sense be left to the Grand Jury to be judge of But in all these Cases and many more must be ruled and over-ruled by the Judgment of the Court in point of Law Although no Malice in these Cases can be proved to the Grand Jury or petit Jury yet the Indictment must be expresly drawn and so found by the Grand Jury with these words to make it Murther Ex malitia sua praecogitata c. that is that he killed him out of his malice fore-thought not that these words make a new offence of Felony and Murther that was not Felony and Murther before and so esteemed in all Cases where it was done voluntarily and by assault and this appears plainly by the Statute of Marlebridge formerly mentioned 35 H. 3. where it is said Murther from henceforth shall not be adjudged before our Justices where it is found by Misfortune only but it shall take place in such as are slain by Felony and not otherwise By this Statute it is plain that killing one unawares by misfortune was Murther before this Statute and that after this Statute all other killing where it is Felony shall be Murther as before this Statute Felony is a general term which comprehendeth divers hainous offences for which the Offender ought to suffer death and lose their Goods and Lands They are called Felonies of the Latin word Fel which is in English Gall in French Feil or of the ancient English word Fell or Fierce or because they are intended to be done with a cruel bitter fell fierce or mischievous mind So the Statute de Officio Coronatoris made 4 Ed. 1. where the Coroner is well directed his duty where any person is slain or suddenly dead how he should behave himself which is worth his reading It follows in the said Act in these words And if any be found Culpable of the Murther the Coroner shall immediately go to his house and Inventory his Goods Chattels Lands c. as in that Act is further directed I only mention it to shew that all that were found so slain the Coroner was to enquire of it as Murther or otherwise there could be no Inventorying of Goods valuing or seizing of Lands c. or committing the Offender to the Goal by the Coroner as plainly doth appear by that Act. So the Statute of the second of Ed. 6. where one is stricken in one County and dies in another it being doubtful before where the Trial should be gives power to the party concerned to bring an Appeal who had not power to Appeal in that case before of Murther only in the County where the party dies and in that case can bring no Appeal of Manslaughter as in the streightned sense some would take the word Manslaughter by this Statute is declared That where any Murther or Felony which word Felony here cannot comprehend Manslaughter shall be committed in one County and there be Accessaries to the same in another County upon an Indictment found in the County where such Accessaries are guilty the Certificate of the Conviction or attainder of the Principal shall be good to proceed against such Accessaries So that if the Principal be not Indicted of Murther I conceive it is doubtful upon this Statute to proceed to the Condemnation and Judgment of the Accessary in another County for by no congruity can the words or Felony comprehend Manslaughter A Pardon of all Felonies will hardly pardon Manslaughter or be allowed of So in the 4th of H. 7. cap. 13. there are these words in the Statute Whereas upon trust of the priviledge of the Church divers persons have been the more bold to commit Murther c. because they have been continually admitted to the benefit of the Clergy as oft as they offended It is enacted That every one being once admitted to have the benefit of his Clergy if not within Holy Orders shall not a second time be admitted for such an offence And that every person so Convicted for Murther to be marked with an M upon the brawn of the left Thumb and for another Felony with a T. Here it is plain that the word Murther comprehend all manner of Manslaughter all manner of Felonious killing every Murther being Manslaughter and every Manslaughter then as Murther they being Termini convertibiles equally signifying the Genus of Man-killing you may perceive by what hath been said before that Felony cannot comprehend Manslaughter or Murther for here the one is to be burnt with an M for Murther the Felon with a T for Theft both which marks upon the respective Convictions are as I conceive in those Cases by vertue of this Statute observed to this day although we now apply the Letter M to such as the Jury of Life and Death upon an Indictment of Murther from the Grand Jury shall Convict of Manslaughter that is upon the point shall find this Special matter that is to say that there was no Malice expresse or implied in him that killed the other but in a sudden heat of blood occasioned by an actual not verbal provocation in him that was killed This contradistinction betwixt the two words Murther and Manslaughter as I conceive came into our Laws only since the Statute of the 23 H. 8. c. 1. that takes away Clergy that is will not accept of them to be Clerks that kill another maliciously I find not this distinction before either in the Levitical Laws the Laws of God or the Laws of England No Sanctuary or place of Refuge as is said before by the Law of God being