established by the said Act of the 3 H. 8. That all Pannels of Grand Jurors put in by any Sheriff before any Justice of Goal-delivery and Justices of Peace one being of the Quorum in the open Sessions to enquire for the King shall be reformed by putting to and taking off the Names of the persons which so be impannelled by every Sheriff at the discretion of the said Justices before whom such Pannel shall be retorned and the Sheriff upon pain of twenty pound shall allow of such Pannel so reformed and retorned by the Justices the one half to the King the other to him that will sue for the same and the Kings Pardon shall not be a bar to his part that so sues So careful were the Law-makers to have faithful Jurors that should neither accuse the Innocent nor excuse the Nocent and that especially in Cases of Blood should make no concealment And lest all this care and reformation of Grand Jurors should do no good but that they should still espouse their own opinions and make head against the Court and wilfully conceal Offences they were charged to enquire of there is a Statute yet in force 3 H. 7. in which it is ordained That the Justices of Peace may in their discretions cause an Inquest to be Impannelled to enquire of the concealments of other Inquests taken before them of such matters and offences as are to be enquired and presented before Justices of Peace whereof complaint shall be made And if any concealment shall be found by any Inquest within one year after the said concealment every person of the said Inquest that made such concealment shall be amerced or fined at the discretion of such Justices of Peace the said Amerciaments so assessed in plain Sessions And these Amerciaments or Fines may be very high according to the nature of the Concealment and quality of the person This Statute only concerns and remedies Concealments by Grand Jurors before Justices of the Peace at the Sessions of the Peace as conceiving Grand Jurors would be bolder there and take more liberty in their Presentments than they durst before Justices of Assize Oyer and Terminer or Goal-delivery as also that such Justices and Judges knew better how to deal with them if they made any such concealments or misprision before them For the Grand Jurors being immediate and subordinate Ministers and Officers in and to the Court and answerable for their Duty there as Coroners Constables and other Ministers of the Court they may and must stand to the Judgment of the Court and in case of any wilful contempt misdemeanor and concealment may without Indictment for how can they be indicted at the same time by themselves be fined by the Court as any other Officer and Minister of the Court. And let Grand Jurors take heed lest by their remisness and peevishness they give not occasion to the making of the like Statute as was made in the 11. of H. 7. c. 3. upon the surmise in the Statute That whereas many great Offences as Riots unlawful Assemblies Extortions Maintenances Imbraceries and other Offences could not be duly punished by the due Order of the Law except it were first found and presented by the Verdict of Twelve men thereto duly sworn which will not find nor yet present the Truth observe here what occasions Grand Jurors had then given through their neglect It was therefore provided and enacted by this Statute That Justices of Assize and Justices of Peace upon Information for the King that is meerly upon the Testimony of Witnesses without Indictment or use of Grand Jurors should proceed to make out Process Punish and Condemn Offenders by their Discretion as if it were upon Indictments found by Grand Jurors Which Statute was a great Infringment of the Common Law and the Liberty of the Subject of England who ought not by Magna Charta and the Law of this Land to be proceeded against or condemned in their Persons or Estates in Criminals but by Indictment first had and found against them by Grand Jurors It is true that Treasons Murthers and Felonies and such Offences for which life and member should be lost are excepted out of this Act although they stand upon the same Reasons as the other Offences named in the Act For by this Act and new Law the Subject might lose his Liberty suffer Ransom Stigmatizing Pillory Imprisonment loss of Lands and Estate things very near to Life and Member And the Lord Coke tells us That Empson and Dudley two Judges by reason of this Act committed upon the Subjects insufferable Oppressions and therefore this Statute was justly Repealed after the Decease of H. 7. by the Statute of the 1. of H. 8. c. 6. A good Caveat to Parliaments says the Lord Coke to leave all Causes to be measured by the Golden and streight Mete-wand of the Law and not to the uncertain and crooked Cord of Discretion And as good a Caveat it is to Grand Jurors in cases of Blood not so much to be led by the crooked Cord of Discretion as the streight Rule of the Law and Directions of the learned Judges who should best know the Law