abuse of it were better care taken in return of Jurors I dare say the trial by twelve would not be more ancient than excellent the Excellency of it appears in the long constant and general use of it amongst the people of England This way of trial to have all their Estates Injuries and Lives tried by twelve men and those Neighbours of our own degree and parity and without exception upon a lawful challenge certainly nothing can be said more for the commendation of it than the constant practice and unanimous approbation of it in England to this day since the first beginning of it The trial by twelve being very ancient though Mr. Daniel and Polydor Virgil deny it to be ancienter than the Norman Conquest But Polydor as says the excellent Sr. H. Savil was an Italian and a stranger in our Common-wealth and so deceived It is of English Saxon descent as by the Laws of King Etheldred cap. 4. thus In all Hundreds let Assemblies be and twelve Free-men of the most ancient together shall swear not to condemn the Innocent nor absolve the guilty It was in use with the French in the Age of Charlemaine They that would see more of this let them read that learned and ancient Book written by Judge Fortescue in commendation of the Laws of England I shall leave this Subject having briefly touched upon the happiness and liberty the Subjects of England enjoy to have their trials for their Estates and Lives per pares by Juries of twelve men what manner of persons Grand Jurors and those Jurors ought to be and of the excellency and antiquity of such trials in the next place after I have shewed the heynousness of Murther both by the Laws of God and the Laws of this Land and made some little parallel therein I shall briefly shew That it is the duty of all Grand Jurors in all Cases of blood touching the death of any reasonable creature by violence or by the hand or act of any other reasonable Creature where the Bill of Indictment is brought unto them for Murther in case they find upon the Evidence any probability that the person said to be killed in the Indictment was slain by the person charged to do it in the Indictment to put Billa vera to that Indictment without foreclosing the Court by judging amongst themselves the points of Law that may arise in that case as whether it be Murther Manslaughter at Common Law or upon the Statute Se def per Infortunium Justifiable or otherwise none of these special matters being to be found by them that are but Inquisitors and Accusers for the King not tryers of the offence hearing but Witnesses on one side and whose presentment or verdict is not final but must be put to Issue betwixt the King and the party to be tried by another Jury whether there be truth in it or no whatever the practice of Grand Jurors hath been of late to the contrary this being the chief aim and design of this Tract I have not met with any amongst Christians and I believe there is none amongst Heathens or rational Creatures but believe whatever their practices are to the contrary that the shedding of Innocent bloud is a great offence a crying sin To take away the life of a Plant is but the vigour in the juyce and the life of a Beast is but the vigour in the bloud but the life of a Man is a spirit and spiritual substance the breath of God breathed into him and not to be extinguished unjustly by the hand of man Certainly vox sanguinis est vox clamantis it is one of the four sins that the Scripture calls Clamantia Peccata Crying Sins that cry to God for vengeance even in this world upon the Manslayer Immediately after the Floud God commanded that blood unjustly shed should be required by the Magistrate of the Manquiller It is within the Magna Charta of God himself and by an Act of Parliament made in Heaven never to be repealed It is enacted that he that sheds mans blood by man shall his blood be shed At the hand of every mans Brother will I require the life of man says God himself God many times allowed of Restitution and other satisfactions in other Felonies but never in case of blood for who can make satisfaction for the life of a Man The first Murtherer that we read of was the Devil who the Scripture says was a Murtherer from the beginning in quantum traxit in peccatum in drawing our First Parents into sin and so to death The next that we read of for the Devil would not be long before he had tempted more to his own sin was Cain that kill'd his Brother Abel and it seems very desperately shed much of his blood in many parts of his body for the word is in the Plural number vox Sanguinum the voice of his Bloods or because the Bloods of the future posterity of Abel that he might have had were shed in him by the Murther of Cain It is true that Cain's blood was not shed by that Law although he kill'd his Brother the World being not then peopled nor that Law then so positively given by God and the example and terrour to others could not then be so great which is oft the great end of punishment ut poena ad paucos metus ad omnes perveniat and therefore Cain was to survive by God's special appointment not by any favour of God towards him but that he might have Gods mark as a Murtherer upon him to the Terrour of all others that should see him What visible mark and distinction this was is but conjectured at some think it was a horrible shaking over his whole body as the Septuagint translate who for Thou shalt be a Vagabond and Runagate read He should sigh and tremble or an exceeding shame and confusion in that he ran from place to place to hide himself or some visible mark in his face as Lyranus thinketh Some Hebrews think it was a horn in his forehead some a letter some that a Dog led him The Scripture is plain that for this Murther he was to be a Fugitive and a Vagabond upon the face of the Earth one as the Text says that went from the presence of the Lord to whom the Earth was accursed and certainly the guilt and shame he carried about him like the bloody Jews that murthered Christ and are to this day Vagabonds over the Earth or those bloody surviving Regicides that murthered the best of Kings yet live with that black mark of King-killing upon them was and is a Judgment greater than death it self as it is in the Psalms Slay them not lest my people forget it but scatter them abroad amongst the people and put them down O Lord our defence And that was the Judgment of Cain who before his natural death some say was kill'd by Lamech who shot in a Bush at
established by the said Act of the 3 H. 8. That all Pannels of Grand Jurors put in by any Sheriff before any Justice of Goal-delivery and Justices of Peace one being of the Quorum in the open Sessions to enquire for the King shall be reformed by putting to and taking off the Names of the persons which so be impannelled by every Sheriff at the discretion of the said Justices before whom such Pannel shall be retorned and the Sheriff upon pain of twenty pound shall allow of such Pannel so reformed and retorned by the Justices the one half to the King the other to him that will sue for the same and the Kings Pardon shall not be a bar to his part that so sues So careful were the Law-makers to have faithful Jurors that should neither accuse the Innocent nor excuse the Nocent and that especially in Cases of Blood should make no concealment And lest all this care and reformation of Grand Jurors should do no good but that they should still espouse their own opinions and make head against the Court and wilfully conceal Offences they were charged to enquire of there is a Statute yet in force 3 H. 7. in which it is ordained That the Justices of Peace may in their discretions cause an Inquest to be Impannelled to enquire of the concealments of other Inquests taken before them of such matters and offences as are to be enquired and presented before Justices of Peace whereof complaint shall be made And if any concealment shall be found by any Inquest within one year after the said concealment every person of the said Inquest that made such concealment shall be amerced or fined at the discretion of such Justices of Peace the said Amerciaments so assessed in plain Sessions And these Amerciaments or Fines may be very high according to the nature of the Concealment and quality of the person This Statute only concerns and remedies Concealments by Grand Jurors before Justices of the Peace at the Sessions of the Peace as conceiving Grand Jurors would be bolder there and take more liberty in their Presentments than they durst before Justices of Assize Oyer and Terminer or Goal-delivery as also that such Justices and Judges knew better how to deal with them if they made any such concealments or misprision before them For the Grand Jurors being immediate and subordinate Ministers and Officers in and to the Court and answerable for their Duty there as Coroners Constables and other Ministers of the Court they may and must stand to the Judgment of the Court and in case of any wilful contempt misdemeanor and