their going such ought to be their speed to make known the Treason Or if in any case they be otherwise openly flagitious though they be not legally infamous or if they are men of desperate Fortunes so that the temptation of want is manifestly strong upon them and the restraint of Conscience can be supposed to be little or none at all what ever they say is at least to be heard with extraordinary caution if not totally rejected In Scotland such a degree of Poverty S. G. Mackâ—zy Crim. Law lib. 26.3 that a Witness cannot swear himself to be worth Ten Pounds is sufficient to lay him aside wholly in these high Concernments of Criminal Cases And in some other Kingdoms to be a loose liver is an Objection of the same force against any produced for Witnesses And for the better discovery of the Truth of any fact in question the Credit of the Witnesses and the value of the Testimonies it is the Duty of the Grand Inquest to be well informed concerning the Parties indicted of their usual Residence their Estates and manner of living their Companions and Friends with whom they are accustomed to converse such knowledge being necessary to make a good judgment upon most accusations but most of all in suspitions or Indictments of secret Treasons or Treasonable Words where the accusers can be of no credit if it be altogether incredible that such things as they testifie should come to their knowledge Sometimes the quality of the accused person may set him at such a distance from the Witnesses that he cannot be supposed to have conversed with them familiarly if his Wisdom and Conduct has been always such that it is not credible he would trust men so inconsiderable or meer strangers to him and such as are wholly uncapable to assist in the Design which they pretend to discover Can the Grand Inquest believe such Testimony to be of any value Or can they avoid suspecting Malice Combination and Subornation in such a case or can they shew themselves to be just and conscientious in their Duty if they do not suspend their Verdict until further Enquiry and write Ignoramus upon the Bill It is undoubtedly Law which we find reported in Stiles Stiles Repor 11. That Though there be Witnesses who prove the Bill yet the Grand Inquest is not bound to find it if they see cause to the contrary Now to make their Enquiry more instrumental and advantageous to the Execution of Justice they are enjoined by their Oath to keep secret the King's Counsel their fellows and their own Perhaps 't is not sufficiently understood or considered what duty is enjoyned to every man of a Grand Inquest by this clause of their Oath being seldom if ever explained to them in the general charge of the Judges at Sessions or Assises But it is necessary that they should apprehend what Counsel of the King is trusted with them Certainly there is or ought to be much more of it communicated to them than is commonly thought and in things of the greatest consequence To them ought to be committed in the several Counties where any Prosecutions are begun the first Informations and suspitions of all Treasons Murders Felonies Conspiracies and other Crimes which may subvert the Government endanger or hurt the King or destroy the Lives or Estates of the innocent People or any way disquiet or disturb the common Peace Our Law intends the Councils of the King to be continually upon the protection and security of the People and prevention of all their mischiefs and dangers by wicked lawless and injurious men And in order thereunto to be advising how to right his wronged Subjects in general if the publick safety be hazarded by Treasons of any kind or their Relations snatcht from them by Murderers or any way destroyed by malicious Conspirators in form of Law or their Estates taken away by Robbery and Thieves or the Peace broken And for these ends to bring to exemplary Justice all offenders to deterr others from the like Wickedness And until these Counsels of the King come to the Grand Jury he can bring no such Criminals to judgment or to answer to the Accusations and Suggestions against them Hence it becomes unavoidably necessary to reveal to the Grand Juries all that hath been discovered to the King or any of his Ministers Judges or Justices concerning any Treasons or other Offences whereof any man is accused And where suspicion hath caused any to be imprisoned all the grounds of their suspitions ought to be opened concerning the Principals and the Accessories as well before as after the fact all the circumstances and presumptions that may induce a belief of their Guilt and all notices whatsoever which may enable the Jury to make a more exact and effectual Enquiry and to present the whole Truth They themselves will not only be offenders against God by reason of their Oath but subject to legal punishments if they knowingly conceal any Criminals and leave them unpresented and none can be innocent who shall conceal from them any thing that may help and assist them in their Duty The first notices of Crimes or suspicions of the Criminals by whomsoever brought in and the intentions of searching them out and prosecuting them legally are called the King's Counsel because the principal care of executing Justice is entrusted to him and they are to be prosecuted at his Suit and in his name and such proceedings are called Pleas of the Crown From hence may be easily concluded that the Kings Counsel which by the Oath of the Grand Inquest is to be kept secret includeth all the persons offered to them to be indicted and all the matters brought in Evidence before them all circumstances whatsoever whereof they are informed which may any way conduce to the discovery of Offences all intimations given them of Abettors and Encouragers of Treasons Felonies or Perjuries and Conspiracies or of the Receivers Harbourers Nourishers and Concealers of such Criminals Likewise the Oath which enjoins the Counsel of their Fellows and their own to be kept implies that they shall not reveal any of their personal knowledge concerning Offences or Offenders nor their intentions to indict any man thereupon nor any of the Proposals and Advices amongst them of ways to enquire into the truth of any matter before them either about the Crimes themselves or the accusers and Witnesses or the party accused nor the debates thereupon amongst themselves nor the diversity of opinionins any case before them Certainly this Duty of secresie concerning the Kings Counsel was imposed upon the Grand Inquest with great reason in order to the publick good It was intended that they should have all the advantages which the several cases will afford to make effectual Enquiries after Criminals to offer them to Justice If packs of Thieves private Murderers secret Traitors or Conspirators and Suborners can get Intelligence of all that is known of their Villanies all the parties concerned may
know from the Prosecutor to what they must answer and have agreed and acquainted each other with the tales they will tell and have resolved to be careful that all their answers to cross Interrogatories may be conformable to their first stories And if these relate only to words spoken at several times in private to distinct Witnesses in such a case Evidence if given in open Court may seem to be very strong against the person accused though there be nothing of truth in it But if such Witnesses were privately and separately examined by the Grand Inquest as the Law requires and were to answer only such questions as they thought fit and in such order as was best in their judgments and most natural to find out the Truth of the Accusation so that the Witnesses could not guess what they should be asked first or last nor one conjecture what the other had said which they are certain of when they know beforehand what the Prosecutor will ask in Court of every of them and what they have resolved to answer if the Inquest should put them out of their Road and then compare all their several answers together they might possibly discern marks enough of falshood to shew that their Testimonies ought not to be depended upon where life is in question By what is now said the reasonableness of this Institution of Secrecy may be discerned in respect to the discovery of Truth and the protection of the Innocent from malicious Combinations and Perjuries Yet the same Secrecy of the Kings Council is no less necessary to reserve the guilty for punishment when the Evidence against any party accused is not manifest and full it may be kept without prejudice under Secrecy until further Enquiry and if sufficient proof can afterwards be made of the Offence an Indictment may be found by a Grand Inquest and the party brought to answer it But when the Examinations are in open Court or the Kings Councils any other way divulged and the Evidence is weak and less than the Law requires 't is not probable that it will be more or stronger and should an Indictment be found and the party tried by a Petit Jury whilst the Evidence is not full they must and ought to acquit him and then the further prosecution for the same Offence is for ever barred though his guilt should afterward be manifest and confessed by himself From hence may certainly