and the truest measure thereof For if the Rule be true as indeed it is Quod nihil relictum est arbitrio Judicis that nothing is left to the Will of the Judge much less arbitrio Juratorum to the will of Grand Jurors they having been through too much connivance by an evil practice corrupted herein But errores ad sua principia referre est refellere To bring Errors to their beginning is to see their last Now haply Grand Jurors may conceive and argue thus That to extenuate an Offence is not to conceal it if they find it not Murther yet they find it in some degree of Manslaughter c. Besides if the Kings Council will put into the Indictment the words Ex malitia praecogitata c. which only make it Murther and which is matter of Fact they must make it out to us that there was malice either from our own knowledge of it or that it is clearly proved to us from words or deeds express by such an act that lies in proof or we are not bound to find those words but must strike them out of the Indictment or find an Ignoramus Or if the Witnesses themselves shall inform us that it was a sudden falling out or done by misfortune Se defendendo in his own defence or to defend himself against one that would have robbed him in his House or upon the High-way or that he that did it was a Watchman a Constable or lawful Officer or Keeper of a Park or Warren and in doing his Duty or that he that did it was a natural Fool one not Compos mentis a Mad-man or a young Child that did it and by his young and tender years not capable of malice and so could not be guilty of Murther or if there had been former fallings out and
practice is or hath been used to the contrary I conceive it fit to be better considered for it is not sufficient in all Cases much less in this without or against a Rule and Act of Parliament to justifie practice by practice this happily in the end might prove a Common Thief to be an honest man Besides observe the penning of other Statutes and that will give a clearer light to the understanding of these by the Statute made in the 27 of H. 8. c. 25. it was enacted That no person or persons of what estate or degree soever shall have power or authority to pardon or remit any Treasons Murthers Manslaughters or Felonies whatsoever they be c. Here you see the Makers of this Law mention the word and offence of Manslaughter in terminis and not leave it to be understood or to be comprehended in the word other Felonies though it is most comprehensively said or Felonies whatsoever they be So the Statute made in the first and second Ph. Mar. c. 13. That the Justices of the Peace one being of the Quorum when any Prisoner is brought before them for any Manslaughter or Felony before any Bailment or Mainprise shall take the examination of the Prisoner and Information of the Accuser and certifie it at the next Goal-delivery c. Here you see Manslaughter and Felony both exprest as necessary several times in the Act. So the Statute of the 23 H. 8. c. 12. that directs the manner of punishing of offences in the Kings Palace or House says All Treasons Misprisions of Treasons Murthers Manslaughters and other malicious Strikings c. and so divers other Acts of Parliament as might be shewed that make or intend any provision against Manslaughters do particularly name the word Manslaughter and never leave it to be intended or included in the word Felony It is true that by a Commission granted to certain persons to enquire of all Felonies they may thereby take Indictments of Murther though a Pardon of all Felonies will not avail him who hath committed Murther in regard of the Statute made 13 R. 2. 1. And the Commission of Oyer and Terminer made to the Judges every Assizes that enables them to enquire of all Offences hath these express words in it And of whatsoever Murthers Felonies Manslaughters Killings not leaving Manslaughters to be intended by the general words of Felonies or Killings Many more Inconveniences might be shewed but these with what hath been before shewed may be sufficient until better reasons appear to satisfie any understanding Grand Juror to esteem it much the better way to find such Bills Murther rather than Manslaughter there being every way less inconvenience in it in relation to the Laws of the Land until by the wisdom of a Parliament they are altered and much more of satisfaction and safety to their own private Consciences that stand so deeply engaged to discover Blood-guilty persons and to suppress and silence the cries of Innocent blood that by our Laws in the first place cries to Grand Jurors for Vengeance against the Murtherer and Manslayer It now remains that two Objections be answered that happily to such as do not well weigh and consider them may seem to be of some force against what hath been herein said to the contrary the one is The general liberty and constant practice Grand Jurors have taken ever since the making of the said Statute of the 23 H. 8. c. 1. to find as they please either