concealment may without Indictment for how can they be indicted at the same time by themselves be fined by the Court as any other Officer and Minister of the Court. And let Grand Jurors take heed lest by their remisness and peevishness they give not occasion to the making of the like Statute as was made in the 11. of H. 7. c. 3. upon the surmise in the Statute That whereas many great Offences as Riots unlawful Assemblies Extortions Maintenances Imbraceries and other Offences could not be duly punished by the due Order of the Law except it were first found and presented by the Verdict of Twelve men thereto duly sworn which will not find nor yet present the Truth observe here what occasions Grand Jurors had then given through their neglect It was therefore provided and enacted by this Statute That Justices of Assize and Justices of Peace upon Information for the King that is meerly upon the Testimony of Witnesses without Indictment or use of Grand Jurors should proceed to make out Process Punish and Condemn Offenders by their Discretion as if it were upon Indictments found by Grand Jurors Which Statute was a great Infringment of the Common Law and the Liberty of the Subject of England who ought not by Magna Charta and the Law of this Land to be proceeded against or condemned in their Persons or Estates in Criminals but by Indictment first had and found against them by Grand Jurors It is true that Treasons Murthers and Felonies and such Offences for which life and member should be lost are excepted out of this Act although they stand upon the same Reasons as the other Offences named in the Act For by this Act and new Law the Subject might lose his Liberty suffer Ransom Stigmatizing Pillory Imprisonment loss of Lands and Estate things very near to Life and Member And the Lord Coke tells us That Empson and Dudley two Judges by reason of this Act committed upon the Subjects insufferable Oppressions and therefore this Statute was justly Repealed after the Decease of H. 7. by the Statute of the 1. of H. 8. c. 6. A good Caveat to Parliaments says the Lord Coke to leave all Causes to be measured by the Golden and streight Mete-wand of the Law and not to the uncertain and crooked Cord of Discretion And as good a Caveat it is to Grand Jurors in cases of Blood not so much to be led by the crooked Cord of Discretion as the streight Rule of the Law and Directions of the learned Judges who should best know the Law and the truest measure thereof For if the Rule be true as indeed it is Quod nihil relictum est arbitrio Judicis that nothing is left to the Will of the Judge much less arbitrio Juratorum to the will of Grand Jurors they having been through too much connivance by an evil practice corrupted herein But errores ad sua principia referre est refellere To bring Errors to their beginning is to see their last Now haply Grand Jurors may conceive and argue thus That to extenuate an Offence is not to conceal it if they find it not Murther yet they find it in some degree of Manslaughter c. Besides if the Kings Council will put into the Indictment the words Ex malitia praecogitata c. which only make it Murther and which is matter of Fact they must make it out to us that there was malice either from our own knowledge of it or that it is clearly proved to us from words or deeds express by such an act that lies in proof or we are not bound to find those words but must strike them out of the Indictment or find an Ignoramus Or if the Witnesses themselves shall inform us that it was a sudden falling out or done by misfortune Se defendendo in his own defence or to defend himself against one that would have robbed him in his House or upon the High-way or that he that did it was a Watchman a Constable or lawful Officer or Keeper of a Park or Warren and in doing his Duty or that he that did it was a natural Fool one not Compos mentis a Mad-man or a young Child that did it and by his young and tender years not capable of malice and so could not be guilty of Murther or if there had been former fallings out and
was found before by the Grand Jury and that makes too specially Verdicts or else generally Not guilty if they find him guilty of the Special matter as the Grand Jury found before them and the Judge and Court shall afterwards adjudge as they may having heard the Evidence that super totam materiam it is either Murther or Manslaughter then no Judgment of Death or Clergy can be given upon that Indictment or Verdict but all must be tried over again and a new Circuit of business upon a second Indictment of Murther or Manslaughter and how dilatory and idle would this be at an Assizes in course of Justice and in case of Blood If Judge Stamford were alive again although a person of great Learning and Judgment he would surely with some other Errors in that book recant this neither is it of any advantage to the Prisoner to have it found Specially by the Grand Jury for he can never plead either such an Acquittal or Conviction in Bar to an Indictment of Murther or Manslaughter in the same case as before is shewed and whoever shall read and well consider this seventh Chapter written by Judge Stamford in The Pleas of the Crown wherein this Opinion is especially towards the end of it when he comes to observe the Letter of the Statute of Gloucester and how the Certificate of such a Pardon of course shall be obtained must of necessity hold his first Opinion in that Chapter for the Special matter to be found in the Indictment to be very inconsiderately expressed for the reasons aforesaid And why may not this Learned Judge for humanum est Errare mistake in this as in some other Opinions in that Book of his styled The Pleas of the Crown for which he is detected by the Lo. Coke and others that followed him who standing upon his shoulders must needs see farther than he did or could As to instance in some few As first that Respit of Execution where a Woman is priviment enfent where a Woman after Judgment pleads her Belly shall be granted only says he in Felony whereas it is grantable both in high Treason and petit Treason A second is That the year and the day after the Murther and Homicide committed shall be accounted after the blow given or poyson administred whereas it ought to be accounted after the death for then the party was murthered and not after the stroke or poyson given Coke lib. 4. fol. 41 42. in Heydon's Case A third observed by the Lord Coke writing upon the Statute 8 H. 6. c. 12. which makes it Felony to steal away Records upon these words in the said Statute Their Procurers Counsellors and Abettors saith this Act expresly extendeth to Accessaries before and leaveth Accessaries after to the construction of Law yet there may be Accessaries after the Fact for whensoever an offence is made a Felony by Act of Parliament there shall be Accessaries to it both before and after as if it had been a Felony by the Common Law And therefore though this Act expresseth only Accessaries before yet it taketh not away Accessaries after but leaveth them to the Law contrary to the Opinion of Mr. Justice Stamford And again by the Statute of the 8 H. 6. c. 29. Insufficiency or want of Freehold is no cause of Challenge to Aliens who are Impanelled with Aliens notwithstanding Mr. Justice Stamford's Opinion Pl. Coron 160. for this Statute saith That the Statute 2 H. 5. c. 3. shall extend only to Enquests betwixt Denizen and Denizen But enough and perhaps too much hath been said in mentioning the mistakes of that Reverend and Learned Judge Sr. William Stamford in that Book of his termed Placita Coronae Pleas of the Crown which it seems by the Title of it hath been corrected amended and enlarged since the first Impression of it which I have not urged in the least to detract from the Learning and Honour of that great and learned Judge or from the value of that Book which notwithstanding there may be a few mistakes found in it yet is of as high esteem as any Book of the Law extant upon that Subject but principally to shew that he may as well erre in his Opinion concerning Grand Jurors finding the Special matter as in those mentioned and that no human Author in the Law or any other Science is infallible and that we must be very careful how we ground any Law upon the bare Opinion of any one or two persons though of never so great parts or esteem whereby to justifie or maintain a great Inconvenience in practice especially in Cases of Blood as before hath been shewn FINIS Duellum quasi duorum bellum Done without Authority is a war against Authority That which the Victor thinks to be his honour proves his dishonour His Life his Lands and Goods are by Law forfeited and his Blood corrupted Infoelix pugna ubi majus periculum incumbit victori quam victo †The Oath of a Grand Juror Stamf. fol. 36. 