these Juries upon all general Issues pleaded in Cases Civil as well as Criminal to judge both of the Law and Fact See the Reports of the Lord Chief Justice Vaughan p. 150.151 So it is said in the Report of the Lord Chief Justice Vaughan in Bushel's Case that these Juries determine the Law in all matters where Issue is joyned and tried in the Principal Case whether the Issue be about a Trespass or a Debt or Disseizin in Assizes or a Tort or any such like unless they should please to give a special Verdict with an implicite faith in the Judgment of the Court to which none can oblige them against their Wills These last 12 must be Men of equal condition with the Party Indicted and are called his Peers therefore if it be a Peer of the Realm they must be all such when Indicted at the Suit of the King and in the case of Commoners every Man of the 12 must agree to the Verdict freely without compulsion fear or menace else it is no Verdict Whether the case of a Peer be harder I will not determine Our Ancestors were careful that all men of the like condition and quality presumed to be sensible of each others infirmity should mutually be Judges each of others lives and alternately tast of Subjection and Rule every man being equally liable to be Accused or Indicted and perhaps to be suddenly judged by the Party of whom he is at present Judge if he be found innocent Whether it be Lord or Commoner that is Indicted the Law intends as near as may be that his equals that Judge him should be his Companions known to him and he to them or at least his Neighbours or Dwellers near about the place where the Crime is supposed to have been committed to whom something of the Fact must probably be known and though the Lords are not appointed to be of the Neighbourhood to the Indicted Lord yet the Law supposes them to be Companions and personally well known each unto other being presumed to be a small number as they have anciently been and to have met yearly or oftner in Parliament as by Law they ought besides their other meetings as the hereditary Councillers of the Kings of England If time hath altered the case of the Lords as to the number indifferency and impartiality of the Peers it hath been and may be worthy of the Parliaments consideration and the greater duty is incumbent upon Grand Juries to examine with the utmost diligence the Evidence against Peers before they find a Bill of Indictment against any of them if in truth it may put their Lives in greater danger It is not designed at this time to undertake a discourse of Petit-Juries but to consider the Nature and Power of Grand Inquests and to shew how much the Reputation the Fortunes and the Lives of English Men depend upon the Conscientious performance of their Duty It was absolutely necessary for the support of the Government and the safety of every Mans life and interest that some should be trusted to inquire after all such as by Treasons Fellonies or lesser Crimes disturbed the peace that they might be prosecuted and brought to condign punishment and it was no less needful for every mans quiet and safety that the trust of such inquisitions should be put into the hands of Persons of understanding and integrity indifferent and impartial that might suffer no man to be falsely accused or defamed nor the lives of any to be put in jeopardy by the malicious conspiracies of great or small or the Perjuries of any profligate wretches For these necessary honest ends was the institution of Grand Juries Our Ancestors thoughtit not best to trust this great concern of their Lives and Interests in the Hands of any Officer of the King 's or in any Judges named by him nor in any certain number of men during life lest they should be awed or influenced by great men corrupted by bribes flatteries or love of power or become negligent or partial to Friends and Relations or pursue their own Quarrels or private Revenges or connive at the Conspiracies of others and indict thereupon But this trust of enquiring out and Indicting all the Criminals in a County is placed in men of the same County more at least than Twelve of the most honest and most sufficient for Knowledge and Ability of Mind and Estate to be from time to time at the Sessions and Assizes and all other Commissions of Oyer and Terminer named and returned by the chief Sworn Officer of the County the Sheriff who was also by express Law anciently chosen annually by the people of every County and trusted with the Execution of all Writ and Processes of the Law and with the power of the County to suppress all Violences unlawful Routs Riots and Rebellions Yet our Laws left not the Election of these Grand Inquests absolutely to the Will of the Sheriffs but have described in general their Qualifications who shall Enquire and Indict either Lore or Commoner They ought by the old common Law to be lawful Liedgâ— people of ripe Age not over aged or in firm and of good Fame amongst their Neighbours free from all reasonable suspicion of any design for himself or others upon the Estates or Lives of any suspected Criminals or Quarrel or Controversie with any of them They ought to be indifferent and impartial even before they are admitted to be sworn and of sufficient Understanding and Estate for so great a Trust The ancient Law-Book called Briton See Brit. p. 9 and 10. of great Authority says The Sheriffs Bailiffs ought to be sworn to return such as know best how to enquire and discover all breaches of the Peace and lest any should intrude themselves or be obtruded by others they ought to be res turned by the Sheriff without the Denomination of any except the Sheriffs Officers And agreeable hereunto was the Statute of 11. See 11. Hen. 4. H. 4 in thnse words Item Because of late Inquests were taken at Westminster of persons named to the Justices without due Return of the Sheriff of which persons some were outlawed c. and some fled to Sanctuary for Treason and Felony c. by whom as well many Offenders were indicted as other lawful Liedge people of the King not guilty by Conspiracy Abetment and false Imagination of others c. against the course of the common Law c. It is therefore granted for the Ease and Quietness of the People that the same Indictment with all its Dependances be void and holden for none for ever and that from henceforth no Indictment be made by any such persons but by Inquest of the Kings Liedge People in the manner as was used c. returned by the Sheriffs c. without any denomination to the Sheriffs c. according to the Law of England and if any Indictment be made hereafter in any point to the contrary See Cooke Instit 3d
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
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