be concluded that Secrecy in the Examinations and Enquiries of Gr. Juries is in all respects for the Interest and advantage of the King If he be concerned to have secret Treasons Felonies and all other enormities brought to light and that none of the Offenders should escape Justice if the gain of their Forfeitures be thought his interest which God forbid then the first notices of all dangerous crimes and wicked confederacies ought to be secretly and prudently pursued and searcht into by the Grand Inquest The accusers and Witnesses ought not to publish in a Court before a multitude what they pretend to know in such cases until the discretion of so many honest men of the neighbourhood hath first determined whether their testimony will amount to so good and full Evidence that it may be made publick with safety to the King and People in order to Justice Else they are obliged by Oath to lock up in their own breasts all the circumstances and presumptions of crimes until they or such as shall succeed in the same trust shall have discovered as they believe Evidence enough to convict the accused and then and not before they are to accuse the party upon Record by finding the Bills as it 's usually called But when Bills are offered without fatisfactory Evidence and they neither know nor can learn any more they ought for the King's sake to indorse Ignoramus upon them least his Honour and Justice be stained by causing or permitting such prosecution of his People in his own name and at his suit as shall appear upon their Trial and Acquittal to have been frivolous or else malicious designs upon their Lives and Fortunes If it should be said that whatsoever reasons there are for this Oath of Secrecy yet it cannot deprive the King of the benefit of having the Evidence made publick if he desires it and that the Grand Jury do not break their Oaths when the King or the Prosecutor for him will have it so 'T is not hard to shew that such Notions have no foundation in Law or Reason and seem to come from men who have not well studied the first principles of the English Government or of true Religion Whosoever hath learnt that the Kings of England were ordained for the good Government of the Kingdom in the Execution of the Laws must needs know that the King cannot lawfully seek any other benefit in judicial proceedings than that common Right and Justice be done to the People according to their Laws and Customs Their Safety and Prosperity are to be the objects of His continual Care and Study that being highest concern The greatness and Honour of a Prince consists in the Virtue Multitude Wealth and Prowess of his People and his greatest Glory is by the excellence of his Government so to have encouraged Virtue and Piety that few or no Criminals are to be found in his Dominions Those who have made this their principal aim have in some places so well succeeded as to introduce such a Discipline and rectitude of manners as rendred every man a Law unto himself As it is reported in the History of Peru Gar. de la Veg. Hist de los Incas that though the Laws were so severe as to make very small Crimes capital yet it often fell out that not one man was put to Death in a year within the whole compass of that vast Empire The King 's only benefits in finding out and punishing Offenders by Courts of Justice are the preservation and Support of the Government the protection of the Innocent revenging their wrongs and preventing further mischiefs by the terrors of exemplary punishments The King is the head of Justice in the esteem of our Laws and the whole Kingdom is to expect right to be done them in his several Courts instituted by Law for that purpose Therefore Writs issue out in his name in all cases where relief is sought by the Subjects and the wrongs done to the Lives or Limbs of the People are said to be done against the Peace of the King his Crown and Dignity reckoning it a dishonour to him and his Government that Subjects should not whilst they live within the Law enjoy Peace and Security It ought to be taken for a scandal upon the King when he is represented in a Court of Justice as if he were partially concerned or rather inclined to desire that a party accused should be found guilty than that he should be declared innocent if he be so in Truth Doubtless the King ought to wish in all Enquiries
made after Treasons Felonies c. that there were none to be found in his Kingdom and that whosoever is accused might be able to answer so well and truly for himself as to shew the Accusation to be erroneous or false and to be acquitted of it Something of this appears in the common Custom of England that the Clerks of the Kings Courts of Justice when any man hath pleaded not guilty to an Indictment prays forthwith that God would send him a good deliverance The Destruction of every Criminal â—s a loss to a Prince and ought to be grievous to him in the common regard of humanity and the more particular Relation of his Office and the name of Father The Kings Interest and Honour is more concerned in the Protection of the Innocent than in the punishment of the Guilty This maxime can never run them into excesses for it hath ever been lookt upon as a mark of great Wisdom and Virtue in some Princes and States upon several occasions â—o destroy all Evidences against Delinquents and nothing is more usual than â—o compose the most dangerous distempers of Nations by Acts of general Amnesty which were utterly unjust if it â—t were as great a crime to suffer the Guilty to escape as to destroy the Innocent We do not only find those Princes represented in History under odious Characters who have basely murthered the Innocent but such as by their Spies and Informers were too inquisitive after the guilty whereas none was ever blamed for Clemency or for being too gentle Interpreters of the Laws Tho. Trajan was an excellent Prince endowed with all hereical Virtues yet the most eloquent Writers and his best friends found nothing more to be praised in his Government than that in his time all men might think what they pleased Tacit. lib. 1. Hist and every man speak what he thought and he had no better way of distinguishing himself from his wicked Predecessors than by hanging up the Spies and Informers whom they had employed for the discovery of crimes But if the punishment of Offenders were as universally necessary as the Protection of the Innocent he were as much to be abhorred as Nero and that clemency which is so highly praised were to be lookt upon as the worst of vices and those who have hitherto been taken for the best of Princes were altogether as detestable as the worst Moreover all humane Laws were ordained for the preservation of the Innocent and for their sakes only are punishments inflicted that those of our own Country do solely regard this was well understood by Fortesâ—ue who saith Fort. de Laud. Leg. Ang. ch 27. Indeed I could â—ather wish Twenty Evildoers to escape death through â—itty than one man to be unjustly condemned Such Blood hath cried to Heaven for Vengeance against Families and Kingdoms and their utter destruction hath ensued If a Criminal should be acquitted by too great lenity caution or otherwise he may be reserved for future Justice from Man or God if he doth not repent but 't is impossible that satisfaction or reparation should be made for innocent Bloodshed in the forms of Justice Without all question the Kings only just Interest in the Evidence given against the party accused and in the manner of taking it is to have the truth made manifest that Justice may there upon be done impartially And if accusations may be first examined in secret more strictly and exactly to prevent Fraud and Perjury than is possible to be done in open Court as hath before appeared then 't is for the Kings benefit to have it so And nothing done in or by a Court about the Trial of the accused is for the King in the sense of our Law unless it some way conduce to justice in the case The Witnesses which the Prosecutor brings are no further for the King than they tell the truth and the whole Truth impartially and by whomsoever any others may be called upon the Enquiry or the Trial to be examined if they sincerely deliver the truth of the matters in question they are therein the Kings Witnesses though the accused be acquitted by reason of their Testimonies If such as are offered by the Attorney General to prove Treason against any man shall be found to swear falsly maliciously or for Reward or Promises though they depose positively facts of Treason against the accused yet they are truly and properly Witnesses against the King by endeavouring to prevent Justice and destroy his Subjects Their Malice and Villany being confessed or proved the Kings Attorny ought ex Officio to prosecute them in the Kings name and at his suit for their Offences against him in such Depositions pretended to have been for him and the legal form of the Indictment ought to be for their swearing falsly and maliciously against the Peace of the King his Crown and Dignity The Prosecutors themselves notwithstanding their big words and assuming to themselves to be for the King if their prosecution shall be proved to be