Murther or Manslaughter not as the Indictment comes to their hands from the Kings Council but as they apprehend the Evidence that is brought to them taking upon themselves not only the sole Judgment of the Fact and what the Law is that ariseth upon the said Fact taking the Judgment of the Law therein from the Court although they hear but one side and putting in and putting out what they please in such Indictments notwithstanding it appears to them the party Indicted is guilty of shedding Innocent blood varying the species of Murther and Manslaughter as they please until after Arraignment of the Prisoner it be too late to amend it as I have often known The other Objection is and this seems to be of some weight and authority in Law against what hath been said That Mr. Justice Stamford in his book of The Pleas of the Crown is of another opinion viz. That a Grand Jury may find the Special matter in the Indictment that is to say that the Prisoner killed the other se defendendo or per Infortunium c. which the party upon his Arraignment may either confess or estrange himself from the fact and plead Not guilty To the first Objection as to the liberty and practice of Grand Jurors to the contrary so long used I Answer It hath been before in this Treatise sufficiently made out the great Inconvenience and mischief in Cases of Blood that is the consequence of such practice and that being granted as it cannot be denied I suppose no wise man will think that the long practice of such an Errour will justifie it or encourage the longer continuance of it in the highest Courts of Law and Justice and in so high and tender an Offence as the disquisition of Blood is although in Inferiour County Courts where many times are ignorant Judges and mean Clerks and in ordinary Offences this Maxime may hold good that Communis Error facit Jus that the common practice of an Error makes it the Law of the Court and not convenient to be altered yet I have never observed that Maxime to take place in the highest Courts of Justice in this Kingdom before the Judges of the Courts at Westminster Justices of Oyer and Terminer Justices of Goal-delivery and Justices of Assize who sit not to practice but to correct and destroy Errors of all kinds especially in Trials of mens Lives in Cases of Blood and whoever shall urge that Maxime against what I have here said doth by that sufficiently grant what I have here endeavoured to prove viz. the errour and inconvenience of such practice which ought no more to be continued than a long custome when it is found to be unreasonable but I shall never allow neither can it be proved that there hath been in this Kingdom such liberty and practice allowed and indulged by the Reverend and Learned Judges to Grand Jurors to find and alter Indictments brought unto them in cases of Blood as they themselves please and judge convenient they being as hath been said before not the Judges nor the Triers but Presenters of a fact of Blood fit for the Judgment of the Jury of Life and Death who only are the proper Judges of the Fact for none can be said to be proper Judges of any Fact in Controversie that hear but one side for Grand Jurors hear no more and therefore ought in Law Reason and Conscience where they find a guilty person that hath had his hands in Blood
and unjustly taken away the Life of another person to leave it as an entire fact of Murther to the Trial and Verdict of the second Jury to find the truth of the Fact upon hearing of both sides and receiving the Judgment of the Court in what species or degree of Murther it is which likewise if any doubt or point of Law arise in the Case as many times it doth they may find it specially which a Grand Jury cannot and thereupon receive the opinion of all the Judges of England Murther being the Genus of the several Species and in common acceptation he is accounted a Murtherer that kills any man or reasonable Creature unlawfully and the Commandment is Thou shalt do no Murther which certainly comprehends all unlawful killing otherwise that command is not well translated from the Text Non Occides Thou shalt not Kill and in my own experience for above forty and five years in one Circuit I have very often known many Learned Judges such as Mr. Justice Doderidge the Lord Chief Baron Davenport Mr. Justice Jones Mr. Justice Whitlock and many others often rebuke and reject the Presentments of Grand Jurors in Cases of Blood and other Felonies where they have either varied from their Evidence or from the Law the Judges before hand having received some light of the nature and testimony of the Fact from the Informations and Examinations therein delivered into the Court by the Justices of the Peace and Coroners a very good Rule for Judges to observe and often either put it upon an open Evidence in Court which is very inconvenient or discharged them of such a Bill and bound the Witnesses over to the next Assizes which is also very inconvenient in regard Witnesses