Murther for the word conceal in the Statute relates not to the Body of the Infant but the death of it the words being these Shall so conceal the death thereof that it may not come to light that is to the knowledge of one Witness at least whether it were born alive or not but be concealed she shall suffer death as in case of Murther If she can prove by one Witness it was born dead then her hiding or burying it afterwards will not be Evidence against her to take away her Life upon that Statute These two Statutes create no new Offence that was not Felony and Murther before but only take away Clergy in those two cases the one of sudden and desperate stabbing then frequently in use the other of lewd Whores who having committed one sin to avoid their shame and the charge of a Bastard would commit a greater by trusting to their own strength in their Delivery that they might more privately destroy the Infant and yet avoid the danger of the Law because in that case none for the King could prove the Child born alive and therefore it was impossible to Indict and Convict her at the common Law for Murther although really and in truth it were so This Statute makes the Supposition good for the King to the Grand Jury and Jury of Life and Death and to the Judgment of the Judge in point of Law that the Child supposed to be murthered was born alive and by her murthered in regard she being a lewd woman and contrary to the Custome of honest and innocent women who always desire help in their Labour chuseth to be delivered alone this Statute puts the proof upon her if she will avoid so strong a presumption of Murther to be sure to have one Witness to prove the Child was born dead It being likewise strongly presumed that a woman without help of some other cannot be delivered of a Child at full growth dead in the Womb. Two remarkable Cases I have known in my time upon the said Statute of 1 Jac. in Oxfordshire Circuit the one in Mr. Justice Jones his time a Learned Judge that went Sixteen years together that Circuit where the Case was A cunning desperate Fellow having an intention to stab another person and yet to avoid coming within the danger of that Statute had to that purpose provided himself of a Dagger naked in his Pocket he being never known to wear any before came into an Alehouse where the party was he intended to stab and at first coming used very friendly Language unto him but afterwards all the provoking Language he could to make the other strike him which the other no sooner held up his stick to have done but he stabb'd him into the Body with his Dagger whereof he dyed No malice could be proved yet so much of his intention by his preparation and circumstances appearing to design the stabbing of the other that it was adjudged to be within the meaning though not within the Letter of the Statute the Lord Chief Baron Davenport being the other Judge of that Circuit and he was denyed his Clergy and after Judgment was Executed It being then observed by the Judges That immediately after the making of that Statute many desperate Fellows that could read as Clarks to those they had a mind to quarrel withal would use all means to make them strike first and then suddenly stab them and by this way avoid the said Statute and become guilty only of a Manslaughter at Common Law and so receive the benefit of Clergy which the Statute takes away The other Case was in the same Circuit very lately before Mr. Justice Windham at the Assizes at Worcester a little before his death Where a Father correcting his Son for some undutifulness he conceived in him having a Knife in his hand being eating his dinner struck his Son over the back with his knife and gave him a stab whereof he died The Judge apprehended this Offence to be within the Statute notwithstanding that Exception in the Statute of a Father correcting or chastising his Child or Servant in regard it was an unreasonable way and means of correction whereupon he reprieved the Father for some short time and advised with the rest of the Judges at Serjeants Inn and after he had their Opinions that it was within the Statute he forthwith sent down a Warrant to the Sheriff to do Execution having received Judgment of Death at the Assizes and yet the words of the said Act of Parliament are although his Son or Servant dye of such correction he shall not be within the said Act Observe here how necessary it is That all the circumstances that can be in an offence of blood be put into an Indictment and be so found by the Grand Jury as it is advised by the King's Counsel where there is innocent blood shed by the party indicted that every part and circumstance of the Fact with all its aggravations may come to be considered and weighed by the Court which otherwise cannot be as in this Case of the Father killing his Son if the Indictment had not been drawn upon the Statute but at Common Law in regard of that Exception in the Statute as the Grand Jury then would have had it the party had been capable of Clergy and so might have escaped that Judgment of Death If such difficulties appear to the Learned Judges upon due consideration of the Law and of all circumstances in cases of blood how much more will it prove difficult to Grand Jurors and how little reason have they to expunge alter and obliterate circumstances of aggravation in such an Indictment upon hearing only of one side as they please and so prevent the Judgment of the Court therein taking from them the power even to examine such a circumstance as may if truly stated and examined rule the whole Case as before is observed In all the Offences formerly mentioned where Clergy is taken away by those Statutes there is no new offence of