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
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
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
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
upon his Indictment was acquitted but the Lo. Coke in his third Institutes fol. 107. says Certain it is that such discovery is accompanied with Perjury and a great Misprision to be punished by Fine and Imprisonment And it is well provided by the Oath that each Juror is sworn to keep his own Counsel also for he that will not keep his own secrets will hardly keep anothers So much for the matter of the Oath what they are to do It follows in the Oath with what Integrity they ought to do their duty They are to present no person for any offence through any malice they have to the person nor omit any meerly for any favour they have for the person This is so plain it needs nothing but practice these two seem very easie but indeed are very difficult to flesh and blood Not to take revenge when one hath power to do it and not to shew favour when there is power and opportunity to express it not but that a Grand Juror may present another he is at difference withal if there be a real and true cause for it but it must not be done from malice and by way of revenge in presenting such a person before another as guilty Malice and Favour two great enemies to Justice are to be excluded all Courts of Justice as too partial and therefore the Oath well concludes That they shall present the truth the whole truth and nothing but the truth all these three expressions of truth have relation to the fact of Murther or unlawful killing for I shall in this place apply it to that Offence in a legal sense as to legal proceedings The truth that is Truth sufficient to make an accusation against a nocent person The whole truth not concealing any part of it wilfully but so presenting it that the whole matter of fact concerning the unlawful killing another may come in question to another Jury which cannot be unless it be found Murther the Common Law accounting all felonious and unlawful killing a reasonable Creature Murther until the difference and distinction appear upon the Verdict of another Jury that are to try it and the Judgment of the Court in point of Law upon that Verdict Observe the Note in the Margent what that Statute says adjudicetur coram Justiciar It shall be adjudged by the Judges or Justices not the Grand Jury what is Manslaughter per Infortunium and it can never be adjudged by the Judges but when it is tried before them which cannot be upon an Indictment of per Infortunium only as is more fully observed in the following discourse Observe likewise what follows in that Statute Sed locum habeat Murdrum de interfectis per feloniam So that by this Statute all felonious killing is Murther still as it was at the Common Law before and that Statute is not to be repealed by Grand Jurors And as there must not be in the Grand Jury Suppressio veri a suppression or lessening of the truth so there must not be Expressio falsi a false Accusation both are to be avoided and therefore it follows in the Oath And nothing but the truth that is no known falsity no false Accusation against any person must be presented whereby to bring an Innocent person to trial where there is nothing of the fact to be proved against him or any probable Accusation if these three Truths in this Oath mentioned are not to be understood in this legal sense and according to the common practice of legal proceedings in these cases I must confess I am to be instructed how any Grand Juror that hears but one side can satisfie his Conscience that in a plain literal and Grammatical sense he can swear that every Presentment and Indictment that comes from the Grand Jury with a Billa vera contains in it the truth the whole truth and nothing but the truth and this is cleared by the last words of the Oath According to their best skill and knowledge for this must be understood skill and knowledge in the Law and Fact as to the practice and nature of the proceedings of the Law in such cases for it is rather discretio legis than hominis And thus have I according to my best sense and understanding of the Oath explained it and answered the common Objection to it by making it appear that there is nothing in the Oath that any way obligeth them against what I have either here or in the ensuing discourse advised them unto And that this may yet be more evident because I would make it as plain as I can though with too many Tautologies and Repetitions I shall also in terminis set down the Oath of the Jurors of Life and Death by which it doth appear that they only stand charged with the Prisoner as it is exprest in the Oath and the Grand Jury only with the Accusation against him You shall well and truly try and true deliverance make between our Sovereign Lord the King and the Prisoner at the Bar whom you shall have in Charge and a true Verdict give according to your Evidence So help you God Which is to be formally and legally drawn up in the nature of a Declaration at Law at the Kings suit the King being Plaintiff and the Prisoner Defendant which the Prisoner upon his Arraignment either confesseth and then he is convicted without hearing of any Evidence against him or otherwise pleads Not guilty to it to which the King by the Clerk of the Crown joyns Issue by Cul prit viz. that he is ready to prove him guilty and so the Issue being thus joyned Evidence