allowed for such a distinction but both should have been pluck't from the Horns of the Altar and by our Law in both cases notwithstanding this Novel distinction they were equally admitted to Clergies I mean by the Common Law The said Statute of the 4 H. 7. c. 13. being the first Statute that I find that appoints burning in the Hand for Murther and Felony and takes away Clergy for the Second offence of the same kind where Clergy hath been allowed before and it is observable that in this Statute it is called Murther with or without the words Ex malitia praecogitata not having respect to our Modern distinction which holds only as is said in the enquiry of the Jury of Life and Death who have the whole matter of Fact before them with all the circumstances thereof as it ariseth from both sides which the Grand Jurors neither have nor ought to have Then comes the Statute of the 23 H. 8. formerly mentioned being the first Statute that takes away Clergy for the first offence of Murther called in this Statute Wilful Murther of Malice prepensed this Statute being made to rectifie the great abuse in Ordinaries in suffering notorious Thieves and Murtherers to make purgation and provides That no person which hereafter shall be found guilty after the Laws of this Land of any petit Treason or for any Wilful Murther of Malice prepensed
Robbing of Churches Robbing of Persons in their houses or upon the High-way wilful burning of Houses or Barns with Corn or Accessaries before the same shall be from henceforth admitted to the benefit of their Clergy but suffer death as if they had been no Clerks it seems all that were that is as many as the Ordinary then esteemed so Clerks although they were guilty of Murther petty Treason and Felony suffered not death so great favour and immunity had they in those times for such bloody and crying sins so prevalent were the Clergy and those within Holy Orders in those daies that this very Act of Parliament that takes away Clergy from others that commit Murther Burglary and Robbery and other Offences before-named excepts all within Holy Orders from the same pains and dangers other persons must suffer for the same Offences which freedom and Indulgence continued to them in Holy Orders as they call it until the 28 H. 8. c. 1. which provides That they within Holy Orders as to such and other Offences shall be under the same pains and dangers that others be Now this Statute makes none of the former offences Felony or Murther that was not so before the making of this Statute but only takes from them that commit any of these offences the benefit of their Clergy certainly there wanted not those that committed wilful Murther of Malice prepensed as we now distinguish it before the making of this Statute as those that committed Sacriledge robbed persons in their Houses and upon the High-way wilfully fired Houses and Barns with Corn and were Abettors to the said Offences so it is very plain that this Statute makes no alteration as to the drawing and penning of Indictments of Murther Sacriledge Robbery Burglary c. but only takes away Clergy from every person who after the making of that Statute should be found guilty as the words of the Act are after the Laws of this Land for any of the aforesaid Offences So that according as the Indictment of Murther was by the Laws of this Land before the making of this Act so must it be after the making of this Act wilful Murther in the Statute 32 H. 8. c. 12. and this Statute of the 23. of the same King comprehends as well that which we call Manslaughter and every killing where the will of man is freely engaged as it doth wilful Murther of Malice prepensed compare them together in the one you will find Clergy taken away for wilful Murther of malice prepensed and Sanctuary from wilful Murther and generally such Offences as were prohibited Sanctuary by former Statutes are now prohibited Clergy by later Statutes The words Ex malitia praecogitata murdravit which now make all this contest before the making of this Statute in any case of Murther neither aggravated nor extenuated the Offence made it neither more nor less penal But since the making of this Act those words are made necessary in all Indictments and Convictions of Murther and principally and only in cases of wilful Murther to be considered and weighed by the Court and Jury of Life and Death upon hearing and debating the matter with all its circumstances as hath been said before on both sides those words being matter of Law mixt with matter of Fact and are not to be expunged by a Grand Jury because they cannot afterwards be supplyed nor implyed by the Court and Jury of Life and Death after the Arraignment of the Prisoner should there appear upon Tryal never so great cause yet Felonicè and some other words though material may be supplyed in a Special Verdict If upon an Indictment of Murther quod Felonicè percussit c. the Jury find percussit tantum yet the Verdict is good for the Judges of the Court are to resolve upon the special matter whether it was Felonicè c. or not Coke lib. 9. 