Felony or Murther made that was not so before the making of those Laws as might be instanced in Murther Robbery Burglary Sacriledge Cutting of Purses Stealing of Horses Rape and the like but only Clergy taken away from the Offender which is no more but the abusive bloody liberty of Clerks in those times restrained as wilful Murther where malice appeared and other mixt and simple Felonies which were then most raging and reigning Offences in the Kingdom and cryed out for a greater Remedy a stricter Law to be made against them as appears by the Preambles of those Statutes that take away Clergy in those Special Cases that were Murther and Felony at the Common Law before from whence I conclude that the Forms of Indictments of Felony or Murther are no way directed to be altered by those Statutes that take away Clergy but are to continue in the same form as they did before at the Common Law And I
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 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
and lay violent hands to take away his temporal life for whom Christ died to give eternal life A King an inferiour god would take it ill to have his Image his Picture wilfully stab'd through and cut in pieces by any because it is his It is very plain by the Judicials of God that where there was any wilful smiting or striking though suddenly and from a present passion occasioned by a sudden provocation whereby death sollowed in which the will fury which is a temporary madness assent or assault of the Manslayer might appear there was no City of Refuge or Mercy by Gods Law provided for it only what was done unawares and unforeseen as aforesaid found a City of Refuge otherwise what can be meant by those words unawares and where he saw him not and in these very Cases of killing another ex improviso unawares or by misfortune for whom there was a City of Refuge provided by God himself yet there the Avenger of blood if he overtook the Manslayer before he got to a City of Refuge and in some places it was many miles to one of them he might justifie the killing of him During the Israelites sojourning in the Desert the Tabernacle where mention is made of the Altar was their Refuge in such a case afterwards in the Land of Canaan there were six Cities of Refuge appointed three beyond Jordan and three on this side Three other Cities of like nature God promised the Israelites upon condition of their obedience after their Coasts were enlarged but it seems their disobedience hindred the accomplishment thereof for Scripture mentioneth not the fulfilling of it The manner of Examination of one that fled to the City of Refuge was thus The Consistory or Bench of Justices who lived in that quarter where the Murther was committed placed the party being brought back from the City of Refuge in the Court or Judgment Hall and diligently enquired and examined the cause who if he were found guilty of voluntary Murther then was he punished with death but if the fact were found casual then he was safely conducted back again to the City of Refuge where he enjoyed his liberty not only within the Walls of the City but within certain Territories and bounds of the City within such limits until the death of the High-Priest that was in those days after whose death he was at liberty Josh 20. 6. By this means the offender though he was not punished with death yet he lived for the time although the offence was involuntary and praeter intentionem a kind of Exile for his own humiliation and for the abatement of his wrath who was the Avenger of blood The Areopagitae had a proceeding against casual Manslaughter not much unlike punishing the offender 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 with a years banishment It is not agreed amongst Expositors why the time of this Exilement was limited to the death of the High-Priest at that time but probably thought that the offender was therefore confined within that City as within a prison during the High-Priests life because the offence did most directly strike against him as being amongst men 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ac Princeps Sanctitatis The chief god on earth These places of Refuge appointed by God differed from those of Hercules and Romulus and others Heathens yea and Christian Kings formerly of this Nation because God allowed safety only to those who were guiltless in respect of their intention but the others were common Sanctuaries as well for the guilty as the guiltless If any man did fortuitously or by chance kill another man in such a case a Liberty was granted unto the offender to flie at first unto the Altar for Refuge as is implied by that Text of Scripture If any man come presumptuously unto his Neighbour to slay him with guile thou shalt take him from mine Altar Exod. 21. 14. And it is thought that Temples as they were built had the like priviledge as Joab fled to the Temple and took hold of the horns of the Altar The Reasons why the Lord appointed Cities of Refuge are principally these First lest that the Innocent party might be slain by the Friends of him whom he had killed before his cause was heard and the manner of the slaughter determined by the Judges Secondly it was so appointed that he might stay there to the death of the High-Priest who was a type of our Blessed Saviour by whose precious death we are all set free Thirdly this was done ut menti eorum hac ratione medeatur c. to heal and allay the mind and fury of those which otherwise would delight in murther for by his absence and continuance of time the rage of those that sought his life would be qualified and therefore God provideth that they should not still be provoked by the