sometimes caused to come before the King's Council by Writ and otherwise upon grievous pain against the Law It is assented and accorded for the good Government of the Commons That no man be put to answer without presentment before Justices or matter of Record c. according to the old Law of the Land and if any thing be done to the contrary it shall be void in Law c. And saith the Statute of the 25 of E. 3.4 None shall be taken by Petition or Suggestion made to the King or to his Council unless it be by Indictment or Presentment of good and lawful People of the same Neighbourhood where such deeds be done c. That is to say by a Grand Jury All our Lives are thus by Law trusted to the Care of our Grand Inquests that none may be put to answer for their lives unless they Indict them If a causless Indictment of any man should carelesly pass from them his guiltless Blood or what Prejudice soever the Accused should thereby suffer must rest upon them who by breach of their Trust were the occasions of it their fault cannot be excused by the prosecution of an Attorney or Solicitor General or any other Accuser if it were in their power to be more truly informed in the Case Whosoever prevents not an Evil when he may consents to it Now to oblige these Juries to the more conscientious care to Indict all that shall appear to them Criminals and to save every Innocent if it may be from unjust Vexation and danger by Malice and Conspiracy our Ancestors appointed an Oath to be imposed upon them which cannot be altered except by Act of Parliament Therefore every Grand Jury Man is sworn as the Foreman in the words following viz. You shall diligently enquire and true Presentment make of all such Articles matters and things as shall be given you in charge And of all other matters and things as shall come to your own knowledge touching this present service The King's Council your Fellows and your own you shall keep secret You shall present no person for Hatred or Malice neither shall you leave any one unpresented for Favour or Affection for Love or Gain or any hopes thereof but in all things you shall present the Truth the whole Truth and nothing but the Truâ—â— to the best of your knowledge so hâ—â— you God The Tenor of the Oath plain saving in those words All suâ—â— matters and things as shall be given 〈◊〉 in charge But whensoever a general Commission of Over and Terminer issued all Capital Offences are alwaies 〈◊〉 principal matters given in charge to 〈◊〉 Grand Jury which is enough for 〈◊〉 present discourse oâ— their duty Heâ—â— then it evidently appears that eveâ— Grand Jury is bound to enquire dâ—â— gently after the Truth of every thiâ—â— for which they shall Indict or Present â—ny Man They are not only bound 〈◊〉 by the Eternal Law of loving the Neighbour to be as tender of the 〈◊〉 and good Name of every man as of the own and therefore to take heed to the Truth in Accusing or Indicting any man but their express Oath binds them to 〈◊〉 diligent in their Enquiries that is 〈◊〉 receive no suggestion of any Crime 〈◊〉 Truth without examining all the Câ—â—cumstances about it that fall within the knowledge they ought to consider the first Informers and enquire as far as they can into their Aims and Pretences in their prosecutions if Revenge or Gain should appear to be their ends there ought to be the greater suspition of the Truth of their Accusations the Law intending all Indictments to be for the benefit of the King and of his People as appears by the Stat. of 42 E. 3.3 Next the Jury are bound to enquire into the matters themselves whereof any man is accused as to the time place and all other circumstances of the Fact alledged There have been false Informers that have suggested things impossible for instance That Thirty Thousand Men in Arms were kept in readiness for an Exploit in a secret place as if they could have been hid in a Chamber or a Cabinet The Jury ought also to enquire after the Witnesses their condition and quality their fame and reputation their means of subsistence and the occasion whereby the Facts whereof they bear witness came to their knowledge Sometimes persons of debaucheâ— lives and low condition have deposeâ— Discourses and Treasonable Council against Persons of Honour and Virtue so unlikely to come to their Knowledge if such things had been that their pretence of being privy to them was strong Evidence that their whole story was false and feigned It is also agreeable unto our ancient Law and Practice and of great Consequence in cases 〈◊〉 Treason or Felony that the Jury enquire after the time when first the matters deposed came to the Witnesses knowledge and whether they pursued the directions of the Law in the immediatâ— Discovery and pursuit of the Traitor oâ— Felon by Hue and Cry or otherwise oâ— how long they concealed the same their Testimony being of little or no value iâ— they have made themselves partakeâ— of the Crime by their voluntary Concealment Neither may the Jury lawfully omiâ— to enquire concerning the Parties Accused of their Quality Reputation and the manner of their Conversation with many other Circumstances from whence they may be greatly helped to make right Inferences of the Falshood or Truth of the Crimes whereof any man shall be accused The Jury ought to be ignorant of nothing whereof they can enquire or be informed that may in their understandings enable them to make a true Presentment or Indictment of the matters before them When a Grand Jury is sworn to enquire diligently after all Treasons c. 't is natural and necessary to their business to think of whom they should enquire and 't is plainly and easily resolved that they ought to enquire of every man that can or will inform them and if any kind of Treason be suggested to them to have been done by any man or number of men their duty is the same in that particular as it was in the general that is to seek diligently to find the truth 'T is certainly inconsistent with their Oaths to shut their Ears against any lawful man that can tell them any thing relating unto a crime in question before them No man will believe nor can they themselves think that they desire to find anâ— present the truth of a fact if they shaâ—â— refuse to hear any man who shall pretend such knowledge of it or such material Circumstances as may be useful to discover it whether that which shall be said by the pretenders will answer the Juries expectations must reâ—â— in their Judgments when they have heaâ—â— them It seems therefore from the word of the Oath that there is no bound or limit set save their own understanding or Conscience to restrain them to and number or sort of persons of whom they
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
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
c. Unto which every man must answer But no man can be brought to answer for Publick Crimes at the King's Suit otherwise than by Indictment of a Grand Jury The whole Course of doing Justice upon Crimina's from the beginning of the process unto the Execution of the Sentence is and ever was esteemed to be the Kingdoms concernment as is evidenced by the frequent Complaints made in Parliament that Capital Offenders were pardon'd to the Peoples damage and wrong In the 13 Rich. 2. it is said that the King hearing the grievous Complaints of his Commons in Parliament of the outragious mischiefs which happened unto the Realm for that Treasons Murders and Rapes of Women be commonly done and committed and the more because Charters of pardon had been easily granted in such cases And thereupon it was enacted that no pardon for such crimes should be granted unless the same were particularly specified therein and that if a pardon were otherwise granted for the death of a man the Judges should notwithstanding enquire by a Grand Jury of the Neighbourhood concerning the death of every such person and if he were found to have been wilfully murdered such Charter of Pardon to be disallowed and provisions were made by imposing grievous Fines upon every person according to his Degree and Quality or Imprisonment who should presume to sue to the King for any pardons of the aforesaid crimes and that such persons might be known to the whole Kingdom their names were to be upon several Records The like had been done in many Statutes made by several Parliaments as in the 6 Ed. 1.9 the 2 Ed. 3.2 the 10 Ed. 3.2 and the 14 Ed. 3.15 wherein it was acknowledged by the King in Parliament That the Oath of the Crown had not been kept by reason of the Grant of Pardons contrary to the aforesaid Statutes and enacted that any such Charter of Pardon from thenceforth