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
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
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
Record in Chancery to the King himself in Cases of Blood By this it may appear to all that are rational and unprejudiced that have not formerly asserted the contrary Opinion and therefore like the Opiniators of this Age will for no other reason maintain it That Grand Jurors are not lest so free herein to find what they please or as they would have it strictly according to their Evidence as the Gentlemen of these latter times have taken upon them to do and even to stand upon it against the Learned Judges themselves and their Directions and Advice Besides how greatly do they injure the party accused for if he be Guilty of no higher an Offence than Manslaughter per Infortunium or se Defendendo and the Grand Jury will not find it Murder whereby he may put himself as the Statute of Gloucester directs de bono malo super patriam he can never by a pardon of course receive a total and final discharge from the said Offence For if he should be Indicted at any time again of Murder for the death of that Party as he may be at any time after during his life notwithstanding such pardon where it was not found Murder or Manslaughter at the first he can make no Plea to such Indictment in discharge of it he cannot plead auter foits Acquit or Convict or Attaint of the same Offence because he never put himself de bono malo super patriam upon his Country his life was never in hazard for it whereas if he have been once presented by the Grand Jury for Murder and thereupon Arraigned received a full Tryal and according to the Statute of Gloucester had been acquitted of the Murder and the special matter of per Infortunium or se Defendendo found in their Verdict which by the Law ought to be so found by the Jury of Life and Death under their Hands that the Judge upon hearing the whole matter may be satisfied it is found according to Evidence given in Court and thereupon adjudge what that Offence is in Law If in this case the party that hath received such a full Tryal and hath sued out a Certiorari out of Chancery and upon the Return of that hath had the Special matter the whole Record of proceedings certified by the Judge before whom the Record remains and thereupon hath procured his pardon of course out of Chancery such person can never be called in question again for the same Offence but he may plead that Record and Verdict of Acquittal from the Murder or Manslaughter notwithstanding it might happen to be proved afterwards either Murder or Manslaughter it shall discharge and acquit him for ever And if the Grand Jury as in this case ought to find every per Infortunium Murder notwithstanding by the Evidence it appear no more to them à multo fortiori they ought to find every Offence that appears to them upon Evidence to be but Manslaughter Murder For the Bill of Indictment as it comes from their hands is but the Kings Declaration of the matter of Fact to which the Prisoner may plead Not Guilty and joyn Issue with the King and have it tryed Whether he be Guilty or not modo forma as it is laid in the Indictment or may confess and justifie as he shall find cause For this Indictment or Presentment of the Grand Jury in the behalf of the King against the Prisoner sets forth an Act done Vi Armis against the Kings Peace his Crown and Dignity all which are violated dishonoured weakned in the loss of a Subject in the shedding of Innocent Blood by which his Land is defiled and his Laws violated and this according to the Laws of God and Man prima facie may be Murder and therefore ought as well as all Declarations at Law to be set forth in the fullest circumstances of aggravation a Fact of Blood which far exceeds all other Facts will bear especially in laying the ground work and foundation of the Charge because it cannot heighten or increase but may lessen and decrease like the Moon in the full to its lowest wane even to nothing upon a full Examination and Debate of the whole matter by hearing of Parties and Witnesses on both sides and receiving in the face and audience of the Court such a scrutiny and narrow search as blood requires into all circumstances and aggravations of the Offence that are laid in the Indictment by the Learned Judge who is of Counsel as well for the Prisoner as the King and must not let the Prisoner suffer for want of Counsel in Law that a Grand Jury cannot possibly do they hearing but only Witnesses on one side and not the Prisoner besides their want of Judgment and Knowledge in the Law in all Cases of Blood whereas if the Grand Jury shall take upon them which they ought not to do to put out of the Indictment and Declaration of the King the words Ex malitia praecogitata the only words that make it Murder the Court can never Judicially examine the malice which is commonly a secret latent thing carried on with a great privacy and cunning and appears not in all cases of Murder express and no Evidence can prove further to a Grand Jury whereas the Law in many cases implies a malice to make it Murder although the Parties never saw or heard of each other before which lies not in proof of Witnesses but ariseth as a point of Law upon the circumstances of the Fact which not a Grand Jury but the Court is Judge of being matter of Law which Judgment in Law is wholly frustrated and taken from the Court when the Grand Jurors put out these words Ex malitia praecogitata which only make it Murder out of the Indictment And by such favour indulgence or wilfulness in Grand Jurors many times the greatest Murder escapes by a per Infortunium se Defendendo or at least by a Manslaughter For if the Grand Jurors shall only find it Manslaughter the Prisoner upon his Arraignment presently if he can but read get any one to help him or corrupt the Ordinary no great difficulty to do confesses the Indictment and prevents all further tryal upon that Offence and so neither the Judge nor Court can ever come to understand although there be twenty Witnesses against the Prisoner what Evidence the Grand Jury had to find it no higher than Manslaughter nor shall ever come judicially to examine the nature quality or malice if any be circumstances and truth of the Fact although in it self the foulest Murder that can be as my own above Forty years experience attending the Crown Court in one Circuit under many Learned Judges hath too often experienced together with the common practice of labouring Grand Jurors to such a Presentment and contriving with the Prisoner to confess the Manslaughter lest the truth and foulness of the Murder should too clearly manifest it self as truth ever will upon a Judicial faithful