continual sight of him Fourthly and further by this that he that killeth a man unwittingly is appointed to flie it is shewed quod reus poenae efficitur that yet he is guilty of some punishment So that involuntary killing was punished with a kind of Banishment among the Israelites So likewise amongst the Athenians such kind of Manslaughter was censured with one years Exile And so among the Israelites he that escaped from the Avenger of blood for it was but an escape was not to go out of the limits and bounds of the City if he did it was lawful for the kinsman of the man that was slain to kill him There is a manifest distinction of voluntary and involuntary Murther or killing grounded upon the Law of Moses Involuntary killing is of two sorts there are 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 chances unlookt for and sudden events as when one shooteth an Arrow upon a lawful account and killeth one unawares as Peleus killed his Son being in hunting with him There are besides these 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 errours and oversights as the Father beateth his Child purposing only to chastise him and do him good and he dieth of it There are likewise two kinds of voluntary or wilful Murther ex proposito of purpose ex impetu animi in heat or rage these kind of Murthers are called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Iniquities one may be slain ex proposito purposely per insidias by lying in wait when one watcheth for the life of a man and taketh him at advantage as Joab killed Abner and afterwards fled to the Temple and took hold of the Horns of the Altar which notwithstanding could not priviledge him and afterwards killed Amasa they suspecting no such thing so Ismael killed Gedoliah or else per Industriam when one of set purpose picketh quarrels and seeketh occasions to provoke a man that he may kill him Both these kinds are touched here Tostat quaest 16. Then one may be killed in heat and rage when there was no purpose before as Alexander the Great killed Clitus This kind though not so grievous as the other yet is a
Notwithstanding he informs us that this King William post acquisitionem Angliae after he had obtained and setled the Kingdom in peace in the fourth year of his Reign Concilio Baronum suorum by the advice of his Nobility he caused to be summoned throughout England the Nobles Wisemen and such as were skilful in the Laws Rights and Customes of England and elected twelve Knights out of every County who were sworn before the King to make a true Collection of the said Laws and Customes Nihil praetermittentes nil addentes nil praevaricando mutantes Amongst these Laws we do not find Murther punished with death It being so near the time of the Danes and Saxons it seems he made no violent alteration of their Laws but kept their custome of aestimatio Capitis or Corporal punishment We find amongst his Laws these words Interdico etiam ne quis occidatur vel suspendatur pro aliqua culpa sed eruantur oculi abscindantur testiculi vel pedes vel manus itaquod truncus vivus remaneat in signum proditionis nequitiae suae I command that none be killed or hanged for any offence but that his eyes be put out and his Testicles or feet or hands be cut off so that the Trunk of his body may remain alive in token of his Treason and wickedness any punishment then but loss of life and banishment for it is said amongst his Laws Prohibeo ut nullus vendat hominem extra patriam I forbid that any person be sold out of his Country Now although that these kinds of punishments are not commensurate to the offence or to the Law of God or to the Laws of England in cases of Murther there being not life for life yet who is there almost amongst the Sons of men that would not rather chuse to be hanged than to have his eyes put out his Testicles feet and hands cut off and to survive with such a brand of Ignominy Amongst the Laws of the Conquerer in the Title Lex Murdrorum it is there found If any be found Murthered the Village in whom he was so found was within eight days to deliver the Murtherer Justiciae Regis if he were not found within one Month and a day the Village was to pay forty marks if the Village were not able then the Hundred was to pay it and this mony was to be sealed up under the Seal of a Nobleman of the County and sent into the Exchequer there to remain a year and a day to the end that if the Hundred or Village could within a year and a day bring the body of the Murtherer to Justice they should have their mony again if they could not within that time take him the Parents of him that was murthered should have six mark and the King the rest if he had no Parents then his Lord or Master should have it if no Lord or Master then Selagus ejus i. e. fide cum eo ligatus that is his Pledge or Surety if he had none of these then the King should have all the forty Marks which was as much then as five hundred pounds now sub cujus protectione pace degunt universi If the Murtherer were found and would not defend his Innocency Judicio Dei scilicet aqua vel ferro that is stand in hot scalding-water or pass barefoot over hot-bars of Iron fieret de eo Justitia let Justice be executed up on him but what this Justice was or what punishment he should suffer some doubt there is Some say it was ad voluntatem Regis or the usual way of aestimatio Capitis or Corporal punishment and not to suffer death because as before is observed there is found amongst those Laws Ne quis occidatur vel suspendatur pro aliqua Culpa though others are of another Judgment that it was Capital if the King pleased whatever the punishment was you shall not read of any Insurrection or Rebellion before the Conquest when