granted against the Oath of his Crown and the said Statutes the same should be holden for none In the 27 Edw. 3.2 It is further provided for preventing the Peoples damage by such pardons That from thenceforth in every Charter of Pardon of Felony which shall be granted at any mans suggestion the said suggestion and the name of him that maketh the suggestion shall be comprised in the same Charter and if after the same suggestion be found untrue the Charter shall be disallowed and holden for none And the Justices before whom such Charter shall be alledged shall enquire of the same suggestion and that as well of Charters granted before this time as of Charters which shall be granted in time to come and if they find them untrue then they shall disallow the Charter so alledged and shall moreover do as the Law demandeth Thus have Parliaments from time to time declared that the Offences against â—he Crown are against the publick welâ—are and that Kings are obliged by â—heir Oath and Office to cause Justice to â—e done upon Traitors and Felons â—or the Kingdoms sake according to â—he ancient common Law declared by Magna Charta in these â—ords Nulli negabimus 9 Hen. 3.29 nulli vendemus nulli difâ—remus Justitiam We will sell to no â—an we will not deny or defer to any â—an either Justice or Right And as the publick is concerned that the due and legal Methods be observed in the Prosecution of Offenders so likewise doth the security of every single man in the Nation depend upon it No man can assure himself he shall not be accused of the highest crimes Let a mans Innocence and prudence be what it will yet his most inoffensive Words and Actions are liable to be misconstrued and he may by Subornation and Conspiracy have things laid to his charge of which he is no ways guilty Who can speak or carry himself with that circumspection as not to have his harmless Words or Actions wrested to another sence than he intended Who can be secure from having a Paper pur into his Pockets or laid in his house of which he shall know nothing till his Accusation History affords many Examples of the detestable practices in this kind of wicked Court Parasites among which one may suffice for Instance out of Polibius an approved Author Polib lib. 5. Hermes a powerful Favourite under Antiochus the younger but a man noted to be a favourer of Liars was made use of against the innocent and brave Epigenes He had long watcht to kill him for that he found him a man of great Eloquence and Valour having also favour and Authority with the King He had unjustly but unsuccessfully accused him of Treason by false glosses put upon his faithful advice given to the King in open Council â—his not prevailing he by artifice got him put out of his Command and to retire from Court which done he laid 〈◊〉 Plot against him with the help and Counsel of one of his Complices Alexâ—s and writing Letters as if they had been sent from Molon who was then in open Rebellion against his Prince â—or fear amongst other Reasons of the Cruelty and Treachery of Hermes and corrupted one of Alexis's Servants with â—reat Promises who went to Epigenes â—o thrust the Letters secretly amongst â—is other Writings which when he had â—one Alexis came suddenly to Epigenes â—emanding of him if he had received any Letter from Molon and when he said he had none the other said he was confident he should find some wherefore entring the House to search he found the Letters and taking this occasion slew him lest if the Fact had been duly examined the Conspiracy had been discovered These things happening thus the King thought that he was justly slain in this manner the worthy Epigenes ended his days But this great mans designs did not rest here for within a while heightened with success he so arrogantly abused His Masters Authority as he grew dangerous to the King himself as well as to those about him insomuch as Antiochus was sorced for that he hated and feared Hermes to take away his Life by Stratagem thereby to secure himself By these and a thousand other ways the most unblemisht Innocence may be brought into the greatest dangers Since then every man is thus easily subject to question and what is one mans case this day may be another man 's to morrow it is undoubtedly every mans concern to see as far as in him lies in every case that the accused Person may have the benefit of all such provisions as the Law hath made for the defence of Innocence and Reputation Now to this end there is nothing so necessary as the secret and separate examination of Witnesses for though perhaps as hath been already observed it may be no very difficult thing for several persons who are permitted to discourse with each other freely and to hear or be told what each of their fellows had been asked and answered to agree in one story especially if the Jury may not ask what
questions they shall think it for the satisfaction of their own Consciences but that they shall be so far under the correction and censure of the â—udges as to have the questions which they put called by them trifles impertinent and unfit for the Witnesses â—o speak to yet if they be examined aâ—art with that due care of sifting out â—ll the Circumstances which the Law requires where every man of the Jury is at full liberty to enquire into any thing for his clearer information and that with what deliberation they think fit and all this be done with that secrecy which the law commands it will be almost impossible for a man to suffer under a false Accusation Nor has the Law been less careful for the Reputation of the Subjects of England than for their Lives and Estates and this seems to be one reason why in criminal Cases a man shall not be brought to an open legal Trial by a Petit Jury till the Grand Jury have first found the Bill The Law having entrusted the Grand Inquest in a special manner with their good names they are therefore not only to enquire whether the fact that is laid was done by the party accused but into the circumstances thereof too whether it were done traiterously feloniously or maliciously c. according to the manner charged which Circumstances are not barely matter of form but do constitute the very essence of the Crime and lastly into the Credit of the Witnesses and that of the party accused and unless they find both the Fact proved upon him and strong presumptions of such aggravating circumstances attending it as the Law requires in the specification of such Crime and likewise are satisfied in the credibility of the Witnesses they ought not to expose the Subject to an open Trial in the face of the County to a certain loss of his Reputation and hazard of his Life and Estate Moreover should this practice of publick Examination prevail and the Jurors Oath of Secrecy continue how partial and unequal a thing would it be to declare that to all the World which will blast a mans good name and religiously cenceal what they may know tending to his Justification To examine Witnesses perhaps suborned certainly prepared and have Evidence dressed up with all the advantages that Lawyers wits can give it of the foulest Crimes a man can be guilty of and this given before some thousands against him and yet for the same Court to swear those whom the Law makes Judges in the case not to reveal one word of those reasons which have satisfied their Consciences of his Innocence What is this but an Artifice of slandring men it may be of the most unspotted cnnversation and of abusing Authority not so much to find men guilty as to make them infamous After this Ignominy is fixed what Judgment can the Auditors and from them the World make but of high probability of guilt in the party accused