of this Tract I have only this to say That it is no more than I have accused my self for and did endeavour to have abstracted and omitted much of it but when I began to do it I was overcome by these Considerations That it was the first Essay of this kind that had been written as a Book That it was not like to meet with all Readers of like Capacities some perhaps might gather much out of a little whereas others would gather but a little out of much and the whole not of many hours reading which might be worse spent and therefore was willing to leave it as I had first framed it although I exposed my self to be censured for it And because Grand Jurors put so great an Obligation upon the Oath they take as Grand Jurors and from that as they conceive frame so strong an Objection That they are sworn to present all such things and matters as shall be given them in charge and that the Judges usually in their charges dilate and declare the Law as to all the several Species and Degrees of Murther Manslaughter c. what every unlawful killing of a man is in Law according to the several Circumstances of the Fact and therefore they as Grand Jurors are bound by their Oath to observe the Circumstances of every Fact before them what it is in Law as well as in Fact and so present to the Court both the Law and the Fact Judice inconsulto This being the greatest Objection that I have heard from any of them against what is here Asserted although something is said as to this Objection in the ensuing Discourse I shall here add something more to clear the point and answer fully that Objection by setting down the Oath of a Grand Juror in terminis as also the Oath of a Juror of Life and Death and explain them both You shall diligently inquire and true presentment make of all such things and matters as shall be given you in charge or shall come to your knowledge concerning this present Service The King's Counsel your Fellows and your own you shall well and truly keep secret You shall present nothing for malice or evil will you bear to any person neither shall you leave any thing unpresented for love favour affection reward or any hopes thereof but in all things that shall concern this present Service you shall present the truth the whole truth and nothing else but the truth So help you God In the first place you see by the Oath they are sworn to be diligent in their Inquiry not to be sloathful or negligent being quickned by their Oath this diligence is to be exercised in an Inquiry and this Inquiry is to be made amongst themselves in what they know of their own knowledge or shall be brought unto them by the Testimony of others As to the matter of their Inquiry which next follows in the Oath and from which they frame their main Objection viz. all such things and matters as shall be given them in charge these words are general things and matters and certainly in the clearest Vnderstanding are intended the general Heads of all Offences by them Inquirable As all Murthers and that comprehends all manner of unlawful killing All Felonies and that comprehends all manner of stealing and so of other general Heads of Offences here Inquirable as Perjuries Forgeries Misdemeanours c. although the Learned Judge where he hath time and leisure doth in his Charge when he speaks of Murther declare the several Species and Differences in that Offence by Law and so of Felony the several manners of Felonies simple and compound And so of other Offences the words of the Oath so much insisted upon by them do no way oblige them by reason of such a Charge to determine by their presentment every nicety in Law that may arise upon every Fact before them otherwise than in that form and matter according to the nature of the Case the Court and the King's Council have framed and presented it to their Inquiry where the single Fact of unlawful killing another c. by the hands of such a one is proved unto them so far as in their Judgments it is fit matter of Accusation to bring the whole matter of Fact and all that may depend upon it to a farther and more full examination as is more fully manifested in the ensuing discourse for should the Judge only give them general heads of Offences in charge as he well may and many times doth without distinguishing the several kinds of them the Grand Jurors would then want a ground for this Objection besides I have ever taken it that not only that which is orally delivered unto them by the Judge but that also that is delivered unto them from the Judge in writing to be by them enquired of is part of their charge and that is every Indictment that is presented unto them or other matter in Writing commended by the Court to their Enquiry The Justices in Eyre that formerly were Itinerant over the Kingdom in whose rooms these Learned Judges succeed ever giving their charge and whatever was enquirable by the Grand Jurors in writing which if so understood as I know not how it will be avoided they are then by their Oath to present all such things as shall be given them in charge and so every Indictment of Murther delivered by the Court unto them is to be found by them where as hath been often said the unlawful killing is so far proved unto them as to make up an Accusation Then it follows in the Oath The Kings Counsel their Fellows and their own they shall keep secret By the Kings Counsel is to be understood any directions the Judge shall in Court give unto them in any matter before them as also the Evidence of Witnesses that shall be produced to them on the Kings behalf in any fact for no other Witnesses must be heard by them and likewise such Counsellors learned in the Law as shall manage the matter on the Kings behalf for no other Council is to be heard by them against the Bill none of this must be revealed or discovered by the Grand Jurors but faithfully kept secret according to their Oath from the party concerned his friends and all others except the Court demand any question from them upon their Evidence so likewise must they keep their Fellow Jurors Counsel and their own that is they are not to discover what any one of themselves have together counselled advised or debated in the business before them against such a person They are the Kings great Council upon this account and all such great Councils where the King is so much concerned take an Oath of Secrecy for otherwise by revealing such Counsels a Traytor a Murtherer and the greatest Felon may escape to the endangering of King and Kingdom and this offence in ancient time was holden for Treason or Felony In George's Case in Anno 27. lib. Ass