the view of Frank-pledge and other ancient Laws of this Realm were in their right use There are many that are full of Sr. Moore 's kindness and think it too much that a man should lose his life for crimes under Murther as for Theft c. but none so kind to a Murtherer for which anciently a loss of a Hand Eye Leg or other member was in use yet the party taken in the manner hand habend having the stoln thing in his hand in his possession might be killed amongst the Saxons he could not buy his Crime out and the Spanish condemning to the Gallies is thought by some the only way Mr. Daniel will have it that as yet writing of King Henry the Second's time they came not so far as Blood which is not so for King Henry the First abrogating the were-gilde by which a man might have bought out his offence made a Law says Hoveden Vt si quis in furto vel latrocinio deprehensus fuisset suspenderetur to hang the Thief with whom Vigorniensis and Rad. Niger agree And the Lo. Coke observes in the third Institutes that before the Reign of King Henry the First the Judgment for Felony was not alwaies the same but King Henry the First ordained by Parliament that the Judgment for all manner of Felonies should be that he should be hanged by the neck until he be dead After in the latter end of the Reign of King Henry the Third we find a Thief who had stoln twelve Oxen beheaded Capital punishments have not only been in use against Homicides and Felonies but other Transgressors also and amongst those who worshipped God rightly as is well observed we meet with no Divine precept before Judah which makes Whoredom worthy of death yea when he is told Tamar thy Daughter in law hath played the Harlot he answers Bring her forth and let her be burnt Amongst the Britains if the Wife killed her Husband she was to be burnt so are the English Laws to this day We may proceed says Grotius by conjecture of the Divine will with the help of Natural reason from like to like and that which is a Law against Felonies and Murthers may be extended to others as dangerously mischievous It is a hard dispute whether there be more mercy in death or putting out of Eyes cutting off Legs Arms c. or in the Gallies It is believed that the boldness and number of Malefactors begot the Law of death and those whom Death with so much Infamy so often reiterated before their eyes cannot fright will never think any Torment whatsoever where life is left them though with more misery than can be spoken terrible It is well observed by the Lo. Coke that Videbis ea saepe committi quae saepe vindicantur Those offences are often committed that are often punished and he gives his Reason for it That the frequency of the punishment makes it so familiar as it is not feared For Example
saith he what a lamentable case it is to see so many Christian men and women strangled on that cursed Tree of the Gallows insomuch as if in a large field a man might see together all the Christians that but in one year throughout England come to that untimely and ignominious death if there were any spark of Grace or Charity in him it would make his heart to bleed for pity and compassion I my self have known at one Assizes in the County of Monmouth where one hath had Judgment to die for stealing a Horse and Reprieved in order to procure his Pardon another narrowly acquitted of a Felony and made use of by the Goaler to be the Common-Hangman at the same Assizes that both these persons the one breaking the Goal the other having his liberty as being acquitted were both taken in one Felony and Burglary before the next Assizes committed to the Goal and received Judgment of death and were both hanged together So little doth favour terrour or example work a Reformation upon those that are hardened in their sins and want grace to make good use of them But it is thought horrible and grievous that a mans life the life of a Christian or any of the Members of his body should be taken away for so small a value as thirteen pence I take twelve pence to be but petit Larceny for which he shall be whipt it is very plain that the Statute of 3 Ed. 1. c. 15. declaring what Prisoners are Mainprizable or Barable says amongst other offences viz. or for Larceny which amounteth not above the value of twelve pence nay for less King Aethelstanes Laws begin with Thieves and speak thus First that a man spare no Thief who is in the manner having in his hands taken above eight pence it seems eight pence then was in the nature of a Petit Larceny a Ram in the Saxons time was worth but four pence that which was heretofore sold for twelve pence would now be worth forty shillings In the Assize of Bread long after the Saxons in the 51th of H. 3. eight Bushels of Wheat are valued but at twelve pence In Edward the Third's time a Bushel of Wheat was but ten pence a Haymaker had but a penny a day Reapers of Corn two pence an Acre to be mowed for five pence Threshing a quarter of Wheat or Rie but two pence a Master-Carpenter three pence a day and his man two pence a Free Mason four pence others three pence their Boys one penny Plaisterers and their Knaves so named in the Act the same manner and to find themselves meat and drink See the Statute 25 E. 3. c. 1 and 3. And by the Statute made the 6th of H. 8. of much later time the wages of a Bayliff of Husbandry was but sixteen shillings eight pence and for Cloathing him five shillings with meat and drink a Chief Hinde or Shepherd twenty shillings and for his Cloathing five shillings every Common Servant sixteen shillings eight pence for Cloathing four shillings no Woman Servant above ten shillings her Cloathing four shillings and no Master might have given more And although twelve pence