and unjustly taken away the Life of another person to leave it as an entire fact of Murther to the Trial and Verdict of the second Jury to find the truth of the Fact upon hearing of both sides and receiving the Judgment of the Court in what species or degree of Murther it is which likewise if any doubt or point of Law arise in the Case as many times it doth they may find it specially which a Grand Jury cannot and thereupon receive the opinion of all the Judges of England Murther being the Genus of the several Species and in common acceptation he is accounted a Murtherer that kills any man or reasonable Creature unlawfully and the Commandment is Thou shalt do no Murther which certainly comprehends all unlawful killing otherwise that command is not well translated from the Text Non Occides Thou shalt not Kill and in my own experience for above forty and five years in one Circuit I have very often known many Learned Judges such as Mr. Justice Doderidge the Lord Chief Baron Davenport Mr. Justice Jones Mr. Justice Whitlock and many others often rebuke and reject the Presentments of Grand Jurors in Cases of Blood and other Felonies where they have either varied from their Evidence or from the Law the Judges before hand having received some light of the nature and testimony of the Fact from the Informations and Examinations therein delivered into the Court by the Justices of the Peace and Coroners a very good Rule for Judges to observe and often either put it upon an open Evidence in Court which is very inconvenient or discharged them of such a Bill and bound the Witnesses over to the next Assizes which is also very inconvenient in regard Witnesses may die or the Prisoner may die and so the Forfeiture is lost and the offence unpunished and in Cases of Blood there will be too much opportunity given for compounding and making an Interest with the Prosecuter and Witnesses and in these modern times since the happy return of our most gracious Sovereign King CHARLES the second I have known several learned and pious Judges some since dead others yet living and eminent upon the Bench in Oxfordshire Circuit Fine and Imprison several Grand Jurors for their miscarriage and misdemeanour in delivering in Bills of Manslaughter instead of Bills of Murther against the clear and positive directions of the Court. And this may serve for answer to the first Objection from the liberty and affected practice of Grand Jurors in finding of Bills in Cases of Blood according to their own humor and apprehension to introduce a Law that therefore they may find them as they please notwithstanding that the Court adviseth and directeth the drawing of them MURTHER To the second Objection of Mr. Justice Stamford in the place before cited where he saith that whereas the Statute of Glouc. c. 9. saith That he ought to put himself in an Inquest de bono malo this is only intended saith he when he is Indicted of Murther or Manslaughter and not where in the body of the Indictment the Special matter is found as if the Grand Jury may find especial Verdict of per Infortunium or se defendendo c. I answer to this Objection Certainly Mr. Justice Stamford though a very Learned man did well consider this matter and his Opinion therein when he set it down for he informs you not what shall become of such an Indictment where only the Special matter is found by the Grand Jury whether the party may Traverse it for it is but a Trespass or confess it and so have his Pardon of Course upon such confession and then the Judges that are to make the Report or Certificate of the nature of the fact to the King in Chancery must Certifie like blind and deaf men that never saw or heard any thing of the merit of the cause nor understand any thing by evidence of the nature and circumstance of the Fact like the Lay-zealot must believe as the Priest believes preferring Obedience before Truth but sure no prudent and pious Judge will make such a blind Certificate in case of Blood Besides whoever shall judiciously and impartially compare and weigh the Statute of Marlebridge and the Statute of Gloucester together and the reasons of the Statute of Gloucester what mischief it was made to prevent and consider but the nature of the thing will never be of his Opinion in this particular there is so little of reason or true meaning of either of those Statutes in it The words of the Statute of Marlebr are these Murther from henceforth shall not be judged before our Justices where it is found Misfortune In the time of this Statute it seems there were two Juries the Grand Jury and the Jury of Life and Death to present and try the Offences of Murther otherwise the Justices could not judge of it they never passing Judgment upon a Grand Juries presentment which by the way shews that it is left to the Judges not the Grand Jury upon the examination of the cause in trial by the Jury of Life and Death to judge of the nature and circumstances of Murther and of what species or degree it is This Statute of Marlebridge did only declare a new Law that where it was found per Infortunium or se defendendo it should not be Felony and Murther as it was before that Statute but that the party in such case should have upon Certificate of the Justices before whom he was tried his Pardon of course happily then upon the Presentment of the Grand Jury which might be the occasion of this erroneous Opinion of this Learned Judge Then comes the Statute of Gloucester as if the other had not been truly understood or at least had not sufficiently provided for offences of Blood and in plain words as before is mentioned commands That he that kills a man by misfortune or in his own defence or in any other manner without Felony shall be put in Prison until the coming of the Justices in Eyre or Justices of Goal-delivery and shall put himself upon the Country for good and evil that is for life and death which cannot possibly be understood where the Grand Jury find it but per Infortunium or se defendendo c. for that is not Felony and so cannot be Arraigned thereupon whereby to put himself de bono malo so as to bring the matter to Issue between him and the King nor can the Judge in that case as is said before make a true and right Certificate of the offence and matter of fact which must be specially and truly certified according to Law whereby to procure a pardon as that Statute expresly requires And if the party shall plead Not guilty to that Special matter found by the Grand Jury what can that signifie as before hath been shewed for the Jury that is charged with such Indictment must either find the party guilty in Special manner as it