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
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
which would be against the Laws and liberty of the Subject And therefore the Grand Jurors have the greater reason to enlarge in their Declaration or Accusation for the King as in all Declarations at Law is usual as far as the Law will heighten all offences in Blood since the other Jury have so much liberty to lessen the damages and extenuate the Crime whatever the Accusation is Now upon what I have written in this Preface and the Book I am not ignorant how much I have subjected my self ad captum Lectoris to the various censures of the several Readers especially such as use to serve or may serve on Grand Juries Gentlemen I know of the best quality next to the Peers of the Realm and in which Employment for their King and Country it is an honour to serve And I hope it will be no dishonour nor indignity to any of them to entertain or at least to peruse this Advice how they may with the greatest prudence and fidelity pass through an Enquiry after Innocent Bloodshed when they are called unto it and leave nothing therein of this Crying Sin to be repented of that it was not fully Enquired of by them that so their exact care and Justice may keep themselves secure from the guilt of Innocent blood I doubt not but it will meet with some Readers so possessed with the contrary Opinion by an erroneous practice or misunderstanding of the Laws and of the Grand Jurors Oath that so soon as they read the Title will cast away the Book and cry a Paradox Others happily more unbiassed in their Opinions and of more moderation and ingenuity if they dislike will publickly confute it with stronger arguments and grounds of Law and Reason and better experience in point of practice and so determine the point and in that I shall have my end I am very certain that I entred not upon this Subject with an offensive mind but cum moderamine inculpatae tutelae not with a direct design to kill any but rather to fright weaken and drive away that Daemon of Passion in man to commit Murther and to give the best advice to Grand Jurors in Cases of Blood A small thing oft times hath the power to redress a great Inconvenience yea to take up a cruel Feud as Virgil saith of that of Bees when they are actually engaged in battel Hi motus animorum atque haec certamina tanta Pulveris exigui jactu compressa quiescent ADVICE TO Grand JURORS IN Cases of Blood IT is the great happiness freedom and liberty of the English Nation that in all common and ordinary Trials of offences Criminal and Capital as Treasons Murthers Felonies and Misdemeanors each Freeman and so are all the people of England as to this shall receive his Trial per pares by his equals which is well provided for by the great Charter of the Liberties of England in these words No Freeman shall be taken or Imprisoned or disseised of his Freehold Liberties or Free-customes nor be Outlawed banished or in any manner destroyed c. but by lawful Judgment of his Peers or by the Law of the Land This Chapter of Magna Charta is partly repeated in a later Statute and there Law of the Land is expounded Indictment process by Writ original and course of the Law Another Statute recites it and instead of the words Law of the Land puts in Process of the Law as equivalent and Synonimous signifying the same thing And again a Statute of that King says No man shall answer without Presentment before the Justices or matter of Record or by due Process and Writ original according to the old Law of the Land as it is well observed by the Lo. Cook that Oracle of the Law In pleas of the Crown and other Common offences and Nusances the King cannot in an ordinary way put any man to answer but he must be apprised by Indictment or other matter of Record For by the Law of the Land a Felon or a Murtherer cannot be convicted or attainted though he confess the Felony or Murther until a grand Jury have presented the offence nor can any person generally and ordinarily be convicted or attainted or have Judgment of life or Member upon any Criminal accusation but there must be two Juries pass upon him at least 24 persons the one a Grand Jury ex parte Regis to present the offence fit for a trial the other a petit or lesser Jury inter Regem personam accusat to try the truth of that Presentment The Grand Jury coming from all parts of the County the other Jury of the very neighbourhood de vicinetto where the offence was committed for vicini vicinorum facta optime praesumuntur scire and so in probability of Law are presumed to know something experimentally besides what they have by Testimony both of the quality of the person truth and nature of the offence with all its circumstances and happily the credit of the Accuser and his Witnesses It is not sufficient that they dwell in the County but they are to be of the Neighbourhood nay le plus procheins to the place of the fact as by Artic. super cap. 9. it is appointed They must be most near most sufficient and least suspicious ibid. The first being called a Grand Jury or a Great Jury either in respect of their number being above twelve the general certainty of all other Juries and may be as many as the Court please but usually exceed not 23 and in good prudence when there is much or weighty business there ought not to be a lesser number for if there be less or more they may be so divided that there can be no verdict as by experience hath been observed for less than twelve agreeing cannot make a Legal verdict Or they are called Grand in respect of the quality of their Persons and greatness of their Estates ability of their Judgments being of good Education or lastly which I conceive the best reason that propter excellentiam they are styled Juratores pro Domino Rege pro Corpore Com. Jurors for our Soveraign Lord the King for the County of S. and as the Commons in Parliament are to the whole Kingdom they have an unlimited power to present all offences committed in their County that are contra Pacem Coronam dignitatem Regis against the Peace the Crown and dignity of the King against either Statute or Common Law they being the great and grand Spring or Primum mobile of the Court that gives motion to all the other wheels their Presentment being the key that either opens or shuts the proceedings of the Court in every offence And therefore it is that the Law of England takes care that as well the Grand Jury as the other Jury consist of persons that are probi legales homines good and lawful men each man must be probus quasi probatus an approved honest man vel
