abuse of it were better care taken in return of Jurors I dare say the trial by twelve would not be more ancient than excellent the Excellency of it appears in the long constant and general use of it amongst the people of England This way of trial to have all their Estates Injuries and Lives tried by twelve men and those Neighbours of our own degree and parity and without exception upon a lawful challenge certainly nothing can be said more for the commendation of it than the constant practice and unanimous approbation of it in England to this day since the first beginning of it The trial by twelve being very ancient though Mr. Daniel and Polydor Virgil deny it to be ancienter than the Norman Conquest But Polydor as says the excellent Sr. H. Savil was an Italian and a stranger in our Common-wealth and so deceived It is of English Saxon descent as by the Laws of King Etheldred cap. 4. thus In all Hundreds let Assemblies be and twelve Free-men of the most ancient together shall swear not to condemn the Innocent nor absolve the guilty It was in use with the French in the Age of Charlemaine They that would see more of this let them read that learned and ancient Book written by Judge Fortescue in commendation of the Laws of England I shall leave this Subject having briefly touched upon the happiness and liberty the Subjects of England enjoy to have their trials for their Estates and Lives per pares by Juries of twelve men what manner of persons Grand Jurors and those Jurors ought to be and of the excellency and antiquity of such trials in the next place after I have shewed the heynousness of Murther both by the Laws of God and the Laws of this Land and made some little parallel therein I shall briefly shew That it is the duty of all Grand Jurors in all Cases of blood touching the death of any reasonable creature by violence or by the hand or act of any other reasonable Creature where the Bill of Indictment is brought unto them for Murther in case they find upon the Evidence any probability that the person said to be killed in the Indictment was slain by the person charged to do it in the Indictment to put Billa vera to that Indictment without foreclosing the Court by judging amongst themselves the points of Law that may arise in that case as whether it be Murther Manslaughter at Common Law or upon the Statute Se def per Infortunium Justifiable or otherwise none of these special matters being to be found by them that are but Inquisitors and Accusers for the King not tryers of the offence hearing but Witnesses on one side and whose presentment or verdict is not final but must be put to Issue betwixt the King and the party to be tried by another Jury whether there be truth in it or no whatever the practice of Grand Jurors hath been of late to the contrary this being the chief aim and design of this Tract I have not met with any amongst Christians and I believe there is none amongst Heathens or rational Creatures but believe whatever their practices are to the contrary that the shedding of Innocent bloud is a great offence a crying sin To take away the life of a Plant is but the vigour in the juyce and the life of a Beast is but the vigour in the bloud but the life of a Man is a spirit and spiritual substance the breath of God breathed into him and not to be extinguished unjustly by the hand of man Certainly vox sanguinis est vox clamantis it is one of the four sins that the Scripture calls Clamantia Peccata Crying Sins that cry to God for vengeance even in this world upon the Manslayer Immediately after the Floud God commanded that blood unjustly shed should be required by the Magistrate of the Manquiller It is within the Magna Charta of God himself and by an Act of Parliament made in Heaven never to be repealed It is enacted that he that sheds mans blood by man shall his blood be shed At the hand of every mans Brother will I require the life of man says God himself God many times allowed of Restitution and other satisfactions in other Felonies but never in case of blood for who can make satisfaction for the life of a Man The first Murtherer that we read of was the Devil who the Scripture says was a Murtherer from the beginning in quantum traxit in peccatum in drawing our First Parents into sin and so to death The next that we read of for the Devil would not be long before he had tempted more to his own sin was Cain that kill'd his Brother Abel and it seems very desperately shed much of his blood in many parts of his body for the word is in the Plural number vox Sanguinum the voice of his Bloods or because the Bloods of the future posterity of Abel that he might have had were shed in him by the Murther of Cain It is true that Cain's blood was not shed by that Law although he kill'd his Brother the World being not then peopled nor that Law then so positively given by God and the example and terrour to others could not then be so great which is oft the great end of punishment ut poena ad paucos metus ad omnes perveniat and therefore Cain was to survive by God's special appointment not by any favour of God towards him but that he might have Gods mark as a Murtherer upon him to the Terrour of all others that should see him What visible mark and distinction this was is but conjectured at some think it was a horrible shaking over his whole body as the Septuagint translate who for Thou shalt be a Vagabond and Runagate read He should sigh and tremble or an exceeding