27. lib. Ass Murdrum de caetero non adjudicetur coram Justiciar ubi infortunium tantummodo adjudicatum est sed locum habeat Murdrum de interfectis per feloniam tantum non aliter Statut. de Marlebridge 52 H. 3. c. 26. * Utramque partem ni audias ne judices Qui judicat aliquid parte inaudita altera licet aequum judicaret haud aequus est Yet Grand Jurors take themselves to be Judges of the Fact * If he have Council he must pray it before he plead Not guilty he cannot after 3. Inst fol. 129. †And that is one reason why regularly he cannot have Council The second reason is the Court ought to see the Indictment Trial and other proceedings good in Law lest by an erroneous Judgment they attaint the Prisoner 3. Inst. 137. fol. 29. Secta pacis is by Indictment which is the King's Suit and as it were his Declaration The King formerly did not pardon homicidium but Sectam pacis nostrae quae ad nos pertinet de homicidiis 3. Inst fol. 235. a 25 E. 3. 4. 5 E. 3. 9. 42 E. 3. 3. Vit. Abbot St. Alban 143. b 37 E. 3. 18. c Cook 3. Inst Tit. Indict 136. d Except by Utlawry e No Peer or Subject can be Convicted by Verdict but the Offence must be found by twenty four f It is not sufficient that they dwell in the County but they are to be of the Neighbourhood nay le plus procheines to the place of the fact as by Artic. super cap. 9. it is appointed They must he most near most sufficient and least suspicious ibid. g The Kings Jury h Jus à Jovis nomine Jus qu. Jovis os omne enim Jus Justitia à Deo est i v. Statut. 3. Ed. 1. c. 11. Forasmuch as many being indicted of Murther and Culpable of the same by favourable Inquests taken by the Sheriff and by the Kings
a Beast and kill'd Cain And the Turks at this day believe that at the Day of Judgment when the Grave and Hell shall deliver up their dead Cain that Fratricide and murtherer shall lead and be as it were the Captain of the damned in Hell Amongst all the Laws of God which he himself appointed the Israelites his own People when they were to inhabite Canaan the Land of Promise there was not any mercy or City of Refuge appointed for a Murtherer or Man-slayer but only where it was done unawares as several clear Cases are put in Scripture to make this plain 35 Numb 23. v. If one throw a Stone that a man die thereof and saw him not but did it unawares So the 19. Deut. 5. When a man goeth to the wood with his Neighbour mark how strongly this Case is put with his Neighbour his Friend whom he had no unkindness for to hew wood and as his hand fetcheth a stroak with the Axe to cut down the Tree the head slippeth of from the helve and smiteth his Neighbour that he die in these and many such like cases there put he shall flee to the City of Refuge and stay there until the Congregation shall judge betwixt the Manslayer and the Avenger of blood whether he did it wittingly or unawares The Hebrews understand by the Congregation the Senators and Chief Judges of the City and although it were done unawares and so adjudged by the Congregation yet so hainous was the offence of Blood before God though nothing of mans will in it that even such Manslayer was never during his life afterwards to depart from the City until it was so adjudged by the Congregation or until the death of the High-Priest who was a type of Christ that set us all free for if he did depart then the Avenger of blood who was next Kinsman to the party slain might if he met him justifie the killing of him So it is very apparent that before these Cities of Refuge were appointed for mercy to him that had killed another unawares such a Man-slayer might have been killed by the Avenger of blood as well as he that had killed another wilfully and after they were ordained they could not be intended to shew Mercy or to be an Asylum or Sanctuary for any that had willingly wilfully or by a passionate assault killed another If it be objected as what sin or offender is there that hath not his Advocate that it is said in the 19. of Deut. 11. v. But if any man hate his Neighbour and lay await for him and rise against him and smite him that he die and then flie to any of those Cities he shall be fetcht thence and delivered into the hands of the Avenger of blood that he may die Thine eye though the tenderest part thou hast shall not spare him how comely soever his person may seem but thou shalt put Innocent blood from Israel that it may go well with thee If it shall be inferr'd from hence That the Cities of Refuge were ordained for all sorts of Manslaughter but where it was done of malice fore-thought ancient hatred or with a sedate and malicious mind hereby implying that he that kills another upon a sudden quarrel assault or in heat of blood as it is termed might flie to a City of Refuge and find Sanctuary It must needs be upon a very great mistake Nor can the Judicials of God herein put into several plain and illustrating Cases by God himself be reconciled if it should be so understood It is said in the 31. Exod. 13. If a man lay not wait but God deliver him into his hands then I will appoint thee a place whither he shall flie The meaning of the delivering him into his hands must of necessity be understood of such a providence that could not be foreseen and so not possible to be prevented by the Manslayer wherein there could be nothing of his will but purely chance and unawares as in the Cases put before of casting the Stone and killing one he saw not cutting of the wood and falling of the helm of the Axe or Bough from the Tree where many such Examples might be given which the Law of England now sums up in one head or Reason viz. Where one is doing a lawful and justifiable act in his Trade Calling or lawful Recreation and by chance and unawares another happens to be kill'd by him then he shall have a Pardon of course now instead of a City of Refuge as shall be hereafter shewed for it is very plain by express places of Scripture that all other voluntary killing of a man unlawfully found no Mercy no City of Refuge but there the Manslayer was to die by the hand of the Avenger of blood it appearing so before the Magistrate or Congregation As to instance in some few Cases out of Scripture 21. Exod. 12. He that smiteth a man that he die shall be slain for it if any destruction follow there he shall give life for life except it be unawares So in the 16 17 18. v. of the 31. of Numbers If any man smite another with an instrument of Iron that he die then he is a murtherer and the Murtherer shall die for it If he smite him by throwing a Stone that he die he that smote him is a Murtherer let the same murtherer be slain therefore the Avenger of blood himself shall slay the Murtherer When he meeteth him he shall slay him mark the Ingemination he shall surely slay him as it is in the 21. Exod. 12. He that smiteth a man that he die shall die the death that is shall surely die for this doubling of the word importat majorem certitudinem importeth greater certainty and yet in all these Cases not one word of malice lying in wait or enmity It is a general Law He that killeth should be killed again and this Law is grounded upon the Law of Nature for like as it is agreeable to Nature ut putridum membrum abscindatur ut reliqua conserventur that a rotten member should be cut off that the rest may be preserved so a Murtherer is to be killed ne plures occidantur lest more should be killed This Law is given unto Noah Gen. 9. when the World was restored and here it is but repeated and renewed The Laws of other Nations herein consent with Moses The Athenians did severely punish Murther expelling the Murtherer from the Temple of the Gods and from all Society and Colloquy of Men till he had his Judgment And by the Law Cornelia among the Romans He which had killed another with sword or poyson or by false Testimony lost his head if he were of the better sort if of meaner condition he was hanged on the Cross or cast unto Wild beasts that was himself like a Tiger amongst men Simler And the reason of the severity was because Murtherers deface the Image of God in Man