69. And if the Court adjudge it Murther then the Jurors in the conclusion of their Verdict find him guilty of the Murther contained in the Indictment and to shew the power of a Jury of Life and Death who indeed should have the fullest and highest Charge can be laid against the prisoner for the Offence he is to be tryed If A. be Appealed or Indicted of Murther viz. that he of malice prepensed kill'd B. A pleads that he is not guilty modo forma yet the Jury may find A guilty of Manslaughter without malice prepensed because the killing of A. is the matter and malice prepensed is but a circumstance Plow Com. 101. And generally where modo forma are not of the substance of the Issue but words of form there it sufficeth although the Verdict doth not find the precise Issue 22 H. 8. c. 19. The first Statute that I find these words mentioned in of malice prepensed is the 22 H. 8. c. 14. where it is said If any person for any petty Treason Murther or Felony have obtained the King's Pardon or is otherwise discharged out of Sanctuary and afterwards commit another petty Treason Felony or Manslaughter by Chance-medly and not Murther of malice prepensed and afterwards take Sanctuary again for any such petty Treason Felony or Manslaughter by Chance-medly the same person shall enjoy a second priviledge of Sanctuary So that he that committed Murther of malice prepensed could not enjoy the benefit of Sanctuary a second time Then comes the Statute of the 25 H. 8. c. 3. and remedies divers defects that were in the said Statute of the 23 H. 8. Forasmuch as the said Act extended only to such persons as were found guilty after the due course of the Laws of this Land divers and great Robbers Murtherers Burglars and Felons did commit those Offences perceiving and clearly understanding by the words of the said Statute that they should not lose the benefit of Clergy unless they be found guilty after the due course of the Law upon their Arraignment of and upon the said Murthers and Felonies so by them done and committed by reason whereof divers of the said persons upon their Arraignment of the said Offences and Felonies upon their Indictments against them would stand mute and sometimes challenge peremptorily over the number of Twenty or else would not answer directly to the same Indictments whereupon they were Arraigned according to Law It was therefore provided by this Statute That every person that hereafter should he Indicted of petty Treason wilful burning of Houses Murther Robbery or Burglary or other Felony according to the tenour or meaning of the said Statute of the 23 H. 8. and thereupon Arraigned and do stand mute of malice or froward mind or challenge peremptorily above the number of Twenty or else will not or do not answer directly to the same Indictment and Felony whereupon he is so Arraigned shall lose the benefit of Clergy in like manner and form as if he had directly pleaded to the same petty Treason Murther Robbery or other
a Graec. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 qui progredi possit praegredi debet he that will go on in vertue certainly ought principally to be chosen to attend the Courts of Justice It is called Justitia quasi juris statio vel status quod per Justitiam jus stat i. exercetur It is called Justice because it is the Standard of Right misera servitus ubi Jus vagum Justice being one of the Cardinal vertues ought to be attended by none but the virtuoso the most vertuous pious and ingenuous persons probi signifying not only faithful but skilful none can be presumed to be faithful in keeping an Oath that wants skill to know how to perform his duty What expectation can there be of a good Verdict from a bad or ignorant man Can he that is not capable to understand a Cause ever make a right Judgment of it Will a Liar present a truth a Thief convict his fellow thief a Man of blood a Murtherer or Who can expect Justice from him who neither to his God nor to himself is just or true He that believes Judges are quasi Dei Gods as the Scripture calls them or that God sits amongst and is present with Judges in Judgment as in the Scripture sense it is truth and ought to be believed cannot but apprehend how unreasonable it is to bring such a Jury before such a presence to act in a concernment of so high a nature as the life of a Man whose verdict ought to be veredictum a true saying quoddam Evangelium as the Gospel they swear upon dictum veritatis the saying of Truth it self especially as it is the verdict of the Jury of life and death who have the advantage of hearing not only the Accuser and his Witnesses but also the party accused and his Witnesses face to face They are called although a Petty Jury yet a Jury of life and death which the Grand Jury are not although they enquire of the same offence from the great power in their hands to acquit or condemn the life of a man according to their evidence Upon whose verdict the Judge according to Law grounds the Judgment of life or death of acquittal or condemnation and as a Jury may give a just verdict as to themselves upon a false Testimony given to them so may the Judge as to himself give a just Judgment upon a false verdict given by the Jury For as the Jurors are excusable that give their verdict secundum allegata probata per sacrum Testimonium by what is alledged and proved to them by the Oaths of Witnesses or confession of the party even so that Judge