shame and confusion in that he ran from place to place to hide himself or some visible mark in his face as Lyranus thinketh Some Hebrews think it was a horn in his forehead some a letter some that a Dog led him The Scripture is plain that for this Murther he was to be a Fugitive and a Vagabond upon the face of the Earth one as the Text says that went from the presence of the Lord to whom the Earth was accursed and certainly the guilt and shame he carried about him like the bloody Jews that murthered Christ and are to this day Vagabonds over the Earth or those bloody surviving Regicides that murthered the best of Kings yet live with that black mark of King-killing upon them was and is a Judgment greater than death it self as it is in the Psalms Slay them not lest my people forget it but scatter them abroad amongst the people and put them down O Lord our defence And that was the Judgment of Cain who before his natural death some say was kill'd by Lamech who shot in a Bush at
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
a Beast and kill'd Cain And the Turks at this day believe that at the Day of Judgment when the Grave and Hell shall deliver up their dead Cain that Fratricide and murtherer shall lead and be as it were the Captain of the damned in Hell Amongst all the Laws of God which he himself appointed the Israelites his own People when they were to inhabite Canaan the Land of Promise there was not any mercy or City of Refuge appointed for a Murtherer or Man-slayer but only where it was done unawares as several clear Cases are put in Scripture to make this plain 35 Numb 23. v. If one throw a Stone that a man die thereof and saw him not but did it unawares So the 19. Deut. 5. When a man goeth to the wood with his Neighbour mark how strongly this Case is put with his Neighbour his Friend whom he had no unkindness for to hew wood and as his hand fetcheth a stroak with the Axe to cut down the Tree the head slippeth of from the helve and smiteth his Neighbour that he die in these and many such like cases there put he shall flee to the City of Refuge and stay there until the Congregation shall judge betwixt the Manslayer and the Avenger of blood whether he did it wittingly or unawares The Hebrews understand by the Congregation the Senators and Chief Judges of the City and although it were done unawares and so adjudged by the Congregation yet so hainous was the offence of Blood before God though nothing of mans will in it that even such Manslayer was never during his life afterwards to depart from the City until it was so adjudged by the Congregation or until the death of the High-Priest who was a type of Christ that set us all free for if he did depart then the Avenger of blood who was next Kinsman to the party slain might if he met him justifie the killing of him So it is very apparent that before these Cities of Refuge were appointed for mercy to him that had killed another unawares such a Man-slayer might have been killed by the Avenger of blood as well as he that had killed another wilfully and after they were ordained they could not be intended to shew Mercy or to be an Asylum or Sanctuary for any that had willingly wilfully or by a passionate assault killed another If it be objected as what sin or offender is there that hath not his Advocate that it is said in the 19. of Deut. 11. v. But if any man hate his Neighbour and lay await for him and rise against him and smite him that he die and then flie to any of those Cities he shall be fetcht thence and delivered into the hands of the Avenger of blood that he may die Thine eye though the tenderest part thou hast shall not spare him how comely soever his person may seem but thou shalt put Innocent blood from Israel that it may go well with thee If it shall be inferr'd from hence That the Cities of Refuge were ordained for all sorts of Manslaughter but where it was done of malice fore-thought ancient hatred or with a sedate and malicious mind hereby implying that he that kills another upon a sudden quarrel assault or in heat of blood as it is termed might flie to a City of Refuge and find Sanctuary It must needs be upon a very great mistake Nor can the Judicials of God herein put into several plain and illustrating Cases by God himself be reconciled if it should be so understood It is said in the 31. Exod. 13. If a man lay not wait but God deliver him into his hands then I will appoint thee a place whither he shall flie The meaning of the delivering him into his hands must of necessity be understood of such a providence that could not be foreseen and so not possible to be prevented by the Manslayer wherein there could be nothing of his will but purely chance and unawares as in the Cases put before of casting the Stone and killing one he saw not cutting of the wood and falling of the helm of the Axe or Bough from the Tree where many such Examples might be given which the Law of England now sums up in one head or Reason viz. Where one is doing a lawful and justifiable act in his Trade Calling or lawful Recreation and by chance and unawares another happens to be kill'd by him then he shall have a Pardon of course now instead of a City of Refuge as shall be hereafter shewed for it is very plain by express places of Scripture that all other voluntary killing of a man unlawfully found no Mercy no City of Refuge but there the Manslayer was to die by the hand of the Avenger of blood it appearing