certainly, but from unworthiness could not be supposed: For if a man were but resolved how base a thing it were so to do, how could he once think of striking up with the rest, in a joint false Verdict (conscience in this case being more powerful then the strongest constitutions?) And as for any absurdity in their being kept without fire-light, &c. it supposes that they have had time enough at the Trial (or might have had) to be fully satisfied from the examination of the Witnesses, in the right state of the Cause; which then they are to look to, and to clear all their scruples by what questions they please, and well to understand themselves and one another before they discharge the Witnesses or go together: And this standing for good, what cause is there they should have any longer time then is admitted them? Except to to make them liable to corruption.
For my part, I have heard many discourses touching Juries, but never any material exception against the way of Trials by them: Indeed I have heard divers complain and wonder, that the way of proceeding before Causes come to Juries, should be so tedious, so full of charge, trouble, and perplexity; since in their accompt, there is very little more requisite in any Cause, but a convenient time for preparation and appearance, as about a Month or two; and then one chief Officer (a Judg or the like) Witnesses, and a Jury, and time for Trial, and so an end: A dispatch as speedy, with less charge, and more certainty, than any new thing proposed by this new Inventor; most of the accustomed pleading, serving rather to perplex then clear the Cause to the understanding of the Jury: Which ocasioned that at a certain Trial (time was) after the state of the Cause was set forth in the Declaration (the Councel beginning to speak) the Foreman of the Jury, cals to the Judg and tels him, he had an humble suit to his Lordship; well (says the Judg) what is it? My Lord (said he) it is, that now the state of the Cause hath been set forth, we may proceed immedily to the examination of Witnesses, and so to give our Verdict, whil’st we remember what is material, and that we may spare the labour of these Gentlemen the Councel on both sides, whom I see are prepared to speak largely thereunto; for truly (my Lord) if they shall fall to work as they use to do, our understandings will be so confounded by their long discourses, and many niceties, as we shall not be able so rightly to judge thereof as now we shall, this was his humble motion; but the Judg having formerly been a Pleader, laught at the honest man, and so did all the Court, except some plain people that had so little understanding as to think there was reason in it. But such was the sport of those times, and perhaps may make some merry now, but yet they may consider that mocking is catching, and that laughter oft ends in Lachrymæ. ’Tis but a story, yet a true one, and may one day be acted to the life, and with a general applause, so it be well and throughly done: And do this man what he can, the many good mens lives and estates, that have been preserved by Juries, will never be forgotten whil’st England is England; and wherein I deem my self so much concerned, as in gratitude I justly owe my Country this service; but have done it gently, as judging gentle Correction to be the best; and the rather, because the Objector is of my acquaintance, which made me indeed unwilling to undertake him, lest it might be deemed disagreeable to friendship; but seeing no body else did, and since he knew my minde to be against his Propositions, and much more against his endeavour to deprive us of our Juries, and yet would publish them, to the prejudice of Common Right, (against which in all his writings he hath uttered most irradicating expressions) I take it, this Word of Correction is properly bestowed on him; and I hope profitably for the Common-wealth, having indeed been born withall too long: for whil’st the Husbandmen sleep, envious men will be sowing their Tares.
To Correct all the rest of the errours in his little Treatise, were an endless labour; nor will this my present labour (I hope) be absolutly needful, for certainly Juries cannot in time of Parliament be in any danger; and then, they standing, his project fals: Only I thought it necessary to appear a friend to this my Countries principal liberty, when any one should adventure to appear so palpable an enemy; wishing with all my heart, that hee may consider the nature of what he hath done, remembring, that as there was a Law (amongst the Locrines I take it) that he that moved to have any new Law established, should appear as if he were going to Execution, and if that he moved were not approved, he was indeed to suffer: Even so among us, there is a Law called the Excomengement, wherein all are accursed, that shall move for any Law to be made, contrary to our ancient Rights; and to subvert the Fundamental Law, hath been always adjudged a capital offence; and though with help of a little Fasting spittle, a man may play with Quicksilver, yet ’tis a fond thing to take fire into ones bosom, and venture upon a charm only to keep it from burning. It were much better to pray unto God to give no more wit, nor strength, nor power, than men have good consciences to make a right use of, to his glory, and their spiritual good: Which is and shall be ever, the hearty prayer of