a Graec. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 qui progredi possit praegredi debet he that will go on in vertue certainly ought principally to be chosen to attend the Courts of Justice It is called Justitia quasi juris statio vel status quod per Justitiam jus stat i. exercetur It is called Justice because it is the Standard of Right misera servitus ubi Jus vagum Justice being one of the Cardinal vertues ought to be attended by none but the virtuoso the most vertuous pious and ingenuous persons probi signifying not only faithful but skilful none can be presumed to be faithful in keeping an Oath that wants skill to know how to perform his duty What expectation can there be of a good Verdict from a bad or ignorant man Can he that is not capable to understand a Cause ever make a right Judgment of it Will a Liar present a truth a Thief convict his fellow thief a Man of blood a Murtherer or Who can expect Justice from him who neither to his God nor to himself is just or true He that believes Judges are quasi Dei Gods as the Scripture calls them or that God sits amongst and is present with Judges in Judgment as in the Scripture sense it is truth and ought to be believed cannot but apprehend how unreasonable it is to bring such a Jury before such a presence to act in a concernment of so high a nature as the life of a Man whose verdict ought to be veredictum a true saying quoddam Evangelium as the Gospel they swear upon dictum veritatis the saying of Truth it self especially as it is the verdict of the Jury of life and death who have the advantage of hearing not only the Accuser and his Witnesses but also the party accused and his Witnesses face to face They are called although a Petty Jury yet a Jury of life and death which the Grand Jury are not although they enquire of the same offence from the great power in their hands to acquit or condemn the life of a man according to their evidence Upon whose verdict the Judge according to Law grounds the Judgment of life or death of acquittal or condemnation and as a Jury may give a just verdict as to themselves upon a false Testimony given to them so may the Judge as to himself give a just Judgment upon a false verdict given by the Jury For as the Jurors are excusable that give their verdict secundum allegata probata per sacrum Testimonium by what is alledged and proved to them by the Oaths of Witnesses or confession of the party even so that Judge is excusable in foro Conscientiae that gives Judgment upon a verdict though false for he doth not therein Jus dare but Jus dicere secundum veredict Jur. upon the verdict of the Perit Jury and presentment of a Grand Jury and this is fully verified in two remarkable Cases noted in the Margent a sufficient caution to all Judges not to try any for Murther where they have not an infallible evidence of the death of the party slain And as every Juror ought to be probus homo an honest and a skilful man so ought every one to be legalis homo a person so qualified that the Law allows of for a man may be an honest prudent and just man and yet in the eye of the Law not a lawful Jury-man for in one sense he is not legalis homo that is not ligeus subditus Dom. Regis Angliae for the Law provides that the Kings Liege people shall be tried per pares by their equals their fellow Subjects In a proper sense he is said in Law not to be legalis homo that is homo utlagatus an outlawed person one that is extra legem positus who is no better than one that is extraneus an alien a stranger one not only put out of the protection of the Law but such a one as the Law will have nothing to do with as he so stands in Courts of Justice to serve as a Juror nay such a person being a Juror will make the verdict void and it is a good exception in arrest of Judgment that any of the Jurors were outlawed But in a larger sense he is not legalis homo such a legal and indifferent person as the Law requires who is either in such a degree of blood to the prisoner as the Law presumes him partial or in such an evil reputation as the Law presumes him unjust for as it is not fit for a Father to be of a Jury to try his Son or the Son the Father Brothers Uncles or near Relations to try one another so it is not fit that he that is particeps criminis or indeed criminalis homo a man that stands judicially accused indicted convicted or attainted for Felony to try another for Felony or indeed to be a grand Juror to present it the Law provides that each Juror ought to be a person rectus in Curia that stands right in Court above and against all natural rational and legal exceptions Qui accusat integrae famae sit non criminosus for certainly to clear the matter of fact as a Juror of life and death and wisely to discern the Cause in question upon a doubtful and perplext Evidence many times requires as great ability in the Jurors of life and death as in the Judge to examine the cause and to give Judgment upon the Verdict there being much more of Black-art used to darken and obscure the truth of the fact in cases of Bloud amongst the Jurors especially if either a great Person or rich be concerned therein than possibly can be to prevent or prevaricate a right Judgment in the Judge or by any dust of gold power or favour to put out his eyes or falsifie his clear sight who sits every way above such a temptation The Jurors of England especially in the Circuits with their unequal yoke-fellows the Tales-men are for the most part the very scandal of the Laws practical of England who seldom serve but to serve a turn to obey a Superiour pleasure a Friend or to help away in a hurry a quick dispatch of practice This fault is not in the Laws of England but the male execution of them The Statute of the 27 Eliz. c. 6. provides that each Juror should have at least four pounds per annum in Lands Tenements or Rents and this must be their sufficiency where the debt or damages or both together amount to forty marks The general course of the world being to esteem men according to their Estates Quantum quisque sua nummorum servat in arca tantum habet fidei Jurors that have Estates to lose will be afraid to commit perjury The best things abused alwaies prove the worst the sweetest Wine makes the sharpest Vinegar not that the fault is in the Wine but in the use and
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
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