so before the Magistrate or Congregation As to instance in some few Cases out of Scripture 21. Exod. 12. He that smiteth a man that he die shall be slain for it if any destruction follow there he shall give life for life except it be unawares So in the 16 17 18. v. of the 31. of Numbers If any man smite another with an instrument of Iron that he die then he is a murtherer and the Murtherer shall die for it If he smite him by throwing a Stone that he die he that smote him is a Murtherer let the same murtherer be slain therefore the Avenger of blood himself shall slay the Murtherer When he meeteth him he shall slay him mark the Ingemination he shall surely slay him as it is in the 21. Exod. 12. He that smiteth a man that he die shall die the death that is shall surely die for this doubling of the word importat majorem certitudinem importeth greater certainty and yet in all these Cases not one word of malice lying in wait or enmity It is a general Law He that killeth should be killed again and this Law is grounded upon the Law of Nature for like as it is agreeable to Nature ut putridum membrum abscindatur ut reliqua conserventur that a rotten member should be cut off that the rest may be preserved so a Murtherer is to be killed ne plures occidantur lest more should be killed This Law is given unto Noah Gen. 9. when the World was restored and here it is but repeated and renewed The Laws of other Nations herein consent with Moses The Athenians did severely punish Murther expelling the Murtherer from the Temple of the Gods and from all Society and Colloquy of Men till he had his Judgment And by the Law Cornelia among the Romans He which had killed another with sword or poyson or by false Testimony lost his head if he were of the better sort if of meaner condition he was hanged on the Cross or cast unto Wild beasts that was himself like a Tiger amongst men Simler And the reason of the severity was because Murtherers deface the Image of God in Man
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
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
that had kill'd another by Chance-medly must and yet is to be Indicted Chance-medly being Manslaughter at Common Law Sure in all these cases and all other the like cases of Blood it is most prudent and safe for every wise and conscientious Grand Jury-man that is satisfied there is Blood spilt and the life of a reasonable Creature unjustly taken away by such a person charged in the Indictment rather to presume it probable all other Circumstances may be true as they are laid in the Indictment so far as to make an Accusation against a guilty person then that they are not and so to leave it fairly to the Court to judge thereof and themselves free from the imputation of Blood by concealment and thereby put the whole matter with all its circumstances upon a most legal and impartial Tryal many times that appearing upon Tryal that appeared not before And the reason why a Petit Jury or Jury of Life and Death may extenuate an Offence and make it less than the Grand Jury is because hearing of both sides they may inquire of Circumstances which a Grand Jury cannot Besides as the Lord Coke informs that Oracle of the Law An Indictment is no part of the Tryal but an Information or Declaration for the King and the Evidence of Witnesses to a Grand Jury is no part of the Tryal For by Law the Tryal in that case is not by Witnesses but by the Verdict of Twelve men and so a manifest diversity between the Evidence to a Jury and a Tryal by a Jury If the Indictment were part of the Tryal then ought he that is a Noble-man and Lord of Parliament to be Indicted by his Peers for the Tryal of him ought to be by his Peers but the Indictment against a Peer of the Realm is always found by Freeholders and not by Peers The French word Enditer signifies in Law an Accusation found by an Inquest of Twelve or more upon their Oath and the Accusation is called Indictamentum And as the Appeal is ever the Suit of the party so the Indictment is always the Suit of the King and as it were his Declaration as the Appeal is the Declaration of the party Some derive it from the Greek word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to accuse and as properly may it be called Indictamentum ab indidicando quia aliquid notum facit dicendo he that Accuseth or Appealeth another man or brings his Crime into question indictatus quasi indicatus one that hath his cause shewed out in publick deferre nomen alicujus judicare to Indict is to Accuse or Impeach It signifies in our Common Law as much as accusatio in the Civil Law though it have not the like effect Accusabilis i. e. accusatione aut reprehensione dignus one worthy of Reprehension An Indictment being like the precious Stone of India called Indica which as Pliny notes in rubbing it breaketh forth into a purple sweat So doth an Indictment of Murther which though it seem white and pale in the Grand Jurors hands afterwards by rubbing and pressing hard in Court breaks out into a purple or bloody sweat as my self have very often seen experienced when Grand Jurors have many times made great scruple even to find the Indictment at all what comes from the Grand Jury is more properly called a Presentment For the constant form and words in all Bills are Juratores pro Domino Rege super sacramentum suum praesentant observe they are stiled Juratores pro Domino Rege only nor can they be otherwise for they are to