is excusable in foro Conscientiae that gives Judgment upon a verdict though false for he doth not therein Jus dare but Jus dicere secundum veredict Jur. upon the verdict of the Perit Jury and presentment of a Grand Jury and this is fully verified in two remarkable Cases noted in the Margent a sufficient caution to all Judges not to try any for Murther where they have not an infallible evidence of the death of the party slain And as every Juror ought to be probus homo an honest and a skilful man so ought every one to be legalis homo a person so qualified that the Law allows of for a man may be an honest prudent and just man and yet in the eye of the Law not a lawful Jury-man for in one sense he is not legalis homo that is not ligeus subditus Dom. Regis Angliae for the Law provides that the Kings Liege people shall be tried per pares by their equals their fellow Subjects In a proper sense he is said in Law not to be legalis homo that is homo utlagatus an outlawed person one that is extra legem positus who is no better than one that is extraneus an alien a stranger one not only put out of the protection of the Law but such a one as the Law will have nothing to do with as he so stands in Courts of Justice to serve as a Juror nay such a person being a Juror will make the verdict void and it is a good exception in arrest of Judgment that any of the Jurors were outlawed But in a larger sense he is not legalis homo such a legal and indifferent person as the Law requires who is either in such a degree of blood to the prisoner as the Law presumes him partial or in such an evil reputation as the Law presumes him unjust for as it is not fit for a Father to be of a Jury to try his Son or the Son the Father Brothers Uncles or near Relations to try one another so it is not fit that he that is particeps criminis or indeed criminalis homo a man that stands judicially accused indicted convicted or attainted for Felony to try another for Felony or indeed to be a grand Juror to present it the Law provides that each Juror ought to be a person rectus in Curia that stands right in Court above and against all natural rational and legal exceptions Qui accusat integrae famae sit non criminosus for certainly to clear the matter of fact as a Juror of life and death and wisely to discern the Cause in question upon a doubtful and perplext Evidence many times requires as great ability in the Jurors of life and death as in the Judge to examine the cause and to give Judgment upon the Verdict there being much more of Black-art used to darken and obscure the truth of the fact in cases of Bloud amongst the Jurors especially if either a great Person or rich be concerned therein than possibly can be to prevent or prevaricate a right Judgment in the Judge or by any dust of gold power or favour to put out his eyes or falsifie his clear sight who sits every way above such a temptation The Jurors of England especially in the Circuits with their unequal yoke-fellows the Tales-men are for the most part the very scandal of the Laws practical of England who seldom serve but to serve a turn to obey a Superiour pleasure a Friend or to help away in a hurry a quick dispatch of practice This fault is not in the Laws of England but the male execution of them The Statute of the 27 Eliz. c. 6. provides that each Juror should have at least four pounds per annum in Lands Tenements or Rents and this must be their sufficiency where the debt or damages or both together amount to forty marks The general course of the world being to esteem men according to their Estates Quantum quisque sua nummorum servat in arca tantum habet fidei Jurors that have Estates to lose will be afraid to commit perjury The best things abused alwaies prove the worst the sweetest Wine makes the sharpest Vinegar not that the fault is in the Wine but in the use and
Record in Chancery to the King himself in Cases of Blood By this it may appear to all that are rational and unprejudiced that have not formerly asserted the contrary Opinion and therefore like the Opiniators of this Age will for no other reason maintain it That Grand Jurors are not lest so free herein to find what they please or as they would have it strictly according to their Evidence as the Gentlemen of these latter times have taken upon them to do and even to stand upon it against the Learned Judges themselves and their Directions and Advice Besides how greatly do they injure the party accused for if he be Guilty of no higher an Offence than Manslaughter per Infortunium or se Defendendo and the Grand Jury will not find it Murder whereby he may put himself as the Statute of Gloucester directs de bono malo super patriam he can never by a pardon of course receive a total and final discharge from the said Offence For if he should be Indicted at any time again of Murder for the death of that Party as he may be at any time after during his life notwithstanding such pardon where it was not found Murder or Manslaughter at the first he can make no Plea to such Indictment in discharge of it he cannot plead auter foits Acquit or Convict or Attaint of the same Offence because he never put himself de bono malo super patriam upon his Country his life was never in hazard for