keeps not the old Rate but the Modern yet things are prized in trials of Life far below their worth and no man loseth his life in a single and simple Felony but where the thing stoln riseth to more than many twelve pences especially after the Old estimate but indeed the quality of the Offender circumstances of the offence and of the times are mainly considerable in our Law where any mans life is taken away in such a Felony But to return to our proper Subject and to manifest what the Laws of England were in Cases of blood not long after the Conquerer and how tender a regard the Law of England answerable to the Law of God had of the Life of man By a Canon of our Old English Church he that killed a Man in publick war though justifiable was enjoyned a Penance of forty days By the Common Law killing by misadventure unawares or in a mans own defence was Murther founded upon the Judicial Law before the Cities of Refuge and the forfeiture and punishment of both was as in case of Murther as appears plainly by the Statutes of Marlebridge and Gloucester the Forfeiture of Goods and Chattels remains as yet The words of the Statute of Marlebridge 52 H. 3. are as followeth Murther from henceforth shall not be adjudged before our Justices where it is found Misfortune only which shews before that Statute though a man were killed by Misfortune he had the same Judgment in Law as for Murther So that after the making of that Statute until the 6th of Edw. 1. Writs were granted of course where there was a surmise that the man was killed by Misfortune or se defendendo or in any other manner where the killing was not Felony and thereupon a Pardon of course or Grace was granted to the party who only forfeited his Goods and Chattels and by benefit of that Pardon had only his liberty out of prison which without he could not have This way of Mercy it seems did stretch too far and covered too many guilty persons as I fear yet it does under her wings when as their several Cases were not judicially examined indicted and tried before hand by a Grand Jury and a Jury of Life and Death before a Learned Judge as in ordinary Trials of Criminals whereby it came to pass that many Murthers and Manslaughters escaped under the favourable surmise of a per infortunium or se defendendo as if it were done by misfortune or in his own defence and so came off from a foul Murther by a Pardon of Course Now for remedy in this case came the Statute of Gloucester the words of which Statute are as followeth The King commandeth that no Writ shall be granted out of Chancery for the death of a man to enquire whether a man did kill another by Misfortune or in his own defence or in any other manner without Felony but he shall be put in prison until the coming of the Justices in Eyre or Justices assigned to the Gaol-delivery and shall put himself upon the Country before them for good and evil that is for life or death if in case it be found by the Country that he did it in his defence or by misfortune Then by the Report of the Justices to the King the King shall take him to his Grace if it please him The Report to the King is to Certifie the Record into the Chancery where the King is alwaies present and therefore it is called a Pardon of Course Stamford fo 15. whereas the Kings own hand and fiat is to other Pardons So that here it is very plain that he that will be acquitted and discharged out of Prison for Manslaughter per infortunium or se defendendo ex Gratia Regis must first put himself super Patriam
upon the Country de bono malo the very words of the Act and that is upon a Jury of Life and Death and this he cannot do except the Grand Jury find the Bill of Indictment Murther or Manslaughter let the matter of fact be what it will for if the Grand Jury shall but find the truth of the fact as it appears in evidence to them or from their own knowledge which is that which they now so much stand upon that is the very special matter that makes it Manslaughter by misfortune or se defendendo the party can never come to be Arraigned upon such an Indictment for that is not Felony and if he shall be charged with it the Grand Jury having only found the special matter in the Indictment or Inquisition the party must either plead guilty or not guilty either confess and justifie the Fact or deny it if he confess he cannot Justifie it for mens lives are so precious in the eye of the Law that the death of a man cannot be Justified except in course of Justice in a lawful War or in a just defence of a mans life and property against such as would rob or designedly murther him The Defendant in Appeal cannot Justifie the death of a man at his own suit se defendendo but must plead not guilty Nay a Verdict of the Jury of Life and Death that A killed B se defendendo or per Infortunium is no good Verdict the special matter must be set down in writing by them that the Court may judge the killing to be upon inevitable necessity neither Grand Jury that hears but one side nor Jury of Life and Death that hear both sides are Judges in this case For upon the special matter found by the Jury of Life and Death if the Court shall not adjudge that special matter good in Law to acquit him of Murther or Manslaughter it may be either murther or manslaughter in him and the party may be hanged notwithstanding such Verdict of the Jury of Life and Death how can the Court be judge of the matter in Law when they hear not the matter in fact from the Witnesses on both sides and the Parties defence for himself which they can never do if the Grand Jury shall take upon them as they presume they may to find the Special matter themselves whereby the Party cannot be Arraigned that so he may put