kind of voluntary killing for whom there was no mercy by Gods Law as it is in the Margent of the Great Bible Wilful Murther cannot be pardoned without Gods high displeasure Nay as it is more fully in the Text it self Thine eye though the most compassionate sense shall not spare him but thou whoever thou be shalt put away innocent blood from Israel that it may go well with thee Now the putting away of Innocent blood is by revenging it on him that spilt it as it is in the 10. v. of the same Chapter That Innocent blood be not shed in the land which the Lord thy God giveth thee to inherit and so blood come upon thee that is that the Blood of the party slain be not imputed to thee This Imputation of blood which is of more weight than the Imputation of all Adams sin because the command is more immediate and legible to us it concerned all the Israelites in general but more especially doth it concern those chosen by Law to make Inquisition after Innocent blood unlawfully and wilfully shed as principally Grand Jurors are for whose sakes and that the following discourse may fix the better upon their Judgments and thereby make a right impression upon their Consciences to be more circumspect and careful in their Presentments in cases of Blood I have premised as I conceive what was the will and Law of God as he himself hath declared it and left it upon Record to us in his Judicials to his people Israel who received Laws and Judgments from God himself for their whole model and system of Political Government agreeable to which I might add the mind of our Saviour Christ under the Gospel who is the best Interpreter of the Law in bidding Peter put up his Sword and his interpretation upon the sixth Command He that is angry with his Brother unadvisedly shall be culpable of Judgment I shall in the next place endeavour to manifest how parallel the Laws of England have been and are to the Judicial Laws of God in the punishing of Murther and shedding Innocent blood and extending mercy where it is done praeter intentionem unawares and by misfortune or in the necessary defence of a mans own life or property and what Asylum is provided for such and how the course and practice of the Laws of England ought to be in presenting and making Inquisition by Grand Jurors after the same Not to look so far back to find what the Laws were in case of Felony and Murther as to the time of the Saxons Heptarchy in England when the Monarchy had many heads being Bellua multorum Capitum and so for the most part had so many several Laws each Prince either pleasing his own humor or adapting his Laws to the condition and quality of the people he had to govern which as they differed in their qualities and constitutions as much as the several Winds differ the several Climates from whence they blow out of the four Corners of the world from whence many of their Kingdoms were differenced and distinguished by names so did they differ in the nature and quality of their Laws some of the Saxon Kings had excellent Laws as Ina as saith Venerable Bede who flourished in that Kings time The mulct or breach of Peace was forty shillings in the Mercian Law In the West-Saxon Law fifty shillings The punishment of a Free-man was pecuniary and loss of liberty of a slave by whipping Treason against the Lord was Capital and could not be appeased with mony Amongst the Laws of Canutus the King it is said Si quis in Regia dimicaret Capitale esto nisi quidem Rex hoc illi crimen condonarit If any should quarrel or fight in the Kings Palace it was Capital except the King remitted the fault They were unwilling to put any man to death because of lessening their strength being so much divided that for the most part there was an aestimatio capitis a certain sum of mony or Corporal punishment set upon every Murtherer and Felon respecting the quality of the person killed or he that killed him yet amongst them there was strict inquiry after Blood by punishing the offender according to their Laws And to look for it amongst the Danes and their Laws would be to as little purpose for as it is well observed by Mr. Lambert Temporibus vero Regum Danorum sepultum fuit Jus in regno Leges Consuetudines simul sopitae temporibus eorum prava voluntas vis violentia magis regnabant quà m Judicium in terra In the time of the Danish Kings Right was buried Laws and Customes were laid asleep together the depraved Will Strength and Violence did reign and rule more than Judgment in the land Yet to make some amends we have it by good Tradition that good St. Edward the Confessor the last King of the Danes that was King of England yet of Saxon blood Collected out of the Danish Saxon and Mercian Laws an universal and general Law whence our Common Law is thought to have had its original which may be true of the Written Laws not of the Customary and unwritten Laws these being certainly more ancient Some say that Edward the Third before the Conquest set forth the Common Law called the Laws of Edward to this day which St. Edward espoused as his Act and falling last upon the work He carries the name One says King Canute composed our Common Law which St. Edward the Confessor observed This King Edward the Confessor was in his life of that Holiness that he received power from above to cure many Diseases amongst others the swelling of the Throat called by us The Kings evil a prerogative that continueth hereditary to his successors Kings of England to this day the powerful effect whereof hath been most eminently manifested by the Touch of our most gracious King that now is since his happy Return into England upon very many thousands some to my knowledge that formerly derided that occult personal Kingly vertue inherent to the Imperial Scepter of England being of St. Thomas his faith that would not believe except they felt now remaining fully satisfied of the truth thereof from their own experience of the cure upon themselves The aforesaid St. Edward for his holiness charity and good actions was Canonized for a Saint having reigned over England twenty four years The Kings of England at this day in their Coronation Oath taken at the high Altar swear especially to observe and keep the Laws of this St. Edward These Laws so collected by this holy King Edward were by William the Conquerer to whom he had bequeathed this Kingdom of England by Will though afterwards he was forced to get it by the Sword confirmed in these words Hoc quoque praecipio ut omnes habeant teneant legem Regis Edwardi in omnibus rebus as Mr. Lambert hath it inter leges Gulielmi
by Indictment Now generally in these days since the making of that Statute all proceedings in Murther and Felony are by Indictment at the Kings suit not but that the prosecution by Appeal is still in force and the party hath his election which way he will proceed either by Appeal at his own suit or by Indictment at the Kings suit yea even after the Trial had by the Kings suit in some cases although at the Kings suit they have been acquitted of the murther but that the abuse of these and many other obsolete Laws hath taken away the frequent use of them except it be through the miscarriage of Grand Jurors and Jurors of life and death in cases of murther the one in not fully presenting the murther the other in not conscientiously giving a Verdict according to their Evidence and thereby provoking the party whose Relation is slain to the nice and chargeable remedy of an Appeal upon such Appeals several have been executed after they have been acquitted by trial at the Kings suit upon Indictment one Woman in my time in Berkshire for petty Treason for killing her Husband after she had been acquitted for the same fact at the Kings suit by Indictment was convicted upon the Appeal and burnt at a stake Look how high the Appellant shall draw his Appeal against the Appellee or Defendant as if for Murther in this case if the Appellant shall surcease to prosecute such Appeal as by Nonsuit Release Retraxit the Woman by marrying a Husband pendente lite or by the Act of God as if the Appellant die or by the Act of the Law as if the Appellant take the priviledge Now in all the former Cases where the Appeal ceaseth by the Act of the Appellant that is he that prosecuteth the Appeal after declaration in the Appeal the Defendant shall not go at liberty but shall be Arraigned upon the same Declaration at the Kings suit for that it doth appear by the Declaration there is a Murther committed and the year day and place when and where the same was committed and the same is not tried and the Law will not allow such great Offences whereof it taketh notice to be concealed and remain unpunished neither will the King at his suit suffer it to be extenuated into a lesser degree of Murther than the Appellant did so careful have the Laws ever been in punishing of Murther and revenging Innocent blood which it seems and as before is observed whilst Appeals were in use and the Kings suit must stay until the year and day were past many Murtherers escaped unpunished and the killing of men was made as now it is a trick of Youth Valour Hectoring and Jest in regard of so great impunity it found by frequent Pardons Indulgence of Grand Jurors and others And truly it is much with us in this Age as it was in those daies when Appeals were in use and had the preheminence of the Kings suit Never more killing of men by Duels Tavern and Game-house Quarrels and yet never more impunity to such Mankillers such valiant murtherers of their fellow Christians especially if the Mankiller have either a fame for Honour or Valour Mony or Interest of Friends to procure pity or pardon and compassion from the Grand Jury to find it Manslaughter if they will go so high where it is Murther and then through that false glass to represent it to a most Merciful King and thereby obtain a Pardon for the whole offence or else upon his Arraignment shall confess the Manslaughter and procure a respect of his burning in the hand because a Gent-hand killed the man and afterwards procure a Pardon for that burning in the Hand which