for the King is given against him upon Oath to which he makes his defence in person or by Council if any point of Law arise to which he desires Council and the Court approve of it the Judge being as well of Council for the Prisoner as the King calls his Witnesses if he have any who speak upon their Credits and not upon their Oaths which is much for the advantage of the Prisoner the Law presuming in favour of life the Affirmative proof to be so clear against the Prisoner that nothing in the Negative can be proved upon Oath against it and after a full trial of what can be said and proved on both sides and a convenient time taken by the Jury to consider of it they bring in their Verdict either convict him or acquit him either find him guilty according to the Indictment found by the Grand Jury by hearing of one side or specially as they find the fact by hearing of both sides for they are not bound strictly to the matter and form of the Indictment as the Grand Jury have found it for they may by Law extenuate it to the least degree of offence that can be in that kind but they cannot aggravate it or exceed above what the Grand Jury have found for if they might do so they would become Accusers as well as Tryers
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
established by the said Act of the 3 H. 8. That all Pannels of Grand Jurors put in by any Sheriff before any Justice of Goal-delivery and Justices of Peace one being of the Quorum in the open Sessions to enquire for the King shall be reformed by putting to and taking off the Names of the persons which so be impannelled by every Sheriff at the discretion of the said Justices before whom such Pannel shall be retorned and the Sheriff upon pain of twenty pound shall allow of such Pannel so reformed and retorned by the Justices the one half to the King the other to him that will sue for the same and the Kings Pardon shall not be a bar to his part that so sues So careful were the Law-makers to have faithful Jurors that should neither accuse the Innocent nor excuse the Nocent and that especially in Cases of Blood should make no concealment And lest all this care and reformation of Grand Jurors should do no good but that they should still espouse their own opinions and make head against the Court and wilfully conceal Offences they were charged to enquire of there is a Statute yet in force 3 H. 7. in which it is ordained That the Justices of Peace may in their discretions cause an Inquest to be Impannelled to enquire of the concealments of other Inquests taken before them of such matters and offences as are to be enquired and presented before Justices of Peace whereof complaint shall be made And if any concealment shall be found by any Inquest within one year after the said concealment every person of the said Inquest that made such concealment shall be amerced or fined at the discretion of such Justices of Peace the said Amerciaments so assessed in plain Sessions And these Amerciaments or Fines may be very high according to the nature of the Concealment and quality of the person This Statute only concerns and remedies Concealments by Grand Jurors before Justices of the Peace at the Sessions of the Peace as conceiving Grand Jurors would be bolder there and take more liberty in their Presentments than they durst before Justices of Assize Oyer and Terminer or Goal-delivery as also that such Justices and Judges knew better how to deal with them if they made any such concealments or misprision before them For the Grand Jurors being immediate and subordinate Ministers and Officers in and to the Court and answerable for their Duty there as Coroners Constables and other Ministers of the Court they may and must stand to the Judgment of the Court and in case of any wilful contempt misdemeanor and concealment may without Indictment for how can they be indicted at the same time by themselves be fined by the Court as any other Officer and Minister of the Court. And let Grand Jurors take heed lest by their remisness and peevishness they give not occasion to the making of the like Statute as was made in the 11. of H. 7. c. 3. upon the surmise in the Statute That whereas many great Offences as Riots unlawful Assemblies Extortions Maintenances Imbraceries and other Offences could not be duly punished by the due Order of the Law except it were first found and presented by the Verdict of Twelve men thereto duly sworn which will not find nor yet present the Truth observe here what occasions Grand Jurors had then given through their neglect It was therefore provided and enacted by this Statute That Justices of Assize and Justices of Peace upon Information for the King that is meerly upon the Testimony of Witnesses without Indictment or use of Grand Jurors should proceed to make out Process Punish and Condemn Offenders by their Discretion as if it were upon Indictments found by Grand Jurors Which Statute was a great Infringment of the Common Law and the Liberty of the Subject of England who ought not by Magna Charta and the Law of this Land to be proceeded against or condemned in their Persons or Estates in Criminals but by Indictment first had and found against them by Grand Jurors It is true that Treasons Murthers and Felonies and such Offences for which life and member should be lost are excepted out of this Act although they stand upon the same Reasons as the other Offences named in the Act For by this Act and new Law the Subject might lose