malicious or by Conspiracy against the Life or Fortune of the accused they are therein against the King and ought to be indicted at the King's Suit for such Prosecutions done against his Crown and Dignity And if an Attorney General should be found knowingly guilty of abetting such a Conspiracy his Office could not excuse or legally exempt him from suffering the villanous judgment to the destruction of him and his Family 'T is esteemed in the Law one of the most odious Offences against the King to attempt in his name to destroy the Innocent for whose Protection he himself was ordained Qu. Elizabeth had the true sense of our Law Co. Inst 3d part p. 79. when the Lord Burleigh upon Sir Edward Coke her then Attorney's coming into her presence told her this is he who prosecutes pro Domina Regina for our Lady the Queen and she said she would have the form of the Records altered for it should be Attornatus Generalis qui pro Domina veritate sequitur The Attorney General who prosecutes for our Lady the Truth Whoever is trusted in that employment dishonours his Master and Office if he gives occasion to the Subjects to believe that his Master seeks other profits or advantages by Accusations than the common Peace and Welfare He ought not to excite a jealousie in any of their minds that confiscations of Estates are designed or desired by any of the King's Ministers whosoever makes such advantages to the Crown their principal aim in accusing are either Robbers and Murderers in the Scripture sense in seeking innocent Blood for gain or in the mildest Construction supposing the Accusation to be on good grounds they shew themselves to be of corrupt minds and a scandal to their Master and the Government Profit or loss of that kind ought to have no place in judicial proceedings against suspected Criminals but truth is only to be regarded and for this reason the judgments given in Court of
humane Institution are in Scripture called the Judgments of God who is the God of truth Yet further if any benefit to the King could be imagined by making the Evidence to the Grand Jury publick it could not come in competition with the Law expressed in their Oath which by constant uninterrupted usage for so many Ages hath obtained the force of Law Bracton and Britton in their several Generations bear Witness that it was then practised and greater proof of it need not be sought than the Disputes that appears by the Law-Books to have been amongst the ancient Lawyers whether it was Treason or Felony for a Grand Jury to discover either who was indicted or what Evidence was given them The Trust of the Grand Juries was thought so sacred in those Ages and their secrecy of so great concern to the Kingdom that whosoever should break their Oath therein was by all thought worthy to die only some would have had them suffer as Traitors others as Felons Co. Instit 3d part p. 107. Rulls Indic 771. And at this day it is held to be a high Misprision punishable by Fine and Impoverishment The Law then having appointed the Evidence to be given to Grand Juries in secret the King cannot desire to have it made publick He can do no wrong saith the old Maxime that is he can do nothing against the Law nor is any thing to be judged for his benefit that is not warranted by Law His Will Commands and desires are therein no otherwise to be known He cannot change the legal Method or manner of enquiring by Juries nor vary in any particular case from the customary and general forms of judicial proceedings he can neither abridge nor enlarge the power of Juries no more than he can lessen the legal Power of the Sheriffs or Judges or by special Directions order the one how they shall execute Writs and the other how they shall give Judgments though these made by himself 'T is criminal no doubt for any to say that the King desires a Court of Justice or a Jury to vary from the direction of the Law and they ought not to be believed therein If Letters Writs or other Commands should come to the Judges for that purpose they are bound by their Oaths not to regard them but to hold them for null the Statutes of 2 E. 3.8 and 20 E. 3.1 are express That if any Writs or Commandments come to the Justices in disturbance of the Law or the Execution of the same or of right to the parties they shall proceed as if no such Letters Writs or Commands were come to them And the Substance of these and other Statutes is inserted into the Oath taken by every Judge and if they be under the most solemn and sacred Tye in the Execution of Justice to hold for nothing or none the Commands of the King under the great Seal surely the Word or Desire of an Attorney General in the like case ought to be less than nothing Besides they are strangely mistaken who think the King can have an Interest different from or contrary unto that of the Kingdom in the prosecution of Accused Persons His Concernments are involved in those of his People and he can have none distinct from them He is the Head of the Body Politick and the Legal course of doing Justice is like the orderly Circulation of the Blood in the Natural Bodies by which both Head and Body are equally preserved and both perish by the interruption of it The King is obliged to the utmost of his Power to maintain the Law and Justice in its due course by his Coronation Oath and the Trust thereby reposed in him In former Ages he was conjured not to take the Crown unless he resolved punctually to observe it Brom. p. 1159 Mat. Paris p. 153. Hoved. p. 374. Baker p. 68. Bromton others speaking of the Coronation of Richard the First deliver it thus That having first taken the Oath Deinde indutus Mantello ductus est ad Altare conjuratus ab Archiepiscopo prohibitus ex parte Dei ne hunc Honorem sibi assumat nisi in mente habeat tenere Sacramenta Vota quae superius fecit Et Ipse respondit se per Dei auxilium omnia supradicta observaturum bona fide Deinde cepit Coronam de Altari tradidit eam Archiepiscopo qui posuit eam super caput Regis sic Coronatus Rex ductus est ad sedem suam Afterward cloathed with the Royal Robe he is led to the Altar and conjured by the Archbishop and forbid in the Name of God not to assume that Honour unless he intended to keep the Oaths and Vows he had before made and he answered by God's help he would saithfully observe all the Premises And then he took the Crown from off the Altar and delivered it to the Archbishop who put it upon the King's head and the King thus Crowned is led unto his Seat The violation of which Trust cannot but be as well a wound unto their Consciences as bring great prejudice upon their Persons and Affairs The Common Law that exacts this doth so far provide for Princes That having their minds free from cares of preserving themselves they may rest assured that no Acts Words or Designs that may bring them into danger can be concealed from the many hundreds of men who by the Law are appointed in all parts of the Kingdom watchfully to take care of the King and are so far concerned in his safety that they can hope no longer to enjoy their own Lives and Fortunes in peace than they can preserve him and the good Order which according to the Laws he is to uphold It is the Joynt Interest of King and People that the Antient Rules of doing Justice be held sacred and inviolable and they are equally concerned in causing strict Inquiries to be made into all Evidences given against suspected or accused Persons that the Truth may be discovered and such as dare to disturb the Publick Peace by breaking the Laws may be brought to punishment And the whole course of Judicial Proceedings in Criminal Causes shews that the People is therein equally concerned with the King whose Name is used This is the ground of that distinction which Sir Ed. Coke makes between the Proceedings in Pleas of the Crown and Actions for wrongs done to the King himself Co. 3d. Inst pag. 136. In Pleas of the Crown or other common offences nusances c. principally concerning others or the Publick there the King by Law must be apprised by Indictment Presentment or other matter of Record but the King may have an Action for such wrong as is done to himself and whereof none other can have an Action but the King without being apprised by Indictment Presentment or other matter of Record as a Quare impedit Quare incumbravit a Writ of Attaint of Debt Detinue of Ward Escheat Scire fac pur repealer patent