the King may grant it being no part of the Judgment but a notifying the Person that by that Mark he may be known again once to have had his Clergy that he may not have it a second time Many Recent and fresh Instances in particular Cases of blood might be given were it safe or seasonable to make reflections of divers Murthers that have too easily slipt through the hands of Justice by the aversness ignorance or partiality of Grand Jurors in not observing the direction of the Judges in this particular of finding Bills Murther instead of Manslaughter yea and that many times upon directions given in Court after open Evidence which open Evidence to a Grand Jury especially in Cases of blood ought to be avoided as much as may be in regard it doth too much lay open and betray the Kings Evidence to standers by it may be Friends of the Prisoner that may make too much use of it for the benefit of the Prisoner and prejudice of truth besides many Witnesses although upon their Oath will not speak so fully in Court before the Bill found and happily in the presence of the Party or his Friends as in a Grand Juries Chamber more private besides where it is before-hand known what witness-pinching endeavours will be used to keep him off or by some sinister way to be complied with to lessen or hinder his Testimony to the second Jury if there be occasion besides the Kings Evidence before Issue joyned betwixt the King and the Prisoner is alwaies to be secret only open to the Grand Jurors who are alwaies styled Juratores pro domino Rege the Kings Jury and are sworn to keep the Kings Counsel their Felons and their own now the Witnesses for the King are said to be of the Kings Council which would abate much of their Oath if Evidence and the Kings Informations in Cases of Bloud should be open and common And as you have heard what great Inconveniences were in the use and abuse of Appeals in the Reign of King Henry the Seventh so indeed as many if not more Instances of mischief and inconvenience might be given of Grand Jurors in this Age the best things corrupted proving the worst you may conceive what great complaints have formerly been made against Grand Jurors in Parliament in erring upon both hands by taking too much liberty to themselves and not observing the directions of the Court that there was a necessity of making an Act of Parliament in the 3 H. 8. immediately after Appeals began to fall off as you may read in that Act of Parliament made to reform them and to reform the Sheriffs power in retorning them the whole Authority of retorning Inquests to take Indictments being by force of the Statute of the 11 H. 4. in Sheriffs and Bayliffs of Franchises It is observed by the Statute of the 3 of H. 8. that by reason of Bribing of Sheriffs and their Bayliffs and Officers many true and substantial persons were divers times wrongfully indicted of Murther Felonies and other Misdemeanours to the utter loss of their Lives Goods and Lands And sometimes also great Felonies and Murthers were concealed and not presented by the Grand Jurors partially retorned by the Sheriffs or their Ministers for the prevention whereof it was
to find a Bill and here I will leave to the observation of Grand Jurors what I find in Mr. Justice Stamfords Pleas of the Crown and which he himself observeth out of Bracton a very ancient and learned Lawyer as Bracton's order in Cases of Suspicion upon Indictments of Felons de secta Regum The words are these Nunc autem dicendum est de Indictamentis per famam Patriae quum praesumptionem inducunt cui standum est donec indictatus se à tali Suspicione purgaverit ex fama quidem oritur suspicio ex fama Suspicione oritur gravis praesumptio Tamen probationem admittit in contrarium sive purgationem Suspicio quidem multiplex esse potest primo si fama oritur apud bonos graves Item ex facto praecedenti oriatur suspicio cui etiam standum est donec probetur in contrarium c. and so goes on to let us know the several badges and marks of Suspicion advising that those that will take Publick fame for an Evidence take it from those that are of good Fame and not of evil persons as he goes on Non de malevolis maledicis sed providis fide dignis personis non semel sed saepius quia clamor innuit defamatio manifestat Tumultus enim clamor populi quandoque fiunt de multis quae super veritatem non fundantur Ideo vanae voces populi non sunt audiendae ut ne dicatur Jesus crucifigitur Barabas autem liberatur The whole Chapter is well worth the reading And it may not be amiss to observe that the ancient forms of Indictments or Bills began thus Inquiratur pro domino Rege Let it be enquired of for our Soveraign Lord the King as the offence is laid in the Indictment whether the offence be so as is there supposed which is as much as if the Grand Jury should say We judge it fit that it be farther enquired of whether it be truly so indeed as it is here supposed for the Offence as it is laid in the Indictment as it comes from the Grand Jury before it receive a farther trial and enquiry of another Jury is no more but Crimen suppositum impositum an offence supposed and laid to ones charge to answer and this clearly appears by the Record of every Acquittal or Conviction of any that is tried upon an Indictment for the words of the Acquittal or Conviction as they are drawn up in the Record are these viz. Juratores that is to say the Jury of Life and Death dicunt super Sacramentum suum quod praedictus A.B. non est vel est Culpabilis de Felonia Murdro praedict in Indictamento praed specificat ei superius imponit modo forma prout per Indictamentum praed superius versus cum supponitur so that supponitur imponitur supposed and imposed is all that can be inferr'd from the Indictment the Grand Juries Presentment upon hearing of one side being the Supposition and the other Jury upon hearing of both sides the Imposition or Supponitur and that relates to the substance of the Indictment as the Grand Jury suppose it to be the Imponitur and that relates to the modo forma of the Offence and the circumstances of it as it is laid in the Indictment as it is found by the Jury of Life and Death and these Circumstances indeed are the proper enquiry of the Jury of Life and Death upon the hearing of Evidence on both sides as appears clearly by the penning and drawing up of these Records and all this is no more than in every common Declaration at the suit of the Party only this Indictment is as a Declaration upon Oath and must therefore for the satisfaction of those that are sworn contain that which for substance seems to them prima facie to be a probable truth and a transgression of a Law not strictly looking into the matter and form aggravations and circumstances of the Fact as it is laid in the Indictment for those do but attend and usher in the Fact but Grand Jurors are principally to eye and look upon the single Fact and act it self and finding one that hath had his hands in blood and that probably upon a farther Enquiry may become reus a guilty person by killing of another person they are to put their Billa vera unto it although they have no proof at all of the Aggravations and Circumstances that attend the Fact Evidence many times arising out of the parties own mouth against himself upon a strict examination in Court more than the Witnesses against him have proved And it is well observed in the Book called The Terms of the Law upon these two words Billa vera where it is said that Billa vera is the Indorsment of the Grand Jury upon any Presentment or Indictment which they find to be probably true mark these words probably true nor do I take the Adjective Vera in this place to signifie True but meet reason or fit and so it is often used in Terence and by the Grammarians Verum est it is fit so that Billa vera upon the Bill doth not signifie a true Bill that hath nothing but truth in it but a meet or fit Bill for the further enquiry of another Jury which ever succeeds such an Indorsment of Billa vera by a Grand Jury certainly it is upon a great mistake although I confess it is often used in Law-Books and by wise men to call the Presentment of a Grand Jury a Verdict to say that their Indorsing Billa vera or Ignoramus which is all they do is their Verdict there being a great difference between Billa vera and Veredictum which signifies dictum veritatis and even induceth a Conviction for nothing can properly be called a Verdict but where it is given by a Jury after an Issue joyned upon hearing of both sides Veredictum is as it were quoddam Evangelium like a little Gospel of Truth for indeed every Verdict which convicts a man to the loss of Life or Estate ought to be as true as the Gospel the Jurors swear upon for upon the Issue of a Verdict the Lives and Estates of all persons depend And therefore an Attaint lies in Law against those Jurors that give a false Verdict contrary to the truth of their Evidence which is a Villainous Judgment a very great Judgment in Law And this Attaint did never by Law lie or was brought against Grand Jurors for any false Presentment for they do but barely present an offence upon hearing of one side and therefore can be no Verdict as from them the Grand Jury being for number indefinite that being properly called a Verdict from such a Jury where the Law makes a determinate number of twelve or twenty four and no more Besides it is alwaies said in the Record where such a Jury finds a Verdict Juratores super Sacramentum suum dicunt c. But where the Grand Jury present