his Liberty suffer Ransom Stigmatizing Pillory Imprisonment loss of Lands and Estate things very near to Life and Member And the Lord Coke tells us That Empson and Dudley two Judges by reason of this Act committed upon the Subjects insufferable Oppressions and therefore this Statute was justly Repealed after the Decease of H. 7. by the Statute of the 1. of H. 8. c. 6. A good Caveat to Parliaments says the Lord Coke to leave all Causes to be measured by the Golden and streight Mete-wand of the Law and not to the uncertain and crooked Cord of Discretion And as good a Caveat it is to Grand Jurors in cases of Blood not so much to be led by the crooked Cord of Discretion as the streight Rule of the Law and Directions of the learned Judges who should best know the Law and the truest measure thereof For if the Rule be true as indeed it is Quod nihil relictum est arbitrio Judicis that nothing is left to the Will of the Judge much less arbitrio Juratorum to the will of Grand Jurors they having been through too much connivance by an evil practice corrupted herein But errores ad sua principia referre est refellere To bring Errors to their beginning is to see their last Now haply Grand Jurors may conceive and argue thus That to extenuate an Offence is not to conceal it if they find it not Murther yet they find it in some degree of Manslaughter c. Besides if the Kings Council will put into the Indictment the words Ex malitia praecogitata c. which only make it Murther and which is matter of Fact they must make it out to us that there was malice either from our own knowledge of it or that it is clearly proved to us from words or deeds express by such an act that lies in proof or we are not bound to find those words but must strike them out of the Indictment or find an Ignoramus Or if the Witnesses themselves shall inform us that it was a sudden falling out or done by misfortune Se defendendo in his own defence or to defend himself against one that would have robbed him in his House or upon the High-way or that he that did it was a Watchman a Constable or lawful Officer or Keeper of a Park or Warren and in doing his Duty or that he that did it was a natural Fool one not Compos mentis a Mad-man or a young Child that did it and by his young and tender years not capable of malice and so could not be guilty of Murther or if there had been former fallings out and
to find a Bill and here I will leave to the observation of Grand Jurors what I find in Mr. Justice Stamfords Pleas of the Crown and which he himself observeth out of Bracton a very ancient and learned Lawyer as Bracton's order in Cases of Suspicion upon Indictments of Felons de secta Regum The words are these Nunc autem dicendum est de Indictamentis per famam Patriae quum praesumptionem inducunt cui standum est donec indictatus se à tali Suspicione purgaverit ex fama quidem oritur suspicio ex fama Suspicione oritur gravis praesumptio Tamen probationem admittit in contrarium sive purgationem Suspicio quidem multiplex esse potest primo si fama oritur apud bonos graves Item ex facto praecedenti oriatur suspicio cui etiam standum est donec probetur in contrarium c. and so goes on to let us know the several badges and marks of Suspicion advising that those that will take Publick fame for an Evidence take it from those that are of good Fame and not of evil persons as he goes on Non de malevolis maledicis sed providis fide dignis personis non semel sed saepius quia clamor innuit defamatio manifestat Tumultus enim clamor populi quandoque fiunt de multis quae super veritatem non fundantur Ideo vanae voces populi non sunt audiendae ut ne dicatur Jesus crucifigitur Barabas autem liberatur The whole Chapter is well worth the reading And it may not be amiss to observe that the ancient forms of Indictments or Bills began thus Inquiratur pro domino Rege Let it be enquired of for our Soveraign Lord the King as the offence is laid in the Indictment whether the offence be so as is there supposed which is as much as if the Grand Jury should say We judge it fit that it be farther enquired of whether it be truly so indeed as it is here supposed for the Offence as it is laid in the Indictment as it comes from the Grand Jury before it receive a farther trial and enquiry of another Jury is no more but Crimen suppositum impositum an offence supposed and laid to ones charge to answer and this clearly appears by the Record of every Acquittal or Conviction of any that is tried upon an Indictment for the words of the Acquittal or Conviction as they are drawn up in the Record are these viz. Juratores that is to say the Jury of Life and Death dicunt super Sacramentum suum quod praedictus A.B. non est vel est Culpabilis de Felonia Murdro praedict in Indictamento praed specificat ei superius imponit modo forma prout per Indictamentum praed superius versus cum supponitur so that supponitur imponitur supposed and imposed is all that can be inferr'd from the Indictment the Grand Juries Presentment upon hearing of one side being the Supposition and the other Jury upon hearing of both sides the Imposition or Supponitur and that relates to the substance of the Indictment as the Grand Jury suppose it to be the Imponitur and that relates to the modo forma of the Offence and the circumstances of it as it is laid in the Indictment as it is found by the Jury of Life and Death and these Circumstances indeed are the proper enquiry of the Jury of Life and Death upon the hearing