THE SECURITY OF English-Mens Lives OR THE TRUST POWER and DUTY OF THE Grand Iurys OF ENGLAND Explained according to the Fundamentals of the English Government and the Declarations of the same made in Parliament by many Statutes Published for the Prevention of Popish Designs against the Lives of many Protestant Lords and Commoners who stand firm to the Religion and ancient Government of England LONDON Printed for T. Mitchel 1681. THE Principal Ends of all Civil Government and of Humane Society were the Security of Mens Lives Liberties and Properties mutual Assistance and Help each unto other and Provision for their common Benefit and Advantage and wherethe Fundamental Laws and Constitution of any Government have been wisely adapted unto those Ends such Countries ane Kingdoms have increased in Virtue Prowess Wealth and Happiness whil'st others through the want of such excellent Constitutions or neglect of preserving them have been a Prey to the Pride Lust and Cruelty of the most Potent and the People have had no Assurance of Estates Liberties or Lives but from their Grace and Pleasure They have been many times forced to welterin each others Blood in their Masters quarrel for Dominion and at best they 〈◊〉 â—erved like Beasts of Burden and 〈…〉 ntinual base subserviency to their 〈…〉 ers Vices have lost all sense of 〈◊〉 Religion Virtue and Manhood Our Ancestors have been famous in â—â—eir Generations for Wisdom Piety 〈…〉 d courage in forming and preserving â— Body of Laws to secure themselves and their Posterities from Slavery and Oppression and to maintain their Native Freedoms to be subject only to the Laws made by their own Consent in their general Assemblies and to be put in Execution chiefly by themselves their Officers and Assistants to be guarded and defended from all Violence and Force by their own Arms kept in their own hands and used at their own charge under their Princes Conduct entrusting nevertheless an ample Power to their Kings and other Magistrates that they may may do all the Good and enjoy all the Happiness that the largest Soul of man can honestly wish and carefully providing such means of correcting and punishing their Ministers and Councillors if they transgressed the Laws that they might not dare to abuse or oppress the People or design against their Freedom or Welfare This Body of Laws our Ancestors always esteemed the best Inheritance they could leave to their Posterities well knowing that these were the sacred Fence of their Lives Liberties and Estates and an unquestionable Title whereby they might call what they had their own or say they were their own Men The inestimable value of this Inheritance moved our Progenitors with great resolution bravely from Age to Age to defend it and it now falls to our Lot to preserve it against the Dark Contrivances of a Popish Faction who would by Frauds Sham-Plots and Infamous Perjuries deprive us of our Birth-rights and turn the points of our Swords our Laws into our own Bowels they have impudently scandalized our Parliaments with Designs to overturn the Monarchy because they would have excluded a Popish Successor and provided for the Security of the Religion and Lives of all Protestants They have caused Lords and Commoners to be for a long time kept in Prisons and suborned Witnesses to swear matters of Treason against them endeavouring thereby not only to cut off some who had eminently appeared in Parliament for our antient Laws but through them to blast the Repute of Parliaments themselves and to lessen the Peoples Confidence in those great Bulwarks of their Religion and Government The present purpose is to shew how well our Worthy fore-Fathers have provided in our Law for the safety of our Lives not only against all attempts of open Violence by the severe punishment of Robbers Murtherers and the like but the secret poysonous Arrows that flie in the dark to destroy the Innocent by false Accusation and Perjuries Our Law-makers foresaw both their dangers from the Malice and Passion that might cause some of private condition to accuse others falsly in the Courts of Justice and the great hazards of Worthy and Eminent Mens Lives from the Malice Emulation and Ill Designs of corrupt Ministers of State or otherwise potent who might commit the most odious of Murders in the form and course of Justice either by corrupting of Judges as dependant upon them for their Honour and great Revenue or by Bribing and Hiring men of depraved Principles and desperate Fortunes to swear falsly against them doubtless they had heard the Scriptures and observed that the great men of the Jews sought out many to swear Treason and Blasphemy against Jesus Chrâ—â—â— They had heard of Ahab's Courtiers and Judges who in the Course aâ—â— Form of Justice by false Witnesses 〈…〉 thered Naboth because he would nosubmit his Properly to an Arbiâ—rary Power Neither were they ignoraâ—â— of the Antient Roman Historâ—es 〈◊〉 the pestilent false Accusers that abounâ—ed in the Reign of some of those Emperours under whom the greatest of crimes was to be virtuous Therefore as became good Legislators they made as prudent Provision as perhaps any Country in the World enjoys for equal and impartial Administration of Justice in all the concerns of the Peoples Lives that every man whether Lord or Commoner might be in safety whilst they lived in due Obedience to the Laws For this purpose it is made a Fundamental in our Government that unless it be by Parliament See Ld Cookes Instit 3d part p. 40. no mans Life shall be touched for any crime whatsoever save by the Judgment of at least 24 men that is 12 or more See Mag. Chart. Cooke 's 2 part of Instit p. 50 51. to find the Bill of Indictment whether he be Peer of the Realm or Commoner and 12 Peers or above if a Lord if not 12 Commoners to give the Judgment upon the general Issue of not guilty joyned of these 24 the first 12 are called the Grand Inquest or the Grand Jury for the extent of their power and in regard that their number must be more than 12 sometimes 23 or 25 never were less than 13 Twelve whereof at least must agree to every Indictment or else 't is no legal Verdict If 11 of 21 or of 13 should agree to find a Bill of Indictment it were no Verdict The other Twelve in Commoners Cases are called the Petit-Jury and their number is ever Twelve but the Jury for a Peer of the Realm may be more in number though of like Authority The Office and Power of these Juries is Judicial they only are the Judges from whose Sentence the Indicted are to expect Life or Death upon their Integrity and Understanding the Lives of all that are brought into Judgment do ultimately depend from their Verdict there lies no Appeal by finding Guilty or not Guilty they do complicately Resolve both Law and Fact As it hath been the Law so it hath allways been the Custom and Practice of
part fol. 33. the same be also void and holden for none for ever See also the Statute of Westm 2d cap. 38. and Articâ—â— super Cortas ch 9. So careful have our Parliaments been that the Power of Grand Inquests might be placed in the hands of good and worthy men that if one man of a Grand Inquest though they be Twenty Three or more should not be Liber Legalis Homo or such as the Law requires and duly returned without denomination to the Sheriff all the Indictments found by such a Grand Jury and the proceedings upon them are void and null So it was adjudged in Scarlet 's case I know too well that the Wisdom and Care of our Ancestors in this Institution of Grand Juries hath not been of late considered as it ought nor the Laws concerning them duly observed nor have the Gentlemen and other men of Estates in the several Counties discerned how insensibly their legal Power and Jurisdiction in their Grand and Petit Juries is decayed and much of the means to preserve their own Lives and Interests taken out of their hands 'T is a wonder that they were not more awakened with the attempt of the late Ed. Ch. Justice K. who would have usurped a Lordly Dictatorian power over the Grand Jury of Somersetshire and commanded them to sind a Bill of Indictment for murther for which they saw no Evidence and upon their refusal he not only threatned the Jury but assumed to himself an Arbitrary Power to sine them Here was a bold Battery made upon the ancient Fence of our Reputations and Lives If that Justice's Will had passed for Law all the Gentlemen of the Grand Juries must have been the basest Vassals to the Judges and have been penally obliged Jurare in Verba Magistri to have sworn to the Directions or Dictates of the Judges But thanks be to God the late long Parliament though filled with Pensioners could not bear such a bold Invasion of the English Liberty but upon the Complaint of one Sir Hugh Windham Foreman of the said Jury and a Member of that Parliament the Commons brought the then Chief Justcie to their Bar to acknowledge his fault whereupon the Prosecution ceased The Trust and Power of Grand Juries is and ought to be accounted amongst the greatest and of most concern next to the Legislative The justice of the whole Kingdom in criminal Cases almost wholly depending upon their Ability and Integrity in the due Execution of their Office Besides the Concernments of all Commoners the Honour Reputation Estates and Lives of all the Nobility of England are so far submitted to their Censure that they may bring them into question for Treason or Felony at their Discretion Their Verdict must be entred upon Record against the greatest Lords and process must legally go out against them thereupon to imprison them if they can be taken or to outlaw them as the Statutes direct and if any Peer of the Realm though innocent should justly fear a Conspiracy against his Life and think fit to withdraw the direction of the Statutes in proceeding to the Outlawry being rightly pursued he could never reverse the Outlawry as the Law now stands save by Pardon or Act of Parliament Hence it appears that in case a Grand Jury should be drawn to Indict a Noble Peer unjustly