Robbing of Churches Robbing of Persons in their houses or upon the High-way wilful burning of Houses or Barns with Corn or Accessaries before the same shall be from henceforth admitted to the benefit of their Clergy but suffer death as if they had been no Clerks it seems all that were that is as many as the Ordinary then esteemed so Clerks although they were guilty of Murther petty Treason and Felony suffered not death so great favour and immunity had they in those times for such bloody and crying sins so prevalent were the Clergy and those within Holy Orders in those daies that this very Act of Parliament that takes away Clergy from others that commit Murther Burglary and Robbery and other Offences before-named excepts all within Holy Orders from the same pains and dangers other persons must suffer for the same Offences which freedom and Indulgence continued to them in Holy Orders as they call it until the 28 H. 8. c. 1. which provides That they within Holy Orders as to such and other Offences shall be under the same pains and dangers that others be Now this Statute makes none of the former offences Felony or Murther that was not so before the making of this Statute but only takes from them that commit any of these offences the benefit of their Clergy certainly there wanted not those that committed wilful Murther of Malice prepensed as we now distinguish it before the making of this Statute as those that committed Sacriledge robbed persons in their Houses and upon the High-way wilfully fired Houses and Barns with Corn and were Abettors to the said Offences so it is very plain that this Statute makes no alteration as to the drawing and penning of Indictments of Murther Sacriledge Robbery Burglary c. but only takes away Clergy from every person who after the making of that Statute should be found guilty as the words of the Act are after the Laws of this Land for any of the aforesaid Offences So that according as the Indictment of Murther was by the Laws of this Land before the making of this Act so must it be after the making of this Act wilful Murther in the Statute 32 H. 8. c. 12. and this Statute of the 23. of the same King comprehends as well that which we call Manslaughter and every killing where the will of man is freely engaged as it doth wilful Murther of Malice prepensed compare them together in the one you will find Clergy taken away for wilful Murther of malice prepensed and Sanctuary from wilful Murther and generally such Offences as were prohibited Sanctuary by former Statutes are now prohibited Clergy by later Statutes The words Ex malitia praecogitata murdravit which now make all this contest before the making of this Statute in any case of Murther neither aggravated nor extenuated the Offence made it neither more nor less penal But since the making of this Act those words are made necessary in all Indictments and Convictions of Murther and principally and only in cases of wilful Murther to be considered and weighed by the Court and Jury of Life and Death upon hearing and debating the matter with all its circumstances as hath been said before on both sides those words being matter of Law mixt with matter of Fact and are not to be expunged by a Grand Jury because they cannot afterwards be supplyed nor implyed by the Court and Jury of Life and Death after the Arraignment of the Prisoner should there appear upon Tryal never so great cause yet Felonicè and some other words though material may be supplyed in a Special Verdict If upon an Indictment of Murther quod Felonicè percussit c. the Jury find percussit tantum yet the Verdict is good for the Judges of the Court are to resolve upon the special matter whether it was Felonicè c. or not Coke lib. 9. 69. And if the Court adjudge it Murther then the Jurors in the conclusion of their Verdict find him guilty of the Murther contained in the Indictment and to shew the power of a Jury of Life and Death who indeed should have the fullest and highest Charge can be laid against the prisoner for the Offence he is to be tryed If A. be Appealed or Indicted of Murther viz. that he of malice prepensed kill'd B. A pleads that he is not guilty modo forma yet the Jury may find A guilty of Manslaughter without malice prepensed because the killing of A. is the matter and malice prepensed is but a circumstance Plow Com. 101. And generally where modo forma are not of the substance of the Issue but words of form there it sufficeth although the Verdict doth not find the precise Issue 22 H. 8. c. 19. The first Statute that I find these words mentioned in of malice prepensed is the 22 H. 8. c. 14. where it is said If any person for any petty Treason Murther or Felony have obtained the King's Pardon or is otherwise discharged out of Sanctuary and afterwards commit another petty Treason Felony or Manslaughter by Chance-medly and not Murther of malice prepensed and afterwards take Sanctuary again for any such petty Treason Felony or Manslaughter by Chance-medly the same person shall enjoy a second priviledge of Sanctuary So that he that committed Murther of malice prepensed could not enjoy the benefit of Sanctuary a second time Then comes the Statute of the 25 H. 8. c. 3. and remedies divers defects that were in the said Statute of the 23 H. 8. Forasmuch as the said Act extended only to such persons as were found guilty after the due course of the Laws of this Land divers and great Robbers Murtherers Burglars and Felons did commit those Offences perceiving and clearly understanding by the words of the said Statute that they should not lose the benefit of Clergy unless they be found guilty after the due course of the Law upon their Arraignment of and upon the said Murthers and Felonies so by them done and committed by reason whereof divers of the said persons upon their Arraignment of the said Offences and Felonies upon their Indictments against them would stand mute and sometimes challenge peremptorily over the number of Twenty or else would not answer directly to the same Indictments whereupon they were Arraigned according to Law It was therefore provided by this Statute That every person that hereafter should he Indicted of petty Treason wilful burning of Houses Murther Robbery or Burglary or other Felony according to the tenour or meaning of the said Statute of the 23 H. 8. and thereupon Arraigned and do stand mute of malice or froward mind or challenge peremptorily above the number of Twenty or else will not or do not answer directly to the same Indictment and Felony whereupon he is so Arraigned shall lose the benefit of Clergy in like manner and form as if he had directly pleaded to the same petty Treason Murther Robbery or other
Felony whereupon he is so Arraigned not guilty and thereupon had been found guilty after the Laws of the Land Upon the penning of this Act it seems clear that all Indictments for the unlawful or wilful killing of any person ought to be made Murther as they were formerly before this Act. For if the Prisoner should be Arraigned upon an Indictment only of Manslaughter according to the now distinction of Manslaughter and upon his Arraignment should stand mute not Answer directly or challenge peremptorily whereby he could have no Tryal it would be a great question Whether he could have Judgment upon this Act The words are petty Treason wilful burning of Houses Murther Robbery Burglary or other Felonies For as it is not named here by the term Manslaughter so it cannot with any congruity be comprehended under any of those Heads Not under the general Head of other Felonies after the commemoration of so many several Felonies next before as Burning of Houses Robbery Burglary and other Felonies must needs be intended of such like Felonies or Thefts And what Judge in case of Life and Death will proceed upon such a moot point or rather a clear Case to the contrary to give Judgment and Sentence of Death upon any by this Act of Parliament Then comes the Statute made in the 28 H. 8. c. 1. and rehearseth all these former Statutes viz. 22 H. 8. 