Decemb. 6. 1676. I do allow the Printing of this Book Fra. North. Advice to Grand Jurors IN Cases of Blood Asserting from LAW and REASON THAT At the King's Suit in all Cases where a person by Law is to be Indicted for killing of another Person that the Indictment ought to be drawn for Murther and that the Grand Jury ought to find it Murther where their Evidence is that the Party intended to be Indicted had his Hands in Blood and did kill the other Person By ZACHARY BABINGTON Gent. GEN. IX 6. Quicunque effuderit humanum sanguinem fundetur sanguis illius ad imaginem quippe Dei creatus est homo NUM XXXV 33. Nec aliter expiari potest nisi per ejus sanguinem qui alterius sanguinem effuderit LONDON Printed for John Amery at the Peacock against St. Dunstans Church in Fleet-street 1677. THE AUTHOR TO THE Reader HE that reads the ensuing Tract will soon find that much of the beginning of it is by way of Introduction to the Subject-matter of the Book and might well if not better have past under the Title of A Preface and therefore might have excused this in which I shall endeavour to shew the Grounds and Reasons that put me upon this Argument answering all Objections that may he made against the Author for being a Sanguinary Person in treating so positively upon this Subject shew the necessity of determining the Law herein in point of practice by Grand Jurors in Cases of Blood give some satisfaction to such as may object against the length of it whereas the Question is so short explain the Grand Jurors Oath and lastly endeavour to remove all Difficulties made by them upon the said Oath Two Reasons principally moved me to this Vndertaking The one was The great Contests and Differences I have too often observed between the Judges and Grand Jurors about finding of Bills in Cases of Blood whereby the whole matter of Fact with all its Circumstances might receive its full disquisition in Court and not in a Grand Juries Chamber the Grand Jurors as if they were Judges both of the Law and the Fact which is sufficiently demonstrated in the ensuing Discourse they are of neither finding the Indictment sometimes Manslaughter when they should find it Murther contrary to the sense and direction of the Learned Judge and of the King's Council whereby a Murtherer many times escapes The second Reason was That if the Law were not determined in this point betwixt the Judges and Grand Jurors the Consequence must needs be That Grand Jurors that hear but one side would in the end take the matter of Fact from the Second Jury that are proper Judges of it and should try it and the matter of Law from the Learned Judge that should give the Judgment of Law upon it and this is so plainly proved in the ensuing Discourse and hath been so often in practice that I know nothing can be said against it Peradventure some may say Sure he that wrote this Book is Vir Sanguinis that desires such severe Justice against every man that kills another man unlawfully that he must be Indicted of Murther Certainly this is a very great mistake which a considerate Reader or one that delights not in spilling of Blood cannot be guilty of here is no more desired or intended but that every Person that hath had his Hands in Innocent Blood receive a full and a legal Trial according to the Laws of the Land and the Liberty of a Subject to be tried at the King's Suit And I know no Kingdom or Nation in the World whose Subjects have a fairer more impartial and indifferent Trial in such Cases than the Subjects of England have who except as I have shewed they become their own Accusers must be accused by a Grand Jury and convicted or acquitted by another and afterwards if guilty receive Judgment from a Learned and Merciful Judge according to the Law of the Land I know by the Law of God amongst the Jews there was a certain Institution which we call Lex Talionis An Eye for an Eye a Tooth for a Tooth Life for Life and that there were Modifications and Qualifications to abate the extremity of it in several Cases to be considered as I have shewed there is by the Laws of England very parallel to them This is so far from being Sanguinary that I conceive it would rather prove a Remedy than a Mischief rather prevent shedding of Blood than occasion it rather be Lex Praeveniens than Puniens And certainly whoever opposeth this Opinion and proposeth a milder and lighter way of Trial against one that hath had his Hands in the Blood of his Fellow Creature will hardly himself avoid the Imputation of a Sanguinary Person This way proposed will prevent that evil practice too much used of labouring and packing Grand Jurors in point of favour when they are assured before that all Accusations by Grand Jurors for the unlawful killing of a Reasonable Creature must be Murther It would conduce very much to the dispatch of the Business in Court and be a great ease to Grand Jurors that now spend very much unnecessary time in Questions about the Law in such Cases which were better spent in examining the Fact and leaving the matter of Law to the Court. Concerning the necessity of this point to be determined he is a Stranger to the English Laws and to the English Nation that over-looks the just and profitable Consequence thereof there being nothing in