himself de bono malo super patriam as the Statute of Gloucester before-mentioned especially requires If the Party charged with such an Indictment from the Grand Jury where they will find only the Special matter shall confess it when he is charged with it as sure he may then the Evidence can never be heard in Court whereby the Judge may determine the point in Law whether the offence upon the whole matter be Murther or Manslaughter or as they find it and that is meer matter of Law whether super totam materiam of the Evidence and that must be Evidence on both sides it be murther Manslaughter in general Manslaughter upon the Statute per Infortunium se defendendo justifiable as against a Thief or in loco tempore belli and how exceeding dangerous and inconvenient were it for Grand Jurors so far to anticipate the Judgment of the Court and to take upon themselves upon the hearing only of Witnesses on one side and perhaps not all of them neither the sole Judgment of Law in all these Cases by not finding the Indictment which is but the Kings Declaration for the loss of his Subject in the same manner as it is advised by the Kings Council Ingrossed sworn in Court and delivered to them especially for that is alwaies intended where they have probable Evidence for they need no more to prove such a person killed by the hands of such a person such a day year and place Nay by the Statute of Gloucester they must either find the Indictment in such a case Murther for all Indictments about the killing of a man were so before that Statute and no Law since to alter it or the party can never have a Certiorari out of Chancery for his Pardon of Course whereby he may be discharged out of Prison for by the strictness of Law he ought to remain in Prison without Bail until his pardon be procured which Pardon saves not his Goods or personal Estate but only pardons his Offence his violation of the King's Peace which is violated in the loss of a Subject according to the Statute of Gloucester and procures his liberty and discharge out of Prison The words contained in the Writ of Certiorari out of Chancery in order to the obtaining of a Pardon of Grace and removing the Record into Chancery that there the King may see by the Record the truth and nature of the offence according to the Statute of Gloucester being well observed make it very plain that the Special matter of Fact must be found by the second Jury the Jury of Life and Death and which is so suggested in Chancery before the Issuing forth of such Writ as by the Writ more fully appears viz. Quia ut accepimus quòd A. B. indictatus per Inquisitionem patriae compert extitisset quod idem A interfecit praedict C. se def non per feloniam aut malitiam praecogitat unde dictus A. Gaol nostr praedict remiss est ad gratiam nostram iude expectand nos ea de causa super tenor Record process Inquisitionis praed Certiorari volentes vobis mandamus quod si ita est tunc tenor Record pro process praedict cum omnibus ea tangent in Cancell nostram sub sigillis vestris distincte aperte mittatis Observe how this ancient Writ complies with and explains the Statute of Glouc. in this case here is in it Indictatus that is by the Grand Jury and per Inquisitionem patriae compert exâ—itisset that is the Jury of Life and Death for that is the only Trial in our Law by the Country per Patriam and whoever is tried by that Jury posuit se de bono malo super patriam which must be for Felony and Murther the very words of the Statute for this Jury is to find in their Writ that it was se defendendo non per felon aut malitiam praecogitat as it is in the Verdict and observe by the Writ he is not to be discharged out of Gaol before his pardon of Course procured for it is in the Writ Gaol nostrae praed remiss est it seems he was there before ad gratiam nostr inde expectand c. and further observe the Mandamus in this Writ si ita est if it be so that the Offence hath received such a trial by two Juries then Certifie the Record otherwise not and what Judge that doth not truly understand this si ita est which he can never truly do from a Grand Jury will Certifie such a
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
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
Juratores super Sacramentum suum praesentant not dicunt there being as much difference between praesentant and dicunt as betwixt a known truth and the report and fame of a fact done And this will the better appear if it be well observed what Grand Jurors write or Indorse upon the back of those Bills they find for though they Indorse such Bills Billa vera yet they never Indorse upon those Bills they do not find Billa falsa as if one were true and the other false for should they do so it would be like an Accusation against the Prosecutor that prefers the Bill and a great discouragement to the Kings Evidence but they modestly write Ignoramus which signifies to the Court they are ignorant of the matter in the Bill and that they find no cause either from what they have heard from the Witnesses or know of their own knowledge to commend it to a farther Enquiry the Verb Ignoro coming from Ignarus not to know to be ignorant And this doth further evince that the Grand Jurors Presentment cannot properly be called a Verdict because a Verdict doth in Law either convict or acquit which neither their Billa vera nor Ignoramus doth the first is always put to a farther enquiry the last is no acquittal to the party for although there be many Ignoramus's against any person yet may more Bills be preferred against the same person for the same offence for it may be they did not find the Bill in regard some Witnesses were absent or corrupted or the matter in the Bill