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
kind of voluntary killing for whom there was no mercy by Gods Law as it is in the Margent of the Great Bible Wilful Murther cannot be pardoned without Gods high displeasure Nay as it is more fully in the Text it self Thine eye though the most compassionate sense shall not spare him but thou whoever thou be shalt put away innocent blood from Israel that it may go well with thee Now the putting away of Innocent blood is by revenging it on him that spilt it as it is in the 10. v. of the same Chapter That Innocent blood be not shed in the land which the Lord thy God giveth thee to inherit and so blood come upon thee that is that the Blood of the party slain be not imputed to thee This Imputation of blood which is of more weight than the Imputation of all Adams sin because the command is more immediate and legible to us it concerned all the Israelites in general but more especially doth it concern those chosen by Law to make Inquisition after Innocent blood unlawfully and wilfully shed as principally Grand Jurors are for whose sakes and that the following discourse may fix the better upon their Judgments and thereby make a right impression upon their Consciences to be more circumspect and careful in their Presentments in cases of Blood I have premised as I conceive what was the will and Law of God as he himself hath declared it and left it upon Record to us in his Judicials to his people Israel who received Laws and Judgments from God himself for their whole model and system of Political Government agreeable to which I might add the mind of our Saviour Christ under the Gospel who is the best Interpreter of the Law in bidding Peter put up his Sword and his interpretation upon the sixth Command He that is angry with his Brother unadvisedly shall be culpable of Judgment I shall in the next place endeavour to manifest how parallel the Laws of England have been and are to the Judicial Laws of God in the punishing of Murther and shedding Innocent blood and extending mercy where it is done praeter intentionem unawares and by misfortune or in the necessary defence of a mans own life or property and what Asylum is provided for such and how the course and practice of the Laws of England ought to be in presenting and making Inquisition by Grand Jurors after the same Not to look so far back to find what the Laws were in case of Felony and Murther as to the time of the Saxons Heptarchy in England when the Monarchy had many heads being Bellua multorum Capitum and so for the most part had so many several Laws each Prince either pleasing his own humor or adapting his Laws to the condition and quality of the people he had to govern which as they differed in their qualities and constitutions as much as the several Winds differ the several Climates from whence they blow out of the four Corners of the world from whence many of their Kingdoms were differenced and distinguished by names so did they differ in the nature and quality of their Laws some of the Saxon Kings had excellent Laws as Ina as saith Venerable Bede who flourished in that Kings time The mulct or breach of Peace was forty shillings in the Mercian Law In the West-Saxon Law fifty shillings The punishment of a Free-man was pecuniary and loss of liberty of a slave by whipping Treason against the Lord was Capital and could not be appeased with mony Amongst the Laws of Canutus the King it is said Si quis in Regia dimicaret Capitale esto nisi quidem Rex hoc illi crimen condonarit If any should quarrel or fight in the Kings Palace it was Capital except the King remitted the fault They were unwilling to put any man to death because of lessening their strength being so much divided that for the most part there was an aestimatio capitis a certain sum of mony or Corporal punishment set upon every Murtherer and Felon respecting the quality of the person killed or he that killed him yet amongst them there was strict inquiry after Blood by punishing the offender according to their Laws And to look for it amongst the Danes and their Laws would be to as little purpose for as it is well observed by Mr. Lambert Temporibus vero Regum Danorum sepultum fuit Jus in regno Leges Consuetudines simul sopitae temporibus eorum prava voluntas vis violentia magis regnabant quà m Judicium in terra In the time of the Danish Kings Right was buried Laws and Customes were laid asleep together the depraved Will Strength and Violence did reign and rule more than Judgment in the land Yet to make some amends we have it by good Tradition that good St. Edward the Confessor the last King of the Danes that was King of England yet of Saxon blood Collected out of the Danish Saxon and Mercian Laws an universal and general Law whence our Common Law is thought to have had its original which may be true of the Written Laws not of the Customary and unwritten Laws these being certainly more ancient Some say that Edward the Third before the Conquest set forth the Common Law called the Laws of Edward to this day which St. Edward espoused as his Act and falling last upon the work He carries the name One says King Canute composed our Common Law which St. Edward the Confessor observed This King Edward the Confessor was in his life of that Holiness that he received power from above to cure many Diseases amongst others the swelling of the Throat called by us The Kings evil a prerogative that continueth hereditary to his successors Kings of England to this day the powerful effect whereof hath been most eminently manifested by the Touch of our most gracious King that now is since his happy Return into England upon very many thousands some to my knowledge that formerly derided that occult personal Kingly vertue inherent to the Imperial Scepter of England being of St. Thomas his faith that would not believe except they felt now remaining fully satisfied of the truth thereof from their own experience of the cure upon themselves The aforesaid St. Edward for his holiness charity and good actions was Canonized for a Saint having reigned over England twenty four years The Kings of England at this day in their Coronation Oath taken at the high Altar swear especially to observe and keep the Laws of this St. Edward These Laws so collected by this holy King Edward were by William the Conquerer to whom he had bequeathed this Kingdom of England by Will though afterwards he was forced to get it by the Sword confirmed in these words Hoc quoque praecipio ut omnes habeant teneant legem Regis Edwardi in omnibus rebus as Mr. Lambert hath it inter leges Gulielmi
