to a conclusion; if eleven were of one mind and the twelfth
not convinced, the refractory juror was fined or put in jail.[167] If
the verdict, when unanimously given, did not satisfy the judge or his
master, the jurors were often punished.[168] I have already shown you
how the juries were treated--with fine and imprisonment--who acquitted
Throckmorton and Penn.[169] When John Lilburne was tried for his life
in 1653, he censured the authorities which prosecuted him and appealed
to the "honorable Jury, the Keepers of the Liberties of England:" they
found him Not Guilty, and were themselves brought before the council
of State for punishment. "Thomas Greene of Snow-hill, tallow chandler,
Foreman of the Jury, being asked what the grounds and reasons were
that moved him to find ... Lilburne not guilty, ... saith '_that he
did discharge his conscience in what he then did, and that he will
give no further answer to any questions which shall be asked him upon
that matter_.'"[170] This was in the time of Cromwell; but as the
People were indignant at his tyrannical conduct in that matter, and
his insolent attempt to punish the jurors, they escaped without fine
or imprisonment. Indeed more than a hundred and twenty-five years
before, Thomas Smith had declared "such doings to be very violent,
tyrannical, and contrary to the liberty and customs of the realm of
England." Sir Matthew Hale said at a later day, "It would be a most
unhappy case for the judge himself, if the prisoner's fate depended
upon his directions; unhappy also for the prisoner; for if the judge's
opinion must rule the verdict, the trial by jury would be
useless."[171] Judge Kelyng was particularly hostile to the jury,
throwing aside "all regard to moderation and decency." He compelled
the grand-jury of Somersetshire to find an indictment against their
consciences, reproaching Sir Hugh Wyndham, the foreman, as the "Head
of a Faction." He told the jury, "You are all my servants, and I will
make the best in England stoop!" He said it was a "misdemeanor" for
them to discriminate between murder and manslaughter; that was for the
court to determine. But, Gentlemen, it does not appear that he had his
brother-in-law on that grand-jury. Several persons were indicted for
"attending a conventicle;" the jury acquitted them contrary to his
wish, and he fined them $334 apiece, and put them in jail till it was
paid. On another occasion, this servile creature of Charles II. fined
an