of Evidence on both sides as appears clearly by the penning and drawing up of these Records and all this is no more than in every common Declaration at the suit of the Party only this Indictment is as a Declaration upon Oath and must therefore for the satisfaction of those that are sworn contain that which for substance seems to them prima facie to be a probable truth and a transgression of a Law not strictly looking into the matter and form aggravations and circumstances of the Fact as it is laid in the Indictment for those do but attend and usher in the Fact but Grand Jurors are principally to eye and look upon the single Fact and act it self and finding one that hath had his hands in blood and that probably upon a farther Enquiry may become reus a guilty person by killing of another person they are to put their Billa vera unto it although they have no proof at all of the Aggravations and Circumstances that attend the Fact Evidence many times arising out of the parties own mouth against himself upon a strict examination in Court more than the Witnesses against him have proved And it is well observed in the Book called The Terms of the Law upon these two words Billa vera where it is said that Billa vera is the Indorsment of the Grand Jury upon any Presentment or Indictment which they find to be probably true mark these words probably true nor do I take the Adjective Vera in this place to signifie True but meet reason or fit and so it is often used in Terence and by the Grammarians Verum est it is fit so that Billa vera upon the Bill doth not signifie a true Bill that hath nothing but truth in it but a meet or fit Bill for the further enquiry of another Jury which ever succeeds such an Indorsment of Billa vera by a Grand Jury certainly it is upon a great mistake although I confess it is often used in Law-Books and by wise men to call the Presentment of a Grand Jury a Verdict to say that their Indorsing Billa vera or Ignoramus which is all they do is their Verdict there being a great difference between Billa vera and Veredictum which signifies dictum veritatis and even induceth a Conviction for nothing can properly be called a Verdict but where it is given by a Jury after an Issue joyned upon hearing of both sides Veredictum is as it were quoddam Evangelium like a little Gospel of Truth for indeed every Verdict which convicts a man to the loss of Life or Estate ought to be as true as the Gospel the Jurors swear upon for upon the Issue of a Verdict the Lives and Estates of all persons depend And therefore an Attaint lies in Law against those Jurors that give a false Verdict contrary to the truth of their Evidence which is a Villainous Judgment a very great Judgment in Law And this Attaint did never by Law lie or was brought against Grand Jurors for any false Presentment for they do but barely present an offence upon hearing of one side and therefore can be no Verdict as from them the Grand Jury being for number indefinite that being properly called a Verdict from such a Jury where the Law makes a determinate number of twelve or twenty four and no more Besides it is alwaies said in the Record where such a Jury finds a Verdict Juratores super Sacramentum suum dicunt c. But where the Grand Jury present
am not of their Opinion That the words ex malitia praecogitata came into Indictments immediately after the aforesaid Statute of 23 H. 8. Certainly there were Murthers committed and that frequently of malice fore-thought before the making of that Statute and those Murtherers had their Clergy also otherwise that Statute had never been made to take it away If the Grand Jurors shall say They will not find those words Ex malitia praecogitata put into the Indictment except the malice be plainly proved to them then farewel that distinction and inference of implied malice which the Law makes in many Cases and which otherwise cannot be made they may as well say That they will not find such words Treason that are Treasonable because no Act of Parliament or express Case at Common Law says those particular words are Treason or that they will find no Indictment of Burglary although the Goods stoln be found with the Thief and the dwelling House broke because no Witness stood by to see the breaking of the House entring into it and stealing thence the Goods Or against a Cut-purse though the Purse or Mony be found in his hand or because none see him take it forth of his Pocket or to find the Indictment because it is laid to be done Vi armis with force and arms and yet said to be done in the same Indictment clam secrete sine notitia privily secretly and without notice of the party which in Fact could not be done if it were done by force or arms Or to find an Indictment of Robbery done upon the High-way against those that rob in Vizards notwithstanding the mony be owned and found about them because the party cannot swear he saw their faces and that these were the men Or that such a one kill'd a man that comes out last from him with a bloody Sword in his hand and no person besides with him In all these Cases it is possible the Parties accused might find the Goods stoln and so might the bloody Sword be sound and another do the Fact but sure here is great and violent presumption sufficient for an Accusation for a Grand Jury to find an Indictment which is but an Accusation upon Record to bring the Delinquent or Party so strongly suspected to a Judicial Trial and as well may it be presumed when one