and Perjury in the Jury This course if it should be continued must needs be of most dangerous consequence to all sorts of men it will both subject every one without relief to be defamed and fright the best and most consciencious men from serving on Grand Juries which is a most necessary part of their duty Now since there is in our Government as in every one that is well constituted there ought to be great liberty of Accusation that no man may be encouraged to do ill through hopes of impunity if by this means a Method be opened for the blasting the most innocent mans honour and deterring the most honest from being his Judges what remains but that every mans Reputation which is most dear unto such as are good is held precariously and it will be in the power of great men to pervert the Laws and take away whose Life and Estate they please or at least to fasten imputations of the most detested crimes upon any whom for secret reasons they have a mind to defame The consequences of which scandal as they are very mischievous to every man so in a Trading Country in a more especial manner to all who live by any vocation of that kind The greatest part of Trade is driven upon credit most men of any considerable Employment dealing for much more than they are truly worth and every mans credit depends as well upon his behaviour to the Government he lives under as upon his private honesty in his transactions between man and man so that the suspicion only of his being obnoxious to the Government is enough to set all his Creditors upon his back and put a Stop to all his Affairs perhaps to his utter ruine What expedition and violence will they all use to recover their debts when he shall be publickly charged with such crimes as forfeit Life and Estate Though there should not be one word of the Accusation true yet they knowing the charge and the seeming proofs in the Court and the consequences of it and not being acquainted with the truth as it appears to the Jury self interest will make his Creditors to draw in their effects which is no more than a new contrivance under colour of Law of undoing honest men If to prevent any of these mischiefs the Jury should discover their fellows and their own Counsel as the Court by publick Examination doth it would not only be a wilful breach of their Oath but a betraying of the trust which the Law has reposed in them for the security of the Subject For to subject the reasons of their Verdicts upon Bills to the censure of the Judges were to divest themselves of the Power which the Law has given them for most important considerations without account or control and to interest those in it whom the Law has not in this case trusted and so by degrees the course of Justice in one of the most material parts may be changed and a fundamental security of our Liberty and Property insensibly lost On the other hand if for fear of being unworthily reproached as Ignoramus Jury-Men obstinate fellows that obstruct Justice and disserve the King the Grand Jury shall suffer the Judges or the Kings Counsel to prevail with them to indorse Billa vera when their Consciences are not satified in the truth of the Accusation they act directly against their Oaths oppress the innocent whom they ought to protect as far as in them lies subject their Country themselves and posterity to Arbitrary powers pervert the administration of justice and overthrow the Government which is instituted for the obtaining of it and subsists by it This seems to be the greatest Treason that can be committed against the whole Kingdom and threatens ruine unto every man in private in it None can be safe against authorized Malice and notwithstanding the care of our Ancestors Rapine Murther and the worst of crimes may be advanced by the formality of Verdicts if Grand Juries be overawed or not suffered to enquire into the Truth to the
satisfaction of their Consciences Every man whilst he lives innocently doth under God place his hopes of security in the Law which can give no protection if its due course be so interrupted that frauds cannot be discovered Witnesses may as well favour offenders as give false testimony against the guiltless and if they by hearing what each other saith are put into a way of concealing their villainous designs there can be no legal Revenge of the crimes already committed Others by their impunity will be encouraged to do the like And every quiet minded person will be equally exposed unto private injuries and such as may be done unto him under the colour of Law No man can promise unto himself any security for his Life or goods and they who do not suffer the uâ—most violences in their own persons may do it in their Children Friends and nearest Relations if he be deprived of the remedies that the Law ordains and forced to depend upon the Will of a Judge who may be and perhaps we may say are too often corrupted or swayed by their own Passions Interests or the Impulse of such as are greater than they This mischief is aggravated by a commonly received Opinion that whosoever speaks against an accused person is the Kings Witness and the worst of men in their worst designs do usually shelter themselves under that name whereas he only is the Kings Witness who speaks the truth whether it be for or against him that is accused As the Power of the King is the Power of the Law he can have no other intention than that of the Law which is to have Justice impartially administred and as he is the Father of his People he cannot but incline ever to the gentlest side unless it be possible for a Father to delight in the destruction or desire to enrich himself by the confiscation of his Childrens Estates If the most wicked Princes have had different thoughts they have been obliged to dissemble them We know of none worse than Nero but he was so far from acknowledging that he desired any mans condemnation that he looked upon the necessity of signing Warrants for the execution of Malefactors Sne. Vit. Ner. Vtinam nescirem letteras as a burthen and rather wished he had not learnt to write than to be obliged to do it They who by spreading such barbarous errours would create unto the King an interest different from that of his People which he is to preserve whilst they pretend to serve him in destroying of them they deprive him of his honour and dignity Justice is done in all places in the name of the chief Magistrate it being presumed that he doth embrace every one of his Subjects with equal tenderness until the guilty are by legal proofs discriminated from the Innocent and amongst us the Kings name may be used in civil cases as well as criminal But it is as impossible for him rightly to desire I should be condemned for killing a man whom I have not killed or a Treason that I have not committed as that my Land should be unjustly taken from me by a judgment in his Bench or I should be condemned to pay a debt that I do not owe. In both cases we sue unto him for Justice and demand it as our right We are all concerned in it publickly and privately and the King as well as all the Officers of Justice are by their several Oaths obliged in their respective capacities to perform it They are bound to give their assistance to find out Offenders and the Kings Attorney is by his Oath to prosecute them if he be required and he is not only the Kings servant in such cases but the Nations or rather cannot otherwise serve the King than by seeing Justice done in the Nation Whensoever any man receives an injury in his Person Wife Children Friends or goods the King is injured in as much as he is by his Office to prevent such mischief and ought to be concerned in the Welfare of every one