differences betwixt them yet all was reconciled and they good friends again and this only a casual and sudden difference betwixt them upon a new occasion and exceedingly provoked unto it by him that was slain so that we cannot be satisfied to find it Murther in any of these cases being upon our Oaths to make true Inquiry and if we find not the malice being matter of Fact another Jury cannot try it Besides we have former practice of our side other Grand Jurors have had and taken the same Liberty and why should not we The Judges likewise in their Charges inform us of all the specifical differences in Manslaughter which we conceive they intend we should take notice of as it comes in proof before us in our Inquiry This I conceive is as much as Grand Jurors have said or can alledge for themselves where they are not positively partial and go clearly against their Evidence why they do not or will not for such is some of their Language find it Murther in all Cases as the Court directs and as the Bill of Indictment is drawn and sent to them as the King's Declaration To satisfie these reasonings and mistakes though sufficient hath been said already to satisfie a wise and sober Grand Jury-man especially in a Case of Blood which can never receive too strict an Inquisition by a Grand Jury the first Inquisitors of it in Court let them observe that neither themselves nor the party accused can be prejudiced by what they shall so find be it never so high First not themselves they do but present a probable Accusation no Conviction against such a person that hath had his hands in Blood hath kill'd a man is Vir sanguinis And here certainly it will be the best satisfaction to Conscience and that is the best Friend we can satisfie to have all the Circumstances of the Fact as they are laid in the Indictment to be more judicially and circumspectly examined sifted and tryed out by another Jury by a Learned Judge in a publick Court to the parties face where the King's Witnesses and the party himself and his Witnesses may be fully heard and the whole matter fully tryed and debated which cannot be done in a Grand Juries Chamber but is altogether stifled and obstructed if the Grand Jurors suffer it not to come to this Judicial Test and Tryal but shall put out the words Ex malitia praecogitata or otherwise alter the King's Declaration and Indictment which already hath had proceedings in it and that in Court of Record where it hath been advised by the Kings Council upon perusal of Informations and Examinations from Justices of Peace or Coroner in that Case certified to the Court and upon hearing the Prosecutor and his Witnesses and so drawn and presented to the Court Witnesses sworn to it and Indorsed Jurat in Curia sworn in Court and so become something more than an ordinary Declaration or Writing in Parchment to be altered by any without advice or direction of the Court for if it might be so the King's Council and their Advice together with the Judges in such Cases would signifie very little in drawing or advising any Indictment of Murther if Grand Jurors in their Chamber may from their own advice alter it as they please the Judges themselves being as well concern'd in Conscience to do right to the Prisoner and Party accused as Grand Jurors can be And also admit that the Witnesses shall inform the Grand Jury that it was a passionate and sudden falling out or that it was done unawares or in his own defence it is but what they apprehend it to be they can inform but what they saw or heard or believe they are in the Affirmative only and can prove but for that instant the Fact was done they dare not swear that there had been no falling out before and as they cannot or haply will not prove an express malice so neither can they swear that there was none at all or not such a malice as the Law implies neither can the Witnesses judge in all Cases what is Manslaughter at Common Law what upon the Statute what per Infortunium what se Defendendo what is Justifiable or what is Murther neither indeed in all these Cases can the Grand Jurors nor is it convenient for them to judge of all the specifical differences each Circumstance may so much alter a Case and will they then by their uncertain Judgments in case of Murther conclude and preclose the Court and determine the Law that this Fact of Blood shall go no higher than they please to adjudge it as in the case put of a Child that kills another not the Grand Jury who see not the Child but the Court and the other Jury shall inspect the Child shall judge whether the Child could do such an Act felleo animo ex malitia praecogitata and so be guilty of Malice and Murther the Court and not the Grand Jury being to judge an malitia supplebit aetatem whether upon hearing him speak he may be thought capable of malice as some at more tender years are than others so in the case of a Fool or a Lunatick a Dumb or Deaf person so in the case of a Reconcilement after a falling out and then a killing can either Jurors or Witnesses or any that hears but one side state the case aright or judge whether the Reconciliation were perfect or not so as to take away all the seeds of malice revenge or discontent And Mr. Justice Stamford sayes That those that are Dumb and Mute and Infants shall be discharged upon Arraignment Which shews that they are to be Indicted of Murther But how shall they be Arraigned when they cannot hear or speak and plead I conceive by the Inspection and Judgment of the Court upon their Arraignment I mean upon the Indictment found by the Grand Jury which plainly shews that the Judges not the Grand Jurors are Judges of the Law and of what shall be Murther So in the case of killing a Thief that attempts to Rob or commit Murther which is justifiable this must judiciously and certainly appear so upon the Tryal that the Court may judge whether there were an intention to Steal or to commit Murther or Rape and not let such a Surmise only That there was no such intention lead the Grand Jury to acquit him when haply there was such intention And the Statute of the 24. of H. 8. saith That the Party so Indicted or Appeal'd of such Offence for killing a Thief or one that intended to Murther by Verdict so found and tryed shall not lose or forfeit Lands or Goods but shall be discharged as one acquit of Felony and none can be acquit of Felony that is not tried for it the doubt being before this Statute Whether he should forfeit his Goods and Chattels as one that kill'd another by Chance-medley So that there was no doubt but such a one was Indicted of Murther before this Act as one
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