this ensuing Tract asserted but what is agreeable as I conceive to the Statute and Common Laws of this Kingdom the best allowed Practice and the Opinions of all the Learned Judges at whose Feet I have had the happiness to sit many years both before the late Civil Wars and since the happy Restauration of our most Gracious Soveraign and agreeable to sound Reason the fullest and best Disquisition after Innocent Blood And who can but allow the necessity of it as to the English Nation at present when Duels are so frequent in England it being made matter of Triumph for one Hector as they call him to kill another if it be but for not pledging a Health or something that looks like an Affront to his Miss in placing her at a Ball in a Play-house the Tavern or the like and this must not only engage the two differing Parties although Persons of Quality to sacrifice their own Lives and sometimes two Seconds or more Persons of as equal quality to lose their Lives in the Conflict or by the Law if Death ensue to any of them in which Contest they are no more concerned than to second their Friend and with their own lives to justifie the Quarrel between the two differing Parties as if both of them had a good Cause and were in the right when as sometimes the Occasion is so trivial not fit for two Boys to dispute As to what may be Objected to the length
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
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
which would be against the Laws and liberty of the Subject And therefore the Grand Jurors have the greater reason to enlarge in their Declaration or Accusation for the King as in all Declarations at Law is usual as far as the Law will heighten all offences in Blood since the other Jury have so much liberty to lessen the damages and extenuate the Crime whatever the Accusation is Now upon what I have written in this Preface and the Book I am not ignorant how much I have subjected my self ad captum Lectoris to the various censures of the several Readers especially such as use to serve or may serve on Grand Juries Gentlemen I know of the best quality next to the Peers of the Realm and in which Employment for their King and Country it is an honour to serve And I hope it will be no dishonour nor indignity to any of them to entertain or at least to peruse this Advice how they may with the greatest prudence and fidelity pass through an Enquiry after Innocent Bloodshed when they are called unto it and leave nothing therein of this Crying Sin to be repented of that it was not fully Enquired of by them that so their exact care and Justice may keep themselves secure from the guilt of Innocent blood I doubt not but it will meet with some Readers so possessed with the contrary Opinion by an erroneous practice or misunderstanding of the Laws and of the Grand Jurors Oath that so soon as they read the Title will cast away the Book and cry a Paradox Others happily more unbiassed in their Opinions and of more moderation and ingenuity if they dislike will publickly confute it with stronger arguments and grounds of Law and Reason and better experience in point of practice and so determine the point and in that I shall have my end I am very certain that I entred not upon this Subject with an offensive mind but cum moderamine inculpatae tutelae not with a direct design to kill any but rather to fright weaken and drive away that Daemon of Passion in man to commit Murther and to give the best advice to Grand Jurors in Cases of Blood A small thing oft times hath the power to redress a great Inconvenience yea to take up a cruel Feud as Virgil saith of that of Bees when they are actually engaged in battel Hi motus animorum atque haec certamina tanta Pulveris exigui jactu compressa quiescent ADVICE TO Grand JURORS IN Cases of Blood IT is the great happiness freedom and liberty of the English Nation that in all common and ordinary Trials of offences Criminal and Capital as Treasons Murthers Felonies and Misdemeanors each Freeman and so are all the people of England as to this shall receive his Trial per pares by his equals which is well provided for by the great Charter of the Liberties of England in these words No Freeman shall be taken or Imprisoned or disseised of his Freehold Liberties or Free-customes nor be Outlawed banished or in any manner destroyed c. but by lawful Judgment of his Peers or by the Law of the Land This Chapter of Magna Charta is partly repeated in a later Statute and there Law of the Land is expounded Indictment process by Writ original and course of the Law Another Statute recites it and instead of the words Law of the Land puts in Process of the Law as equivalent and Synonimous signifying the same thing And again a Statute of that King says No man shall answer without Presentment before the Justices or matter of Record or by due Process and Writ original according to the old Law of the Land as it is well observed by the Lo. Cook that Oracle of the Law In pleas of the Crown and other Common offences and Nusances the King cannot in an ordinary way put any man to answer but he must be apprised by Indictment or other matter of Record For by the Law of the Land a Felon or a Murtherer cannot be convicted or attainted though