of his Subjects but the parties to whom the injuries are done are the immediate sufferers and the prosecution is principally made that they may be repared or revenged and other innocent persons secured by the punishment of Offenders in which the King can be no otherwise concerned than as he is to see his Office faithfully performed and his People protected The Kings suit therefore is in the behalf of his People yet the Laws leave unto euery man a Liberty in case of Treasons Murthers Rapes Robberies c. to sue in the Kings name and crave his aid or by way of appeal in his own The same Law looks upon Felons or Traitors as publick Enemies and by authorizing every one to pursue or apprehend them teacheth us that every man in his place ought to do it The same Act whereby one or a few are injured threatneth all and every mans private interest so concurs with that of the publick that all depends upon the exact preservation of the Method prescribed by the Law for the impartial inquisition after suspected Offenders and most tender care of preserving such as are innocent As this cannot possibly be effected without secret and separate examinations the forbidding of them is no less than to change the Course which is enjoyned by Law confirmed by custom and grounded upon reason and Justice If on the other side any man believe that such as in the Kings name prosecute suspected Delinquents ought only to try how they may bring them to be condemned he may be pleased to consider that all such persons ought according unto Law to produce no Witness whom they do not think to be true No Evidence which they do not believe good nor can conceal any thing that may justifie the accused No trick or artifice can be lawfully used to deceive a Grand Jury or induce them to find or reject a Bill otherwise than as they are led by their own Consciences All Lawyers were antiently sworn to put no deceit upon the Courts for their Clients sake and there are Statutes still in force to punish them if they do it but there is an eternal obligation upon such as are of Counsel against persons accused of crimes not to use such arts as may bring the innocent to be condemned and thereby pervert that which is not called the judgment of man but of God because man renders it in the stead and by the Commandment of God such practises exalt the Jurisdiction of Tribunals but infect and pollute them with that innocent Blood which will be their over-throw And least of all can it be called a service to the King since none could ever stand against the cry of it This is necessarily implyed in the Attorney general his Oath to serve the King in his Kingly Office wherein the Law presumes he can do no wrong But the greatest of all wrongs and that which hath been most destructive unto Thrones is by Fraud to circumvent
and destroy the Innocent This is to turn a legal King into a Nimrod a Hunter of Men This is not to act the part of a Father or a Shepherd who is ready to lay down his Life for his Sheep but such as the Psalmist complains of who eat up the People as if they eat Bread Jezebel did perhaps applaud her own Wit and think she had done a great Service to the King by finding out men of Belial Judges and Witnesses to bring Naboth to be stoned but that unregarded Blood was a Canker or the Plague of Leprosie in his Throne and Family which could not be cured but by its overthrow and extinction But if the Attorney General cannot serve the King by abusing Juries and subverting the Innocent he can as little gain an advantage to himself by falsifying his Oath by the true meaning whereof he is to prosecute Justice impartially and the Eternal Divine Law would annul any Oath or Promise that he should have taken to the contrary even though his Office had obliged him unto it The like Obligation lies upon Jurors not to suffer themselves to be deluded or persuaded that the Judges Kings Council or any others can dispense with that Oath or any part of it which they have taken before God unto the whole Nation nor to think that they can swerve from the Rules set by the Law without a damnable breach of it The power of relating or dissolving Conscientious Obligations acknowledged in the Pope makes a great part of the Roman Superstition and that grand Impostor could never corrupt Kingdoms and Nations to their destruction and the Establishment of his Tyranny until he had brought them to believe he could dispense with Oaths taken by Kings unto their Subjects and by Subjects to their Kings nor impose so extravagant an Errour upon either until he had persuaded them he was in the place of God It is hard to say how the Judges or Kings Council can have the same Power unless it be upon the same Title but we may be sure they may as well dispense with the whole Oath as any part of it and can have no pretence unto either unless they have the Keys of Heaven and Hell in their keeping It is in vain to say the King as any other man may remit the Oath taken unto and for himself He is not a party for himself but in the behalf of his People and cannot dispose of their Concernments without their Consent which is given only in Parliament The Kings Council ought to remember they are in criminal Cases of Council unto every man in the Kingdom It is no ways referred unto the Direction of the Judges or unto them whether that secrecy enjoined by Law be profitable unto the King or Kingdom They must take the Law as it is and render Obedience unto it until it be altered by the Power that made it To this end the Judges by Acts of Parliament viz. 18 Ed. 3. cap. 8. and 20 Ed. 3. Cap. 1. are sworn to serve the People Ye shall serve our Lord the King and his People in the Office of Justice c Ye shall deny to no man common Right by the Kings Letters nor no other mans nor for no other cause and in default thereof in any point they are to forfeit their Bodies Lands and Goods This proves them to be the Peoples Servants as well as the Kings Further by the express words of the Commissions of Oyer and Terminer they are required to assist every man that suffers injury and make diligent inquisition after all manner of falshoods deceits offences and wrongs done to any man and thereupon to do Justice according to the Law so that in the whole proceedings in order unto Tryal and in the Tryals themselves the Thing principally intended which several persons are severally in their capacities obliged to pursue is the discovery of Truth The witnesses are to depose the Truth the whole Truth and Nothing but the Truth Thereupon the Council for the King are to prosecute The Grand Jury to present and the Petit Jury to try These are several Offices but all to the same End T is not the Prisoner but the Crime that is to be pursued This primarily the Offender but by consequence and therefore such Courses must be taken as may discover that and not such as may ensnare him When the Offence is found the impartial Letter of the Law gives the Doom and the Judges have no share in it but the pronouncing of it Till then the Judges are only to preside and take Care that every man else who is employed in this necessary Affair do his duty according to Law So that upon result of the whole transaction impartial Justice may be done Either to the Acquittal or condemnation of the Prisoner Hereby it is manifest why the Judges are obliged by Oath To Serve the People as well as the King And by Commission To Serve every One that Suffers Injuries As they are to See that Right be done to the King His Injur'd Subjects in discovering of the Delinquent So they are to be of Council with the Prisoner whom the Law supposeth may be ignorant as well as innocent and therefore has provided that the