hear none but the Kings Evidence upon his own Declaration And whoever is to advance as the Grand Jurors are but the Interest of one side ought as rationally to be permitted to raise and advance it to the highest pitch that by any reasonable presumption it will bear as the other side have liberty to extenuate it to the lowest degree and mean that art and cunning which in these cases of Blood are seldom wanting can bring it unto the one being upon an Accusation against a criminous person who hath had his hands in Blood and is certainly guilty in truth of something in the crime he is accused of The other only upon his own excuse who can never upon the whole matter excuse himself à toto from the whole Crime of Blood If they are satisfied that it is an Offence against the King's Peace his Crown and Dignity and the life of another person it is enough for them to present the whole matter to the Court as the Court hath directed and advised the Bill to them For every Bill of Indictment that is formally and legally drawn up is presumed to have been seen advised and directed as before is said by the Court and the King's Counsel upon an Information of the Fact taken by them as for the substance of it is meet and fit to be put into such formal and legal terms for the King as it is by the Judges sent out of Court to the Grand Jurors it being a common practice for the Judges according to the matter of Fact to direct upon what Statute and Law and in what manner and form the Indictment shall be drawn and sent to the Grand Jury that if they find only probable matter contained in it of accusation in any kind they may so present it to the Court as their Presentment or Accusation the word Presentment coming from the Latin word Praesentio to smell or scent before praesentire in posterum to have a sense of that which is to come so if they have any sense or smell of Blood in the Indictment it is enough for them to leave it to a further quest of what shall come after the Grand Jurors being like the good Huntsman that observing where the Hare hath lately prickt or the Deer lately struck or hath dropped blood lays in his Hounds and leaves them to make the discovery so indeed should the Grand Jurors do the Jury of Life and Death in Cases of Blood and that the Blood of their fellow Christians And thence likewise the Grand Jurors Presentment is called an Inquisition and themselves Inquisitors from the Latin word Inquiro inquirere quod vulgo dicitur facere Informationem for every Inquisitor is as an Informer a promoter of the Accusation to the Court in the behalf of the King that it may be more judicially enquired into and determined which is much like a Citation of a person into the Ecclesiastical Courts for a publick fame which is either fit to be enquired further into and punished or the party purged or pronounced Innocent or like the Masters of Requests to the King Honourable persons that view all Petitions and Complaints before they be presented to the King and determine what are fit to be presented unto the King and what are fit to be rejected A strong Suspicion and the Fame of the Country may in many cases be Evidence sufficient for a Grand Jury
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
sense be left to the Grand Jury to be judge of But in all these Cases and many more must be ruled and over-ruled by the Judgment of the Court in point of Law Although no Malice in these Cases can be proved to the Grand Jury or petit Jury yet the Indictment must be expresly drawn and so found by the Grand Jury with these words to make it Murther Ex malitia sua praecogitata c. that is that he killed him out of his malice fore-thought not that these words make a new offence of Felony and Murther that was not Felony and Murther before and so esteemed in all Cases where it was done voluntarily and by assault and this appears plainly by the Statute of Marlebridge formerly mentioned 35 H. 3. where it is said Murther from henceforth shall not be adjudged before our Justices where it is found by Misfortune only but it shall take place in such as are slain by Felony and not otherwise By this Statute it is plain that killing one unawares by misfortune was Murther before this Statute and that after this Statute all other killing where it is Felony shall be Murther as before this Statute Felony is a general term which comprehendeth divers hainous offences for which the Offender ought to suffer death and lose their Goods and Lands They are called Felonies of the Latin word Fel which is in English Gall in French Feil or of the ancient English word Fell or Fierce or because they are intended to be done with a cruel bitter fell fierce or mischievous mind So the Statute de Officio Coronatoris made 4 Ed. 1. where the Coroner is well directed his duty where any person is slain or suddenly dead how he should behave himself which is worth his reading It follows in the said Act in these words And if any be found Culpable of the Murther the Coroner shall immediately go to his house and Inventory his Goods Chattels Lands c. as in that Act is further directed I only mention it to shew that all that were found so slain the Coroner was to enquire of it as Murther or otherwise there could be no Inventorying of Goods valuing or seizing of Lands c. or committing the Offender to the Goal by the Coroner as plainly doth appear by that Act. So the Statute of the second of Ed. 6. where one is stricken in one