either by means of their own weakness or partiality or a blind submission to the Direction or Opinion of Judges One such failure of a Jury may occasion the Ruine of any of the best or greatest Families in England I mention this extent of the Grand Juries Power over all the Nobility only to shew their joint Interest and Concern with the Commons of England in this ancient Institution The Grand Juries are trusted to be the principal means of preserving the Peace of the whole Kingdom by the terrour of executing the penal Laws against Offenders by their Wisdom Diligence and Faithfulness in making due Inquiries after all Breaches of the Peace and bringing every one to answer for his crime at the peril of his Life Limb and Estate that every man who lives within the Law may sleep securely in his own House 'T is committed to their Charge and Trust to take care of bringing Capital Offenders to pay their Lives to Justice and lesser Criminals to other punishments according to their several demerits The Courts or Judges or Commissioners of Oyer and Terminer and of Gaol Delivery are to receive only from the Grand Inquest all Capital matters whatsoever to be put in Issue tried and judged before them by the Petit Juries The whole Stream of Justice in such cases either runs freely or is stopped and disturbed as the Grand Inquests do their Duties either faithfully and prudently or neglect or omit them And as one part of their Duty is to Indict Offenders so another part is to protect the Innocent in their Reputations Lives and Interests from false Accusers and malicious Conspirators They are to search out the Truth of such Informations as come before them and to reject the Indictment if it be not sufficiently proved and farther if they have reasonable suspicion of Malice or wicked Designs against any mans Life or Estate by such as offer a Bill of Indictment the Laws of God and of the Kingdom bind them to use all possible means to discover the Villany and if it appear to them whereof they are the legal Judges to be a Conspiracy or malicious Combination against the Accused they are bound by the highest Obligations upon Men and Christians not only to reject such a Bill of Indictment but to Indict forth with all the Conspirators with their Abettors and Associates Doubtless there hath been Pride and Covetousness Malice and desire of Revenge in all Ages from whence have sprung false Accusations and Conspiracies but no Age before us ever hatched such Villanies as our Popish Faction have contrived against our Religion Lives and Liberties No History assords an Example of such Forgeries Perjuries Subornations and Combinations of infamous Wretches as have been lately discovered amongst them to defame Loyal Innocent Protestants and to shed their guiltless Blood in the Form and Course of Justice and to make the Kings most faithful Subjects appear to be the vilest Traitors unto him In this our miserable State Grand Juries are our only Security in as much as our Lives cannot be drawn into jeoperdy by all the malicious crasts of the Devil unless such a number of our honest Country Men shall be satisfied in the truth of the Accusations For prevention of such Plotters of wickedness as now abound was that Statute made in the 42 of E. 3.3 See the Stat. 42 E. 3.3 in these words To eschew the mischiefs and damage done to divers of the Commons by False Accusers which oftentimes have made the Accusations more for Revenge and singular Benefit than for the profit of the King or of his People which accused persons some have been taken and
are bound to enquire they ought firâ—â— and principally to enquire of one another mutually what knowledge each of theâ— hath of any matters in question before them the Law presumes that some at leaâ—â— of so many sufficient men of a County must know or have heard of all notable things done there against the public peace for that end the Juries are by the Law to be of the Neighborhood to the place where the crimes are committed If the parties and the facts whereof they are accused be known to the Jury or any of them their own knowledge will supply the room of many Witnesses Next they ought to enquire of all such Witnesses as the Prosecutors will produce against the Accused they are bound to examine all fully and prudently to the best of their skill every Jury Man ought to ask such questions by the Fore-man at least as he thinks necessary to resolve any doubt that may arise in him either about the fact or the Witnesses or otherwise if the Jury be then doubtful they ought to receive all such further Testimony as shall be offered them and to send for such as any of them do think able to give Testimony in the case depending If it be asked how or in what manner the Juries shall enquire the answer is ready according to the best of their understandings They only not the Judges are sworn to search diligently to find out all Treasons c. within their charge and they must and ought to use their own discretion in the way and manner of their Enquiry No directions can legally be imposed upon them by any Court or Judges An honest Jury wilâ— thankfully accept good Advice from Judges as they are Assistants but they are bound by their Oaths to present the Truth the whole Truth and nothing but the Truth to the best of their own not the Judges knowledge Neither caâ— they without breach of that Oath resign their Consciences or blindly submit to the dictates of others and therefore ought to receive or reject such Advices as they judge them good or bad If the Jury suspect a Combination oâ— Witnesses against any mans Life which perhaps the Judges do not discern and think it needful to examine them privately and separately the discretion of the Juries in such a case is their only best and lawful guide though the example of all Ages and Countries in examining suspected Witnesses privately and separately may be a good direction to them Nothing can be more plain and express than the words of the Oath are to this purpose The Jurors need not search the Law Books nor tumble over heaps of old Records for the explanation of them Our greatest Lawyers may from hence learn more certainly our ancient Law in this case than from all the Books in their Stueids The Language wherein the Oath is penned is known and understood by every man and the words in it have the same signification as they have wheresoever else they are used The Judges without assuming to themselves a Legislative Power cannot put a new sense upon them other than according to their genuine common meaning They cannot Magisterially impose their Opinions upon the Jury and make them forsake the direct words of their Oath to pursue their glosses The Grand Inquest are bound to observe alike strictly every part of their Oath and to use all just and proper ways which may enable them fully to perform it otherwise it were to say that after men had sworn to enquire diligently after the Truth according to the best of their Knowledge they were bound to forsake all the natural and proper means which their Understandings suggest for the Discovery of it if it be commanded by the Judges And therefore if they are jealous of a Combination of the Witnesses or that Corruption and Subornation hath been made use of they cannot be restrained from asking all such Questions as may conduce to the sifting out of the Truth nor from examining the Witnesses privately and separately Fort. D. Land Leg. Ang. cap. 26. lest as Fortescue says The saying of one should provoke or instruct others to say the like Nor are the Jury tied up to enquire only of such Crimes as the Judges shall think fit to give them directly in charge much less of such Bills only as shall be offered to them but their Enquiry ought to extend to All other Matters and Things which shall come to their Knowledge touching the present Service If they have ground to suspect that any Accusation before them proceeds from a Conspiracy they are obliged by their Oaths to turn the Enquiry that way and if they find cause not only to Reject the Bills offered upon such Testimony but to indict such Witnesses and all the Abettors of their Villany They are carefully to examine what sort of men the Witnesses are for 't is a Rule in all Laws that Turpes à Tribunalibus arcentur Vile Persons ought to be rejected by Courts of Justice Such Witnesses would destroy Justice instead of promoting it And the Grand Jury are to take care of admitting such They may and ought if they have no certain knowledge of them to ask the Witnesses themselves of their Condition and way of living and all other Questions which may best inform them what sort of men they are 'T is true it may be lawful for the Witnesses in many cases to refuse to give answer to some demands which the Jury may make as where it would be to accuse themselves of Crimes but yet that very refusal or avoiding to give direct Answers may be of great use to the Jury whose only business is to find out the Truth and who will be in a good measure enabled to judge of the Credit of such Witnesses as dare not clear themselves of Crimes which common Fame or the knowledge of some of the Grand Inquest has charged them with If the Witnesses which come before the Grand Jury upon an Indictment for Treason should discover upon their examination that they Concealed it a long tiâ—e without just Impediment The presumption of Law will be strong against them that no sense of honesty 〈◊〉 of their duty brought them at last to reveal it It appears by Bracton that ancient Writer of our Laws Brac. L. 3. c. 3. 〈◊〉 morari dâ—bet c. nâ—â— dâ—bet ad aliqua negâ—â—ia quaâ—â—is urgentissima so convertere quiâ— vix permittitur ei quòd retro aspiciat c. Si post intervallum accusare velit non erit de Jure aâ—diendus that in Cases of Treason the Juries were in his days advised as now they ought to be so severe in their Enquiry within what time the Witnesses discovered the Treason after it came to their knowledge That if it were not evident that they revealed it with as much expedition as was well possible for them they were not by Law no be heard as Witnesses It was scarce permitted them saith he to look back in