Court shall be of Council for him and as well inform him of what Legal advantages the Law allows him as to resolve any point of Law when he shall propose it to them And it seems to be upon the presumption of this steady impartiality in the Judges thus obliged by all that is held Sacred before God and man to be unbyassed that the Prisoner hath no Council for if the Court faithfully perform their duty the Accused can have no wrong or hardship and therefore needs no Adviser Now suppose a man perfectly innocent and in some measure knowing in the Law should be accused of Treason or Felony If the Judges shall deny unto the Grand Jury the Liberty of examining any witnesses except in open Court where nothing shall be offered that may help to clear the Prisoner but every Thing aggravated that gives colour for the Accusation such Persons only produced as the Kings Council or the prosecutors shall think fit to call of whose Credit also the Jury must not inquire but shall be controll'd and brow-beaten in asking Questions of such unknown witnesses for their own Satisfaction if they have any Tendency to discover the Infamy of these witnesses or the Falshood of their Testimony How can Innocence secure any Man from being arraigned And if the Oath of the Judges should be as much forgotten in the further Proceedings upon the Trâ—al where in Cases of Treason the Prisoner shall have all the Kings Council commonly not the most unlearned prepared with studied speeches and arguments to make him black and odious and to Strein all his words and to alledge them for Instances of his guilt If then all his private Papers and Notes to help his memory in his Plea and defence shall
The Indictments against them mentioned in Anderson's Reports Pa. 156. 157. are worth reading whereby they are charged with Treason for Subverting the Laws and Customs of the Land in their proceedings without Grand Juries and procuring the murmuring hatred of the People against the King to the great danger of him the Kingdom Nothing could satisfy the Kingdom tho the King was dead whom they had flattered and served but such Justice done upon them and many of their Instruments and Officers as may for ever make the Ears of Judges to tingle And it is not to be forgotten that the Judges in Queen Eliz. time in the Case of R. Cavendish in Anderson's Reports P. 152 and 155. were as they told the Queen and her Councellors by the punishment of former Judges especially of Empson and Dudley deterred from obeying her illegal Commands The Queen had sent several Letters under her Signet Great Men pressed them to obey her Patent under the Great Seal and the Reasons of their disobedience being required They answered That the Queen her self and the Judges also had taken an Oath to keep the Laws And if they should obey her Commands the Laws would not warrant them and they should therein break their Oath to the Offence of God and their Country and the Common-wealth wherein they were born And say they if we had no fear of God yet the Examples and punishments of others before us who did offend the Laws do remember and recal us from the like Offences Whosoever being in the like places may design or be put upon the like practices will do well to consider these Examples and not to think that he who obliquely Endeavors to render Grand Jurys useless is less Criminal than he that would absolutely abolish them That which doth not act according to its Institution is as if it were not in being And whoever doth without prejudice consider this matter will see that it is not less pernicious to deny Juries the use of those Methods of discovering Truth which the Law hath appointed and so by degrees turn them into a meer matter of form than openly and avowedly to destroy them Surely such a gradual Method of destroying our Native Right is the most dangerous in its consequence The safety which our Fore-fathers for many hundreds of years enjoyed under this part of the Law especially and have transmitted to us is so apparent to the meanest Capacity that whoever shall go about to take it away or give it up is like to meet with the fate of Ishmael to have every mans hand against him because his is against every Man Artifices of this Kind will ruine us more silently and so with less opposition and yet as certainly as the other more moved oppression This only is the difference that one way we should be slaves immediately and the other insensibly But with this further disadvantage too that our slavery should be the more unavoydable and the faster rivited upon us because it would be under colour of Law which Practice in Time would obtain Few men at first see the danger of little changes in Fundamentals and those who design them usually act with so much craft as besides the giving specious Reasons they take great Care that the true Reason shall not appear Every design therefore of changing the Constitution ought to be most warily observed and timely opposed Nor is it only the Interest of the People that such Fundamentals should be duly guarded for whose benefit they were at first so carefully layed and whom the Judges are sworn to serve but of the King too for whose sake those pretend to act who would subvert them Our Kings as well as Judges are sworn to maintain the Laws They have themselves in several Statutes required the Judges at their peril to administer Equal Justice to every Man notwithstanding any Letters or Commands c. even from themselves to the contrary And when any failure hath been the greatest and most powerful of them have ever been the readiest to give Redress It appears by the preface to the Statutes of 20th Ed. 3. that the Judicial proceedings had been perverted That Letters writs and Commands had been sent from the King and great Men to the Justices and that Persons belonging to the Court of the King the Queen the Prince of Wales had maintained abetted Quarrels c. Whereby the Laws had been violated and many wrongs done But the King was so far from justifying his own Letters or those illegal practices That the preamble of those Statutes saith they were made for the relief of the People in their sufferings by them That brave King in the height of his glory and vigor of his Age chose rather to confess his Error than to continue in it as is Evident by his own words Edward by the Grace of God c. Because by divers Complaints made unto us we have perceived that the Law of the Land which we by our Oath are bound to maintain is the less well kept and Execution of the same disturbed many times by maintenances and procurements as well in the Court as the Country We greatly moved of Conscience in this matter and for this Cause desiring as much for the pleasure of God and ease and quietness of our Subjects as to save our Conscience and for to save and keep our said Oath by the Assent c. Enact That Judges shall do Justice notwithstanding Writs Letters or Commands from himself c. and that none of the King's House or belonging to the King Queen or Prince of wales do maintain Quarrells c. King James in his Speech to the Judges in the Starchamber Anno. 1616. told them That He had after many years resolved to renew his Oath made at his Coronation concerning Justice and the promise therein contained for maintaining the Law of the Land And in the next Page save one says I was sworn to maintain the Law of the Land and therefore had been perjured if I had broken it God is my Judge I never intended it And His Majesty that now is hath made frequent Declarations and Protestations of his being far from all thoughts of designing an Arbitrary Government and that the Nation might be confident He would rule by Law Now if after all this any Officer of the Kings should pretend Instructions from his Master to demand so material an Alteration of proceedings in the highest Cases against Law as are above mentioned And the Court who are required to slight and reject the most solemn Commands under the Great Seal if contrary to Law should upon a Verbal Intimation allow of such a Demand and so break in upon this Bulwark of out Liberties which the Law has erected Might it not give too just an occasion to suspect that all the legal securities of our Lives and Properties are unable to protect us And may not such fears rob the King of his greatest Treasure and Strength the Peoples hearts when they