County and dies in another it being doubtful before where the Trial should be gives power to the party concerned to bring an Appeal who had not power to Appeal in that case before of Murther only in the County where the party dies and in that case can bring no Appeal of Manslaughter as in the streightned sense some would take the word Manslaughter by this Statute is declared That where any Murther or Felony which word Felony here cannot comprehend Manslaughter shall be committed in one County and there be Accessaries to the same in another County upon an Indictment found in the County where such Accessaries are guilty the Certificate of the Conviction or attainder of the Principal shall be good to proceed against such Accessaries So that if the Principal be not Indicted of Murther I conceive it is doubtful upon this Statute to proceed to the Condemnation and Judgment of the Accessary in another County for by no congruity can the words or Felony comprehend Manslaughter A Pardon of all Felonies will hardly pardon Manslaughter or be allowed of So in the 4th of H. 7. cap. 13. there are these words in the Statute Whereas upon trust of the priviledge of the Church divers persons have been the more bold to commit Murther c. because they have been continually admitted to the benefit of the Clergy as oft as they offended It is enacted That every one being once admitted to have the benefit of his Clergy if not within Holy Orders shall not a second time be admitted for such an offence And that every person so Convicted for Murther to be marked with an M upon the brawn of the left Thumb and for another Felony with a T. Here it is plain that the word Murther comprehend all manner of Manslaughter all manner of Felonious killing every Murther being Manslaughter and every Manslaughter then as Murther they being Termini convertibiles equally signifying the Genus of Man-killing you may perceive by what hath been said before that Felony cannot comprehend Manslaughter or Murther for here the one is to be burnt with an M for Murther the Felon with a T for Theft both which marks upon the respective Convictions are as I conceive in those Cases by vertue of this Statute observed to this day although we now apply the Letter M to such as the Jury of Life and Death upon an Indictment of Murther from the Grand Jury shall Convict of Manslaughter that is upon the point shall find this Special matter that is to say that there was no Malice expresse or implied in him that killed the other but in a sudden heat of blood occasioned by an actual not verbal provocation in him that was killed This contradistinction betwixt the two words Murther and Manslaughter as I conceive came into our Laws only since the Statute of the 23 H. 8. c. 1. that takes away Clergy that is will not accept of them to be Clerks that kill another maliciously I find not this distinction before either in the Levitical Laws the Laws of God or the Laws of England No Sanctuary or place of Refuge as is said before by the Law of God being allowed for such a distinction but both should have been pluck't from the Horns of the Altar and by our Law in both cases notwithstanding this Novel distinction they were equally admitted to Clergies I mean by the Common Law The said Statute of the 4 H. 7. c. 13. being the first Statute that I find that appoints burning in the Hand for Murther and Felony and takes away Clergy for the Second offence of the same kind where Clergy hath been allowed before and it is observable that in this Statute it is called Murther with or without the words Ex malitia praecogitata not having respect to our Modern distinction which holds only as is said in the enquiry of the Jury of Life and Death who have the whole matter of Fact before them with all the circumstances thereof as it ariseth from both sides which the Grand Jurors neither have nor ought to have Then comes the Statute of the 23 H. 8. formerly mentioned being the first Statute that takes away Clergy for the first offence of Murther called in this Statute Wilful Murther of Malice prepensed this Statute being made to rectifie the great abuse in Ordinaries in suffering notorious Thieves and Murtherers to make purgation and provides That no person which hereafter shall be found guilty after the Laws of this Land of any petit Treason or for any Wilful Murther of Malice prepensed
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
am not of their Opinion That the words ex malitia praecogitata came into Indictments immediately after the aforesaid Statute of 23 H. 8. Certainly there were Murthers committed and that frequently of malice fore-thought before the making of that Statute and those Murtherers had their Clergy also otherwise that Statute had never been made to take it away If the Grand Jurors shall say They will not find those words Ex malitia praecogitata put into the Indictment except the malice be plainly proved to them then farewel that distinction and inference of implied malice which the Law makes in many Cases and which otherwise cannot be made they may as well say That they will not find such words Treason that are Treasonable because no Act of Parliament or express Case at Common Law says those particular words are Treason or that they will find no Indictment of Burglary although the Goods stoln be found with the Thief and the dwelling House broke because no Witness stood by to see the breaking of the House entring into it