Felony whereupon he is so Arraigned not guilty and thereupon had been found guilty after the Laws of the Land Upon the penning of this Act it seems clear that all Indictments for the unlawful or wilful killing of any person ought to be made Murther as they were formerly before this Act. For if the Prisoner should be Arraigned upon an Indictment only of Manslaughter according to the now distinction of Manslaughter and upon his Arraignment should stand mute not Answer directly or challenge peremptorily whereby he could have no Tryal it would be a great question Whether he could have Judgment upon this Act The words are petty Treason wilful burning of Houses Murther Robbery Burglary or other Felonies For as it is not named here by the term Manslaughter so it cannot with any congruity be comprehended under any of those Heads Not under the general Head of other Felonies after the commemoration of so many several Felonies next before as Burning of Houses Robbery Burglary and other Felonies must needs be intended of such like Felonies or Thefts And what Judge in case of Life and Death will proceed upon such a moot point or rather a clear Case to the contrary to give Judgment and Sentence of Death upon any by this Act of Parliament Then comes the Statute made in the 28 H. 8. c. 1. and rehearseth all these former Statutes viz. 22 H. 8. 23 H. 8. and the 25 H. 8. and continues them all until the next Parliament and provides further That such as be within Holy Orders shall be under the same pains and dangers that others be all within Holy Orders being by the 23 H. 8. excepted in Cases of Murther petty Treason and Felony from the pains and dangers that Lay persons suffered for such offences It seems those in Holy Orders then began to lose their esteem as appears more fully in the ensuing Act which perpetuates the former Acts. Then comes the Statute made in 32 H. 8. c. 3. and rehearseth the same Acts again and makes them perpetual and Enacts That all persons within Holy Orders which by the Laws of this Realm ought or may have their Clergy for any Felonies and shall be admitted to the same shall be burnt in the hand in like manner as Lay Clerks in such Cases and shall suffer all such pains dangers and forfeitures as Lay persons in like Cases Then comes the Statute of the 1 Ed. 6. and after it hath declared what Acts shall be Treason declares what Offences shall be outed of Clergy viz. Such persons as in due form of the Laws shall be attainted or convicted of Murther of malice prepensed of poysoning of malice prepensed of breaking of any House by day or by night any person being put in fear robbing any person in or near the High-way felonious stealing of Horses Geldings or Mares or for felonious taking of any Goods out of any Parish Church or other Church or Chappel all Offenders in any of these Cases shall be excluded of the benefit of Clergy whether they be convicted by Verdict Confession or stand Mute c. and that in all other Cases of Felony Clergy may be allowed Here is no mention of petty Treason burning of Houses and Barns with Corn and Accessaries before to be outed of Clergy as is in the 23 H. 8. c. 1. So that it seems after the making of this Act they might have had their Clergy the new Offences added to this Act to be outed of Clergy that were not in that Act of 23 H. 8. are only stealing of Horses Geldings and Mares And by this Act Poysoning is made Murther although no malice be proved and Clergy taken away Then comes the Statute of 2 Ed. 6. and this Statute gives remedy in several Cases of Murther and Felony where there was none before at Common Law As first where one is feloniously stricken in one County and dies thereof in another Secondly where one is Accessary in one County to a Murther or Felony in another County before this Statute no sufficient Indictment in any of these Cases could be taken in either of the said Counties for that by the custome of the Realm the Jurors of the County where such party died of such stroke would take no knowledge of the said stroke being matter of Fact in a forreign County although the said Counties and Places adjoyned very near together nor the Jurors of the County where the stroke was given could take knowledge of the death in another County although such death most apparently came of such stroke so that such Offence and the other Offences before mentioned for the like reason remained unpunished and such Murther could not be proceeded against either by way of Indictment or Appeal Now this Statute provides That an Indictment found by the Jurors of the County where the death shall happen whether it be found before the Coroner upon sight of the dead Body or other Justices that shall have power to inquire of such Offences shall be as good and effectual in Law as if the stroke and poysoning had been committed and done in the same County where the party shall dye or where such Indictment shall be found And likewise provides That such Party to whom Appeal of Murther shall be given by the Law may commence take and sue Appeal of Murther in the same County where the same person so feloniously stricken or poysoned shall dye as well against the Principals as against every Accessary to the same Offences in whatsoever County or Place the Accessary or Accessaries shall be guilty of the same And doth further provide That where any Murther or Felony shall be done in one County and another person or more shall be Accessary or Accessaries in any manner of wise to any such Murther or Felony in any other County that then an Indictment found or taken against such Accessary or Accessaries upon the Circumstances of such matter before the Justices c. where such Offence of Accessary shall be committed shall be as good in Law as if the principal Offence had been committed in the same County where the same Indictment against such Accessary shall be found Here it may be observed That the Appeal given by this Statute to the party where one is wounded or poysoned in one County and dies thereof in another must be an Appeal of Murther otherwise it will not lye either against Principal or Accessary by the words of this Statute So in case of an Indictment where it is said in this Statute where any Murther or Felony shall be committed in one County and the Accessary be in another County here the word Murther must be one Species and Felony that is Thest another viz. carrying of stoln Goods into another County So that the Indictment in this case against the Principal must be Murther or the Accessary thereto is not tryable in another County and there must be a Certificate of such Conviction or Attainder of the