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
cannot surely be imagined that the suggestions made to the King and his Council had no probability in them Or that there was no colour cause or Reason for the King to put the party to answer the Accusation but the grievance and complaint was that the People suffered certain damage and vexation upon untrue and at best uncertain accusations and that therein the Law was perverted by the King and his Councils taking upon them to judge of the certainty or Truth of them which of right belonged to the Grand Jury only upon whose Judgment and Integrity our Law doth wholly rely for the indemnity of the Innocent and the punishment of all such as do unjustly molest them Our Laws have not thought fit so absolutely to depend upon the Oaths of Witnesses as to allow that upon Two or Ten mens swearing positively Treason or Felony against any Man before the Justices of peace or all the Judges or before the King and his Council that the party accused be he either Peer of the Realm or Commoner should without further Inquiry be thereupon arrained and put upon his Tryal for his Life Yet none can doubt but there is something of probability in such depositions nevertheless the Law Refers those matters unto Grand Juries and no man can be brought to Tryal until upon such strict Inquiries as is before said the Indictment be found The Law is so strict in these Inquiries that tho the Crime be never so notorious may if Treason should be confessed in Writing under hand and seal before Justices of Peace Secretaries of State or the King and Council yet before the party can be arrained for it the Grand Jury must inquire and be satisfied whether such a Confession be clear and certain Whether there was no collusion therein Or the party induced to such confession by promise of pardon Or that some pretended partakers in the Crime may be defamed or destroyed thereby They must inquire whether the Confession was not extorted by fear threatnings or force and whether the party was truly Compos mentis of sound mind and Reason at that Time The Stat. 5. Eliz. Cap. 1. declares the antient Common Law concerning the Trust and duty of Juries and Enacts that none should be indicted for assisting aiding comforting or abelting Criminals in the Treasons therein made and declared unless he or they be thereof lawfully accused by such good and sufficient Testimony or proof as by the Jury by whom he shall be indicted shall be thought good lawful and sufficient to prove him or them guilty of the Said Offences Herein is declared the only True Reason of Indictments i. e. the Grand Juries Judgment that they have such Testimonies as they esteem sufficient to prove the party indicted guilty of the Crimes whereof he is accused and whatsoever the Indictment doth contain they are to present no more or other Crimes than are proved to their satisfaction as upon Oath they declare it is when they present it This exactness is not only required in the Substance of Crimes but in the Circumstances and any doubtfulness or uncertainty in them makes the Indictment all proceedings upon it by the Petit Jury to be insufficient and void and holden for none as appears by the following Cases In Youngs Case in the Lord Cooks Reports Lib. 4. Fol. 40. An Indictment for Murther was declared void for its incertainty because the Jury had not layed certainty in what part of the body the mortal wound was given saying only that 't was about his breast the words were Vnam Plagam mortalem circiter pectus In like manner in Vaux Case Cooks Rep. Lib. 4. Fol. 44. he being indicted for poisoning Ridley the Jury had not plainly and expresly averred that Ridley drank the Poison tho other words implyed it and thereupon the Indictment was judged insufficient for saith the book the matter of an Indictment ought to be full express and certain and shall not be maintained by argument or implication for that the Indictment is found by the Oath of the Neighborhood In the 2d part of Rolls Reports p. 263. Smith and Malls Case the Indictment was quashed for incertainty because the Jury had averred that Smith was either a servant or Deputy Smith Existens servus sive Deputatus are the words It was doubtless probably enough proven to the Jury that he was Either a Deputy or servant but because the Indictment did not absolutely and certainly aver his condition Either of servant or Deputy it was declared void If there be any defect of certainty in the Grand Juries Verdict no proof or Evidence to the Petit Jury can supply it so it was judged in Wrote and Wigs Case Coke 4. Rep. Fol. 45 46 47. It was layed that Wrote was killed at Shipperton but did not aver that Shipperton was within the Verge tho in truth it was and no Averment or Oath to the Petit Jury could supply that small faileur of certainty to support the Indictment and the reason is rendred in these words viz. The Indictment being Veredictum id est dictum Veritatis a Verdict That is a saying of Truth and matter of Record ought to contain the whole Truth which is requisite by the Law for when it doth not appear 't is the same as if it were not and every material part of the Indictment ought to be found upon the Oath if the Indicters and cannot be supplied by the Averment of the Party The Grand Juries Verdict is the foundation of all judicial proceeding against Capital Offenders at the King suit if that fail in any point of certainty both convictions and acquittals thereupon are utterly void and the proceedings against both may begin agen as if they had never been tried as it appears in the Case last cited Fol. 47. Now as the Law requires from the Grand Jury Particular certain and precise affirmations of Truth so it expects that they should look for the like and accept of no other from such as bring accusations to them For no man can certainly affirm that which is uncertainly delivered unto him or which he doth not firmly believe The witnesses that they receive for good are to depose only absolute certaintys about the Facts committed That is what they have seen or heard from the accused parties themselves not what others have told them They are not to be suffered to make probable arguments and infer from thence the guilt of the accused Their depositions ought to be positive plain direct and full The Crime is to be sworn without any doubtfulness or obscurity Not in words qualified limited to belief conceptions or apprehensions This absolute certainty required in the deposition of the Witnesses is one principal ground of the Juries most rational assurance of the Truth of their Verdict The credit also of the Witnesses ought to be free from all blemish that good and Conscientious men may rationally rely upon them in matters of so great moment as the bloud