Christian is kill'd by another it may be Murther that there may be a seed of malice in the will of him that did it by a voluntary and spontaneous motion in that act that may upon a greater Debate contain some circumstance in it that by some reason in Law better known to the Learned Judge than the Grand Jurors that may in Law prove malice expressed or implyed in the criminous Person And if it be so difficult in cases of blood for Grand Jurors to determine what is Murther and what is not let them consider how dangerous a thing it is for them to miscarry in their Presentment in cases of blood of innocent blood as is before manifested and so acquit the Murtherer and take the imputation of blood-guiltiness with them from the Assizes to their respective Families where it may and will cry against them and the whole Kingdom for vengeance I do therefore submit it to their serious consideration upon what hath been said Whether it be not much better and a safer way for them to submit their Judgments herein to the Rule of Law and the Resolutions of the Learned Judges than by their extenuating presentment for the Court can go no higher than they present to stifle Justice in the birth and to acquit a Murtherer For the Indictment although no part of the Trial yet is the very Basis and Foundation of all the other Proceedings And let them consider how strict formerly the very Law of England was in King Edward the Second's time in cases of blood where the very will and intent to kill a man although it was not executed was punished for the Deed although the party wounded recovered of his wounds A memorable Case there was in that King's Reign cited by Justice Stamford where one compassed the death of another and did so grievously wound him that he left him for dead but afterwards the party recovered this was then adjudged Murther because his will appeared so plainly to have kill'd him For as Bracton says In maleficiis spectatur voluntas non exitus then was the Will by our Law as it is yet before God reputed for the Deed But now our Law couples the Will and the Act together in cases of blood but looks more upon the Act than the Will For though the Will do neither intend the Act as it is done nor approve of it after it is done yet if the Will in any part of the Act be criminous it makes the Offender in our Law in cases of blood guilty of the whole Fact with all the obliquity and evil in it As if a man intend only to beat another to strike him but not to kill him and the party die of the stroke it may be murther in him that gave the stroke So if three men come to make a Disseisin and one of the three kill a man the other two persons are guilty as principals in the murther although they neither consent to it will it or strike the Party nor came with that intent but only were in company to have done another Act. So if one to kill his Wife give her lying sick Poyson in a roasted Apple and she eating a little of it give the rest to a little Child of theirs which the Husband lest he should be suspected suffereth the Child to eat who dieth of the same poyson this is murther though the Wife recover for the Poyson ministred upon malice prepensed to one which by a contingency procureth the death of another whom he meant not to kill nor bear any malice to shall be as great an Offence as if it had taken the effect which he meant proceeding from a naughty and malicious intent So where two men combat together upon the evil and provoking words of a woman and the one killeth the other the woman in this case was Arraigned of the death of him that was kill'd and in this Case the Grand Jurors found it murther So if an ignorant person take upon him to give Physick to one that is not well and through his ignorance administreth that unto him that apparently kills him this is murther And so it might be instanced in many similar Cases which are not to be disputed by Grand Jurors but presented by them in re forma as the Indictment is advised by the King's Council and comes to their hands where they find as before is said a criminous Party in the Indictment and a Body found of a reasonable Creature certainly or probably kill'd by him although the Evidence be not express to every circumstance of aggravation as it is laid down in
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
and unjustly taken away the Life of another person to leave it as an entire fact of Murther to the Trial and Verdict of the second Jury to find the truth of the Fact upon hearing of both sides and receiving the Judgment of the Court in what species or degree of Murther it is which likewise if any doubt or point of Law arise in the Case as many times it doth they may find it specially which a Grand Jury cannot and thereupon receive the opinion of all the Judges of England Murther being the Genus of the several Species and in common acceptation he is accounted a Murtherer that kills any man or reasonable Creature unlawfully and the Commandment is Thou shalt do no Murther which certainly comprehends all unlawful killing otherwise that command is not well translated from the Text Non Occides Thou shalt not Kill and in my own experience for above forty and five years in one Circuit I have very often known many Learned Judges such as Mr. Justice Doderidge the Lord Chief Baron Davenport Mr. Justice Jones Mr. Justice Whitlock and many others often rebuke and reject the Presentments of Grand Jurors in Cases of Blood and other Felonies where they have