be taken from him by the Gaoler or the Court and given to his Prosecutors And all Advice Assistance from Councils or friends and his nearest Relations shall be denied him none suffered by word or writing to inform him of the indifferency or honesty or the Partiality or malice of the Pannels returned whom the Law allows him to Challenge or refuse either peremptorily or for good Reasons offered should he be thus deprived of all the good provisions of the Law for his safety To what Frauds Perjuries Subornations is not he and every man Exposed who may be accused What Deceits may there not be put upon Juries and what Probability is there of finding security in Innocence What an admirable Execution would this be of their Commission To make diligent Inquisition after all manner of Falshoods Deceipts wrongs and Frauds and thereupon to do Justice according to Law When at the same Time if so Managed a Method would be introduced of ruining and destroying any Man in the form of Justice Such practices would be the highest dishonour to the King imaginable whose name is used and so far Misrepresent the Kingly Office as to make that appear to have been Erected to vex and destroy the People which was intended and ordained to help and preserve them The Law so far abhors such proceedings that it intends that every Man should be strictly bound to be Exactly just in their several Imployments relating to the Execution of Justice The Sergeant of the Kings Council Sir George Jeffrys among the rest who prosecute in the King's name and are consulted in the forming bills of Indictment and advice about the witnesses and their Testimonies against the Accused These if they would remember it when they are made Sergeants take an Oath Cokes 2d Institutes Pag. 214. as well truly to serve the People whereof the party accused is one as the King himself and to minister the Kings matters duely and truely after the course of the Law to their Cunning Not to use their Cunning Craft to hide the Truth and destroy the accused if they can They are also obliged by the Statute of Westm 1. Cap. 29. To put no manner of Deceit or Collusion upon the Kings Court nor secretly to consent to any such Tricks as may abuse or beguile the Court or the party be it in Causes Civil or Criminal And it is ordained that if any of them be convicted of such practices he shall be imprisoned for a year never be heard to plead again in any Court and if the Mischievous consequence of their Treacheries be great they are Subject to further and greater punishments Our Auntient Law Book called the Mirror of Justice Cap. 2. Sect. 4. says That every Sergeant Pleader is chargeable by his Oath not to maintain or defend any wrong or Falshood to his Knowledge but shall leave his Client when he shall perceive the wrong intended by him Also that he shall not move or proffer any false Testimony nor consent to any Lyes Deceits or Corruptions whatsoever in his pleadings As a further Security unto the People against all Attempts upon their Laws Exemplary Justice hath been done in several Ages upon such Judges and Justiciaries as through Corruption Submission unto unjust Commands or any other Sinister consideration have dared to swerve from them The punishments of these wicked Men remain upon Record as Monuments of their Infamy to be a Terror unto all that shall succeed them In the Reign of the Saxons the most notable Example was given by King Alfred who caus'd above forty Judges to be hanged in a Short Space for several wrongs done to the People as is related in the Mirror of Justice Some of them suffered for imposing upon Juries and forcing them to give Verdicts according to their will And one as it seems had taken the Considence to examine a Jury that he might find which of them would Submit to his will and Setting aside him who would nor condemned a Man upon the Verdict of Eleven Since the Coming in of the Normans our Parliaments have not been less severe against such Judges as have suffered the course of Justice to be perverted or the Rights and Liberties of the People to be invaded In the time of Edward the 1st Anno 1289. The Parliament finding That all the Judges except Two had swerv'd from their duty condemned them to several punishments according unto their Crimes As Banishment Perpetual Imprisonment Ex Chron. Anno 10 Ed. 1. or the Loss of all their Estates c. Their Particular Offences are specified in a speech made by the Arch-Bishop of Canterbury in Parliament They had broken Magna Charta Incited the King against his People Violated the Laws under pretence of expounding them And impudently presumed to prefer their own Councils to the King before the Advices of Parliament as appears by the speech c. Hereunto annext The like was done in Ed. the 2d Time when Hugh De Spencer was charged for having prevailed with the King to break his Oath to the People in doing Things against the Law by his own Authority In Edward the 3d. Time Judge Thorpe was hanged for having in the like manner brought the King to break his Oath Dan. History p. 260 261. And the happy Reign of that great King affords many Instances of the like nature amongst which the punishment of Sr. Henry Green and Sr. William Skipwith deserve to be observed and put into an Equal rank with those of his brave and victorious Grand-father In Richard the Second's Time See all the English Histories of Walsingham Fabian Speed c. in the 11 and 21 years of Richard the 2d Eleven of the Judges forgetting the dreadful Punishments of their Predecessors subscribed malicious Indictments against Law and gave false Interpretations of our Antient Laws to the King thereby to bring many of his most Eminent worthiest Subjects to suffer as Traytors at his Will Subjected the Authority and very being of Parliaments to his absolute pleasure And made him believe that all the Laws lay in his own breast Hereupon sentence of death passed upon them and tho upon their repentance and confessing they had been swayed by fear and threatnings from the King Two only were Executed all the others were for ever banished as unworthy to enjoy the benefit of that Law which they had so perfidiously and basely betrayed It were an Endless work to recite all the Examples of this kind that are found in our Histories and Records but that of Empson and Dudley must not be omitted They had craftily contrived to abolish Grand Juries and to draw the Lives and Estates of the People into question without Indictments by them and by surprise and other wicked practices they gained an Act of Parliament for their countenance Hereupon false Accusations followed without number Oppression and Injustice broke forth like a Flood And to gain the Kings Favor they filled his Coffers
that Grand Juries have both a larger field for their Inquiry and are in many respects better capacitated to make a strict one than the Petit Juries These last are confined as to the Person and the Crime specified in the Indictment But They are at large obliged to search into the whole matter that any ways concerns every case before them and all the Offences contained in it all the Criminal Circumstances whatsoever and into every Thing howsoever concerning the same They are bound to inquire whether their Information of Suspected Treasons or Felonies brought by Accusers be made by Conspiracy or Subornation Who are the Conspirators or false Witnesses By whom abetted or maintained Against whom and how many the Conspiracy is layed When and how and in what course it was to have been prosecuted But none of these most intricate matters which need the most strict and diligent Inquiries can come under the Cognisance of the Petit Jury They can only examine so much as relates to the Credit of those Witnesses brought to prove the Charge against the Parties Indicted Wherein also they have neither Power nor convenient time to send for persons or Papers if they think them needful Nor to resolve any doubts of the Lawfulness and Credibility of the Testimonies Yet further if the Crimes objected are manifest 't is then the Grand Juries duty to inquire after all the Persons any ways concerned in them and the several Kinds of Offences whereof every one ought joyntly or separately to be indicted as they shall discover them