mistaken happily it may be no Felony but something done in jest or in the nature of a Trespass or a Natural death instead of a Murther or the Witnesses of no Credit or the like But if there be any thing of Truth in the Bill proved to them to make a Crime although not so fully as is laid in the Bill they must not in such case write Ignoramus as if they knew nothing of a Crime as if it be a Murther in the Bill and the Proof reacheth but to an Infortunium or se defendendo or to any degree of unlawful killing they must not write Ignoramus upon the Bill or if Burglary and the Proof makes it but a single Felony and no Burglary they must not Indorse it Ignoramus but in all such cases where they are in any doubt the best way for them will be to advise with the Learned Judge to move the Court for directions therein It is too great a Scandal to a Grand Jury Persons in that quality highly to be esteemed to say that their Ignoramus that is their Ignorance is their Verdict It is very safe for Grand Jurors before they find an Ignoramus to examine every Witness produced but if they have many Witnesses in Murder or Felony if any one Witness induce a strong and pregnant Presumption it is enough without perplexing themselves in hast of business they need not examine any more but put Billa vera unto it If a Grand Jury find upon an Indictment of Murther that A. killed B. what is it to them as hath been said before whether it be Murther or Manslaughter whether it were done Ex malitia praecogitata per Infortunium se defendendo in loco tempore belli or otherwise this is Special matter and Special matter ought to be found when it is at Issue by another Jury and must arise I mean the truth of it super totam materiam of the Evidence or proof on both sides which can never be found and determined by a Grand Jury that hear but one side for very seldom is matter of Fact truly stated in a matter of difficulty by one side and therefore as before is said the Statute of Gloucester provides that every Man-slaughter per Infortunium or se defendendo shall be found per Patriam after the Prisoner hath joyned Issue with the King and put himself de bono malo of good or evil that is either for his Acquittal or Conviction super Patriam to be tried by his Country And the Jurors of Life and Death themselves are not tied as not strictly to the form of an Indictment so not to the whole matter of it not to the form as it was well urged by Sergeant Montague Reader at the Arraignment of the Earl of Somerset for Murther by poysoning of Sr. Thomas Overbury in the Tower who told the Jury That they must not expect visible Proofs in a work of darkness that many things were laid in an Indictment only for form that they must not look that the proof should follow that but only that which is substantial and the substance in that Case must be this Whether my Lord of Somerset procured or caused the poysoning of Sr. Thomas Overbury or not The Lord Coke then Chief Justice and other Judges present at the Trial stood up and said The Law is clear in this point that the Proofs must follow the Substance not the Form that the Law gives forms in Indictments but substance in proofs And yet this was spoken to a Jury of Life and Death who are more carefully to look into Circumstances and Forms because their error is incurable if they Convict a man to lose his life wrongfully than Grand Jurors are And I cannot but further observe in this Case of Sr. Thomas Overbury that which I would have all Grand Jurors and Jurors of Life and Death observe as an Instance to guide them in other Cases of like nature that although it was laid in the Indictment That the ninth of May Anno 11 Jac. Regis Richard Weston who was procured by the Earl of Somerset gave to the said Sr. Thomas Overbury a poyson of green and yellow colour called Rosacre in Broth and the first of June Anno 11 Jac. Regis supradict gave him another poyson called white Arsenick and that the tenth of June Anno 11. supradict gave to him a poyson called Mercury sublimate in Tarts and the fourteenth day of September Anno 11. supradict gave him a Glister mixt with poyson called Mercury sublimate Vt praedict Thomam Overbury magis celeriter interficeret murdraret Et praedictus Thomas Overbury de separalibus venenis praedictis operationibus inde a praedictis separalibus temporibus c. graviter languebat usque ad 15. diem Decembris Anno 11. supradict quo die dict Thomas de praedict separalibus venenis obiit venenatus c. And albeit it did not appear or could appear of which of the said poysons he died yet it was Resolved by all the Judges of the Kings Bench that the Indictment was good for the substance of the Indictment was whether he was poysoned or not and it appeared that Weston within that time aforesaid had given unto Sr. Thomas Overbury divers other poysons as namely the powder of Diamonds Cantharides Lapis Causticus and powder of Spiders and Aquafortis in a Glyster And it was resolved by all the said Judges that albeit all