he confess the Felony or Murther until a grand Jury have presented the offence nor can any person generally and ordinarily be convicted or attainted or have Judgment of life or Member upon any Criminal accusation but there must be two Juries pass upon him at least 24 persons the one a Grand Jury ex parte Regis to present the offence fit for a trial the other a petit or lesser Jury inter Regem personam accusat to try the truth of that Presentment The Grand Jury coming from all parts of the County the other Jury of the very neighbourhood de vicinetto where the offence was committed for vicini vicinorum facta optime praesumuntur scire and so in probability of Law are presumed to know something experimentally besides what they have by Testimony both of the quality of the person truth and nature of the offence with all its circumstances and happily the credit of the Accuser and his Witnesses It is not sufficient that they dwell in the County but they are to be of the Neighbourhood nay le plus procheins to the place of the fact as by Artic. super cap. 9. it is appointed They must be most near most sufficient and least suspicious ibid. The first being called a Grand Jury or a Great Jury either in respect of their number being above twelve the general certainty of all other Juries and may be as many as the Court please but usually exceed not 23 and in good prudence when there is much or weighty business there ought not to be a lesser number for if there be less or more they may be so divided that there can be no verdict as by experience hath been observed for less than twelve agreeing cannot make a Legal verdict Or they are called Grand in respect of the quality of their Persons and greatness of their Estates ability of their Judgments being of good Education or lastly which I conceive the best reason that propter excellentiam they are styled Juratores pro Domino Rege pro Corpore Com. Jurors for our Soveraign Lord the King for the County of S. and as the Commons in Parliament are to the whole Kingdom they have an unlimited power to present all offences committed in their County that are contra Pacem Coronam dignitatem Regis against the Peace the Crown and dignity of the King against either Statute or Common Law they being the great and grand Spring or Primum mobile of the Court that gives motion to all the other wheels their Presentment being the key that either opens or shuts the proceedings of the Court in every offence And therefore it is that the Law of England takes care that as well the Grand Jury as the other Jury consist of persons that are probi legales homines good and lawful men each man must be probus quasi probatus an approved honest man vel
a Graec. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 qui progredi possit praegredi debet he that will go on in vertue certainly ought principally to be chosen to attend the Courts of Justice It is called Justitia quasi juris statio vel status quod per Justitiam jus stat i. exercetur It is called Justice because it is the Standard of Right misera servitus ubi Jus vagum Justice being one of the Cardinal vertues ought to be attended by none but the virtuoso the most vertuous pious and ingenuous persons probi signifying not only faithful but skilful none can be presumed to be faithful in keeping an Oath that wants skill to know how to perform his duty What expectation can there be of a good Verdict from a bad or ignorant man Can he that is not capable to understand a Cause ever make a right Judgment of it Will a Liar present a truth a Thief convict his fellow thief a Man of blood a Murtherer or Who can expect Justice from him who neither to his God nor to himself is just or true He that believes Judges are quasi Dei Gods as the Scripture calls them or that God sits amongst and is present with Judges in Judgment as in the Scripture sense it is truth and ought to be believed cannot but apprehend how unreasonable it is to bring such a Jury before such a presence to act in a concernment of so high a nature as the life of a Man whose verdict ought to be veredictum a true saying quoddam Evangelium as the Gospel they swear upon dictum veritatis the saying of Truth it self especially as it is the verdict of the Jury of life and death who have the advantage of hearing not only the Accuser and his Witnesses but also the party accused and his Witnesses face to face They are called although a Petty Jury yet a Jury of life and death which the Grand Jury are not although they enquire of the same offence from the great power in their hands to acquit or condemn the life of a man according to their evidence Upon whose verdict the Judge according to Law grounds the Judgment of life or death of acquittal or condemnation and as a Jury may give a just verdict as to themselves upon a false Testimony given to them so may the Judge as to himself give a just Judgment upon a false verdict given by the Jury For as the Jurors are excusable that give their verdict secundum allegata probata per sacrum Testimonium by what is alledged and proved to them by the Oaths of Witnesses or confession of the party even so that Judge is excusable in foro Conscientiae that gives Judgment upon a verdict though false for he doth not therein Jus