to have been Principals or Accessories Parties or privy thereunto or to have comforted or Knowingly relieved either the Traitors or Felons or conceal'd the offences of others But the Inquisition into all these matters which require all possible strictness in searching as being of the highest importance unto the publick Justice and safety is wholly out of the Power Trust of the Petit Juries The guilt or Innocence of the Parties put upon their Tryals the Evidence thereof given is the only Objects of their Inquiries It is not their work nor within their trust to search into all the guilt or Crimes of the Parties whom they try They are bound to move within the Circle of the Indictment made by the Grand Jury who are to appoint and specify the offences for which the Accused shall be tried by the Petit Jury When a Prosecutor suggests that any Man is criminal and ought to be indicted it belongs to the Grand Jury to hear all the proof he can offer to use all other means they can whereby they may come to understand the Truth of the suggestion every thing or circumstance that may concern it Then they are carefully to examine the nature of the Facts according unto the Rules of the Com. Law or the express words of the Statutes whereby offences are distinguished and punishments allotted unto each of them T is true that upon heating the Party or his Witnesses the Petit Jury may acquit or judge the Facts in the Indictment to be less heinous or malitious then they were presented by the Grand Jury but cannot aggravate them which being considered it will Easily appear by the intent and Nature of the Powers given unto Grand Juries that they are by their Oaths obliged and their institution ordained to keep all injustice from entring the first gates of our Courts of Judicature and to secure the innocent not only from punishment but from all disgrace vexation Expence or danger To understand our Law clearly herein the Jurors must first know the lawful grounds whereupon they may and ought to indict and then what truly and justly ought to be taken for the ground of an Indictment The principal and most certain is the Jurors personal knowledge by their own Eyes or Ears of the Crimes whereof they indict Or so many pregnant concurring Circumstances as fully convince them of the guilt of the Accused When these are wanting the Depositions of Witnesses and their Authority are their best guides in finding Indictments When such Testimonies make the charge manifest and clear to the Jury they are called Evidence because they make the guilt of the Criminal evident and are like the Light that discovers what was not seen before All Witnesses for that reason are usually called the Evidence taking their name from what they ought to be Yet Witnesses may swear directly and positively to an Accusation and be no Evidence of its truth to the Jury sometimes such Remarks may be made upon the Witnesses as well in relation to their Reputation and Lives as to the Matter Manner and Circumstance of their Depositions that from thence the falshood may appear or be strongly suspected It is therefore necessary to know what they mean by a probable Cause or Evidence who say that our Law requires no more for an Indictment Probable is a Logical Term relating to such propositions as have an appearance but no certainty of Truth shewing rather what is not than what is the matter of Syllogisms These may be allowed in Rhetorick which worketh upon passions and makes use of such Colors as are fit to move them whether true or false but not in Logick whose Object is Truth as it principally intends to obviate the Errours that may arise from the credit given unto appearances by distinguishing the uncertain from the certain verisimile à vero it cannot admit of such Propositions as may be false as well as true it being as impossible to draw a certain conclusion from uncertain premises as to raise a solid Building upon a tottering or sinking Foundation This ought principally to be considered in Courts of Justice which are not erected to bring men into condemnation but to find who deserves to be condemned and those Rules are to be followed by them which are least liable to deception For this Reason the Council of the Areopagites and some others of the best Judicatures that have been in the World utterly rejected the use of Rhetorick looking upon the Art of persuading by uncertain probabilities as little differing from that of deceiving directly contrary to their ends who by the knowledge of truth desired to be led into the doing of Justice But if the Art that made use of their probabilities was banisht from uncorrupted Tribunals as a hindrance unto the discovery of Truth they that would ground Verdicts totally upon them declare an open neglect of it and as it is said that uno absurdo dato mille sequuntur if Juries were to be guided by probabilities the next question would be concerning the more or less probable or what degree of probability is required to persuade them to find a Bill This being impossible to fix the whole Proceedings would be brought to depend upon the Fancies of Men and as nothing is so slight but it may move them there is no security that innocent Persons may not be brought every day into danger and trouble By this means certain
mischiefs will be done whilst it is by their own confession uncertain whether they are any ways deserved by such as suffer them to the utter overthrow of all Justice If the word Probable be taken in a common rather than a nice Logical sense it signifies no more than likely or rather likely than unlikely When a matter is found to be so the Wager is not even there is odds upon one side and this may be a very good ground for betting in a Tennis Court or at a Horse race but he that would make the Administration of Justice to depend upon such Points seems to put a very small value upon the Fortunes liberties and reputation of men and to forget that those who set in Courts of Justice have no other business there than to preserve them This continues in force tho in a Dialogue between a Barrister and a Grand Jury man published under the Title of the Grand Jury Mans Oath and Office it be said p. 8. and 9. That their work is no more than to present Offences fit for a Tryal and for that Reason give in only a Verisimilar or probable charge and others have affirmed that a far less Evidence will warrant a Grand Juries Indictment than a petit Juries Verdict For Nothing can be more opposite to the Justice of our Laws than such Opinions All Laws in doubtful Cases direct a suspension of Judgment or a sentence in favour of the Accused person But if this were hearkened unto Grand Juries should upon their Oaths affirm they judge him Criminal when the Evidence is upon such uncertain grounds that they cannot but doubt whether he is so or not It cannot be hereupon said that no Evidence is so clear and full but it may be false and give the Jury occasion of doubts so as all Criminals must escape if no Indictment ought to be found unless the proofs are absolutely certain for it is confessed that such Cases are not capable of an infallible Mathematical demonstration but a Jury that Examines all the Witnesses that are likely to give any Light concerning the business in question and all Circumstances relating to the fact before them with the Lives and Credit of those that testify it and of the Person accused may and do often find that which in their Consciences doth fully perswade them that the accused Person is guilty This is as much as the Law or their Oath doth require and such as find bills after having made such a Scrutiny are blamless before God and Man if through the fragility inseparable from humane nature they should be led into Error For they do not swear that the bill is true but that they in their Consciences believe that it is so And if they write Ignoramus upon the Bill it is not thereby declared to be false nor the Person accused acquitted but the matter is suspended until it can be more clearly proved as in doubtful Cases it alwaies ought to be Our Ancestors took great Care that suspicious and probable Causes should not bring any Mans Life and Estate into danger For that reason it was ordained by the Stat. 37. Ed. 3. Cap. 18. That such as made suggestions to the King should find surety to pursue and incur the same pain that the other should have had if he were attainted in case their suggestion be found evil that then process of the Law should be made against the Accused This manner of Proceeding hath its root on eternal and universal Reason The Law given by God unto his People Deut. 19. allotted the same Punishment unto a false witness as a Person convicted The best disciplined Nations of the world learnt this from the Hebrews and made it their Rule in the administration of Justice The Grecians generally observed it and the Romans according to their Lex Talionis did not only punish death with death but the intention of committing Murther by false Accusations with the same severity as if it had been effected by any other means This Law was inviolably observed as long as any thing of regularity or equity remained amongst them and when through the wickedness of some of