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
the Indictment whereby to bring the Party and his Offence of Blood to a full Trial by a second Jury which otherwise can never be done neither the Law therein known from the Court in such a Case Besides many other Inconveniences and doubts may arise where the Grand Jury find the Bill of Indictment only Manslaughter which by finding of it Murther would be prevented as in challenging upon his tryal above the number of twenty Jurors the Statute of the 22 H. 8. c. 14. reduceth peremptory challenge upon an Indictment or Appeal which at the Common Law was allowed to the Prisoner to challenge thirty five Jurors which is under the number of three Jurors this Statute so provides That a Prisoner shall not now in Petit Treason Murther and Felony challenge above twenty Jurors without shewing cause And in case of Treason and misprision of high Treason it was taken away by the Statute of 33 H. 8. but now by the Statute of 1 2 Phil. Mar. the Common Law is revived for any Treason the Prisoner shall have his challenge to the number of 35 and so it was resolved by all the Justices upon conference between them in the Case of Sir Walter Rawleigh and Geo. Brooks By this Statute it is plain that if one be Indicted or Appealed for Murther and challenge above the number of twenty Jurors peremptorily without shewing cause it shall be a Conviction of the offence and Capital but it is a great quaere whether he that is Indicted or Appealed only for Manslaughter which is not named in this Act nor can be rationally comprehended in the word Felony more than Murther might have been may not challenge thirty five Jurors as at Common Law so it may be a quaere where the Prisoner Indicted only of Manslaughter shall stand mute or will not answer directly to the Indictment whether notwithstanding he shall not have his Clergy for the Statute of the 1 of Ed. 6. c. 12. and other Statutes that take away Clergy from such offences and Offenders as are therein mentioned take it away as well from such as stand mute answer indirectly or challenge peremptorily above the number of twenty as from those that are convicted by Verdict or Confession upon their Arraignment otherwise such as stand Mute answer indirectly or challenge peremptorily might have had their Clergy as the Act seems to imply otherwise it had not taken Clergy away in those cases The Judgment of Paine for t dure that is Pain grievous and durable was not at the Common Law but ordained by the Statute of West 1. made Anno 3 Ed. 1. whereby it was enacted That notorious Felons openly known of evil name who will not put themselves upon Enquests of Felonies which men do prosecute at the Kings suit shall be put in hard and strong Prison as they which refuse to be tried by the Law of the Realm but this is not to be intended of Prisoners which be taken of light Suspicion By which Statute it doth appear that none shall be judged to this pain if there be not evident or probable matter to convince him of the offence whereof he is arraigned or otherwise that he is a notable Thief or openly known to be of Evil name which the Judge ought strictly to examine before he proceed to this Judgment against him it would be very hard which the Law is never in favorem vitae to extend this Statute to Manslaughter which may be suddenly committed by one of good name and fame and not a notorious Thief as this Act mentions and yet may have an obstinate humor to refuse Trial challenge peremptorily and make indirect Pleas. It is the severest Judgment that I know the Law passes upon any Offender and therefore not to be extended further than the plain understanding of the words of the Act a Sentence so severe that I think never English man as yet though many have been Prest to death had the heart to execute it according to the letter which Sentence is as followeth That the Prisoner shall be sent to the Prison from whence he came and put into a Mean house stopped from light and there shall be laid upon the bare ground without any Litter Straw or other covering and without any Garment about him saving something to cover his Privy members and that he shall lie upon his back and his head shall be covered and his feet bare and that one of his Arms shall be drawn with a Cord to one side of the house and the other Arm to the other side and that his Legs shall be used in the same manner and that upon his Body shall be laid so much Iron and Stone as he can bear and more and that the first day after he shall have three morsels of Barley-bread without any Drink and the second day he shall drink so much as he can three times of the Water which is next the Prison-door saving Running-water without any Bread and this shall be his Diet until he die Another inconvenience may arise where the party Indicted and Arraigned only of Manslaughter shall plead a Forrein plea of something done in another County to the delay of Justice the Statute of the 22 H. 8. c. 14. only providing in cases of Petit Treason Murther or Felony that Forrein pleas in those Cases shall be tried before the same Justices before whom such persons shall be Arraigned and by the same Jurors of the same County that shall trie the petit Treason Murther or Felony If a man be Indicted of Treason he may plead a Forrein plea which shall be tried in another County otherwise in cases of Murther Petit Treason and Felony Another inconvenience may be upon the Statute of the 6 H. 8. c. 6. By that Statute the Justices of the Kings Bench are impower'd to remit the bodies of Felons and Murtherers removed thither to be tried in the County and their Indictments removed into that Court which before they could not do by the Common Law because a Record that is once brought into the highest Court could not be remanded to an Inferior Stamf. fol. 157. this Statute only provides in case of Felony and Murther not Manslaughter The last Inconvenience I shall mention though I could many more by reason of Indictments of Manslaughter will be in Cities and Burroughs and Corporations that have power to try Murthers and Felonies the Statute of the 23 H. 8. c. 13. provides That in Trials of Murthers and Felonies there proceedings shall not stay as formerly or be delaied by reason of challenge of such Offenders for lack of sufficiency of Freehold to the great hindrance of Justice but that if the Jurors be worth in Monies and personal Estate Forty pounds they shall not be challenged but admitted It will be a very extorted construction that upon this Statute and the others before shall bring in Manslaughters under the word Felonies whatever