dare but Jus dicere secundum veredict Jur. upon the verdict of the Perit Jury and presentment of a Grand Jury and this is fully verified in two remarkable Cases noted in the Margent a sufficient caution to all Judges not to try any for Murther where they have not an infallible evidence of the death of the party slain And as every Juror ought to be probus homo an honest and a skilful man so ought every one to be legalis homo a person so qualified that the Law allows of for a man may be an honest prudent and just man and yet in the eye of the Law not a lawful Jury-man for in one sense he is not legalis homo that is not ligeus subditus Dom. Regis Angliae for the Law provides that the Kings Liege people shall be tried per pares by their equals their fellow Subjects In a proper sense he is said in Law not to be legalis homo that is homo utlagatus an outlawed person one that is extra legem positus who is no better than one that is extraneus an alien a stranger one not only put out of the protection of the Law but such a one as the Law will have nothing to do with as he so stands in Courts of Justice to serve as a Juror nay such a person being a Juror will make the verdict void and it is a good exception in arrest of Judgment that any of the Jurors were outlawed But in a larger sense he is not legalis homo such a legal and indifferent person as the Law requires who is either in such a degree of blood to the prisoner as the Law presumes him partial or in such an evil reputation as the Law presumes him unjust for as it is not fit for a Father to be of a Jury to try his Son or the Son the Father Brothers Uncles or near Relations to try one another so it is not fit that he that is particeps criminis or indeed criminalis homo a man that stands judicially accused indicted convicted or attainted for Felony to try another for Felony or indeed to be a grand Juror to present it the Law provides that each Juror ought to be a person rectus in Curia that stands right in Court above and against all natural rational and legal exceptions Qui accusat integrae famae sit non criminosus for certainly to clear the matter of fact as a Juror of life and death and wisely to discern the Cause in question upon a doubtful and perplext Evidence many times requires as great ability in the Jurors of life and death as in the Judge to examine the cause and to give Judgment upon the Verdict there being much more of Black-art used to darken and obscure the truth of the fact in cases of Bloud amongst the Jurors especially if either a great Person or rich be concerned therein than possibly can be to prevent or prevaricate a right Judgment in the Judge or by any dust of gold power or favour to put out his eyes or falsifie his clear sight who sits every way above such a temptation The Jurors of England especially in the Circuits with their unequal yoke-fellows the Tales-men are for the most part the very scandal of the Laws practical of England who seldom serve but to serve a turn to obey a Superiour pleasure a Friend or to help away in a hurry a quick dispatch of practice This fault is not in the Laws of England but the male execution of them The Statute of the 27 Eliz. c. 6. provides that each Juror should have at least four pounds per annum in Lands Tenements or Rents and this must be their sufficiency where the debt or damages or both together amount to forty marks The general course of the world being to esteem men according to their Estates Quantum quisque sua nummorum servat in arca tantum habet fidei Jurors that have Estates to lose will be afraid to commit perjury The best things abused alwaies prove the worst the sweetest Wine makes the sharpest Vinegar not that the fault is in the Wine but in the use and
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
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
differences betwixt them yet all was reconciled and they good friends again and this only a casual and sudden difference betwixt them upon a new occasion and exceedingly provoked unto it by him that was slain so that we cannot be satisfied to find it Murther in any of these cases being upon our Oaths to make true Inquiry and if we find not the malice being matter of Fact another Jury cannot try it Besides we have former practice of our side other Grand Jurors have had and taken the same Liberty and why should not we The Judges likewise in their Charges inform us of all the specifical differences in Manslaughter which we conceive they intend we should take notice of as it comes in proof before us in our Inquiry This I conceive is as much as Grand Jurors have said or can alledge for themselves where they are not positively partial and go clearly against their Evidence why they do not or will not for such is some of their Language find it Murther in all Cases as the Court directs and as the Bill of Indictment is drawn and sent to them as the King's Declaration To satisfie these reasonings and mistakes though sufficient hath been said already to satisfie a wise and sober Grand Jury-man especially in a Case of Blood which can never receive too strict an Inquisition by a Grand Jury the first Inquisitors of it in Court let them observe that neither themselves nor the party accused