either varied from their Evidence or from the Law the Judges before hand having received some light of the nature and testimony of the Fact from the Informations and Examinations therein delivered into the Court by the Justices of the Peace and Coroners a very good Rule for Judges to observe and often either put it upon an open Evidence in Court which is very inconvenient or discharged them of such a Bill and bound the Witnesses over to the next Assizes which is also very inconvenient in regard Witnesses may die or the Prisoner may die and so the Forfeiture is lost and the offence unpunished and in Cases of Blood there will be too much opportunity given for compounding and making an Interest with the Prosecuter and Witnesses and in these modern times since the happy return of our most gracious Sovereign King CHARLES the second I have known several learned and pious Judges some since dead others yet living and eminent upon the Bench in Oxfordshire Circuit Fine and Imprison several Grand Jurors for their miscarriage and misdemeanour in delivering in Bills of Manslaughter instead of Bills of Murther against the clear and positive directions of the Court. And this may serve for answer to the first Objection from the liberty and affected practice of Grand Jurors in finding of Bills in Cases of Blood according to their own humor and apprehension to introduce a Law that therefore they may find them as they please notwithstanding that the Court adviseth and directeth the drawing of them MURTHER To the second Objection of Mr. Justice Stamford in the place before cited where he saith that whereas the Statute of Glouc. c. 9. saith That he ought to put himself in an Inquest de bono malo this is only intended saith he when he is Indicted of Murther or Manslaughter and not where in the body of the Indictment the Special matter is found as if the Grand Jury may find especial Verdict of per Infortunium or se defendendo c. I answer to this Objection Certainly Mr. Justice Stamford though a very Learned man did well consider this matter and his Opinion therein when he set it down for he informs you not what shall become of such an Indictment where only the Special matter is found by the Grand Jury whether the party may Traverse it for it is but a Trespass or confess it and so have his Pardon of Course upon such confession and then the Judges that are to make the Report or Certificate of the nature of the fact to the King in Chancery must Certifie like blind and deaf men that never saw or heard any thing of the merit of the cause nor understand any thing by evidence of the nature and circumstance of the Fact like the Lay-zealot must believe as the Priest believes preferring Obedience before Truth but sure no prudent and pious Judge will make such a blind Certificate in case of Blood Besides whoever shall judiciously and impartially compare and weigh the Statute of Marlebridge and the Statute of Gloucester together and the reasons of the Statute of Gloucester what mischief it was made to prevent and consider but the nature of the thing will never be of his Opinion in this particular there is so little of reason or true meaning of either of those Statutes in it The words of the Statute of Marlebr are these Murther from henceforth shall not be judged before our Justices where it is found Misfortune In the time of this Statute it seems there were two Juries the Grand Jury and the Jury of Life and Death to present and try the Offences of Murther otherwise the Justices could not judge of it they never passing Judgment upon a Grand Juries presentment which by the way shews that it is left to the Judges not the Grand Jury upon the examination of the cause in trial by the Jury of Life and Death to judge of the nature and circumstances of Murther and of what species or degree it is This Statute of Marlebridge did only declare a new Law that where it was found per Infortunium or se defendendo it should not be Felony and Murther as it was before that Statute but that the party in such case should have upon Certificate of the Justices before whom he was tried his Pardon of course happily then upon the Presentment of the Grand Jury which might be the occasion of this erroneous Opinion of this Learned Judge Then comes the Statute of Gloucester as if the other had not been truly understood or at least had not sufficiently provided for offences of Blood and in plain words as before is mentioned commands That he that kills a man by misfortune or in his own defence or in any other manner without Felony shall be put in Prison until the coming of the Justices in Eyre or Justices of Goal-delivery and shall put himself upon the Country for good and evil that is for life and death which cannot possibly be understood where the Grand Jury find it but per Infortunium or se defendendo c. for that is not Felony and so cannot be Arraigned thereupon whereby to put himself de bono malo so as to bring the matter to Issue between him and the King nor can the Judge in that case as is said before make a true and right Certificate of the offence and matter of fact which must be specially and truly certified according to Law whereby to procure a pardon as that Statute expresly requires And if the party shall plead Not guilty to that Special matter found by the Grand Jury what can that signifie as before hath been shewed for the Jury that is charged with such Indictment must either find the party guilty in Special manner as it