the said poysons were not contained in the Indictment yet the Evidence of giving them was sufficient to maintain the Indictment for the substance of the Indictment was as before is said Whether he were poysoned or not And when the cause of the Murther is laid in the Indictment to be poyson no Evidence can be given of another cause because they be distinct and other causes So if the Murther be laid by one kind of Weapon as by a Sword Dagger Stilletto Stick Tobacco-pipe Knife Sheers or other like Weapon it makes no difference the Evidence will be sufficient if the party be slain by any of these because they are all under one Classis or cause And afterwards Anne Turner Sr. Gervase Elwys and Richard Francklyn a Physician Purveyor of the Poysons were Indicted as Accessaries before the fact done And it was Resolved by all the said Judges that either the proofs of the poyson contained in the Indictment or of any other poyson although it were out of the Indictment were sufficient to prove them Accessaries for the substance of the Indictment against them as Accessaries was Whether they did procure Weston to poyson Sr. Thomas Overbury or no So that it may be observed here what in the Case above was observed by the Lo. Coke that Jurors were not to expect a direct and precise Proof in every point laid in the Indictment shewing how impossible it were to Convict a Poysoner who useth not to take any Witnesses to the composing of his slibber-sawces neither do other Murtherers to the contriving of their malice and manner of killing another but keep the fire burning in their own bosoms until it break out Nor in all Cases of Murther is it material that express Malice be proved to the Jury of Life and Death though they be to Convict the Prisoner much less or not at all is it material to prove it to the Grand Jury who are but to present it not to the Jury of Life and death in any case where the Law only implies it for such proof is in the Judgment of the Court and not in the Jury which the Jury must submit unto and be over-ruled in much less is this implied Malice to be proved to the Grand Jury for it lies not in the proof of Witnesses but in the construction of the Law as is said before and yet the Grand Jury must find those words Ex malitia praecogitata c. as if they were proved expresly unto them by Witnesses or otherwise the Jurors of Life and Death cannot enquire of the offence as Murther And the Jury of Life and Death in such a Case must find those words expresly although they cannot be proved unto them but are only implied and supplied by Law or else the party accused can never be Convicted of Murther as might be instanced in very many cases take some for all viz. One in prison kills his Keeper and makes an escape where no malice or falling out can be proved a stranger or other person kills a Watchman Constable or other Officer that hath good warrant to stay him though happily there be no cause for his stay being an Innocent person or another person and not the same they intended here 's no Malice yet this is Murther ex malitia praecogitata c. One goes into the Street or High-way and kills the first man he meets although he did never see him before The Father or Mother takes their sucking Child and dasheth out the Brains of it against the wall Two persons are fighting a Duel together upon cool blood upon premeditate malice and a third person comes to part them and is killed by one of them this is Murther ex malitia praecogitata in him that killed him if not in both although neither of them ever saw him before and yet no malice to this man One wilfully kicks or wounds a Woman great with Child whereby the Child is wounded in her she is afterwards safely delivered of the Child the Child alive the wound or bruise by the kick or blow appearing upon the Child mortally whereof afterwards it dies this is Murther ex malit praecog and yet what malice had this man to the Child he never did see Divers persons are unlawfully hunting in a Park one of them kills the Keeper after the Keeper had duly according to his Office admonished him to stand all the rest of the Company although a mile off in the said Park and out of sight are guilty of wilful Murther of the Keeper and yet nothing of malice can be expresly proved One is shooting at a Cock or a Hen and kills another person this is Murther his act was unlawful One finding a Gun or Pistol charged lying upon a Table or other place takes it up into his hands draws up the Cock not thinking it to be charged and in a jesting way gives fire at one in the Room the Gun goes off and kills him this is Murther he had nothing to do to meddle with the Gun it was out of his Calling and none of his he must Jest at his peril A Drunken-man gets upon a Horse which a sober person might ride quietly and in a Fair or Market occasions the Horse to run over another person and kills him this is Murther A gives B the lie with many other provoking words as Coward Thief Murtherer whereupon B strikes A and kills him this is Murther ex malitia c. words are not a sufficient provocation for one man to kill another If one killeth another without any provocation actual of the part of him that is slain this is Murther the Law implieth Malice If a man knowing that many People are coming along the Street from a Sermon throw a Stone over a wall or house intending only thereby to fear them and thereupon one is killed with the Stone this is Murther although he knew not the party slain If A assault B to rob him and in resisting A killeth B this is Murther by malice implied although he never knew him If one meaning to steal a Deer in a Park shooteth at the Deer and by glance of the Arrow killeth a Boy that is hidden in a Bush this is Murther the Act being unlawful though here was no intent to hurt the Boy knowing nothing of his being there If a Woman being quick with Child do wilfully with a potion or otherwise intend the destruction of the Child in her womb the Child being born alive dieth of the potion battery or other cause this is Murther If one keep a Mastiff-dog that is used to bite people near the Common Highway or a Bull or Beast that hath hurt any one after notice they kill any one it will be Murther in the Owner although not present when the fact was done and yet in this and the other precedent Cases here is no express Malice to be proved but what the Law construes to be so which can in no