Dier 59. g Jurato creditur in Judicio And to say the truth saith the Lord Coke we never read in any Act of Parliament ancient Author Book-case or Record that in Criminal Cases the party accused should not have Witnesses sworn for him and therefore there is not so much as Scintilla Juris against it Cok. 3. Inst fol. 79. Finch 25. Case of presentment and Indictment h In ancient time it was usual to Arraign one taken in the manner without any Appeal or Indictment i Doctor Student lib. 2. cap. Abridgment 6 E. 1. 9. 3 H. 7. c. 1. MURTHER 3 H. 7. c. 1. 3 H. 8. 3 H. 7. 11 H. 7. c. 3. k Coke 3. Inst fol. 26. 1. Inst Sect. 194. Fortescue c. 26. 72. Stamford l. 2. fol. 90. l The Judges did advise in drawing the Indictment against Leak 4 Jac. Coke 3. Inst Tit. Treason fol. 16. m Bracton 's Order in le Suspicion ou Endictments del Felons lib. 3. cap. 22. paragr 1. fol. 143. Stamf. fol. 97. v. Mackally's Case li. 9. fo 67. n Murther is a wilful killing of a man upon malice forethought but this must either be expressed in proof or implied by Law it seemeth to come of the Saxon word Mordren which so signifieth and Mordridus is the Murtherer even to this day amongst them in Saxony from whence we have most of our words Or it may be derived of Mort est dire as Mors dira Terms of the Law title Murther fol. 207. o Si sit aliquis qui mulitrem pregnantem percusserit si puerperium non formatum vil animatum fuerit maximè si animatum fecit homicid Stamf. fol. 12. In this fol. you shall find Justice Stamford using the words homicid murdrum as signifying the same v. Stamf. fol. 21. c. 13. Coke li. 9. fo 67. 6. in Mackally's Case 3. Inst fol. 57. 3 Inst fol. 56. 22 Ed. 3. Coron 263. p Murther is interpretative in the Law and not to be left to Grand Jurors opinions q Aliquando vero clanculum nemine vidente ita ut sciri non possit quid sit actum hujusmodi homicidium dici poterit Murdrum Stamf. 6. 1. fol. 12. Hales Petty Case in his Comment Terms of the Law Felony 160. fol. 4 Ed. 1. 2 Ed. 6. c. 24. 4 H. 7. c. 13. r When Clergy began appears not by any Common Law book it takes its root from a Constitution of the Pope that the Priests should not be accused before a Secular Judge Co. Magna Charta 636. It hath been confirmed by divers Parliaments and so favourably used by the temporal Judges that it hath been allowed to all Lay-men that could read which is more than the Common Law requires Stamford fol. 123. The first that mentions this Priviledge at Common Law is Bracton that wrote in the time of King Henry the Third Bracton lib. 3. fol. 123. The next is the Statute of Westm 3 Ed. 1. c. 2. By the Popes Constitutions the Priviledge of Clergy extended to all Offences whatsoever and the Prelates of England by Colour thereof did claim the same as generally vide 9 Ed. 2. Articuli Cleri Yet within this Kingdom Clergy was allowed only in Cases of Murther petty Treason and Felony not in Treason against the King himself 23 H. 8. c. 1. s That is voluntary and of set purpose though it be done upon a sudden occasion for if it be voluntary the Law implieth Malice Coke 3. Inst fol. 62. t Within five years of the time of King Henry the Second there were above a 100 Murthers by Priests and men within Holy Orders u The Exemption of the Clergy taken away by the Laws of Clarendon Graft 1187. Cok. lib. 9. 69. Plow Com. 101 22 H. 8. c. 19. 22 H. 8. c. 14. 25 H. 8. c. 3. 28 H. 8. c. 1. 32 H. 8. c. 3. 1 Ed. 6. c. 12. Poysoning murther although no malice be proved 2 Ed. 6. c. 24. Cok. l. 9. f. 117. 5 Ed. 6. c. 9. This is not much pertinent to this purpose but that it takes away Clergy and relates to several Statutes before mentioned concerning murther 5 Ed. 6. 25 H. 8. c. 3. 1 Ed. 6. c. 12. Cok. l. 11. f. 31. Stat. 2 3 P. M. c. 17. Stat. 4 5 P. M. c. 4. Dier f. 183 186. Cok. I. 11. f. 35. 1 Jac. c. 8. 21 Jac. c. 27. 1 Jac. c. 8. 21 Jac. c. 27. x Note this here the Grand Jury find as it is laid in the Indictment by the Kings Counsel that the Child was born alive although they have not the least Evidence for it and yet I trust they are not forsworn y Sir Wadham Windham Kt. one of the Justices of the Common Pleas. z The name of Murther was not changed but the Law retains it continually for the heinousness of the Crime Stamford fol. 19. If not the name then not the words that make it so 23 H. 8. Stamf. fol. 17. Pl. Coron Tit. Coron Fitz. V. 15 Ed. 2. p. 383. Vid. Tit. Memorat p. 331 350. Hales Petit Case le Com. 261. a. 18 El. Pl. 474. 22 H. 8. c. 14. made perpetual by 32 H. 8. 3. Brook Challenge 217. 33 H. 8. 1 2 Ph. Mar. Hil. Ja. R. Stamford lib. 2. fol. 149. Poulton De Pace fol. 211. 4 Ed. 4. 11. 14 Ed. 4. 7. 6 H. 4. 2. No Forfeiture but of Goods Fit Esch 19. Coke 3 Inst fol. 27. 6 H. 8. c. 6. Stamf. fol. 157. 23 H. 8. c. 13. Every Manslaughter is Felony but not e converso 27 H. 8. c. 25. 1 2 Ph. Mar. c. 13. 23 H. 8. c. 12. Kel fol. 98. 23 H. 8. c. 1. Stamf. fol. ult 6. Coke 3 Inst fol. 18. Stamf. Pl. Cor. 63. 26 Ass p. 52. Coke 3 Inst fol. 53. v. 3 4 Ph. Mar. Justice Dalison 's Rep. Stamf. Pl. Cor. 160. 8 H. 6. c. 29. Stamf. Pl. Cor. 160. 2 H. 5. c. 3. Sr. W. Stamford Kt. one of the Justices of the Common Pleas.