Dominorum Henrici Johannis ac per terribiles fulminationes Excommunicationis sententiae in transgressores communium libertatum Angliae quae in chartis praedictis continentur corroboratas cum spes praeconcepta de libertatibus illis observandis fideliter ab omnibus putaretur stabilis indubitata Rex conciliis malorum Ministrorum praeventus seductus easdem infringendo contravenire non formidavit credens deceptive pro munere absolvi à transgressione quod esset manifestum regni exterminium Aliud etiam nos omnes angit intrinsecus quod Justiciarii subtiliter ex malitia sua ac per diversa argumenta avaritiae intolerabilis superbiae Regem contra fideles suos multipliciter provocaverunt incitaverunt sanoque salubri consilio Ligeorum Angliae contrarium reddideruut consilia sua vana impudenter praeponere affirmare non erubuerunt seu formidaverunt ac si plus babiles essent ad consulendam conservandam Rempublicam quam tota Universitas Regni in unum collecta Ita de illis possit vere dici viri qui turbaverunt terram concusserunt Regnum sub fuco gravitatis totum populum graviter oppresserunt praetextuque solummodo exponendi vereres Leges novas non dicam Leges sed malas consuetudines introduxerunt vomuerunt ita quod per ignorantiam nonnullorum ac per partialitatem aliorum qui vel per munera vel timorem aliquorum potentum innodati fuerunt nulla fuit stabilitas Legum nec alicui de populo Justitiam dignabantur exhibere opera eorum sunt opera nequitiae opus iniquitatis in manibus pedes eorum ad malum current festinant ac viam recti nescierunt Quid dicam non est judicium in gressibus suis agros violenter tulerunt rapuerunt domos oppresserunt virum domum ejus imo virum Haereditatem suam vae Judices qui sicut Lupi vespere non relinquebant ossa in mane Justus Judex adducit Consiliarios in stultum finem Judices in stuporem mox alta voce justum Judicium terrae recipietis His auditis omnium aures tinniebant totaque Communitas ingemuerunt Vide Mat. West Anno 1289. p. 376. li. 13. dicentes heu nobis heu ubi est Angliae toties empta toties concessa toties scripta toties jurata Libertas Alii de Criminalibus sese à visibus populi subtrahentes in locis secretis cum amicis tacite latitaverunt Anno vero 1290. 18. Ed. 1. deprehensis omnibus Angliae Justiciariis de repetundis praeter Jo. Metingham Eliam de Bleckingham quos honor is ergo nominatos volui judicio Parliamenti vindicatum est in alios atque alios carcere exilio fortunarumque omnium dispendio in singulos mulcta gravissima amissione officii Spelmans Glossary p. 1. co 1.416 alios protulerunt in medium unde merito fere omnes ab officiis depositi amoti unus à terra exulatus alii perpetuis prisonis incarcerati alii que gravibus pecuniarum solutionibus juste adjudicati fuerunt AFter that the King for the space of three Years and more had remained beyond Sea and returned out of Gascoign and France into England he was much vexed and disturbed by the continual clamour both of the Clergy and Laity desiring to be relieved against the Justices and other His Majesizes Ministers of several oppressions and injuries done unto them contrary to the good Laws and customs of the Realm whereupon King Edward by his Royal Letters to the several Sheriffs of England commanded that in all Counties Cities and Market Towns a Proclamation should be made that all who found themselves agrieved should repair to Westminster at the next Parliament and there shew their grievances where as well the great as the less should receive fit remedies and speedy Justice according as the King was obliged by the Bond of his Coronation Oath And now that great day was come that day of judging even the Justices and the other Ministers of the Kings Council which by no Collusion or Reward no Argument or Art of Pleading they could elude or avoid The Clergy therefore and the People being gathered together and seated in the great Palace of Westminster the Archbishop of Canterbury a man of eminent Piety and as it were a Pillar of the holy Church the Kingdom rising from his Seat and fetching a profound sigh spoke in this manner Let this Assembly know that we are called together concerning the great and weighty Affairs of the Kingdom too much alas of late disturbed and still out of Order unanimously faithfully and effectually with our Lord the King to treat and ordain Ye have all heard the grievous complaints of the most intollerable injuries and oppressions of the daily desolations committed both on Church and State by this corrupt Council of our Lord the King contrary to our great Charters so many and so often purchased and redeemed granted and confirmed to us by the several Oaths of our Lord the King that now is and of our Lords King Henry and John and corroborated by the dreadful thundrings of the sentence of Ecommunication against the Invaders of our common Liberties of England in our said Charters contained and when we had conceived firm and undoubted hopes that these our Liberties would have been faithfully preserved by all men the King circumvented and seduced by the councils of evil Ministers hath not been afraid to violate it by infringing them falsly believing that he could for Rewards be absolved from that offence which would be the manifest destruction of the Kingdom There is another thing also that grieves our Spirits that the Justices subtilly and maliciously by diverse Arguments of covetousness and intollerable Pride have the King against his faithful Subjects sundry ways incited and provok'd counselling him contrary to the good and wholsome Advice of all the Liegemen of England and have not blush'd nor been afraid impudently to assert and prefer their own foolish Councils as if they were more fit to consult and preserve the Commonweal than all the Estates of the Kingdom together assembled so that it may be truly said of them they are the men that troubled the Land and disturb'd the Nation under a false colour of gravity have the whole People grievously opprest and under pretence of expounding the antient Laws have introduced new I will not say Laws but evil Customs so that through the Ignorance of some partiality of others who for reward or fear of great Men have been engaged there was no certainty of Law and they scorned to administer justice to the people their deeds are deeds of wickedness the work of Iniquity is in their hand their feet make hast to evil the way of truth have they not known what shall I say there is no Judgment in their paths build their Houses in injustice and their Tabernacles in Unrighteousness Wee be to them that covet large possessions that break open Houses and destroy the Man and his Inheritance Woe be to such Judges who are like Wolves in the Evening and leave not a bone till the morning The Righteous Judge will bring such Counsellors to a foolish end and such Judges to confusion ye shall all presently with a loud cry receive the just sentence of the Land At the hearing of these things all Ears tingled and the whole Community lifted up their Voice and mourned saying Alas alas for us what is become of that English Liberty which we have so often purchased which by so many Concessions so many Statutes so many Oaths hath been confirmed to us Hereupon several of the Criminals withdrew into secret places being concealed by their friends some of them were brought forth into the midst of the People and deservedly turned out of their Offices one was banished the Land and others were grievously Fined or Condemned to perpetual Imprisonment This is confirmed by Spelman An. 1290. All the Justices of England saith he were An. 18. Ed. 1. apprehended for Corruption except John Mettingham and Elias Bleckingham whom I name for their honour and by Judgment of Parliament condemned some to Imprisonment others Banishment or Confiscation of their Estates and none escaped without grievous Fines and the loss of their Offices FINIS
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