practice is or hath been used to the contrary I conceive it fit to be better considered for it is not sufficient in all Cases much less in this without or against a Rule and Act of Parliament to justifie practice by practice this happily in the end might prove a Common Thief to be an honest man Besides observe the penning of other Statutes and that will give a clearer light to the understanding of these by the Statute made in the 27 of H. 8. c. 25. it was enacted That no person or persons of what estate or degree soever shall have power or authority to pardon or remit any Treasons Murthers Manslaughters or Felonies whatsoever they be c. Here you see the Makers of this Law mention the word and offence of Manslaughter in terminis and not leave it to be understood or to be comprehended in the word other Felonies though it is most comprehensively said or Felonies whatsoever they be So the Statute made in the first and second Ph. Mar. c. 13. That the Justices of the Peace one being of the Quorum when any Prisoner is brought before them for any Manslaughter or Felony before any Bailment or Mainprise shall take the examination of the Prisoner and Information of the Accuser and certifie it at the next Goal-delivery c. Here you see Manslaughter and Felony both exprest as necessary several times in the Act. So the Statute of the 23 H. 8. c. 12. that directs the manner of punishing of offences in the Kings Palace or House says All Treasons Misprisions of Treasons Murthers Manslaughters and other malicious Strikings c. and so divers other Acts of Parliament as might be shewed that make or intend any provision against Manslaughters do particularly name the word Manslaughter and never leave it to be intended or included in the word Felony It is true that by a Commission granted to certain persons to enquire of all Felonies they may thereby take Indictments of Murther though a Pardon of all Felonies will not avail him who hath committed Murther in regard of the Statute made 13 R. 2. 1. And the Commission of Oyer and Terminer made to the Judges every Assizes that enables them to enquire of all Offences hath these express words in it And of whatsoever Murthers Felonies Manslaughters Killings not leaving Manslaughters to be intended by the general words of Felonies or Killings Many more Inconveniences might be shewed but these with what hath been before shewed may be sufficient until better reasons appear to satisfie any understanding Grand Juror to esteem it much the better way to find such Bills Murther rather than Manslaughter there being every way less inconvenience in it in relation to the Laws of the Land until by the wisdom of a Parliament they are altered and much more of satisfaction and safety to their own private Consciences that stand so deeply engaged to discover Blood-guilty persons and to suppress and silence the cries of Innocent blood that by our Laws in the first place cries to Grand Jurors for Vengeance against the Murtherer and Manslayer It now remains that two Objections be answered that happily to such as do not well weigh and consider them may seem to be of some force against what hath been herein said to the contrary the one is The general liberty and constant practice Grand Jurors have taken ever since the making of the said Statute of the 23 H. 8. c. 1. to find as they please either Murther or Manslaughter not as the Indictment comes to their hands from the Kings Council but as they apprehend the Evidence that is brought to them taking upon themselves not only the sole Judgment of the Fact and what the Law is that ariseth upon the said Fact taking the Judgment of the Law therein from the Court although they hear but one side and putting in and putting out what they please in such Indictments notwithstanding it appears to them the party Indicted is guilty of shedding Innocent blood varying the species of Murther and Manslaughter as they please until after Arraignment of the Prisoner it be too late to amend it as I have often known The other Objection is and this seems to be of some weight and authority in Law against what hath been said That Mr. Justice Stamford in his book of The Pleas of the Crown is of another opinion viz. That a Grand Jury may find the Special matter in the Indictment that is to say that the Prisoner killed the other se defendendo or per Infortunium c. which the party upon his Arraignment may either confess or estrange himself from the fact and plead Not guilty To the first Objection as to the liberty and practice of Grand Jurors to the contrary so long used I Answer It hath been before in this Treatise sufficiently made out the great Inconvenience and mischief in Cases of Blood that is the consequence of such practice and that being granted as it cannot be denied I suppose no wise man will think that the long practice of such an Errour will justifie it or encourage the longer continuance of it in the highest Courts of Law and Justice and in so high and tender an Offence as the disquisition of Blood is although in Inferiour County Courts where many times are ignorant Judges and mean Clerks and in ordinary Offences this Maxime may hold good that Communis Error facit Jus that the common practice of an Error makes it the Law of the Court and not convenient to be altered yet I have never observed that Maxime to take place in the highest Courts of Justice in this Kingdom before the Judges of the Courts at Westminster Justices of Oyer and Terminer Justices of Goal-delivery and Justices of Assize who sit not to practice but to correct and destroy Errors of all kinds especially in Trials of mens Lives in Cases of Blood and whoever shall urge that Maxime against what I have here said doth by that sufficiently grant what I have here endeavoured to prove viz. the errour and inconvenience of such practice which ought no more to be continued than a long custome when it is found to be unreasonable but I shall never allow neither can it be proved that there hath been in this Kingdom such liberty and practice allowed and indulged by the Reverend and Learned Judges to Grand Jurors to find and alter Indictments brought unto them in cases of Blood as they themselves please and judge convenient they being as hath been said before not the Judges nor the Triers but Presenters of a fact of Blood fit for the Judgment of the Jury of Life and Death who only are the proper Judges of the Fact for none can be said to be proper Judges of any Fact in Controversie that hear but one side for Grand Jurors hear no more and therefore ought in Law Reason and Conscience where they find a guilty person that hath had his hands in Blood