and stealing thence the Goods Or against a Cut-purse though the Purse or Mony be found in his hand or because none see him take it forth of his Pocket or to find the Indictment because it is laid to be done Vi armis with force and arms and yet said to be done in the same Indictment clam secrete sine notitia privily secretly and without notice of the party which in Fact could not be done if it were done by force or arms Or to find an Indictment of Robbery done upon the High-way against those that rob in Vizards notwithstanding the mony be owned and found about them because the party cannot swear he saw their faces and that these were the men Or that such a one kill'd a man that comes out last from him with a bloody Sword in his hand and no person besides with him In all these Cases it is possible the Parties accused might find the Goods stoln and so might the bloody Sword be sound and another do the Fact but sure here is great and violent presumption sufficient for an Accusation for a Grand Jury to find an Indictment which is but an Accusation upon Record to bring the Delinquent or Party so strongly suspected to a Judicial Trial and as well may it be presumed when one Christian is kill'd by another it may be Murther that there may be a seed of malice in the will of him that did it by a voluntary and spontaneous motion in that act that may upon a greater Debate contain some circumstance in it that by some reason in Law better known to the Learned Judge than the Grand Jurors that may in Law prove malice expressed or implyed in the criminous Person And if it be so difficult in cases of blood for Grand Jurors to determine what is Murther and what is not let them consider how dangerous a thing it is for them to miscarry in their Presentment in cases of blood of innocent blood as is before manifested and so acquit the Murtherer and take the imputation of blood-guiltiness with them from the Assizes to their respective Families where it may and will cry against them and the whole Kingdom for vengeance I do therefore submit it to their serious consideration upon what hath been said Whether it be not much better and a safer way for them to submit their Judgments herein to the Rule of Law and the Resolutions of the Learned Judges than by their extenuating presentment for the Court can go no higher than they present to stifle Justice in the birth and to acquit a Murtherer For the Indictment although no part of the Trial yet is the very Basis and Foundation of all the other Proceedings And let them consider how strict formerly the very Law of England was in King Edward the Second's time in cases of blood where the very will and intent to kill a man although it was not executed was punished for the Deed although the party wounded recovered of his wounds A memorable Case there was in that King's Reign cited by Justice Stamford where one compassed the death of another and did so grievously wound him that he left him for dead but afterwards the party recovered this was then adjudged Murther because his will appeared so plainly to have kill'd him For as Bracton says In maleficiis spectatur voluntas non exitus then was the Will by our Law as it is yet before God reputed for the Deed But now our Law couples the Will and the Act together in cases of blood but looks more upon the Act than the Will For though the Will do neither intend the Act as it is done nor approve of it after it is done yet if the Will in any part of the Act be criminous it makes the Offender in our Law in cases of blood guilty of the whole Fact with all the obliquity and evil in it As if a man intend only to beat another to strike him but not to kill him and the party die of the stroke it may be murther in him that gave the stroke So if three men come to make a Disseisin and one of the three kill a man the other two persons are guilty as principals in the murther although they neither consent to it will it or strike the Party nor came with that intent but only were in company to have done another Act. So if one to kill his Wife give her lying sick Poyson in a roasted Apple and she eating a little of it give the rest to a little Child of theirs which the Husband lest he should be suspected suffereth the Child to eat who dieth of the same poyson this is murther though the Wife recover for the Poyson ministred upon malice prepensed to one which by a contingency procureth the death of another whom he meant not to kill nor bear any malice to shall be as great an Offence as if it had taken the effect which he meant proceeding from a naughty and malicious intent So where two men combat together upon the evil and provoking words of a woman and the one killeth the other the woman in this case was Arraigned of the death of him that was kill'd and in this Case the Grand Jurors found it murther So if an ignorant person take upon him to give Physick to one that is not well and through his ignorance administreth that unto him that apparently kills him this is murther And so it might be instanced in many similar Cases which are not to be disputed by Grand Jurors but presented by them in re forma as the Indictment is advised by the King's Council and comes to their hands where they find as before is said a criminous Party in the Indictment and a Body found of a reasonable Creature certainly or probably kill'd by him although the Evidence be not express to every circumstance of aggravation as it is laid down in