it whereas if he have been once presented by the Grand Jury for Murder and thereupon Arraigned received a full Tryal and according to the Statute of Gloucester had been acquitted of the Murder and the special matter of per Infortunium or se Defendendo found in their Verdict which by the Law ought to be so found by the Jury of Life and Death under their Hands that the Judge upon hearing the whole matter may be satisfied it is found according to Evidence given in Court and thereupon adjudge what that Offence is in Law If in this case the party that hath received such a full Tryal and hath sued out a Certiorari out of Chancery and upon the Return of that hath had the Special matter the whole Record of proceedings certified by the Judge before whom the Record remains and thereupon hath procured his pardon of course out of Chancery such person can never be called in question again for the same Offence but he may plead that Record and Verdict of Acquittal from the Murder or Manslaughter notwithstanding it might happen to be proved afterwards either Murder or Manslaughter it shall discharge and acquit him for ever And if the Grand Jury as in this case ought to find every per Infortunium Murder notwithstanding by the Evidence it appear no more to them à multo fortiori they ought to find every Offence that appears to them upon Evidence to be but Manslaughter Murder For the Bill of Indictment as it comes from their hands is but the Kings Declaration of the matter of Fact to which the Prisoner may plead Not Guilty and joyn Issue with the King and have it tryed Whether he be Guilty or not modo forma as it is laid in the Indictment or may confess and justifie as he shall find cause For this Indictment or Presentment of the Grand Jury in the behalf of the King against the Prisoner sets forth an Act done Vi Armis against the Kings Peace his Crown and Dignity all which are violated dishonoured weakned in the loss of a Subject in the shedding of Innocent Blood by which his Land is defiled and his Laws violated and this according to the Laws of God and Man prima facie may be Murder and therefore ought as well as all Declarations at Law to be set forth in the fullest circumstances of aggravation a Fact of Blood which far exceeds all other Facts will bear especially in laying the ground work and foundation of the Charge because it cannot heighten or increase but may lessen and decrease like the Moon in the full to its lowest wane even to nothing upon a full Examination and Debate of the whole matter by hearing of Parties and Witnesses on both sides and receiving in the face and audience of the Court such a scrutiny and narrow search as blood requires into all circumstances and aggravations of the Offence that are laid in the Indictment by the Learned Judge who is of Counsel as well for the Prisoner as the King and must not let the Prisoner suffer for want of Counsel in Law that a Grand Jury cannot possibly do they hearing but only Witnesses on one side and not the Prisoner besides their want of Judgment and Knowledge in the Law in all Cases of Blood whereas if the Grand Jury shall take upon them which they ought not to do to put out of the Indictment and Declaration of the King the words Ex malitia praecogitata the only words that make it Murder the Court can never Judicially examine the malice which is commonly a secret latent thing carried on with a great privacy and cunning and appears not in all cases of Murder express and no Evidence can prove further to a Grand Jury whereas the Law in many cases implies a malice to make it Murder although the Parties never saw or heard of each other before which lies not in proof of Witnesses but ariseth as a point of Law upon the circumstances of the Fact which not a Grand Jury but the Court is Judge of being matter of Law which Judgment in Law is wholly frustrated and taken from the Court when the Grand Jurors put out these words Ex malitia praecogitata which only make it Murder out of the Indictment And by such favour indulgence or wilfulness in Grand Jurors many times the greatest Murder escapes by a per Infortunium se Defendendo or at least by a Manslaughter For if the Grand Jurors shall only find it Manslaughter the Prisoner upon his Arraignment presently if he can but read get any one to help him or corrupt the Ordinary no great difficulty to do confesses the Indictment and prevents all further tryal upon that Offence and so neither the Judge nor Court can ever come to understand although there be twenty Witnesses against the Prisoner what Evidence the Grand Jury had to find it no higher than Manslaughter nor shall ever come judicially to examine the nature quality or malice if any be circumstances and truth of the Fact although in it self the foulest Murder that can be as my own above Forty years experience attending the Crown Court in one Circuit under many Learned Judges hath too often experienced together with the common practice of labouring Grand Jurors to such a Presentment and contriving with the Prisoner to confess the Manslaughter lest the truth and foulness of the Murder should too clearly manifest it self as truth ever will upon a Judicial faithful
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