was found before by the Grand Jury and that makes too specially Verdicts or else generally Not guilty if they find him guilty of the Special matter as the Grand Jury found before them and the Judge and Court shall afterwards adjudge as they may having heard the Evidence that super totam materiam it is either Murther or Manslaughter then no Judgment of Death or Clergy can be given upon that Indictment or Verdict but all must be tried over again and a new Circuit of business upon a second Indictment of Murther or Manslaughter and how dilatory and idle would this be at an Assizes in course of Justice and in case of Blood If Judge Stamford were alive again although a person of great Learning and Judgment he would surely with some other Errors in that book recant this neither is it of any advantage to the Prisoner to have it found Specially by the Grand Jury for he can never plead either such an Acquittal or Conviction in Bar to an Indictment of Murther or Manslaughter in the same case as before is shewed and whoever shall read and well consider this seventh Chapter written by Judge Stamford in The Pleas of the Crown wherein this Opinion is especially towards the end of it when he comes to observe the Letter of the Statute of Gloucester and how the Certificate of such a Pardon of course shall be obtained must of necessity hold his first Opinion in that Chapter for the Special matter to be found in the Indictment to be very inconsiderately expressed for the reasons aforesaid And why may not this Learned Judge for humanum est Errare mistake in this as in some other Opinions in that Book of his styled The Pleas of the Crown for which he is detected by the Lo. Coke and others that followed him who standing upon his shoulders must needs see farther than he did or could As to instance in some few As first that Respit of Execution where a Woman is priviment enfent where a Woman after Judgment pleads her Belly shall be granted only says he in Felony whereas it is grantable both in high Treason and petit Treason A second is That the year and the day after the Murther and Homicide committed shall be accounted after the blow given or poyson administred whereas it ought to be accounted after the death for then the party was murthered and not after the stroke or poyson given Coke lib. 4. fol. 41 42. in Heydon's Case A third observed by the Lord Coke writing upon the Statute 8 H. 6. c. 12. which makes it Felony to steal away Records upon these words in the said Statute Their Procurers Counsellors and Abettors saith this Act expresly extendeth to Accessaries before and leaveth Accessaries after to the construction of Law yet there may be Accessaries after the Fact for whensoever an offence is made a Felony by Act of Parliament there shall be Accessaries to it both before and after as if it had been a Felony by the Common Law And therefore though this Act expresseth only Accessaries before yet it taketh not away Accessaries after but leaveth them to the Law contrary to the Opinion of Mr. Justice Stamford And again by the Statute of the 8 H. 6. c. 29. Insufficiency or want of Freehold is no cause of Challenge to Aliens who are Impanelled with Aliens notwithstanding Mr. Justice Stamford's Opinion Pl. Coron 160. for this Statute saith That the Statute 2 H. 5. c. 3. shall extend only to Enquests betwixt Denizen and Denizen But enough and perhaps too much hath been said in mentioning the mistakes of that Reverend and Learned Judge Sr. William Stamford in that Book of his termed Placita Coronae Pleas of the Crown which it seems by the Title of it hath been corrected amended and enlarged since the first Impression of it which I have not urged in the least to detract from the Learning and Honour of that great and learned Judge or from the value of that Book which notwithstanding there may be a few mistakes found in it yet is of as high esteem as any Book of the Law extant upon that Subject but principally to shew that he may as well erre in his Opinion concerning Grand Jurors finding the Special matter as in those mentioned and that no human Author in the Law or any other Science is infallible and that we must be very careful how we ground any Law upon the bare Opinion of any one or two persons though of never so great parts or esteem whereby to justifie or maintain a great Inconvenience in practice especially in Cases of Blood as before hath been shewn FINIS Duellum quasi duorum bellum Done without Authority is a war against Authority That which the Victor thinks to be his honour proves his dishonour His Life his Lands and Goods are by Law forfeited and his Blood corrupted Infoelix pugna ubi majus periculum incumbit victori quam victo †The Oath of a Grand Juror Stamf. fol. 36. 27. lib. Ass Murdrum de caetero non adjudicetur coram Justiciar ubi infortunium tantummodo adjudicatum est sed locum habeat Murdrum de interfectis per feloniam tantum non aliter Statut. de Marlebridge 52 H. 3. c. 26. * Utramque partem ni audias ne judices Qui judicat aliquid parte inaudita altera licet aequum judicaret haud aequus est Yet Grand Jurors take themselves to be Judges of the Fact * If he have Council he must pray it before he plead Not guilty he cannot after 3. Inst fol. 129. †And that is one reason why regularly he cannot have Council The second reason is the Court ought to see the Indictment Trial and other proceedings good in Law lest by an erroneous Judgment they attaint the Prisoner 3. Inst. 137. fol. 29. Secta pacis is by Indictment which is the King's Suit and as it were his Declaration The King formerly did not pardon homicidium but Sectam pacis nostrae quae ad nos pertinet de homicidiis 3. Inst fol. 235. a 25 E. 3. 4. 5 E. 3. 9. 42 E. 3. 3. Vit. Abbot St. Alban 143. b 37 E. 3. 18. c Cook 3. Inst Tit. Indict 136. d Except by Utlawry e No Peer or Subject can be Convicted by Verdict but the Offence must be found by twenty four f It is not sufficient that they dwell in the County but they are to be of the Neighbourhood nay le plus procheines to the place of the fact as by Artic. super cap. 9. it is appointed They must he most near most sufficient and least suspicious ibid. g The Kings Jury h Jus à Jovis nomine Jus qu. Jovis os omne enim Jus Justitia à Deo est i v. Statut. 3. Ed. 1. c. 11. Forasmuch as many being indicted of Murther and Culpable of the same by favourable Inquests taken by the Sheriff and by the Kings