the Emperours or their favourites it came to be overthrown all Justice perished with it A Crew of false Informers brake out to the destruction of the best men and never ceased until they had ruined all the most eminent and antient Families Circumvented the Persons that by their Reputation Wealth Birth or Virtue deserved to be distinguished from the common sort of People and brought desolation upon that victorious City Tac. Ann. 3. Tacitus complains of this as the cause of all the mischiefs suffered in his Time and Country By their means the most Savage Cruelties were committed under the name of Law which thereby became a greater Plague than formerly crimes had been No remedy could be found when those Delatores whom he calls genus hominum Publico exitio repertum Tac. Ann. 4. poenis quidem nunquam satis coercitum were invited by impunity or reward and the Miserable People groaned under this calamity until those instruments of iniquity were by better Princes put to the most cruel though well deserved deaths The like hath been seen in many Places and the domestick quiet which is now enjoyed in the Principal parts of Europe proceeds chiefly from this that every man knows the same Punishment is appointed for a false Accusation and a proved crime It is hardly seven years since Monsieur Courboyer a man of quality in Brittany suborned two of the King of France his Guards to swear Treasonable Designs against La Motte a Norman Gentleman The matter being brought to Monsieur Colebert he caused the Accused Person and the witnesses to be secured until the fraud was discovered by one of them whereupon he was pardoned La Motte released Courboyer beheaded and the other false Witness hanged by the Sentence of the Parliament of Paris Though this Law seems to be grounded upon such foundation as forbids us to question the equity of it our Ancestors for Reasons best known unto themselves thought fit to moderate its Severity by the Statute of 38. Ed. 3. Cap. 9. yet then it was enacted and the Law continues in force unto this day That whosoever made complaints to the King and could not prove them against the defendant by the process of Law limited in former Statutes which is first by a Grand Jury he should be imprisoned until he had made gree to the Party of his damages and of the slander he suffered by such occasion and after shall make fine and ransom to the King which is for the Common damage that the King and his People suffer by such a false accusation and defamation of any Subject And in the 42. Ed. 3. Cap 3. To eschew the Mischiefs and damage done by false Accusers 'T is enacted that no man be put to answer such suggestions without presentment before the Justices i. e. by the Grand Jury It
many well polished Kingdoms several Courts of Justice are instituted who take cognizance of the same facts but so subordinate unto one another that in matters of life limb liberty or other important cases there is a right of appeal from the inferior before which it is first brought to the Superior where this is wanting means have been found to give opportunity unto the Judges to reflect upon their own sentences that if any thing had been done rashly or through mistake it might be corrected man even in his best estate seeming to have need of some such helps Tiberius Caesar was never accused of too much lenity but when he heard that Lutorius ' Priscus had been accused of Treason before the Senate condemned and immediately put to death Tam praecipites deprecatus est poenas He desired that such sudden punishment might for the future be forborn and a Law was thereupon made That no Decree of the Senate should in less than ten days be transmitted to the Treasury before which time it could not be executed Tac. An. 3. Matters of this nature concerning every man in England it is not to be doubted but our Ancestors consider'd them and our constitutions neither admitting of subordinate Judicatures from whence appeals may be made nor giving opportunities unto Juries to re-examine their Verdicts after they were given they could not find a way more suitable unto the rules of Wisdom Justice and Mercy than to appoint two Juries with equal care according unto different methods the one in private and at leisure the other publickly in the presence of the party and more speedy to pass upon every man so as none can be condemned unless he be thought guilty by them both and it cannot be imagined that so little time as is usually spent in Trials at the Bar before a Petit Jury should be allowed unto one that pleads for his life or unto them who are to be satisfied in their consciences unless it were presumed that the Grand Jury had so well examined prepared and disgested the matter that the other may proceed more succinctly without danger of error Therefore let the Grand Juries faithfully perfom thei high Trust and neither be cheated nor frighted from their Duty Let them pursue the good old way since no Innovation can be brought in that will not turn to the prejudice of the accused Pesons and themselves Let them not be deluded with frivolous Arguments so as to invalidate a considerable part of our Law and render themselves insignificant ciphers in Expectation that Petit Juries will repair the faults they commit since that would be no less than to slight one of the best fences that the Law provides for our Lives and Liberties and very much to weaken the other When a Grand Jury finds a Bill against any person they do all that in them lies to take away his Life if the crime be capital and it is ridiculous for them to pretend they relie upon the virtue of the Petit Jury if they shew none in themselves They cannot reasonably hope the other should be more tender of the Prisoners concernments more exact in doing Justice or more careful in examining the Credit of the Witnesses when they have not only neglected their duty of searching into it but added strength unto their Testimony by finding a Bill upon it They cannot possibly be exempted from the blame of consenting at the least unto the mischiefs that may ensue unless they use all the honest care that the Law allows to prevent them nor consequently avoid the stain of the blood that may be shed by their omission since it could not have been if they had well performed their part before they found the Indictment whereby the Party is exposed to so many disadvantages that it is hard for the clearest Innocence to defend itself against them But when the one and the other Jury act as they ought with courage diligence and indifference we shall have just reason with the wise Lord Chancellour Fortescue to celebrate that Law that instituted them To congratulate with our Countrey men the happiness we enjoy whilest our Lives lie not at the mercy of unknown Witnesses hired Fort. de laud. Leg. Ang. cap. 26. poor uncertain whose conversation or malice we are strangers to but Neighbours of Substance of honest report brought into Court by an honourable sworn Officer men who know the POstquam Rex per spatium trium Annorum amplius in partibus transmarinis remansisset Ex Chronico ab Anno 1272. 1 Ed. 1. ad An. 1317.10 Ed. 2. Mss de partibus Vasconiae Franciae in Angliam rediisset valde anxiatus conturbatus fuit per quotidianum clamorem tam Clericorum quam Laicorum petentium ab eo congruum remedium apponi versus Justiciarios An. Dom. 2289. Annoque Regni Regis Ed. 1.18 alios Ministros suos de multimodis oppressionibus gravaminibus contra bonas leges consuetudines regni illis factis Certe scimus quam plurimos eorum qui judiciis sub Ed. 1. praefuere viros quidem maximos aevo in illo Juris-consultos celeberrimos repetundarum quod lites suas fecerant aliosque praeter Ministros forenses aliquot merito damnatos multos exitia carcere punitos Ex Seldein ad Fletam dissertatio p. 548. super quo Dominus Edvardus Rex per regale scriptum Vicecomitibus Angliae praecipit quod in omnibus Comitatibus Civitatibus Villis mercatoriis publice proclamari facerent quod omnes qui sese sentient gravari venirent apud Westm ad proximum Parliamentum ibi querimonias suas monstrarent ubi tam majores quam minores opportunum remedium celerem justitiam recuperent sicut Rex vinculo juramenti die Coronationis suae astrictus fuit Ac jam adest magnus dies judiciarius Justiciorum aliorum Ministrorum Concilii Regis quem nulla tergiversatione nullo munere nulla arte vel ingenio placitandi valent eludi Coadunatis itaque Clero Populo in magno Palatio Westmonasterii consessis Archiepiscopus Cantuariensis vir magnae pietatis columna quasi sanctae Ecclesiae Regni surrexit in medio ab alto ducens suspiria Noverit universitas vestra ait quod convocati sumus de magnis arduis negotiis regni heu nimis perturbati his diebus enormiter mutilati unanimimiter fideliter efficaciter fimul cum Domino Rege ad tractandum ordinandum audivistis etiam universi querimonias gravissimas super intolerabilibus injuriis oppressionibus quotidianis desolationibus Vide Fleta Cap. 17. p. 18 19. Authoritas Officium ordinarii Concilii Regis tam sanctae Eccles quam Reg. factis per hoc iniquum Concilium Domini Regis contra magnas Chartas tot toties multoties emptas redemptas concessas confirmatas per tot ta lia Juramenta Domini Regis nunc