23 H. 8. and the 25 H. 8. and continues them all until the next Parliament and provides further That such as be within Holy Orders shall be under the same pains and dangers that others be all within Holy Orders being by the 23 H. 8. excepted in Cases of Murther petty Treason and Felony from the pains and dangers that Lay persons suffered for such offences It seems those in Holy Orders then began to lose their esteem as appears more fully in the ensuing Act which perpetuates the former Acts. Then comes the Statute made in 32 H. 8. c. 3. and rehearseth the same Acts again and makes them perpetual and Enacts That all persons within Holy Orders which by the Laws of this Realm ought or may have their Clergy for any Felonies and shall be admitted to the same shall be burnt in the hand in like manner as Lay Clerks in such Cases and shall suffer all such pains dangers and forfeitures as Lay persons in like Cases Then comes the Statute of the 1 Ed. 6. and after it hath declared what Acts shall be Treason declares what Offences shall be outed of Clergy viz. Such persons as in due form of the Laws shall be attainted or convicted of Murther of malice prepensed of poysoning of malice prepensed of breaking of any House by day or by night any person being put in fear robbing any person in or near the High-way felonious stealing of Horses Geldings or Mares or for felonious taking of any Goods out of any Parish Church or other Church or Chappel all Offenders in any of these Cases shall be excluded of the benefit of Clergy whether they be convicted by Verdict Confession or stand Mute c. and that in all other Cases of Felony Clergy may be allowed Here is no mention of petty Treason burning of Houses and Barns with Corn and Accessaries before to be outed of Clergy as is in the 23 H. 8. c. 1. So that it seems after the making of this Act they might have had their Clergy the new Offences added to this Act to be outed of Clergy that were not in that Act of 23 H. 8. are only stealing of Horses Geldings and Mares And by this Act Poysoning is made Murther although no malice be proved and Clergy taken away Then comes the Statute of 2 Ed. 6. and this Statute gives remedy in several Cases of Murther and Felony where there was none before at Common Law As first where one is feloniously stricken in one County and dies thereof in another Secondly where one is Accessary in one County to a Murther or Felony in another County before this Statute no sufficient Indictment in any of these Cases could be taken in either of the said Counties for that by the custome of the Realm the Jurors of the County where such party died of such stroke would take no knowledge of the said stroke being matter of Fact in a forreign County although the said Counties and Places adjoyned very near together nor the Jurors of the County where the stroke was given could take knowledge of the death in another County although such death most apparently came of such stroke so that such Offence and the other Offences before mentioned for the like reason remained unpunished and such Murther could not be proceeded against either by way of Indictment or Appeal Now this Statute provides That an Indictment found by the Jurors of the County where the death shall happen whether it be found before the Coroner upon sight of the dead Body or other Justices that shall have power to inquire of such Offences shall be as good and effectual in Law as if the stroke and poysoning had been committed and done in the same County where the party shall dye or where such Indictment shall be found And likewise provides That such Party to whom Appeal of Murther shall be given by the Law may commence take and sue Appeal of Murther in the same County where the same person so feloniously stricken or poysoned shall dye as well against the Principals as against every Accessary to the same Offences in whatsoever County or Place the Accessary or Accessaries shall be guilty of the same And doth further provide That where any Murther or Felony shall be done in one County and another person or more shall be Accessary or Accessaries in any manner of wise to any such Murther or Felony in any other County that then an Indictment found or taken against such Accessary or Accessaries upon the Circumstances of such matter before the Justices c. where such Offence of Accessary shall be committed shall be as good in Law as if the principal Offence had been committed in the same County where the same Indictment against such Accessary shall be found Here it may be observed That the Appeal given by this Statute to the party where one is wounded or poysoned in one County and dies thereof in another must be an Appeal of Murther otherwise it will not lye either against Principal or Accessary by the words of this Statute So in case of an Indictment where it is said in this Statute where any Murther or Felony shall be committed in one County and the Accessary be in another County here the word Murther must be one Species and Felony that is Thest another viz. carrying of stoln Goods into another County So that the Indictment in this case against the Principal must be Murther or the Accessary thereto is not tryable in another County and there must be a Certificate of such Conviction or Attainder of the
am not of their Opinion That the words ex malitia praecogitata came into Indictments immediately after the aforesaid Statute of 23 H. 8. Certainly there were Murthers committed and that frequently of malice fore-thought before the making of that Statute and those Murtherers had their Clergy also otherwise that Statute had never been made to take it away If the Grand Jurors shall say They will not find those words Ex malitia praecogitata put into the Indictment except the malice be plainly proved to them then farewel that distinction and inference of implied malice which the Law makes in many Cases and which otherwise cannot be made they may as well say That they will not find such words Treason that are Treasonable because no Act of Parliament or express Case at Common Law says those particular words are Treason or that they will find no Indictment of Burglary although the Goods stoln be found with the Thief and the dwelling House broke because no Witness stood by to see the breaking of the House entring into it and stealing thence the Goods Or against a Cut-purse though the Purse or Mony be found in his hand or because none see him take it forth of his Pocket or to find the Indictment because it is laid to be done Vi armis with force and arms and yet said to be done in the same Indictment clam secrete sine notitia privily secretly and without notice of the party which in Fact could not be done if it were done by force or arms Or to find an Indictment of Robbery done upon the High-way against those that rob in Vizards notwithstanding the mony be owned and found about them because the party cannot swear he saw their faces and that these were the men Or that such a one kill'd a man that comes out last from him with a bloody Sword in his hand and no person besides with him In all these Cases it is possible the Parties accused might find the Goods stoln and so might the bloody Sword be sound and another do the Fact but sure here is great and violent presumption sufficient for an Accusation for a Grand Jury to find an Indictment which is but an Accusation upon Record to bring the Delinquent or Party so strongly suspected to a Judicial Trial and as well may it be presumed when one Christian is kill'd by another it may be Murther that there may be a seed of malice in the will of him that did it by a voluntary and spontaneous motion in that act that may upon a greater Debate contain some circumstance in it that by some reason in Law better known to the Learned Judge than the Grand Jurors that may in Law prove malice expressed or implyed in the criminous Person And if it be so difficult in cases of blood for Grand Jurors to determine what is Murther and what is not let them consider how dangerous a thing it is for them to miscarry in their Presentment in cases of blood of innocent blood as is before manifested and so acquit the Murtherer and take the imputation of blood-guiltiness with them from the Assizes to their respective Families where it may and will cry against them and the whole Kingdom for vengeance I do therefore submit it to their serious consideration upon what hath been said Whether it be not much better and a safer way for them to submit their Judgments herein to the Rule of Law and the Resolutions of the Learned Judges than by their extenuating presentment for the Court can go no higher than they present to stifle Justice in the birth and to acquit a Murtherer For the Indictment although no part of the Trial yet is the very Basis and Foundation of all the other Proceedings And let them consider how strict formerly the very Law of England was in King Edward the Second's time in cases of blood where the very will and intent to kill a man although it was not executed was punished for the Deed although the party wounded recovered of his wounds A memorable Case there was in that King's Reign cited by Justice Stamford where one compassed the death of another and did so grievously wound him that he left him for dead but afterwards the party recovered this was then adjudged Murther because his