can be prejudiced by what they shall so find be it never so high First not themselves they do but present a probable Accusation no Conviction against such a person that hath had his hands in Blood hath kill'd a man is Vir sanguinis And here certainly it will be the best satisfaction to Conscience and that is the best Friend we can satisfie to have all the Circumstances of the Fact as they are laid in the Indictment to be more judicially and circumspectly examined sifted and tryed out by another Jury by a Learned Judge in a publick Court to the parties face where the King's Witnesses and the party himself and his Witnesses may be fully heard and the whole matter fully tryed and debated which cannot be done in a Grand Juries Chamber but is altogether stifled and obstructed if the Grand Jurors suffer it not to come to this Judicial Test and Tryal but shall put out the words Ex malitia praecogitata or otherwise alter the King's Declaration and Indictment which already hath had proceedings in it and that in Court of Record where it hath been advised by the Kings Council upon perusal of Informations and Examinations from Justices of Peace or Coroner in that Case certified to the Court and upon hearing the Prosecutor and his Witnesses and so drawn and presented to the Court Witnesses sworn to it and Indorsed Jurat in Curia sworn in Court and so become something more than an ordinary Declaration or Writing in Parchment to be altered by any without advice or direction of the Court for if it might be so the King's Council and their Advice together with the Judges in such Cases would signifie very little in drawing or advising any Indictment of Murther if Grand Jurors in their Chamber may from their own advice alter it as they please the Judges themselves being as well concern'd in Conscience to do right to the Prisoner and Party accused as Grand Jurors can be And also admit that the Witnesses shall inform the Grand Jury that it was a passionate and sudden falling out or that it was done unawares or in his own defence it is but what they apprehend it to be they can inform but what they saw or heard or believe they are in the Affirmative only and can prove but for that instant the Fact was done they dare not swear that there had been no falling out before and as they cannot or haply will not prove an express malice so neither can they swear that there was none at all or not such a malice as the Law implies neither can the Witnesses judge in all Cases what is Manslaughter at Common Law what upon the Statute what per Infortunium what se Defendendo what is Justifiable or what is Murther neither indeed in all these Cases can the Grand Jurors nor is it convenient for them to judge of all the specifical differences each Circumstance may so much alter a Case and will they then by their uncertain Judgments in case of Murther conclude and preclose the Court and determine the Law that this Fact of Blood shall go no higher than they please to adjudge it as in the case put of a Child that kills another not the Grand Jury who see not the Child but the Court and the other Jury shall inspect the Child shall judge whether the Child could do such an Act felleo animo ex malitia praecogitata and so be guilty of Malice and Murther the Court and not the Grand Jury being to judge an malitia supplebit aetatem whether upon hearing him speak he may be thought capable of malice as some at more tender years are than others so in the case of a Fool or a Lunatick a Dumb or Deaf person so in the case of a Reconcilement after a falling out and then a killing can either Jurors or Witnesses or any that hears but one side state the case aright or judge whether the Reconciliation were perfect or not so as to take away all the seeds of malice revenge or discontent And Mr. Justice Stamford sayes That those that are Dumb and Mute and Infants shall be discharged upon Arraignment Which shews that they are to be Indicted of Murther But how shall they be Arraigned when they cannot hear or speak and plead I conceive by the Inspection and Judgment of the Court upon their Arraignment I mean upon the Indictment found by the Grand Jury which plainly shews that the Judges not the Grand Jurors are Judges of the Law and of what shall be Murther So in the case of killing a Thief that attempts to Rob or commit Murther which is justifiable this must judiciously and certainly appear so upon the Tryal that the Court may judge whether there were an intention to Steal or to commit Murther or Rape and not let such a Surmise only That there was no such intention lead the Grand Jury to acquit him when haply there was such intention And the Statute of the 24. of H. 8. saith That the Party so Indicted or Appeal'd of such Offence for killing a Thief or one that intended to Murther by Verdict so found and tryed shall not lose or forfeit Lands or Goods but shall be discharged as one acquit of Felony and none can be acquit of Felony that is not tried for it the doubt being before this Statute Whether he should forfeit his Goods and Chattels as one that kill'd another by Chance-medley So that there was no doubt but such a one was Indicted of Murther before this Act as one
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