may die or the Prisoner may die and so the Forfeiture is lost and the offence unpunished and in Cases of Blood there will be too much opportunity given for compounding and making an Interest with the Prosecuter and Witnesses and in these modern times since the happy return of our most gracious Sovereign King CHARLES the second I have known several learned and pious Judges some since dead others yet living and eminent upon the Bench in Oxfordshire Circuit Fine and Imprison several Grand Jurors for their miscarriage and misdemeanour in delivering in Bills of Manslaughter instead of Bills of Murther against the clear and positive directions of the Court. And this may serve for answer to the first Objection from the liberty and affected practice of Grand Jurors in finding of Bills in Cases of Blood according to their own humor and apprehension to introduce a Law that therefore they may find them as they please notwithstanding that the Court adviseth and directeth the drawing of them MURTHER To the second Objection of Mr. Justice Stamford in the place before cited where he saith that whereas the Statute of Glouc. c. 9. saith That he ought to put himself in an Inquest de bono malo this is only intended saith he when he is Indicted of Murther or Manslaughter and not where in the body of the Indictment the Special matter is found as if the Grand Jury may find especial Verdict of per Infortunium or se defendendo c. I answer to this Objection Certainly Mr. Justice Stamford though a very Learned man did well consider this matter and his Opinion therein when he set it down for he informs you not what shall become of such an Indictment where only the Special matter is found by the Grand Jury whether the party may Traverse it for it is but a Trespass or confess it and so have his Pardon of Course upon such confession and then the Judges that are to make the Report or Certificate of the nature of the fact to the King in Chancery must Certifie like blind and deaf men that never saw or heard any thing of the merit of the cause nor understand any thing by evidence of the nature and circumstance of the Fact like the Lay-zealot must believe as the Priest believes preferring Obedience before Truth but sure no prudent and pious Judge will make such a blind Certificate in case of Blood Besides whoever shall judiciously and impartially compare and weigh the Statute of Marlebridge and the Statute of Gloucester together and the reasons of the Statute of Gloucester what mischief it was made to prevent and consider but the nature of the thing will never be of his Opinion in this particular there is so little of reason or true meaning of either of those Statutes in it The words of the Statute of Marlebr are these Murther from henceforth shall not be judged before our Justices where it is found Misfortune In the time of this Statute it seems there were two Juries the Grand Jury and the Jury of Life and Death to present and try the Offences of Murther otherwise the Justices could not judge of it they never passing Judgment upon a Grand Juries presentment which by the way shews that it is left to the Judges not the Grand Jury upon the examination of the cause in trial by the Jury of Life and Death to judge of the nature and circumstances of Murther and of what species or degree it is This Statute of Marlebridge did only declare a new Law that where it was found per Infortunium or se defendendo it should not be Felony and Murther as it was before that Statute but that the party in such case should have upon Certificate of the Justices before whom he was tried his Pardon of course happily then upon the Presentment of the Grand Jury which might be the occasion of this erroneous Opinion of this Learned Judge Then comes the Statute of Gloucester as if the other had not been truly understood or at least had not sufficiently provided for offences of Blood and in plain words as before is mentioned commands That he that kills a man by misfortune or in his own defence or in any other manner without Felony shall be put in Prison until the coming of the Justices in Eyre or Justices of Goal-delivery and shall put himself upon the Country for good and evil that is for life and death which cannot possibly be understood where the Grand Jury find it but per Infortunium or se defendendo c. for that is not Felony and so cannot be Arraigned thereupon whereby to put himself de bono malo so as to bring the matter to Issue between him and the King nor can the Judge in that case as is said before make a true and right Certificate of the offence and matter of fact which must be specially and truly certified according to Law whereby to procure a pardon as that Statute expresly requires And if the party shall plead Not guilty to that Special matter found by the Grand Jury what can that signifie as before hath been shewed for the Jury that is charged with such Indictment must either find the party guilty in Special manner as it