will appeared so plainly to have kill'd him For as Bracton says In maleficiis spectatur voluntas non exitus then was the Will by our Law as it is yet before God reputed for the Deed But now our Law couples the Will and the Act together in cases of blood but looks more upon the Act than the Will For though the Will do neither intend the Act as it is done nor approve of it after it is done yet if the Will in any part of the Act be criminous it makes the Offender in our Law in cases of blood guilty of the whole Fact with all the obliquity and evil in it As if a man intend only to beat another to strike him but not to kill him and the party die of the stroke it may be murther in him that gave the stroke So if three men come to make a Disseisin and one of the three kill a man the other two persons are guilty as principals in the murther although they neither consent to it will it or strike the Party nor came with that intent but only were in company to have done another Act. So if one to kill his Wife give her lying sick Poyson in a roasted Apple and she eating a little of it give the rest to a little Child of theirs which the Husband lest he should be suspected suffereth the Child to eat who dieth of the same poyson this is murther though the Wife recover for the Poyson ministred upon malice prepensed to one which by a contingency procureth the death of another whom he meant not to kill nor bear any malice to shall be as great an Offence as if it had taken the effect which he meant proceeding from a naughty and malicious intent So where two men combat together upon the evil and provoking words of a woman and the one killeth the other the woman in this case was Arraigned of the death of him that was kill'd and in this Case the Grand Jurors found it murther So if an ignorant person take upon him to give Physick to one that is not well and through his ignorance administreth that unto him that apparently kills him this is murther And so it might be instanced in many similar Cases which are not to be disputed by Grand Jurors but presented by them in re forma as the Indictment is advised by the King's Council and comes to their hands where they find as before is said a criminous Party in the Indictment and a Body found of a reasonable Creature certainly or probably kill'd by him although the Evidence be not express to every circumstance of aggravation as it is laid down in
the Indictment whereby to bring the Party and his Offence of Blood to a full Trial by a second Jury which otherwise can never be done neither the Law therein known from the Court in such a Case Besides many other Inconveniences and doubts may arise where the Grand Jury find the Bill of Indictment only Manslaughter which by finding of it Murther would be prevented as in challenging upon his tryal above the number of twenty Jurors the Statute of the 22 H. 8. c. 14. reduceth peremptory challenge upon an Indictment or Appeal which at the Common Law was allowed to the Prisoner to challenge thirty five Jurors which is under the number of three Jurors this Statute so provides That a Prisoner shall not now in Petit Treason Murther and Felony challenge above twenty Jurors without shewing cause And in case of Treason and misprision of high Treason it was taken away by the Statute of 33 H. 8. but now by the Statute of 1 2 Phil. Mar. the Common Law is revived for any Treason the Prisoner shall have his challenge to the number of 35 and so it was resolved by all the Justices upon conference between them in the Case of Sir Walter Rawleigh and Geo. Brooks By this Statute it is plain that if one be Indicted or Appealed for Murther and challenge above the number of twenty Jurors peremptorily without shewing cause it shall be a Conviction of the offence and Capital but it is a great quaere whether he that is Indicted or Appealed only for Manslaughter which is not named in this Act nor can be rationally comprehended in the word Felony more than Murther might have been may not challenge thirty five Jurors as at Common Law so it may be a quaere where the Prisoner Indicted only of Manslaughter shall stand mute or will not answer directly to the Indictment whether notwithstanding he shall not have his Clergy for the Statute of the 1 of Ed. 6. c. 12. and other Statutes that take away Clergy from such offences and Offenders as are therein mentioned take it away as well from such as stand mute answer indirectly or challenge peremptorily above the number of twenty as from those that are convicted by Verdict or Confession upon their Arraignment otherwise such as stand Mute answer indirectly or challenge peremptorily might have had their Clergy as the Act seems to imply otherwise it had not taken Clergy away in those cases The Judgment of Paine for t dure that is Pain grievous and durable was not at the Common Law but ordained by the Statute of West 1. made Anno 3 Ed. 1. whereby it was enacted That notorious Felons openly known of evil name who will not put themselves upon Enquests of Felonies which men do prosecute at the Kings suit shall be put in hard and strong Prison as they which refuse to be tried by the Law of the Realm but this is not to be intended of Prisoners which be taken of light Suspicion By which Statute it doth appear that none shall be judged to this pain if there be not evident or probable matter to convince him of the offence whereof he is arraigned or otherwise that he is a notable Thief or openly known to be of Evil name which the Judge ought strictly to examine before he proceed to this Judgment against him it would be very hard which the Law is never in favorem vitae to extend this Statute to Manslaughter which may be suddenly committed by one of good name and fame and not a notorious Thief as this Act mentions and yet may have an obstinate humor to refuse Trial challenge peremptorily and make indirect Pleas. It is the severest Judgment that I know the Law passes upon any Offender and therefore not to be extended further than the plain understanding of the words of the Act a Sentence so severe that I think never English man as yet though many have been Prest to death had the heart to execute it according to the letter which Sentence is as followeth That the Prisoner shall be sent to the Prison from whence he came and put into a Mean house stopped from light and there shall be laid upon the bare ground without any Litter Straw or other covering and without any Garment about him saving something to cover his Privy members and that he shall lie upon his back and his head shall be covered and his feet bare and that one of his Arms shall be drawn with a Cord to one side of the house and the other Arm to the other side and that his Legs shall be used in the same manner and that upon his Body shall be laid so much Iron and Stone as he can bear and more and that the first day after he shall have three morsels of Barley-bread without any Drink and the second day he shall drink so much as he can three times of the Water which is next the Prison-door saving Running-water without any Bread and this shall be his Diet until he die Another inconvenience may arise where the party Indicted and Arraigned only of Manslaughter shall plead a Forrein plea of something done in another County to the delay of Justice the Statute of the 22 H. 8. c. 14. only providing in cases of Petit Treason Murther or Felony that Forrein pleas in those Cases shall be tried before the same Justices before whom such persons shall be Arraigned and by the same Jurors of the same County that shall trie the petit Treason Murther or Felony If a man be Indicted of Treason he may plead a Forrein plea which shall be tried in another County otherwise in cases of Murther Petit Treason and Felony Another inconvenience may be upon the Statute of the 6 H. 8. c. 6. By that Statute the Justices of the Kings Bench are impower'd to remit the bodies of Felons and Murtherers removed thither to be tried in the County and their Indictments removed into that Court which before they could not do by the Common Law because a Record that is once brought into the highest Court could not be remanded to an Inferior Stamf. fol. 157. this Statute only provides in case of Felony and Murther not Manslaughter The last Inconvenience I shall mention though I could many more by reason of Indictments of Manslaughter will be in Cities and Burroughs and Corporations that have power to try Murthers and Felonies the Statute of the 23 H. 8. c. 13. provides That in Trials of Murthers and Felonies there proceedings shall not stay as formerly or be delaied by reason of challenge of such Offenders for lack of sufficiency of Freehold to the great hindrance of Justice but that if the Jurors be worth in Monies and personal Estate Forty pounds they shall not be challenged but admitted It will be a very extorted construction that upon this Statute and the others before shall bring in Manslaughters under the word Felonies whatever